text:
    LE FORS v. LE FORS et al.
    No. 3616.
    Court of Civil Appeals of Texas. Amarillo.
    May 20, 1931.
    Rehearing Denied June 10, 1931.
    Willis, Studer & Studer, of Pampa, for appellant.
    Coot, Smith, Teed, Sturgeon & Wade, of Pampa, and Underwood, Johnson, Dooley & Simpson, of Amarillo, for appellees.
   JACKSON, J.

On November 25, 1929, the plaintiff, Molita Le Fors, a single woman, filed this suit in the county court of Gray county, Tex., against the defendants Emma Le Fors, individually and as former administratrix of the estate of Perry Le Fors, who died intestate September 6, 1909, Emmett Le Fors, Vera Doucette, the wife of A. H. Doucette, joined' herein pro forma, and J. M. Shaw, to set aside the orders of the probate court of Gray county, Tex., pertaining to the sale of certain land and to cancel a deed executed by Emma Le Fors in 1911, in compliance with said orders, as administratrix of the estate of Perry Le Fors, conveying said land to Mrs. M. A. Shaw, the mother of the defendant J. M. Shaw.

The plaintiff alleged that she, Emmett Le Fors, and Vera Doucette were the children of Perry Le Fors, and with their mother, Emma Le Fors, surviving wife of Perry Le Fors, deceased, constitute the heirs and all the heirs of said deceased; that on November 15,1909, letters of administration were issued by the county court of Gray county, Tex., to Emma Le Fors, and she qualified as administratrix of the estate of Perry Le Fors, deceased,, and that said administration had been closed; that at the date of his death Perry Le Fors and his wife, Emma Le Fors, owned as community property a one-tenth undivided interest in 160 acres of land situated in Gray county, Tex., known as the Travis-Leach pre-emption survey, the metes and bounds of which are set out in the petition.

The plaintiff alleged that the orders made by the county court of Gray county sitting-in probate which pertained to the sale of the land were void or voidable for the following reasons: That there was no necessity alleged for such sale, and no such necessity existed; that the application for the sale did not describe the real estate, and was not accompanied by an exhibit showing any charge for which the land should be sold; that there was plenty of personal property and cash on hand at all times to pay all debts and charges against the estate, and that said debts and charges were paid out of such cash and the proceeds of the sale of such personal property; that the order did not direct the administratrix to sell the land, but simply gaye her permission to place it on the market; that no citation was posted upon the application to sell the land, as required by law; that the sale to Mrs. M. A. Shaw was pretended, fictitious, and fraudulent, and was an attempt to partition the land through a transaction between Emma Le Eors and the adult heirs and Mrs. M. A. Shaw, who owned the other nine-tenths undivided interest of the Travis-Leach survey; that said one-tenth interest belonging to said estate was sold for a consideration of $300, none of which plaintiff received; that the sale was fraudulent and a pretense for the purpose of accomplishing the partition of the estate of Perry Le Fors, deceased, among his heirs, all of which was known to Mrs. M. A. Shaw, or she was charged with notice thereof, and conspired with the adult heirs to defraud this plaintiff; that no citation was served upon plaintiff of the attempted partition of the property or the sale of the land herein involved; that her guardian, who waived the citation as to her, was not authorized so to do; that at the time the county court' entered its order it did not have jurisdiction because a suit to partition said Travis-Leach survey between Mrs. M. A. Shaw and the es-táte was pending in the district court of Gray county, Tex.; that the court did not comply with the law relative to partitioning estates; that plaintiff was a minor, having been born October 22, 1905, and did not learn of the fraud and invalidity of the sale and deed until October 15, 1929.

The plaintiff requested that the orders of the probate court and the deed made in pursuance thereof, in so far as they purport to diyest plaintiff of her interest in the Travis-Leach survey, be set aside and held for naught.

The defendants Emma Le Eors, Emmett Le Eors, Vera Doucette, and her husband filed no answer.

