author: HALL, O. J.

text:
    STEVENS v. HUNT.
    No. 3619.
    Court of Civil Appeals of Texas. Amarillo.
    May 27, 1931.
    Kinney & Ritchey, of Miami, for appellant.
    Sanders & Scott, of Amarillo, for appellee.
   HALL, O. J.

Stevens, the appellant, a resident of Iowa, sued the appellee Hunt to recover upon five promissory notes for the sum of $55 each. He alleged that he purchased the notes before maturity in due course .of trade from the payee thereof, the Brenard Manufacturing Company, and was a holder in due course.

The appellee answered, alleging that the notes were given in payment for a phonoradio and agency in Wheeler county, where he lived. He alleged fraudulent representations with reference to the machine, which he says was worthless, and failure of consideration.

' In response to three special issues, the jury found in appellee’s favor upon the issue of fraud, failure of consideration, and further found that Stevens was not a holder in due course. From a judgment against the appellant, he appeals.

The evidence supports the first two findings, but is not sufficient to sustain the jury’s finding upon, the issue of due course holder.

The testimony of Stevens and of James L. Records, one member of the partnership which is the payee in the notes, is clear to the effect that Stevens paid value for the notes a few days after their execution, without any notice of defect, if any, in the title. We have carefully reviewed the testimony and are satisfied that the testimony of Hunt shows no circumstance worthy of consideration which would impeach the good faith of Stevens, even if the issue of good faith had been submitted to the jury. The fact that Stevens was an attorney with an unusual financial standing and ability and the further fact that he purchased many negotiable notes and employed another attorney to file suit for collection of such notes, which his bank was unable to collect, are not inconsistent with his contention, that he is a due course holder within the meaning of the Negotiable Instruments Law (Rev. St. 1925, art. 5935, § 52). The further fact that Hunt notified him that there was fraud in •the procurement of the notes after he had acquired them, does not affect his good faith. His failure to sue upon them promptly upon dishonor has no probative force as the delay may have been due to the negligence of the bank or his attorney. There is no circumstance which could be considered as of any value in contradicting the testimony of both Stevens and Records to the- effect that he paid an adequate consideration for the notes without notice of the defect. While the jury is the judge of the credibility of the witnesses and the weight to be given their testimony, they cannot arbitrarily reject clear and positive evidence, unimpeached by' any circumstance, and find contrary to such evidence. Grand Fraternity v. Melton, 102 Tex. 399, 117 S.W. 788; Starkey v. H. O. Wooten Gro. Co. (Tex. Civ. App.) 143 S.W. 692; Dallas Hotel Co. v. Newberg (Tex. Civ. App.) 246 S.W. 754.

Upon the insufficiency of the testimony to impeach the title of Stevens, we cite Currie v. Holt (Tex. Civ. App.) 4 S.W.(2d) 309; Try-on & Carter v. Collins (Tex. Civ. App.) 261 S.W. 1055; Jackes-Evans Mfg. Co. v. Goss (Tex. Civ. App.) 254 S.W. 320; Harty v. Keokuk Savings Bank (Tex. Civ. App.) 201 S.W. 419; Guaranty State Bank v. Bland (Tex. Civ. App.) 189 S.W. 546; Daniel v. Spaeth (Tex. Civ. App.) 168 S.W. 509; Security Finance Co. v. Schoenig (Tex. Civ. App.) 292 S.W.' 556; Security Finance Oo. y. Floyd (Tex. Civ. App.) 294 S.W. 1113; Still v. Stevens (Tex. Civ. App.) 13 S.W.(2d) 956.

In view of another trial it is proper for us to pass upon one other proposition only in which appellant contends that because appellee introduced a part of a letter which Stevens had written to Hunt, the court erred in not admitting in evidence the entire letter. This was not error. While the general rule is that when one party introduces part of a letter or other writing, the other party is entitled to have the whole writing introduced, the rule is not without exceptions. The letter in question contained self-serving declarations and for that reason the court did not err in excluding it. Robertson & Co. v. Russell, 51 Tex. Civ. App. 257, 111 S.W. 205, 209; Heard v. Clegg (Tex. Giv. App.) 144 S.W. 1145.

Because the testimony is insufficient to sustain the third finding of the jury, the judgment is reversed and the cause remanded.


source: Caselaw Access Project

author: PELPHREY, C. J.

license: Public Domain

text:
    J. M. RADFORD GROCERY CO. v. FERGUSON.
    No. 2535.
    Court of Civil Appeals of Texas. El Paso.
    May 7, 1931.
    Rehearing Denied June 4, 1931.
    W. E. Lessing, of Abilene, for appellant.
    L. A. Dale and Rutledge" Isaacks, both of Pecos, for appellee.
   PELPHREY, C. J.

This is an appeal from the judgment of the district court of Reeves county, overruling appellant’s plea of privilege to be sued ih Taylor county, Tex. The petition shows that appellee, M. M. Ferguson, was appointed trustee of the bankrupt estates of Bertha Palmer Hayes,’ and Ulis Franklin King, individually and as copartners, doing business under the firm name of Palmer & King; that the petition for bankruptcy was filed in the United States District Court for the Western District of Texas, Pecos Division, on the 15th day of August, 1928; that on or about said date the petitioners were adjudged bankrupts and - appellee was appointed trustee on or about September 1, 1928; that at the time of the filing of the petitions and at all times during the four months preceding the filing thereof, the bankrupts were each insolvent; that on or about the 5th day of June, 1928, appellant filed suit in the district court, of Taylor county, Tex., on a pre-existing .debt against the bankrupts for approximately $1,-550, caused a writ of attachment to issue and be levied on certain property of the bankrupts of the alleged value of $1,500; that thereafter, on or about July 30, 1928, the bankrupts suffered judgment to be taken against them in said suit, suffered the attachment lien to be foreclosed by appellants; that the property was thereafter sold and the money arising therefrom paid over to appellant, who appropriated the same, thereby enabling it to acquire an advantage over other creditors of the bankrupts and gave them a greater percentage of its claim than other creditors of the same class and' thereby diminished the estate of the bankrupts in the sum of $1,500; that appellant knew at the time of filing suit and at all times thereafter that the bankrupts were insolvent, and that it knew or should have known that it was receiving a preference and that a preference would be effected by its suit, attachment, and judgment; and that appellant has refused to pay over to ap-pellee, as trustee of said bankrupts, the value of the property so sold. -

In due time appellant filed its plea of privilege to be sued in Taylor county, which plea was controverted by appellee. Thereafter and before hearing, appellant filed its amended special plea of privilege which in addition to the allegations that it was not a resident of Reeves county, especially alleged as follows: “This defendant would specially show that the venue of this cause is not and cannot be in the District Court of' Reeves County, Texas, where the same is pending, because the plaintiff’s petition shows -on its face to be an action to stay and set aside the proceedings of the District Court of Taylor County, Texas, had in a cause filed therein on the 5th day of June, 1928, wherein this defendant was plaintiff, the assignors in bankruptcy of the plaintiff herein were defendants, said petition in this cause further showing that said suit in the District Court of Taylor County, Texas, proceeded to final judgment on the 30th day of July, 1928. That by virtue of Article 1995, Section 17, Revised Statutes 1925, such suit must be brought in the Court in which such proceedings are pending and such judgment was rendered, which court this defendant alleges,- and which is shown by the pleadings of the plaintiff herein, is the District Court of the 42nd Judicial District in and for Taylor County, Texas.”

Appellee filed his controverting plea of appellant’s amended plea of privilege, upon hearing, the plea of privilege was overruled, and this.appeal was perfected.

Opinion.

Appellant’s contention upon which it seeks a reversal is that the action by appellee is essentially to set aside the judgment of the district court of Taylor county and must therefore be brought in that court.

Appellee, on the other hand, contends that the suit brought by him is to recover from appellant the amount held by it under a voidable preference, and that it being a Texas corporation, suit could be brought against it in any county where it had a place of business and an agent.