The defendant J. M. Shaw attacked the jurisdiction of the court by motion and answered by general demurrer and twenty-two special exceptions, general denial, the two-year statute of limitation, and specially pleaded that'the plaintiff was a resident and had resided in Gray county, Tex., was familiar with the-land in controversy prior to and after she became twenty-one years of age; that; since she became of age, there had been drilled on the land several oil wells; that several hundred thousand dollars had been expended on such wells and other improvements placed on the land; that she- had actual knowledge of such expenditures and improvements, and permitted the defendant J. M. Shaw and others interested to make such expenditures, and at no time until the institution of this suit claimed that the probate proceedings or the deed of the adminis-tratrix were invalid, but at all times acquiesced therein with full knowledge of all the facts relative to such expenditures, and with full knowledge of the proceedings, judgments, and orders and the deed made by the administratrix; that she was guilty of laches, and is now estopped from asserting or claiming any interest whatever in and to said land.

In a trial in the county court, the deed and probate orders were set aside, and J., M. Shaw prosecuted an appeal to the district court. »

By a trial amendment in the district court the plaintiff alleged that Mrs. M. A. Shaw acted by and through her attorney, B. M. Baker, who also represented the estate of the plaintiff; that the $300 consideration for the land was paid to said attorney, and, if it ever came into the estate, it was dissipated by Emmett Le Fors without authority of law, and, by the acts of her attorney and the records of the proceedings in probate court, Mrs. Shaw was charged with notice, and asked that, if the judgment of the probate court were set aside, the estate be reopened and the administratrix ordered to proceed in the management and disposition of the estate under further orders of the probate court.

By a trial amendment J. M..Shaw pleaded that his mother, M. A. Shaw, purchased the undivided one-tenth interest in the Travis-Leach survey at the sale by the administra-trix, paid the consideration therefor in cash, and that neither his mother, who is now deceased, nor himself, had any knowledge or •information of any alleged misconduct on the part of the administratrix or any one else in reference to the management of the estate, but that said one-tenth undivided interest was purchased in good faith for an adequate consideration without any knowledge of any alleged defects in the title, and she was an innocent purchaser of said land.

No answer was filed by any of the defendants, except J. M. Shaw, in the district court.

The case was tried in district court, and the jury peremptorily instructed to find a verdict for the defendants. In response to the verdict so directed, judgment wa's entered in favor of defendants and against the plaintiff, from which judgment the plaintiff prosecutes this appeal.

The appellant challenges the action of the court in directing a verdict against her, because the testimony shows: (a) The sale was void on account of fraud; (b) the order of the court did not authorize the administratrix to sell the land; (c) no necessity was shown and none existed for the sale; (d) no exhibit accompanied the application to sell; (e) no citation giving notice of the application to sell was served on the minor; and (f) no notice of the sale was given.

It was agreed that Perry Le Fors was the father of the plaintiff and the husband of Emma Le Fors, and that he died intestate September 6, 1909; that the plaintiff and the other defendants, except J. M. Shaw, were the only heirs of Perry Le Fors, deceased; that, after his death, his surviving wife, Emma Le Fors, was duly appointed and qualified as administratrix of his estate November 16, 1909that the one-tenth undivided interest in the 160 acres of land in controversy was the community property of Perry Le Fors and Emma Le Fors; that Mrs. M. A. Shaw was the mother of J. M. Shaw, defendant herein; that she died intestate, leaving as her only heir J. M. Shaw, who inherited all of her estate; and that plaintiff’s suit wfts filed in the county court on November 25, 1929.

The record discloses:

That on November 16, 1909, Emma Le Fors, administratrix of the estate of Perry Le Fors, deceased, filed a pleading in probate court, ■alleging that she would not likely ask to be permitted to retain the homestead, but in all probability the lands belonging to the estate would have to be partitioned as soon as the law would permit, and that ,it was practically certain that the lands would have to be sold for partition. She prayed that she be allowed to place all the lands on the market on such terms as the court might direct, provided that any application to buy part of the land should be reported to the court for approval before any obligation against the estate was incurred. That on the same day she made a report of the debts, including the interest due the state of Texas for deferred payments on five sections of school land, funeral expenses, and other obligations. She reported the personal property in danger of waste, and asked that she be permitted to sell it.

That the court entered an order to the effect that he had considered the application for the sale of the lands and. ordered them placed on the market on condition that any offer received for any part or all of the lands should be reported, giving the price and terms thereof, so the court could approve or reject such offer, but that no contract for a sale should be made without the order of the court.

That an inventory and appraisement was made by duly appointed app>raisers and approved by the court on November 17, 1909. That in a detailed report of the condition of the estate made by the administratrix on August 21, 1911, she reported that she had agreed, if the court would approve, to sell the one-tenth interest of' the estate in the Travis-Leach survey to Mrs. Shaw for' the sum of $300. That the report was considered, approved, and the sale confirmed.

That Emmett Le Fors on said date duly qualified as the guardian of the estate of the plaintiff, who was then a minor. The guardian was authorized by the court to waive f or the plaintiff the services of citation on the report of the condition of the estate, the sale of the one-tenth interest in the Travis-Leach survey, and the application for. the partition and distribution among the heirs of said estate. That the guardian signed such waiver as guardian for the plaintiff, and all the adult heirs signed a like waiver.

That, during the regular term of the probate court, August 21, 1911, an order was entered reciting that the court had heard and considered the report of the administratrix for the sale of the one-tenth undivided interest of the estate in said Travis-Leach survey, made in obedience to the order of the court at the November term, 1909. That the court found said report had been filed for the time required by law, and, having inquired into the manner in which the sale was made, the court was satisfied that the sale was fairly made and in conformity to law and for a fair price. That said report was approved and confirmed, ordered recorded, and the administratrix directed to convey the property to Mrs. M. A. Shaw in compliance with the terms of the sale. That on September 21st thereafter the administratrix, in obedience to such order, conveyed to Mrs. M. A. Shaw the one-tenth interest in the Travis-Leach survey by deed reciting the payment of a consideration of $300 in cash. That the adult heirs, on August 21, 1911, entered into a written contract by the terms; of which they agreed on a partition and distribution of the estate. That on the same day the court appointed S. E. Boyett, an attorney at law of Gray county, Tex., as guardian ad litem to represent the plaintiff in the agreement to partition and distribute the estate and in the partition and distribution thereof, as her guardian, Emmett Le Fors, was interested in said estate. That the contract for partition, which shows the property received by each heir, was signed by the plaintiff through said guardian ad litem. The partition was made according to said contract and ratified and confirmed by the court in a judgment reciting that the minor heir, the plaintiff herein, had received her full share of the estate. That the partition and distribution of said property did not include the undivided one-tenth interest of the Travis-Leach survey, but it indicates that the purchase price therefor was awarded to Emmett Le Fors. That the administration of the estate was closed by an order of the probate court at its November term, 1911, and the administratrix discharged.

That Mrs. M. A. Shaw filed suit in the district court of Gray county on January 11, 1911, stating that she was the owner of an undivided nine-tenths interest in the 160-acre Travis-Leach survey, and that the estate and heirs of Perry Le Eors owned an undivided one-tenth interest therein. The petition named the heirs, including the plaintiff, as defendants, and also other defendants alleged to be asserting some interest in the property. By trial amendment filed October 30, 1911, Mrs. Shaw alleged that she had purchased the undivided one-tenth interest in the land belonging to the heirs of Perry Le Eors, through the probate court, and sought a decree removing cloud and vesting the title to said Travis-Leach survey in herself. At a regular term of said district court, on October 31, 1911, the court entered judgment reciting that the defendants, including the plaintiff herein, had been duly served with process, had answered, and that from the evidence the court was of the opinion that said Travis-Leach 160 acres was the property of Mrs. M. A. Shaw, and by its judgment vested title to said land in her.

The record shows that the price paid to the Le Fors estate for its one-tenth undivided interest in the land was fair 'and adequate; that the debts, expenses, and charges against the estate were paid out of the proceeds of the sale of personal property belonging to said estate; that the plaintiff, became 21 years of age October 22, 1926; that she, Mrs. Emma Le Eors, and Emmett Le Eors still reside and live together in Pampa, Tex.; that their relations are friendly; that plaintiff has never made any effort to collect from her mother or brother any part of the estate on account of mismanagement, and has no such intention now; that her mother and brother had furnished the money to rear and educate her; that she and her mother resided for several years in California while she went to school, and that she has attended the University of Oklahoma and the University of Texas; that, when she reached her majority, she inquired of the family and her friends as to how her part of the estate had been handled; that she went into the matter rather carefully; that her brother told her all he knew about the situation, how he had handled her property, and did not try to conceal anything from her, advised her about the partition proceedings, the property she received ; that she was correctly informed about her father’s interest in the land in controversy, that it had been sold; that such information was had shortly' after she became of age, and that since she became 21 oil had been discovered on the land in controversy; that she learned for the first time in September, 1929, that she might have some rights in the land involved in this suit.