This suit was brought under the following provisions of the United States Bankruptcy Act: Section 96, title 11, USCA, reads:

“(a) A person shall be deemed to have given a preference if, being insolvent, he has, within four months before the filing of the petition, or after the-filing-of the petition and before the adjudication, procured or suffered a judgment to be entered against himself in favor of any person, or made a transfer of any of his property, and the effect of the enforcement of such judgment or transfer will be to enable any one of his creditors to obtain a greater percentage of his debt than any other of such creditors of the same class. Where the preference consists in a transfer, such period of four months shall not expire until four months after the date of the recording or registering of the transfer, if by law such recording or registering is required.
“(b) If a bankrupt shall have procured or suffered a judgment to be entered against him in favor of any person or have- made a transfer of any of his property, and if, at the time of the transfer, or of the entry of the judgment, or of the recording' or registering of the transfer if by law recording or registering thereof is required, and being within four months before the filing of the petition in bankruptcy or after the filing thereof and before the adjudication, the bankrupt be insolvent and the judgment or transfer then operate as a preference, and the person receiving it or to be benefited thereby, or his agent acting therein, shall then have reasonable cause to believe that the enforcement of such judgment or transfer would effect a preference, it shall be voidable by the trustee and he may recover- the property or its value from such person. And for the purpose of such recovery any court of bankruptcy, as hereinbefore defined, and any State court which would have had jurisdiction if bankruptcy had not intervened, shall have concurrent jurisdiction.”

It thus appears that appellee here is merely seeking to recover from appellant the value of property which it had, within four months before the filing of the petitions1 in bankruptcy, come into possession of by virtue of a judgment and sale in. the district court of Taylor county.

We cannot agree with appellant. that the action is either to stay the proceedings in that court or to set aside its judgment.

The. action here brought seems to be the remedy provided by the federal statutes under which appellee was named, and we can see no reason why the same rules would not govern the venue as in other personal actions.

It has been agreed by the parties that appellant is a Texas corporation, with its domicile and principal, place of business in the city of -Abilene, Taylor county, Tex., and that it maintains a branch and an agent in charge at Pecos, Reeves county, Tex., where this suit is pending.

Under subdivision 23 of article 1995, Revised Statutes, the venue would properly lie in Reeves county, and we are of the opinion that this action is properly brought in that county.

The judgment of the trial court is accordingly affirmed.


author: WALKER, J.

text:
    STANLEY et al. v. MARTIN WAGON CO. et al.
    No. 2003.
    Court of Civil Appeals of Texas. Beaumont.
    May 1, 1931.
    Rehearing Denied June 3, 1931.
    Adams & Hamilton, of Jasper, and Tom E. Coleman, of Lufkin, for appellants.
    E. Y. Boynton, of Waco, and Mantooth & Denman, of Lufkin, for appellees.
   WALKER, J.

Appellants sued appellees in trespass to try title for a certain tract of land described by them by metes and bounds, alleging that it was on either the Dennis Lyons or the R. H. Dowman survey in Jasper county. They also alleged that defendants, through their agents, had forcibly ejected them from the land in controversy, burned their improvements, and caused damage to certain other personal property. They also sued for exemplary damages. The theory of their suit was that, if they did not own the land, then they were tenants of appellees with the right to remove their improvements which Appel-lees, having ejected appellants from the land in controversy, had burned. Of defendants’ answer it is sufficient to say, in view of the disposition we are making of the case, that they pleaded not guilty. Upon the trial the following issues were made by the testimony: . First, ownership of the land; second, ownership of the improvements separate from the ownership of the land; third, the value of the improvements; fourth, exemplary damages. Appellants filed no exceptions to the court’s charge. Answering special issues, the jury found that the land in controversy belonged to appellees. We give in full the following questions with the jury’s answers thereto:

“Question No. 13. Who was the owner or owners of the Stanley building at the time it was burned on December 21st 1926? You will answer this question by naming the owner or owners as you may find the facts to be.” Answer: “Wm. Cameron Lmbr. Co.”
“Question No. 14. What was the reasonable cash market value of the Stanley building at the time it was burned on December 21st 1926? You will answer this question by stating the value in dollars in cents.” Answer: “$500.00.”
“Question No. 15. Are the defendants, William Cameron & Co. Inc., and Martin Wagon Company or either of them, liable in exemplary damages for the burning of the Stanley building on or about December 21st 1926? You will answer this question yes or no as you may find the fact to be.” Answer: “Yes”.
“Question No. 16. Whom do you find liable in exemplary damages for the burning of the Stanley building on said date?. You will answer this question by naming the company or companies, as you may find the fact to be.” Answer: “Wm. .Cameron Lbr. Co. Inc.”
“Question No. 17. What amount of exemplary damages, if any, should be assessed for the burning of the Stanley building? You will answer this question by stating the amount.” Answer: “$2,500.”

On the verdict appellants moved that judgment be rendered for appellees for the land on condition that they be awarded judgment for the value of the improvements in the sum of $500 and for the $2,500 exemplary damages found in their favor in answer to question 17. Appellees moved for a general judgment in their behalf. Upon consideration of these motions the trial court in all respects overruled appellants’ motion and granted ap-pellees’ motion. Thereupon appellants filed' motion for new trial, asking the court to set aside the verdict of the jury because of the conflict between the answer to question 13, vesting the title of the Stanley building in appellees, and the answers to the other questions, awarding appellants $2,500 exemplary damages. This motion was overruled, to which appellants duly excepted and prosecuted their appeal to this court.

Opinion.

Appellants present .as fundamental error the failure of the court to submit certain issues which they say were raised both by their pleadings and by their evidence. Appellants did not except to the court’s charge for the failure to submit these issues, nor did they request their submission by affirmative charges. These assignments do not constitute error. By not requesting the submission of these issues or excepting to the failure of the court to submit them, they were waived. Ormsby v. Ratcliffe, 117 Tex. 242, 1 S.W.(2d) 1084. All objections to the ver dict in favor of appellees on the issue of title were thus presented as fundamental error, and must therefore be overruled. It follows that, in so far as appellees were awarded title to the land in controversy, the judgment of the lower court should be affirmed.

Notwithstanding the answer to question 13, appellants contend that they should have judgment for the value of their improvements, described in question 13 as “the Stanley building.” The jury fixed the value of this building, by its answer to question 14, at $500. They also insist that the court erred in ref using, to render judgment in their favor for the $2,500 exemplary damages, found in answer to question 17. In support of this contention, they say that the undisputed proof was that they owned the building under their lease contract with appellants, which gave them the right to remove their improvements; and, as the answer to this question was without support, that it should be ignored. This contention cannot be sustained. The issue wont to the jury, and, the court having received the verdict,' the answer was a bar to appellants’ right to have judgment for the value of the building. They could have relief against the verdict only by a new trial, for which they in fact prayed, but their motion was overruled.

With this verdict against them they cannot have judgment for the exemplary damages found in their favor, because exemplary damages have no basis of support except where actual damages have been'found in favor of the claimant. So it follows that appellants cannot have judgment for the $500, the value of the Stanley building, because of the answer to question 13, and cannot have judgment for their exemplary damages because no actual damages were found in their favor.

However, alternatively, appellants pray that the judgment of the lower court be reversed because of a conflict between the answers to the questions copied above. This, proposition must be sustained. There is an irreconcilable conflict between the answer to question 13, vesting title to the building in appellees, and the answer to question 17, awarding appellants exemplary damages in the sum of $2,500. The answer to question 17, awarding appellants exemplary damages, necessarily rested upon a conclusion by the jury that the Stanley building, notwithstanding their answer to question 13, beloniged to appellants. This is so because appellants’ claim for exemplary damages rested upon their plea that they owned the Stanley building and that appellees had willfully and maliciously burned it.

It follows that the judgment of the lower court, in so far as appellees were awarded title to the land in controversy, should be affirmed, and that, fn so far as appellants were denied judgment for the value of the Stanley building and for the exemplary damages, it should be reversed, and the cause remanded for a new trial, wtih instructions to try this issue as between appellants and appellee Wm. Cameron & Co.

Affirmed in part; reversed and remanded in part, with instructions.


author: WALTHALL, J. PELPHREY, O. J.

text:
    EL PASO ELECTRIC CO. v. HEDRICK.

    No. 2534.
    Court of Civil Appeals of Texas. El Paso.
    May 14, 1931.
    Rehearing Denied June 4, 1931.

      Baker, Botts, Andrews & Wharton, of Houston, and Hunter, Brown & Brooke, of El Paso, for appellant.
    Jones, Goldstein, I-Iardie & Grambling, of El Paso, for appellee.

      Writ of error granted.

   WALTHALL, J.

John R. Hedrick, Jr., plaintiff, brought this suit against El Paso Electric Company, a corporation, defendant, to recover damages for personal injuries alleged to have been suffered by him, in a collision between a motorcycle on which he was riding and a street car operated by the El Paso Electric Company.

Plaintiff alleged "substantially the following: That defendant operates its Et. Bliss street car line over Hueco and Copia streets, in the city of El Paso; that Hueco street runs in an easterly and westerly direction and intersects Copia street, which runs in a northerly and southerly direction; that, when said Et. Bliss ear line, going in an easterly direction, reaches Copia street, it makes a left-hand turn going into Copia street, and in a northerly direction; that defendant also operates its Government Hill street car line on Hueco street, which line continues east on Hueco street after reaching Copia street.

Plaintiff alleges that on the night of October 17, 1929, he was riding his motorcycle along the north side of Hueco street in a westerly direction, and near the intersection of Hueco and Copia streets; that one of defendant’s Ft. Bliss street cars was stopped by the motorman operating said car at the west side of the intersection of Hueco and Copia streets, in order that the motorman might throw the switch and turn said ear north on Copia street; that at said time plaintiff was approaching the intersection of said streets on said motorcycle at a rate of speed between 15 and 18 miles per hour; that, when he was only a short distance from said intersection, the motorman operating- said Et. Bliss street car suddenly started up said car without warning, causing same to turn in a northerly direction into Copia street; that plaintiff, who was then only a short distance from said intersection, attempted to pass to the left or rear of said street car, and would have succeeded in doing so except for the fact that, almost immediately after said street ear had started up, some one on said street car rang the bell and the motorman operating the street car stopped the street ear to allow a passenger to get off the car, so that said street car, by stopping, blocked said street intersection, and made it impossible for plaintiff to get either to the right or to the left of said street car, and, as a result of starting and stopping said street car, as stated, plaintiff’s motorcycle collided with the side of said street ear, and plaintiff was thrown to the ground, breaking his left leg below the hip and breaking his right leg between the knee and ankle, dislocating his right ankle, and causing bruises over his body. Plaintiff alleges that by reason of his said injuries he was compelled to incur certain expenses, which he itemizes, and which were reasonable, and for which he sues.

Plaintiff assigns as negligent acts on the part of defendant, as proximately causing said collision and plaintiff’s said injuries, substantially the following: (a and b) On the part of the motorman in starting the street •car, around the curve on Oopia street, at the time and place he did while plaintiff’s motorcycle was only a short distance from said street intersection, and in stopping said street car so that it practically blocked said street intersection just as plaintiff on said motorcycle was entering said street intersection; (c) in starting said street car at said time and place without sounding his gong or giving some warning that he (the motorman) intended to turn said street car to the left in a northerly direction across said street intersection; (d) in failing to keep a proper lookout for motorcycles or vehicles traveling along Hueco street in a- westerly direction. Plaintiff -alleges that by reason of his injuries he sustained damages in the total sum of $26,477.15, for which he sues.

Defendant answered by general denial; that the accident complained of by plaintiff and the injuries complained of, if any, were either the result of an unavoidable accident or were brought about and proximately contributed to or caused by the plaintiff’s negligence and contributory negligence without fault on the part of defendant, in that plaintiff, at the time of and just prior to the collision, failed to keep a proper lookout for his own safety, and was operating his motorcycle at a rate of speed in violation of law, and was passing or attempting to pass other vehicles upon the streets, Contrary to the express' provisions of the statute.

The case was tried to a jury and submitted upon special issues.

Upon the' special issues submitted and found by the jury, judgment was rendered in plaintiff’s favor In the sum of $16,477.15, from which this appeal is prosecuted.

Opinion.

The court submitted question No. 14, as follows: “Do you find from the evidence that the collision in question was an unavoidable accident? In connection with this issue you are charged that an unavoidable accident is an unforeseen and unexpected incident, which occurs without want of ordinary care on the part of any of the parties involved therein, proximately contributing thereto.”

Defendant submits that the form of the charge in which the issue is submitted places an undue burden upon defendant.

To avoid the error in the form of the charge, plaintiff submits that, defendant having specially pleaded unavoidable accident as a defense in connection with ’its plea of general denial, it thereby assumed and took upon itself the burden of the issue, and refers us to Boswell v. Pannell, 107 Tex. 433, 180 S. W. 593, as sustaining his contention.

We have concluded that, where the suit is for damages for personal injuries, where the burden of the issue is primarily' with the plaintiff, it is a part of his ease to show that the accident was not unavoidable, though a negative fact, and, where the defense of unavoidable accident can be shown under the plea of general denial, the burden of the issue remains with the plaintiff, though specially pleaded as a defense by defendant, such special plea not being in the nature of confession and avoidance. However that may be, the issue of unavoidable accident arises only when there is evidence tending to show that the accident in controversy happened or was the result of some unknown or unforeseen cause, or in a manner which cannot be explained, and which circumstances rebut the charge of the alleged negligence, f.or which the defendant is sought to be held liable. Wichita Falls Traction Co. v. Craig (Tex. Civ. App.) 250 S. W. 733; Russell v. Bailey (Tex. Civ. App.) 290 S. W. 1108; 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; Texas & Pacif. Ry. Co. v. Edwards (Tex. Civ. App.) 21 S.W.(2d) 754; Dallas Ry. Co. v. Alexander (Tex. Civ. App.) 23 S.W.(2d) 512.

We have carefully reviewed the evidence, and have not found therein such fact or circumstance unknown or unexplained, which in our judgment brings the case with in the rule of unavoidable accident. Several witnesses present at the time of the accident testified in detail, explaining as to how the accident occurred, and the witnesses all seemed to know just how the accident did occur. The motorman and one or two of the witnesses testified that an automobile was traveling westerly on Hueco street, and that they did not, from where they were, see the motorcycle traveling in the rear of the automobile .until after the automobile turned to the left into Copia street when the motorcycle was disclosed going toward the street ear. We have concluded that the fact stated is not such unknown accident as to make available the plea of accident.

We think that, under the latter portion of article 2190, appellee may now, for the first time, by counter proposition, claim that the issue is without evidence to justify its submission. The jury found against the issue of unavoidable accident, though presented in an objectionable form.

In Texas & Pacific Ry. Co. v. Edwards, supra, this court held that error in submitting unavoidable accident, if that issue was not raised by the evidence, was harmless. To the same effect is Dallas Ry. & Terminal Co. v. Darden (Tex. Civ. App.) 23 S.W.(2d) 739.

Writs of error were granted in each of the cases, but not on the question now under consideration. We still think that error in submitting the issue of accident, where that issue is not raised by the evidence in the case, does not require a reversal of the judgment.

Plaintiff assigned as negligence on the part of defendant, in substance (a) in starting its street car at the time and place it did, for the reason that plaintiff’s motorcycle was only a short distance from said street intersection, the lights'on the motorcycle were on, and the motorman knew or could have known that in turning to the left up Copia street he would put plaintiff in jeopardy, endanger his safety, and make it impossible for plaintiff to pass across Oopia street; (b) negligence in stopping the street car so that it practically blocked said street intersection just as plaintiff on said motorcycle was entering said street intersection; (c) negligence in starting said street car at said time and place without sounding his gong or giving some warning that he intended to turn said street ear across said street intersection.

Plaintiff alleged other acts of negligence, but the above are all the negligent acts pertaining to the movements of the street ear.

The court submitted the above issue of negligence as follows: “Question No. Six: Do you find from a preponderance of the evidence that defendant’s motorman was guilty of negligence in attempting to proceed around the curve at and just prior to the time of the accident? Answer yes or no.”

The objections seasonably made to the submission of the above issue are, in effect, that it is too general, does not include or embrace any specific act or fact, does not confine the jury to a consideration of the facts assigned as negligence in the pleadings.

The point must be sustained. The charge does not submit to the consideration of the jury the concrete act or acts pleaded and assigned, as the negligent act in proceeding around the curve.