The deputy clerk of Gray county testified that a search of the records failed' to show any citations issued on the application for the sale of the land or on the filing of the application for partition and distribution or any order by the court determining whether the property was susceptible of partition or appointing commissioners to make a partition of the estate; that she found no record of any report of commissioners partitioning the estate and no approval of such report; that the court records had been moved twice within the last three years, and that the removal from Le Fors to Pampa was made at night and in a hurry, but, so far as she knew, no papers or records connected with the Perry Le Eors est'ate had been lost; that she had the record which purported to contain the proceedings in said' estate, but she did not know how 'the records were kept or what citations were issued twenty years ago.

The administratrix, Mrs. Emma Le Fors, and the guardian of plaintiff, Emmett Le Eofs, testified that they had no conversation, discussion, or understanding with each other or with any one else pertaining to any conspiracy against the plaintiff or any effort to defraud her out of any part of her estate by the sale of the property in controversy to Mrs. S'haw or by the partition of the balance thereof among the heirs; that, while they might have been negligent and used bad judgment, they acted in good faith without any intention of defrauding plaintiff.

The testimony is conclusive that neither Mrs. Shaw nor the defendant J. M. Shaw ever asserted any right in any part of the estate of Perry Le Eors, deceased; that they had no connection whatever with the partition of said estate. The fact that B. M. Baker, as attorney, represented the estate in the administration proceedings, and also instituted the suit for Mrs. Shaw to remove cloud from title and partition the Travis-Leach survey between her and the heirs of Perry Le Fors, is insufficient to show that he was guilty of any fraud or engaged in any conspiracy against the plaintiff. The record is uncontroverted that Mrs. Shaw recognized all the interest belonging to the estate and that there was no issue of title or interest between Mrs. Shaw and the estate; the only question being a partition of the Travis-Leach survey among the owners. The testimony is that B. M. Baker was a competent, conscientious, honest, upright, and honorable attorney. The record fails to show that said attorney made any suggestion of fraud or conspiracy to any of the parties regarding the sale of the property purchased by Mrs. Shaw or the partition of the property between her and the Le Eors estate or as to the partition of the other property among the heirs of the deceased Perry Le Eors.

We have made a brief statement of what the probate records and the testimony reveal relative to the partition of the other property of the estate not involved in this controversy, because of the allegations of fraud and conspiracy made by the plaintiff. In order to determine the merits of this appeal, however, it must he kept in mind that the only relief sought in this suit is a judgment annulling the probate orders affecting the sale of the interest of the estate in the Travis-Leach survey and the cancellation of the deed of the administratrix conveying said interest to Mrs. Shaw. Therefore, unless Mrs. Shaw is shown by the testimony to have engaged in some conspiracy against or practiced some fraud on the plaintiff in connection with the purchase and sale of the interest of the estate of Perry Le Fors in the Travis-Leach survey, the record and testimony pertaining to the partition of the other property belonging to the estate among the heirs becomes immaterial.

In our opinion, the testimony is not sufficient to connect Mrs. Shaw with any conspiracy or any act of fraud in connection with the purchase of said'property from the administratrix, and there was no issue of fact on fraud or conspiracy to be submitted to the jury.

Conceding that the record discloses that no citation was issued or served and no notice posted by the clerk of the sale by the administratrix of the one-tenth interest of the estate in the Travis-Leach survey to Mrs. Shaw, does the failure to give such notice render the transaction void?

The written request filed by the ad-ministratrix in probate court on November 16, 1909, for permission to place the lands of the estate on the market and report to the court any offer received for such lands before the estate was obligated to sell; the order of the court entered on the same day granting such permission, conditioned that the ad-ministratrix should make no contract for the sale of the land or any part thereof, and any offer received for any part or all of the lands, should be reported with the price and terms thereof to the court for its approval or rejection; the report on August 21, 1911, by the administratrix that she had agreed,if the court would approve, to sell the one-tenth interest in the Travis-Leach survey to Mrs. Shaw, giving the price and terms of the agreement, that Mrs. Shaw had instituted in the district court a suit to partition between herself and the estate the Travis-Leach survey, that the interest of the estate was small, and would be of less value after the partition, with the request that the proposed sale be approved and confirmed; and the approval by the court of such agreement, the confirmation of the sale, ordering it recorded, and directing the administratrix to convey to Mrs. Shaw the interest of the estate in the Travis-Leach survey, in our opinion authorized a private sale by the administratrix of the interest here involved, to Mrs. Shaw.