Certainly “attempting to proceed around the curve at and just prior to the time of the accident,” alone and disconnected with any other attending circumstance, or movement, or handling of the street car, does not submit the negligence charged, and we think, from the evidence introduced, did not alone and disconnected from other circumstances and movements of the street ear cause the collision. It is true that, in submitting the movement of the car at the curve as a negligent act, it would not be necessary to state the reason given by plaintiff why proceeding around the curve at that time would be negligence, but proceeding around the curve at a time when such movement of the street car would endanger plaintiff’s safety and make it impossible for plaintiff to pass across Copia street, as in subdivision (a) of. the negligence assigned, or in stopping the street car in Copia street while making the curve into that street, as in subdivision (b) of the negligence assigned, are the circumstances charged in connection with the movement of the street ear that, constitute the negligent acts causing the collision. The charge, we think, is subject to the objection made.

But we think the error is harmless in view of the findings made upon questions 1 and 2 as follows:

“Question No. One: Do you find from a preponderance of the evidence that defendant’s motorman just prior to the time the said motorcycle ridden >by plaintiff ran into the street car, failéd to use ordinary care tó keep a rea-' sonably careful lookout for approaching vehicles? Answer: Yes.
“Question No. Two: Do you find from a preponderance of the evidence that the failure on the part of defendant’s motorman, if he did so fail to use ordinary care in the matter submitted in the question just preceding, was a proximate cause of any of the injuries complained of in plaintiff’s petition? Answer: Yes.”

No point is made by appellant with respect to these two questions and findings thereon, and we think these findings are of themselves sufficient to support the judgment in plaintiff’s favor. West Texas Coaches v. Madi (Tex. Com. App.) 26 S.W.(2d) 199.

The defendant pleaded: “That the said plaintiff at the time of and just prior to the collision failed to keep a proper lookout for his own safety and was driving or operating within the corporate limits of'the City of El Paso upon a motorcycle at a fast, rapid, dangerous and immoderate rate of speed and at a rate of speed far in excess of 20 miles per hour in violation of law, and he was passing or attempting to pass other vehicles, persons and things upon the public street within the corporate limits of the City of El Paso at such a rate of speed as to endanger the life or limb of persons and the safety of property, contrary to the express provisions of the statute and his negligence in said particulars jointly and severally proximately caused or contributed to cause the collision and the consequent injuries, if any, suffered .by him.”

Upon this phase of the case the court submitted these questions as follows:

“Question No. eight: Do you find from a preponderance of the evidence that plaintiff at, or just prior to the collision in question herein, was driving a motorcycle in excess of twenty miles per hour?”
“Defendant’s special issue C: Do you find that the plaintiff as he approached the street car intersection, failed to keep such a lookout for street cars and vehicles as an ordinarily • careful and prudent person would have kept under the same or similar circumstances? ”
“Question No. twelve: Do you find from a preponderance of the evidence that at or just prior to the collision in question plaintiff was operating his motorcycle at a greater rate of speed than a person of ordinary prudence would have operated same under the same or similar circumstances? ”

Upon this phase defendant requested the submission of two additional questions as follows: ■ .

“No. A— Was the plaintiff at the time of and just prior to the collision with the street car, operating his motorcycle at such a rate of speed as to endanger the life or limb of any person or the safety of any property? Answer yes or no.
“If you have answered the foregoing question in the affirmative, then answer the following:
“No. B. Did the rate of speed at which the plaintiff was' operating his motorcycle at the-time of the accident proximately cause or contribute to cause his injuries? Answer yes or no.”

To the refusal of the last-quoted questions defendant assigns error.

Article 790 of the Penal Code, invoked by appellant in this connection, reads: “No person operating or driving a motor or other vehicle upon the public highways shall pass any motor or other vehicle, person or thing on any public highway of this State at such rate of speed as to endanger the life or limb of any person or the safety of any property. Any person violating any provision of this article shall be fined not less than five nor more than two hundred dollars.”

We think no error is Shown in refusing the requested special issues. The inhibition of the above statute has application to one driving a motorcycle upon a highway in passing another motor or other vehicle, and the requested charge makes no reference to any attempt or effort of plaintiff at the time to pass the street car or any motor or other vehicle. The evidence quoted by defendant under the proposition makes reference only to the speed at which plaintiff was driving his motorcycle at the time of the collision, but no statement of his effort at that time to pass any motor or other vehicle. Under the evidence quoted by defendant under the proposition, we think questions 8, 12, and defendant’s special issue O, above quoted, sufficiently presented the issues of contributory negligence pleaded by, defendant.

The case 'is affirmed.

PELPHREY, O. J.

(dissenting).

I cannot agree with my brethren in the holding that the question of unavoidable accident is not raised by the evidence. ,

In the recent case of El Paso Electric Company v. Francisco Portillo, 37 S.W.(2d) 219, we held that the issue of unavoidable accident was raised by the evidence, and the writer is unable to distinguish between the facts there and those present here.

The action of the Supreme Court in granting writs in the cases of Railway v. Garrison (Tex. Civ. App.) 30 S.W.(2d) 1108, 1109, and Railway v. Darden (Tex. Civ. App.) 23 S.W. (2d) 739, has left some doubt as to just when the'issue.is, in their opinion, raised by the evidence.

In the first case, which was one involving a collision between a street car and an automobile at an intersection, the jury found that both the motorman and the driver of the automobile were guilty of negligence. The Court of Civil Appeals, in discussing the question, Said: “Unavoidable accident, however, in the nature of things, precludes the presence of negligence as a proximate cause. And where the evidence conclusively shows negligence on the part of both parties to a collision, and that the cause of same is well known, as was true in this ease, no issue of unavoidable accident is raised, and it is not error to refuse to submit it to the jury.”

Judging by the notation made by the Supreme Court, it granted a writ on the ground that the Court of Civil Appeals was in error in holding that the evidence did not raise the issue. The evidence in the second case fully explained the manner in which the collision occurred, and the Supreme Court granted a writ in that case because the Court of Civil Appeals had held that a charge placing the burden of proof upon the defendant upon the issue of accident was harmless.

Albert Mayo, a witness for the defendant, testified that he was a passenger on the street ear and standing just behind the motorman at the time of the collision. He further testified as follows: “I did not see the motorcycle until the crash came, and he (referring to the motorman) did not see it either. There was a car coming west on Hueco that kept him from seeing it. It was right in front of the street car at the intersection there. The automobile turned there and went south on Copia. It turned before the motorcycle. I never did see the motorcycle until it broke out from some place. I saw the automobile coming, but I did not see the motorcycle, never did see it. The automobile was at about where people walk across the street when I saw it, it was about where the stop sign is. I saw it turn south on Copia. The car must have been ahead of the motorcycle because I never did see it. The first I knew of the motorcycle was when it hit. The motorman never saw the motorcycle.”

Walter Hudson, the motorman, testified: “When I just got started going around I saw an automobile coming down Hueco, going west, and he pulled up and turned south in Copia. I just fed on around, kept going, and when I got around, the front end about even with the north track why I heard a racket of - — well, I didn’t know what — and I glanced around and caught the headlight coming west to my right, and I stopped as quick as I could. When I first saw the motorcycle headlight it was five or six feet from me, and he just swings into the door, he hit the rear door in the front end and just slid on back by the side of the car to the read end. * * * After I heard this noise and saw this motorcycle there was not anything I could have done to stop my car any quicker. There was not a thing on earth I could have done to have gotten out of Ms way after I saw tMs motorcycle.”

John R. Hedrick, Jr., appellee, testified: “I got witMn about ten feet of tbe intersection of Hneco and Copia, and a Fort Bliss street car swung around tbe corner there, and I Seen it coming around, it was going to swing to tbe left and I swung to my left to miss it. I was on tbe street car when it stopped,— right up to it. Whether it went ahead then or not I would have hit it. If it had continued to move I would have hit some portion of the street car. ⅞ * * I knew that the Government Hill ears and Port Bliss cars came along there quite frequently, and that the Port Bliss car turned north to go to Port Bliss. ⅜ * * Sometimes the Port Bliss car did not stop there at Copia but now they have to because they made Copia a stop street. They have to stop to throw the switch there. I knew he had to stop there. ⅜ * * I did not notice the street car. I was watching out for street cars. I thought it was just slowing up there as I was going down the street. There was not anything to interfere with my vision. I had a clear vision to the west. * * ⅜ I was about ten feet from the street car when it started up. I did not notice it until it got right there.”

In deference to the action of the Supreme Court in the cases above referred to, and in conformity with our holding in the Portillo Case, supra, the writer feels constrained' to hold that this evidence is sufficient to raise the issue of unavoidable accident, and that the case should be reversed and remanded because the issue submitted failed to place the burden as to such issue on appellee.


author: FUNDERBURK, J.

text:
    McGLOTHLIN v. COODY et al.

    No. 863.
    Court of Civil Appeals of Texas. Eastland.
    May 1, 1931.
    Rehearing Denied June 12, 1931.
    Ratliff & Ratliff, of Haskell, for appellant.
    D. J. Brookreson, of Benjamin, for appel-lees.

      Writ of error granted.

   FUNDERBURK, J.

Chas. E. Coombes recovered judgment in the district court of Jones county against G. H. Coody for debt, and against the said G. H. Coody and Mrs. J. T. George for foreclosure of a lien upon certain lots situated in Benjamin, Tex. An abstract of said judgment was duly filed in Knox county and was indexed as required by law, except (as found by the trial court), it “was not indexed under the letter ‘G’ and no index made of the defendant, Mrs. J. T. George’s name on said index.” Subsequently, said G. H. Coody executed a deed of trust upon other land in Knox county to the First Bank of Truseott to secure certain indebtedness to that bank.

A. C. MeGlothlin, having acquired the rights of said Chas. E. Coombes in the judgment first mentioned, brought this suit against G. H. Coody and wife, Cora Coody, and the First Bank of Truseott, to foreclose the judgment lien claimed to exist by reason of the foregoing facts. Sufficient facts, it is conceded, were alleged and proved to entitle the plaintiff to the foreclosure sought as against all the defendants, unless the failure to index the abstract of judgment in the name of Mrs. George precluded the existence of the judgment lien as claimed. Coody and wife defaulted. The First Bank of Truseott, in addition to resisting plaintiff’s claim of a lien and the right to foreclose, sought recovery of its debt against Coody and foreclosure of the deed of trust and a chattel mortgage lien. Upon a trial without a jury plaintiff recovered judgment against Coody for the balance claimed upon the judgment. First Bank of Truseott recovered against Coody for the amount of its debt claimed, with foreclosure of the deed of trust and tEe chattel mortgage lien. The court having made the finding above noted with reference to indexing the abstract of judgment, concluded, and in accordance therewith, adjudged that the lien of the bank was superior to plaintiff’s alleged judgment lien, but because of the default of ■Coody, gave plaintiff judgment of foreclosure of the judgment lien, .subject to the foreclosure decreed in favor of the bank. Plaintiff, A. C. MeGlothlin, has duly perfected appeal.

The sole question presented is whether or not, by reason of the failure to index said abstract of judgment alphabetically in the name of Mrs. J. T. George, one of the defendants in the -judgment, any judgment lien ever in fact came into existence. According to the abstract of judgment no money recovery was had against the defendant Mrs. J. T. George, except a judgment for costs. Apparently she was made a party defendant in the original ■suit only for the purpose of making the foreclosure sought effective as to her. Appellant contends that, under the authority of Blum v. Keyser, 8 Tex. Civ. App. 675, 28 S. W. 561, Farmers’ National Bank v. Collis (Tex. Civ. App.) 197 S. W. 782, 784, and Franke v. Lone Star Brewing Co., 17 Tex. Civ. App. 9, 42 S. W. 861, the statutory requisites for the creation of judgment liens were substantially complied with so as to make the lien effective as to Coody, within the reason and purpose of the law. In Farmers’ National Bank v. Collis, supra, it is stated that: “In L. & H. Blum v. Keyser, 8 Tex. Civ. App. 675, 28 S. W. 561, it was said that, when judgment records were correctly indexed as to some of the parties and incorrectly as to others, the lien was effective against those whose names are correctly indexed.” We do not believe that a reference to the opinion in Blum v. Keyser will' disclose a statement so explicit, but it may be true that its implications are to that effect. If the rule as thus declared be correct then it seems to us that it would control this case in favor of appellant’s contention. The abstract of judgment as between the plaintiff, Coombes, and the defendant, Coody, had they been the only parties to the judgment, was correctly indexed, and if the only inquiry involved in this suit was whether the index furnished an easy and accurate means of ascertaining the existence of a judgment against Coody, it would seem to serve that purpose.

But we do not believe that, based upon reason or authority, it is a correct statement of the law to say, if an abstract of judgment is not indexed alphabetically in the name of all of the plaintiffs and defendants, that it is effective to create a lien as to those whose names do appear so indexed. It must oe borne in mind that the requirements as to recording and indexing an abstract of judgment are not merely to give notice of the existence of an already existing lien, but such are the statutory means by which a lien having no previous existence comes into being. Spence v. Brown et al., 86 Tex. 430, 25 S. W. 413, 415. Notice is not the only purpose. As said in the last named case: “Most of the requisites of an abstract show that the purpose of its registration is not only to give notice of the right conferred by the record and index, but also to inform all persons interested where they may easily find the judgment itself, with all other papers bearing on the question of its validity.” Since the lien owes its very existence to a substantial compliance with the statutes, the law applicable, it seems to us, was well-stated by the Supreme Court in Nye v. Moody, 70 Tex. 434, 8 S. W. 606, 607, as follows: “The indexing, so carefully described and provided for, cannot be dispensed with by the courts. The terms used in the statute are simple and clear. The meaning and intent are expressed. It is not for courts to question the policy of the law. They can only apply it to a state of facts as ascertained when rights are litigated and the jurisdiction of the courts invoked.”

It has many times been held, as indeed the explicit language of the statute requires, that an index to be sufficient to create the lien must show alphabetically the names of each plaintiff and of each defendant. Bierce v. Wimberly et al., 78 Tex. 187, 14 S. W. 454; Oppenheimer v. Robinson, 87 Tex. 174, 27 S. W. 95; Gullett Gin Co. v. Oliver et al., 78 Tex. 182, 14 S. W. 451; Noble v. Barner, 22 Tex. Civ. App. 357, 55 S. W. 382; McLarry v. Studebaker Bros. Co. (Tex. Civ. App.l 146 S. W. 676; Ullmann v. Jasper, 70 Tex. 446, 7 S. W. 763.

The only authority cited upon the point at issue in Blum v. Keyser, supra, was Gin Co. v. Oliver, 78 Tex. 186,14 S. W. 451, 452. That opinion, it seems to us, definitely rejects the theory that a noncompliance which prevents-the creation of a lien must be such as to defeat the purpose of the statutes. In the -opinion appellant’s contention was stated to be as follows: “It is urged by appellant that the index in the name of the firm ought to be held sufficient as to the partnership property, since as to such property such an index sub-serves all the purposes of the law.” But, in rejecting that contention, the court further said: “We think, however, that the lien is created only by a compliance with the terms of the statute, in every substantial particular at least, and that the indexing of the name of each member of the defendant partnership is a matter of substance, and is essential to the existence of the lien. The point is that the statute has not teen complied with, and it is not a material question whether, in this particular instance, the failure to comply 7ms worked, or could have worked, any especial injury to any one or not.” (Italics ours.)

In recognition of this principle it was held in Glasscock v. Stringer (Tex. Civ. App.) 32 S. W. 920, that actual knowledge of the claim of a judgment lien was unavailing in aid of an insufficient registration. Were the requisites prescribed by the statute for the purpose only of giving constructive notice, and not for the purpose of bringing the lien into existence, such a holding would be wrong in principle.

But, were it conceded to be the law that an indexing is sufficient, when in any particular case it serves all the purposes of the law, although omitting one or more of the statutory requisites, we would still be unable to hold •that such a case is presented here. One of the purposes of the law, as declared by the Supreme Court in Gin Co. y. Oliver, supra, is: “that persons searching for records, in order to discover the existence of judgment liens, may have the means of ascertaining [with promptness and certainty] whether such liens exist or not.” Suppose, in this case, an inquirer, having some knowledge of the existence of the suit in which the judgment in question was rendered, and being interested in knowing if there was a judgment lien against Goody, did not know, or had forgotten his name, but did remember that Mrs. George was one of the defendants. Would not an index showing the name of Mrs. George in such case serve the purpose of the law, as above declared? If this were true in one case, may it not b'e so in others?