The probate court was authorized to direct the administratrix to sell the interest of the estate in the Travis-Leach Survey at private sale, article 2129, R. C. S. 1895, article 3572, R. C. S. 1925; and, if the property was ordered by the court to be sold at private sale, no notice of such sale was required unless the court directed that such notice be given, article 2140, R. C. S. 1895, article 3582, R. C. S. 1925. The court failing to direct that notice should' be given, if we are correct in our conclusions that the order of the court authorized a private sale, no notice was required.

In Kendrick et al. v. Wheeler et al., 85 Tex. 247, 20 S. W. 44, 45, suit was instituted in the county court to set aside certain orders of the probate court for the sale of certain lands belonging to the community estate of Walter Wheeler and his deceased wife, A. 0. Wheeler. The proceedings of the probate court and the sale of the land were attacked for the reasons: “(1) That the order of sale was made without any valid notice having been issued; (2) because the notice was not served in the manner, or for the length of time, prescribed by .law; (3) because the order of sale contained no description of the property directed to be sold; (4) because the order did not state the necessity or purpose of such sale; (5) because the application to sell showed no valid reason or necessity for such sale; (6) because said order was wholly unauthorized by law. It is also alleged That there was no legal cause existing for said sale, and that the absence of such necessity was apparent of record, and that appellee Bowman had actual and constructive notice thereof; that said order of sale was procured by collusion between Wheeler and Bowman, and not for the benefit of plaintiffs; that plaintiffs were minors, and have never received any of the proceeds of said sale, or any benefit therefrom.”

The court, after reciting various other matters, including the findings of the trial court, says: ‘‘It is contended by appellants that, as the notice of sale was not given for the length of time required by law, and as there was no sufficient legal reason or necessity for the sale, the order of sale and sale thereunder are void, and should have been set aside. The failure to give the notice the length of time required by law does not render the sale void. Weems v. Masterson, 80 Tex. 49, 15 S. W. 590; Heath v. Layne, 62 Tex. 689; Lyne v. Sanford, 82 Tex. 63, 19 S. W. 847 [27 Am. St. Rep. 852]. If the father is the guardian of the persons and estates of his minor children, it is his duty to educate and support, them out of his own means. If, however, he is not able to do so, an allowance for such purpose will be made out of the estate of his wards. 9 Amer. & Eng. Enc. Law, 100. Article 2572, Sayles’ Civil St., makes the education and support of the wards a ground of sale of the wards’ property. The court finds that Bowman did not know that the sale was made for any purpose different from that stated in the application for the order of sale. When the court acted upon the application, and made the order of sale, Bowman was not required to look beyond the order of the court, and could act upon the assumption that the court granted the order of sale upon the existence of facts that would authorize it to do so. We do not think the order of sale void. Robertson v. Johnson, 57 Tex. 63; Weems v. Masterson, 80 Tex. 53, 15 S. W. 590; Dyne v. Sanford, 82 Tex. 63, 19 S. W. 847 [27 Am. St. Rep. 852].”

In the ease of McGrady v. Clary (Tex. Civ. App.) 247 S. W. 1099, 1102, in an opinion by Chief Justice Hall, it is said: “Many questions relating to the regularity and legality of proceedings by probate courts in the sale of real estate have been considered by the Supreme Court and Courts of Civil Appeals of this state, with the result that the purchaser 'at an administrator’s sale is required only to'see that the probate court had jurisdiction of the subject-matter, and that a proper judgment confirming the sale has been duly entered. In considering such irregularity it has been held that a sale is not void: (1) Which was made under the court’s order without the filing of an application; and (2) without an affidavit of the administrator showing the condition of the estate and the necessity of the sale; and (3) upon waiver of citation by the administrator. Sales have further been upheld where the land was not described in any order made by the court and until the deed was executed by the administrator. Sales have also been upheld that were made to pay debts not yet due.”