We are therefore of opinion that the trial court correctly concluded that there was no judgment lien, and that the judgment of the trial court should be affirmed, and it is accordingly so ordered.


author: BO ONE Y, J.

text:
    JACK JENNINGS TRUCK TIRE CO. v. TEXAS WAREHOUSE & FORWARDING CO.
    No. 10821.
    Court of Civil Appeals of Texas. Dallas.
    April 18, 1931.
    Hardy & Isett, of Dallas, for appellant.
    Ernest V. Becker, of Dallas, for appellee.
   BO ONE Y, J.

Texas Warehouse & Forwarding Company sued Jack Jennings Truck Tire Company for damages, alleged to have been occasioned by the negligence of defendant in repairing ap-pellee’s truck, resulting in the wreck of the motor and other injuries to the truck. The damages claimed were for the cost of necessary repairs, the loss of the use of the truck in the meantime, and its general depreciation in value resulting from the injuries. The appeal is by appellant from a judgment for $410.12, the amount of the cost of repairs to the motor. The jury found appellant guilty of negligence, the proximate cause of the injuries sustained, and that plaintiff was damaged in the sum of $410.12. These findings-are, in our opinion, sustained by evidence, and are adopted as our conclusion on these issues.

Appellant contends that the findings of the jury and the judgment are not sustained by evidence. The findings were upon conflicting evidence, and we are not at liberty to disregard the verdict; therefore overrule all assignments and propositions that challenge the sufficiency of evidence.

Appellant complains that the court failed to give the jury a measure of damages. Defendant neither excepted to the charge, because of this omission, nor was a charge requested to supply the deficiency. The measure of damages is a matter of law for the court and not for the jury, and, while it is the duty of the court, in submitting special issues, to give such explanations as shall be necessary to enable the jury to properly pass upon and render a verdict on the facts, we do not believe advantage can be taken of the failure of the court in this respect, unless, after objection or proper request, the court refuses to give such explanation. See Robertson & Mueller v. Holden (Tex. Com. App.) 1 S.W.(2d) 570. However, in a-ny event, the error of the court in failing to give to the jury the measure of damages was harmless because, in view of the evidence, the jury, under guidance of a correct measure of damages, could not have done otherwise than render a verdict at least equal to, if not larger than, the one rendered.

Contention is further made that the court erred in giving a verbal definition of negligence. No contention is made that the definition was incorrect or that injury resulted to appellant from the charge being given in this manner. While the statute requires charges to be in writing, yet it has been repeatedly held that the giving of a verbal charge is not reversible error, unless injury is shown to have resulted. However-, appellant reserved no bill of exception to the action of the court, and therefore is in no position to complain of its action in this respect. See Reid v. Reid, 11 Tex. 593; Boone v. Thompson, 17 Tex. 610, 611; Chapman v. Sneed, 17 Tex. 428, 433; Zarate v. Villareal (Tex. Civ. App.) 155 S. W. 328, 334 and authorities cited. But aside from these considerations, the record not only fails to show that the court gave a verbal definition ■of negligence to the jury, but refutes the idea. The charge, copied in its entirety, at pages 6, 7, and 8 of the transcript, appears to be complete, orderly in arrangement, and contains, among other things, a correct definition of negligence, not disconnected from but a part of the written charge.

We have carefully examine^ all assignments and propositions, and, finding no reversible error, the judgment below is affirmed.

Affirmed.


author: SMITH, J.

text:
    MUIL v. STEVENS et al.
    No. 8561.
    Court of Civil Appeals of Texas. San Antonio.
    March 4, 1931.
    Rehearing' Granted and Judgment Reversed and Remanded April 29, 1921.
    Rehearing Overruled June 3, 1931.
    Lloyd & Lloyd, of Alice, for appellant.
    .Tarlton & Lowe, of Corpus Christi, and M. E. Jenkins, of Alice, for appellees.
   SMITH, J.

This action was brought by Charles Muil against T. M. Stevens and Ed Stevens, brothers, to recover of the former the amount of two notes for the aggregate sum of $922.50, and of the latter upon his alleged parol obligation for the same amount, which represented the purchase price of a farm tractor sold by Muil and delivered to T. M. Stevens. Upon the trial judgment by default was rendered against T. M. Stevens for the amount of the notes, but a verdict was directed in favor of Ed Stevens, and from the resulting judgment Muil appealed.

As stated in appellant’s brief: “The cause of action asserted by appellant against Ed Stevens is based upon allegations that the sale of the machinery was made upon the credit of said Ed Stevens and his promises, representations and agreement to pay therefor; that T. M. Stevens and Ed Stevens are brothers; that because of his wife’s divorce suit against him said T. M. Stevens conveyed all his property to Ed Stevens in March preceding the time of the sale in August, 1927; that they had some understanding and agreement, unknown to appellant, whereby T. M. Stevens continued to work the farm on which the tractor and other machinery were to be and were thereafter used; that the farm was operated for their mutual benefit and that Ed Stevens was financially and otherwise interested in seeing said farm properly cultivated; that under the circumstances the sale was made without any cash payments and wholly upon the faith and credit of appellee, Ed Stevens; that he agreed to pay the purchase price of the tractor and plows a year from the sale; and judgment was sought against him for the purchase price of the machinery he agreed to pay.”

Judgment was rendered in favor of Ed Stevens upon the theory that appellant’s cause of action against him was shown by the evidence to be upon an oral promise to answer for the debt or default of another, in contravention of the Statute of Frauds (subdivision 2, art. 3995, K. S. 1925).

The question to be determined in the ease is that of whether appellee agreed, ■ simply, to see that T. M. Stevens paid appellant the debt sued on, or whether, upon the other hand', he agreed outright to pay for the tractor, and thereby induced appellant to deliver it to T. M. Stevens. In the first event,, the transaction would come within the prohibition of the Statute of Frauds, thereby relieving appellee of liability; in the second event, it would constitute an obligation enforceable against the promisor. The parties appear to agree that such is the law. They disagree upon the effect of the evidence to bring the case within or without the statute.

The question presented is one of fact, ordinarily determinable by the jury, in a jury case, as this was. The testimony was in sharp conflict as to the actual agreement. In such ease, in testing the action of the court in directing,a~ verdict, it is the duty of the appellate court to disregard the testimony of the favored party, and determine the question alone from the evidence in behalf of the losing party, giving such evidence its full effect, as if uncontroverted.

Appellant depends solely upon the testimony of his sales manager, T. A. Wickstrom, to establish the facts of his agreement with ap-pellee, Ed Stevens. Upon this point Wickstrom testified on direct examination:

“I recall the occasion of the sale by the Muil Motor Company of a tractor involved in this suit; * * * We learned that Mr. Mose (T. M.) Stevens wanted a tractor * * *, but the case called for very unusual terms, no cash down as a part of the purchase price, those sales not being made by salesmen doing good business, so I came immediately to Alice to see Ed Stevens, we had had business transactions with Mr. Ed and found him all right and I didn’t know Mose very much, in fact that was my first year in this section of the country. I talked to Ed about this transaction.
“I asked Ed if the deal would be all right and he said T will see it will be paid for and it will be all right.’ In other words, in every way helped to make the deal come to a conclusion. We did not close right away and we wrangled along for I guess a week more, and I asked Mr. Ed again about it and he again insisted that it would be taken care of, the deal would be all right.
“On one occasion in the garage at San Diego I asked him if he felt the deal would be all right and he said he would see that it was all right, that it would be paid for; that happened in the garage at San Diego. * * *
“Before the notes were executed I recall coming to Alice and talking to Ed Stevens about it. I asked Mr. Ed what assurance we would have of getting' our money because we didn’t get anything down, and he told me he would see that the tractor would be paid for. We were giving them a year’s time, until the next fall, I am quite sure.”

On cross-examination the witness testified:

“The first conversation I ever had with Mr. .Ed Stevens was possibly a week or ten days before the sale was consummated, before,the notes were signed; I talked to him in Alice as well as San Diego. The first one I ever had with Mr. Ed Stevens was in Alice about ten days before the notes were signed; at that time I said he said he would see that it was paid. • •.;
“The second conversation I had with him I presume was possibly the day before the tractor was delivered, we lost no time making delivery, I think it was approximately the day before. * * *
“It is hard to recall whether those two occasions were the only two times I talked to Mr. Ed Stevens before the notes were signed or not. We worked over that matter for possibly ten days and it went over our mind every day until we felt convinced the deal was satisfactory.”

On redirect examination he testified:

“When Mr. Mose Stevens first approached me to buy this tractor and give his notes .and mortgage without any down payment, I did not accept his proposition; I did not deal with him. I came to Ed Stevens and talked to him; he and I talked over the possibility of making a sale of the tractor; I presume we talked a half an hour or an hour about the tractor. He said that he would see that it would be paid for.
“After talking with Mr. Ed Stevens then I again went and discussed the proposition with him the day before the transaction took' place. The notes and mortgage were signed by T. M. Stevens; we felt that we ought to have the credit and responsibility of Mr. Ed Stevens behind this transaction before we made that delivery. I talked to both of them about that. He never denied that he would be responsible, never denied any liability at any time. We discussed the matter of who would pay for the tractor from morning to' breakfast, every way, shape and form. He told me he would see that it was paid for,1 that he would pay for it, and as I stated, told me he would pay for it. * * *
“These two conversations that I have mentioned, one about ten days before- here in Alice, the other a day or so before in San Diego, are the only two conversations that I can now definitely recall that I had with Mr. ' Ed Stevens about it. I cannot recall who was present. On both of these occasions, Ed Stevens said, he would see that the tractor was paid for.”

• The witness further testified that he “never did ask Ed Stevens to sign these notes” of T. M. Stevens, and that: “I asked Mr. Ed Stevens about paying for this tractor subsequent to the sale; I asked him twice that I definitely recall and I am sure many other times. .In those conversatiqns he said he, Mr. Ed, would pay for this tractor and equipment as soon as he got the money, that he had a land deal pending and would get the money and pay it; he never disclaimed liability whatsoever.”

'We are of the opinion that this testimony is sufficient to establish no more than that appellant sold .the tractor to T. M. Stevens, and took the latter’s notes and mortgage in payment thereof, with Ed Stevens’ collateral assurance that the tractor “would be paid for.” The testimony was not sufficient to warrant a jury finding that Ed Stevens’ obligation amounted to an original undertaking to pay for the tractor, which is the true test of his liability. It is true that the witness testified to an isolated instance in which Ed Stevens “told me he would see that it was paid for, that he would pay for it, and as I stated, told me he would pay for it,” but throughout his testimony the witness, in restating and summarizing the agreement, stated repeatedly that Ed Stevens said, merely, that he wopld “see that the tractor was paid for.” 'Appellant did not ask Ed Stevens to join T. M. Stevens in executing the notes for the purchase price of the tractor or the mortgage upon the tractor to secure those motes.

Upon the execution of these notes appellant delivered the tractor to the purchaser, T. M. Stevens, who has used it ever since to the exclusion of Ed Stevens. The whole record refutes ’the. claim that Ed Stevens’ agreement amounted to an original undertaking, or that his relation to the transaction was that of a purchaser rather than a "guarantor in parol. We think the case is within the Statute of Frauds, and that the trial court correctly directed a verdict against appellant.

Each ease of this character must stand or fall under the peculiar facts of it, and while .the parties have cited and rely upon a number of cases, all much alike in general, this decision must still rest upon the peculiar facts of this case. '

[I] Appellant complains of the ruling of the trial court in sustaining a special exception to an isolated allegation that shortly prior to the date T. M. Stevens conveyed his property to Ed. Stevens, the .former’s wife instituted an action to divorce him. We do not'think-.this ruling, even if erroneous, was such as-tó-materially injure appellant, .or require reversal.' ■-

The judgment is affirmed.

On Motion for Rehearing.

Upon further consideration on motion for rehearing, we have concluded that the evidence set out in the original opinion is such as to make a jury question of the issue of appellees’ liability. That evidence, when construed most favorably to appellant as it must he, tends to show that appellant refused to deliver the tractor to T. M. Stevens until ap-pellee agreed to pay for it, and was induced to part with it in reliance upon that promise. If a jury should resolve that issue in favor of appellant, it would entitle him to'recover of appellee for the agreed purchase price of the tractor, or, as the case may be/ for its reasonable market value. ,

Appellant’s motion for rehearing is granted, and the judgment reversed and the cause remanded.


author: JONES, C. J.

text:
    CRANE v. KELLY.
    No. 10979.
    Court of Civil Appeals of Texas. Dallas.
    April 25, 1931.
    Rehearing Denied May 23, 1931.

      G. H. 'Crane, of Dallas, for appellant.
    W. S. Bramlett, of Dallas, for appellee.
   JONES, C. J.

Tlie material facts of this case are that appellant, G. H. Crane, obtained a judgment in a justice court of Dallas county against S. G. Troupe and wife, Rosamund Troupe, in the sum of $62 and a foreclosure of a chattel mortgage lien; that an appeal was perfected by the judgment debtors to county court at law No. 2, by filing an appeal bond with ap-pellee J. T. Kelly, J. C. Strickland, and J. W. Brents as sureties. The cause was tried in the county court at law No. 2 of Dallas county, and judgment entered on the findings.of the jury on special issues in favor of appellant for the same sum and against each of •the sureties, but there was no foreclosure of the said lien. Some time after judgment an execution was issued at the instance of appellant, placed in the hands of H. A. Hood, sheriff of Dallas -county, and real estate owned by appellee was levied upon to satisfy the judgment.

The instant suit was filed by appellee to restrain the sale of the property under the writ of execution, and to restrain the sale of any property owned by appellee under any execution issued on such judgment. A temporary writ of injunction was granted, and oh final trial, judgment was entered restraining Hood, as sheriff, from selling or offering fot sale any property belonging to appellee, and from levying upon or attempting to levy upon any property belonging to appellee by virtue of any execution issued on said judgment, and restraining appellant from causing to issue any execution on said judgment against appellee, and from enforcing or attempting to enforce same. .In other words, appellant is restrained from attempting in any way to enforce collection of the judgment against ap-pellee by means of- an execution thereon, or by any other means.

This judgment was entered on the theory that the judgment of the county court at law No. 2, in favor of appellee, showed on its face to be absolutely void.

No statement of facts has been filed, and we are asked to affirm this judgment on the theory that appellee’s petition for injunction alleges facts showing that it affirmatively appears from the record of the county court judgment that siich court had no jurisdiction to try the cause, and’that the judgment entered was therefore void.;

We cannot agree to this contention, for. we do not think that the fahts alleged.in ap--', pellee’s petition show conclusively that the', county court judgment is void. The petition' contains allegations, to the effect, that the', judgment is void, '(1) because of the' fraud' perpetrated on the trial court by appellant, in the matter of its jurisdiction over the subject' ■matter of the suit, because the appeal bond' was not actually filed in the justice court within the statutory time to confer jurisdiction on the county court at law to hear and determine the appeal, though the file mark on the bond showed that it was timely filed; that appellant fraudulently "permitted and instructed the Honorable E. John Baldwin, Justice of the Peace of said court, to approve and file an appeal bond in said cause, dating back the approval and filing of said, bond therein as of date January 25, 1928,” when the appeal bond was actually filed on the 2nd day of March, 1928, and that the antedating of the approval and filing of said appeal bond shows on the docket of said justice court; (2) that the judgment of the county court at law shows that, it was based on the verdict of the jury on special issues submitted by th§ court, and that these findings are not set out in the judgment; (3) that appellee was only a surety on the appeal bond, and that no attempt had been made by appellant to collect the judgment from the persons in said cause previous.to the levy on the property of apT pellee under the writ of execution.