It is conceded that Mrs. Emma Le Eors was duly appointed and qualified as the ad-ministratrix of the estate of her deceased husband, Perry De Fors; and the two opinions quoted from, together with the authorities therein cited, we think are decisive, and appellant’s contentions presenting fraud arid irregularities in the proceedings of the probate court authorizing the sale are overruled. In addition to the foregoing authorities, we note Poor v. Boyce, 12 Tex. 440; Kleinecke w. Woodward, 42 Tex. 311; Jackson v. Houston, 84 Tex. 622, 19 S. W. 799; Hicks et al. v. Oliver, 78 Tex. 233, 14 S. W. 575; Saul et al. v. Frame et al., 3 Tex. Civ. App. 596, 22 S. W. 984; Ruenbuhl v. Heffron et al. (Tex. Civ. App.) 38 S. W. 1028; White v. Bedell (Tex. Civ. App.) 173 S. W. 624; Heavey et al. v. Castles (Tex. Civ. App.) 12 S.W.(2d) 615.

In Daimwood v. Driscoll (Tex. Civ. App.) 151 S. W. 621, 622, it is held: “When the court acted upon the application and made the order of sale and then confirmed it, ap-pellee was not required to look beyond those orders, and could proceed upon the assumption .that the order was properly made upon notice and facts that authorized it” — citing authorities.

The testimony shows no actual fraud, and the irregularities complained of by appellant do not amount to constructive fraud.

In Stroud v. Hawkins, 28 Tex. Civ. App. 321, 67 S. W. 534, 537, it is held: “The effect of this contention is that any irregularity occurring in such sales, though not of a character to render the sale void, would nevertheless amount to constructive fraud, and the purchaser, however innocent he might be in fact, would take the title in trust for the minors. Of course, such contention cannot be sustained, as it would be inequitable, and would preclude all business dealings with such property.”

The appellant, by proper assignments, contends that the probate court of Gray county was without jurisdiction to make the orders pertaining to the sale in controversy, because suit had been filed by Mrs. M. A. Shaw in the district court to partition the Travis-Leach survey between herself and the estate of Perry Le Fors, deceased.

The county court is given exclusive jurisdiction to partition lands belonging to an estate among the heirs interested in the estate of a decedent, where there is no question of title involved. The fact that a suit was pending in the district court to partition the property in which the heirs of a decedent were interested, between such heirs and another party, would not deprive the probate court of jurisdiction to sell the interest of the heirs of the decedent over which it had acquired jurisdiction by probate proceedings. Watkins et al. v. Sansom et al., 22 Tex. Civ. App. 178, 54 S. W. 1096, and authorities cited.

The judgment is affirmed.


source: Caselaw Access Project

author: JACKSON, J.

license: Public Domain

text:
    RED STAR COACHES, Inc., v. LAMB et al.
    No. 3415.
    Court of Civil Appeals of Texas. Amarillo.
    May 21, 1930.
    On Motion for Rehearing June 18, 1930.
    Rehearing Denied July 12, 1930.
    Writ of Error Granted Oct. 29, 1930.
    Douglas & Scott, of Lubbock,' for appellant.
    Bean & Klett and Levons & Burks, all of Lubbock, for appellees.
   JACKSON, J.

This suit was instituted in the district court of Lubbock' county, Tex., by the plaintiff Mrs. Will H. Lamb, joined by her husband, against the defendant Red Star Coaches, Inc., to recover the sum of $25,000 as damages for personal injuries suffered by her while a passenger on one of the busses of the defendant.

Plaintiff alleges that the defendant is a common carrier, and that on or about December 10, 1928, while a passenger on one of its busses, riding from Big Springs to Lamesa, Tex., the driver of the bus negligently permitted it to run off into the borrow pit on the west side of the road. That the defendant was negligent in operating its bus at an excessive and unlawful rate of speed; that it failed to exercise proper care in watching the road; failed to keep the bus under proper control; failed to reduce the speed of the bus so as to make the turn with safety. That she suffered injuries to her left knee which arfe permanent and rendered her a cripple for life.

The plaintiff also alleged that, if mistaken in any or all of said specific allegations of negligence, she did not know what caused the coach in which she was riding as a lawful passenger to run off of the highway into the borrow pit and strike the embankment as alleged, but that the defendant was in control and operation of the bus and was charged with the duty of ordinary care for her safety as a passenger, and, if the defendant had used such care, the coach would not have left the road and no wreck would have occurred. That the defendant, its agents, servants, and employees in control and operation of the bus, were grossly careless, reckless, and negligent, and, as a natural, direct, and proximate result thereof, the coach left the road, ran into the borrow pit, hit the embankment, and caused plaintiff to sustain and suffer the pains, injuries, and damages to the extent and in the amount alleged ; all without any warning and without any fault or negligence on her part.

The plaintiff sufficiently alleges the personal injuries sustained, the pain, both mental and physical, suffered, and the damages she sought.

The defendant answered by general demurrer, special exceptions, general denial, and specially denied negligence. It alleged that the accident was unavoidable; that its servant was not making over twenty miles per hour; that it was about 6:30 a. m., before daylight, and another car was coming from the opposite direction on a lateral road, which continued straight' on westward from the point where the main highway turned northward; that the lights of the other car were shining .directly into the eyes of the driver and blinded him; that he was unable to discover when he reached the curve in the highway; that there were no highway markers to notify him of the approach to the curve; that he was deceived and misled into believing that the other car was on the main highway and: slowed the bus down almost to a stop and was waiting for.the other car to pass, when he suddenly discovered that he was at the curve in the highway and was unahle te stop or make the turn.

On special issues submitted, the jury found, in effect, that the driver of the motor-bus immediately preceding and at the time of the accident was guilty of negligence; that such negligence was the proximate cause of the accident and the proximate cause of the alleged injuries to Mrs. Eamb; that such injuries were not due to an unavoidable accident; and that the plaintiff had been damaged as a result of the injuries, in the sum of $12,000.

On these findings judgment was rendered for the plaintiffs against the defendant for said amount, with interest thereon from October 10, 1929, from which judgment this appeal is prosecuted.

•The appellant presents as error the action of the trial court in refusing to grant it a new trial, because of the misconduct of the jurors in discussing during their deliberations the attorney fees which plaintiff would be required to pay out of the recovery; the insurance carried by the defendant to protect itself from damages, and asserting that busses generally took up too much of the road and traveled at a high rate of speed and parties passing them had to take care of themselves.

Mr. Bedford testified on the hearing of the motion for a new trial to the' effect that he was one of the jurors, and that the first thing the jury did in the jury room was to answer all but the last question. That this made it necessary to answer' the last issue, which asked the amount of damages plaintiff was entitled to recover. That, with very little discussion on the last question, a vote was taken, and each juror stated the amount he thought the plaintiffs should recover. That the amount which each juror voted for was totaled and divided by twelve, which gave the result of $14,700, but this was done only as a working basis, was not binding on any of the jurors, and that there was no agreement to abide by such result. That the amounts as determined by the different jurors respectively varied from $4,000 to $20,-000. That he, himself, had fixed in his mind the amount of $5,000 and voted that plaintiff be allowed said sum.

That after the first ballot, “the matter -of attorney fees that plaintiffs might have to pay was discussed in the jury room, the matter of insurance that the defendant might carry was discussed in the jury room. * * * I believe I heard some remark to the effect that busses would take up the road as they passed other automobiles. * * * That remark as to taking up too much of the road was made openly. As to what was said about the amount of attorneys’ fees that the plaintiff would have to pay her attorneys, I can’t give the name of the individuals. I don’t remember who they were but their remarks came in. They said that the amount of the attorneys’ fees was figured on a percentage of the amount given to Mrs. Lamb. That wa's discussed among the jurors. There were numerous statements made with reference to attorneys’ fees and the substance of them seemed to be that the amount was figured on the percentage basis as an average.

“With reference to insurance, I don’t remember who brought up that statement but it was brought in. It was discussed some and then someone said that we were not to consider that at all and it was not discussed any further in open conversation. * * * I discussed the matter of insurance some with Mr. Gaither. Mr. Gaither was on the jury. He and I were talking about whether a bus company was insured or bonded and how their protection was. He was telling me about a ease of his company where a laborer was hurt in an accident. Mr. Gaither seemed to think that the bus companies were all covered by insurance. I believe there was some discussion about the insurance company having to pay the judgment rendered. With reference to .the insurance company having to pay the judgment rendered, I believe it was stated that up to the amount of the insurance carried by the company, Watson boys would not be out anything up to that amount. The question was asked what amount of insurance was carried and there seemed to be a difference of opinion as to the amount. The best I remember the opinion as to the insurance carried seemed to be about $10,000.00. * * * I do not believe that the amount of attorneys’ fees, insurance, bills, the fact that some times a bus or busses take up all the road, and such things as that, that I permitted them to influence my verdict. * * * I do not believe that I can entirely forget the discussions that took place, but I believe that I could make up my mind as to the amount without being influenced by them. I would not just be positive that my answers to those various questions was wholly uninfluenced by those things, that is, the discussions that took place.”