Grounds (2) and (3) are clearly insufficient to show that the judgment, of the said county court is void and these issues will not .be discussed. ,

Article 4656, R. O. S. declares that, “Writs •of injunction granted to stay proceedings in a suit, or execution on a judgment, shall be returnable to and tried in'the c&urt where such suit is pending, or such judgment was rendered. * * *"

Under the terms of this statute, the district court Is not forbidden to' grant the temporary writ of injunction first issued in this case. The prohibition is against making it the injunction of that court. If granted, it should have been made returnable to the court that entered the judgment, unless it affirmatively appeared from the record that the judgment of the county court at law was void. The record shows the appeal bond to have been duly filed in the justice court, and that this could be impeached only by evidence dehors the record. If a'fraud were committed on the county .court at law by ap-pellee, or participated in by him, in order to give that court jurisdiction over the appeal, and such fact does not affirmatively appear on the record, but must be shown by extrinsic evidence, then the court whose- judgment is attacked is the only court authorized to try such issue. Radford Grocery Go. v. Owens (Tex. Civ. App.) 161 S. W. 911; Baker v. Crosbyton Southplains R. Co., 107 Tex. 566, 182 S. W. 287; Matthews v. Eyres (Tex. Civ. App.) 206 S. W. 963; Carey v. Looney, 113 Tex. 93, 251 S. W. 1040.

We believe that the trial court erred in- the judgment entered, and that such' judgment should be reversed and rendered by this court in favor of appellant, dissolving the permanent injunction, and it is so ordered.

Reversed and rendered.


author: LESLIE, J.

text:
    WALLACE v. JOHNSON et al.
    No. 864.
    Court of Civil Appeals of Texas. Eastland.
    May 1, 1931.
    Rehearing Denied June 12, 1931.
    J. A. Wheat, of Seymour, for appellants.
    Dickson & Dickson, of Seymour, for ap-pellee.
   LESLIE, J.

J. J. Johnson and S. W. Dykes filed this suit against Carol M. Wallace to recover commissions alleged to be due them for the sale of real estate owned by the defendant and listed with them for sale at $17.50 per acre, or such price less than that amount as was acceptable to the owner. The defendant answered by general denial and specially pleaded that the sale was effected by another agent by the name of McWhorter. The trial was before the court and jury, and upon answer to special issues a judgment was rendered for the plaintiff. The recovery was on the quantum meruit theory, which was duly pleaded in the alternative.

In substance the plaintiffs alleged they were the procuring and efficient cause of the sale of the land to the purchaser, and the special defense was that said McWhorter was such cause. A further detailed statement, of the cause of action is not necessary. It is the usual broker’s suit for commissions under the facts stated, and the principles of law applicable are not in dispute but are to be found clearly stated by our Supreme Court in an opinion by Chief Justice Phillips in Goodwin v. Gunter, 109 Tex. 56, 185 S. W. 295, 195 S. W. 848. Also see Keener v. Cleveland (Tex. Com. App.) 250 S. W. 151.

An issue presenting the plaintiffs’ theory or contention was submitted to the jury, and their answer was favorable to the plaintiffs, finding them to be the procuring cause of the sale. The court presented to the jury no issue embodying the defendant’s theory to the effect that McWhorter procured the sale, and since the defendant Wallace requested no such issue, the failure to submit the same cannot be reviewed on appeal. G., C. & S. F. Ry. Co. v. Conley, 113 Tex. 472, 260 S. W. 561, 32 A. L. R. 1183.

In such state of the record such issue is held to be waived. Ormsby v. Ratcliffe, 117, Tex. 242, 1 S.W.(2d) 1084.

A. careful review of the record discloses that there is ample evidence to support the jury’s answer to issue No. 1. In such ease this court is without authority to disturb the verdict. In any event the evidence was conflicting, and where there is some evidence of probative force to support the verdict, a reviewing court will not disturb it. 3 Tex. Jur., p. 1095, §§ 767, 768.

This disposes of the appellant’s proposition 1, to the effect that the court erred in refusing to give a peremptory instruction in his favor, and also assignment 5 and the proposition thereunder, to the effect that the verdict of the jury is contrary to the evidence.

The ■ second assignment and propositions thereunder complain that the court erred in refusing defendant’s special charge No. 2. Omitting formal parts, it is as follows: “Gentlemen of the Jury: In order to aid you in answering Issue No. 1, you are charged that the seller had a right to employ more than one broker, and if you should find in this case from the evidence that the defendant, O. M. Wallace, did employ another broker than the plaintiff, and that it, the said other broker, was negotiating for the sale of the said land with the same buyer, either before or after or during the effort pf the first broker, and such other broker succeeded in closing the deal between the buyer and the seller, and that the seller remained neutral as between thel two brokers, the first mentioned broker having failed to reach a satis- . factory closing, if you find that he had so failed, then the plaintiff would not be the procuring cause of the sale, even though he may have been instrumental in getting the purchaser in the mental attitude of buying the property.”

Without undertaking to pass upon the correctness of this charge as a legal proposition, it is clearly a general charge on the facts of the case, and since the case was being submitted on special issues, the court did not err in refusing to give the requested charge. T. & N. O. Ry. Co. v. Harrington (Tex. Com. App.) 235 S. W. 188, 190; A. J. Anderson & Co., Inc., v. Reich (Tex. Com. App.) 260 S. W. 162; K. C., M. & O. Ry. Co. v. Moore (Tex. Civ. App.) 11 S.W.(2d) 335 (3).

In the Harrington Case the railway company requested the court to submit the same on special issues and then, instead of requesting the court to submit in the usual way the issues which affected its defenses; it undertook to group its facts in special charges and have them submitted so as to obtain a general verdict from the jury. In disposing of the assignments complaining of the court’s refusal to submit such special charges, the court said: “That it cannot do. Such a practice is not only in violation of article 1984a [now Art. 2189], Vernon’s Sayles’ Revised Civil Statutes of Texas, but has been clearly ruled out by appellate courts in Texas.”

By assignments 3 and 4 and propositions thereunder, the appellant contends that the court erred in his definition of the term “procuring cause” used in his charge. Without determining whether or not “procuring cause” is such a term as is required to. be explained or defined under article 2189, supra, and such authorities as Robertson & Mueller v. Holden (Tex. Com. App.) 1 S.W.(2d) 570, it is apparent that these assignments and propositions necessarily rest upon and presuppose proper objections by the defendant to the trial court’s main charge. The transcript contains ■ certain objections designed to raise the points, but these objections are merely marked “Refused, I. O. Newton, Judge presiding.” This is all the record shows. It discloses nothing evidencing these objections were submitted to the trial court before the main charge was read to the jury. That being the condition of the record, the assignments of error based upon such purported objections to the court’s charge, will not be considered. G., T. & W. Ry. Co. v. Dickey, 108 Tex. 126, 187 S. W. 184; M., K. & T. Ry. Co. v. Churchill (Tex. Com. App.) 213 S. W. 253; T. & P. Ry. Co. v. Baldwin (Tex. Civ. App.) 25 S.W.(2d) 969 (4).

This disposes of each point upon which this appeal ⅛ predicated. For the reasons assigned the judgment of the trial court is affirmed. It is so ordered.

On Rehearing.

In our original opinion we held that the appellant’s assignment of error No. 3 and proposition 4 (complaining that the court erred in his definition of “procuring cause”) should be rejected since they were not based upon proper objections made to the court’s charge in due time before the main charge was read to the jury and such facts properly certified by the court. In this we were in error, for these matters were recited in the early part of the motion or objections, and not immediately preceding the judge’s signature, and therefore escaped our attention. The objections were properly made and duly authenticated as contended by the appellant. The proposition will be considered.

The complaint is, that the definition of “procuring cause” failed to recognize and allow the defendant (appellant) the benefit of the rule that a property owner may list his property with more than one broker and be liable to the one only who closes the. deal or finds a purchaser, etc., -provided he acts fairly as between such agents. In discussing the proposition the appellant frankly states that, “We do not contend that this charge would have been erroneous under the ordinary commission suit, in fact the same has been approved by the courts.” Notwithstanding this admission, we have given the point our careful consideration and have reached the conclusion that the definition afforded the appellant a reasonable opportunity to have the jury determine whether or not the alleged efforts of the agent McWhorter (to whom the commission was paid) actually intervened as an efficient cause producing the sale to the purchaser of the property. Before finding that the plaintiffs were the “procuring cause” in bringing about the sale of the defendant’s ranch, the court’s definition of “procuring cause” compelled the jury to find that the plaintiffs’ effort produced the sale, and that without it it would not have occurred. In this respect we think the definition is clear enough and reasonably accurate, as conceded by the appellant, and we are unable to see that the court committed any error in the manner set forth in this proposition-, and the same is overruled.

The motion for rehearing is overruled.