Mr. Liles, one of the jurors, testified that: “It was mentioned by one or maybe more than one of the jurors that the plaintiff would have to pay probably a good percent of any recovery she got for attorney fees. It was talked about being out there on the highway and the way busses would pass you on the road going and coming. It was up to you to watch out for your own self when you met one of them. ⅜ * * I voted for $4,000.00 on the first ballot. I later changed to $12,000.00. * * * The matter of insurance and attorney fees and prejudice toward bus companies was discussed between the first vote and the final vote on the damage issue mostly. * * * What little discussion there was about the insurance company having to pay any judgment that might be rendered in the case was that the Watson boys would not be out anything but that they had to carry insurance, that was the effect of it.”

Mr. Eastman, one of the jurors, testified, in substance, that he did not know that anything at all was said with reference to carrying insurance, except some fellow wondered if they carried insurance, and somebody else answered that the state of Texas required bus companies and the transportation companies to carry insurance for the protection of the people who rode on them. That he did not think that there was anything said in the jury room about plaintiffs having to pay a portion of their judgment as attorney fees. That some one did wonder how much the attorneys would get out Of the case, and somebody else replied that those things vary. That it would depend on the amount of work the attorneys had to do.

Eleven of the jurors testified on the hearing for a new trial. Mr. Gaither, a juror who favored a verdict for $20,000, and who discussed insurance with Mr. Bedford, did not testify. The testimony of the' eleven jurors is conclusive that the jurors, while deliberating on the amount of damages, discussed whether the defendant carried insurance, were advised that the state required such comfcanies to carry insurance for the protection of their passengers, and that the insurance company would have to pay the judgment, at least to the extent of the amount of insurance carried. The great preponderance of the testimony also shows that the jury discussed attorney fees and the amount thereof. That on the first ballot the amount of damages voted for by the different jurors varied from $4,000 to $20,000. That after the discussion of these extraneous matters • a verdict of $12,000 was returned. Each of the jurors who appeared, except Mr. Bedford, testified that his verdict, notwithstanding such discussions, was based on the law and the testimony. Mr. Bedford was uncertain whether such discussions influenced him or not. That the foreman or some one else told the jurors that the attorney fees and insurance was not to be discussed or considered. That thereafter the discussion of such matters was not continued before the jury as a whole, but was discussed by jurors in different groups.

In H. & T. C. Ry. Co. v. Gray, 105 Tex. 42, 143 S. W. 606, the Supreme Court uses this language: “If the evidence taken by the trial-judge left it reasonably doubtful as to the effect the statement had upon the amount of the verdict of the jury, we would feel inclined to exercise our authority and set it aside.”

In Southern Traction Co. v. Wilson, 254 S. W. 1104, 1105, in an opinion by the Commission of Appeals, approved by the Supreme Court, after quoting the above quotation and citing other authorities reaffirming the rule, the court says: “Applying the rule laid down by our Supreme Court in the Gray Case, the court itself will set aside a judgment and order a new trial, where all the evidence, considered as a whole, taken by the trial judge on the hearing of the motion for a new trial, leaves it reasonably doubtful to the Supreme Court as to whether or not the improper conduct of the jurors affected the amount of the verdict.”

After discussing the evidence of the jurors before the trial court and stating that eleven of the jurors had testified that they were not influenced by the discussion of attorney fees, and referring to the testimony of one of the jurors, the court continues: “Of course, if it influenced him at all, even though the extent be indefinite, his verdict must be set aside. In this connectipn we quote as follows from his testimony, as given on the hearing itself before the trial judge: T cannot say what effect that discussion (about attorneys’ fees) had on me. Of course, it was in my mind at the time, but I cannot say that it affected me to a great extent. It is a hard question for me to answer as to whether it affected me or not at all.’ ” For this misconduct the judgment was reversed.

In the case before us, Mr. Bedford states: “I would not just be positive that my answers to those various questions was wholly uninfluenced by those things, that is, the discussions that took place.”

In the case of Moore v. Ivey et al., 277 S. W. 106, 107, in an opinion by the Commission of Appeals, approved by the Supreme Court, it is stated: “It may be clear that eleven (or a lesser number) of the jurors were not, to any degree, influenced by the improper conduct'; yet if it remains reasonably doubtful whether one (or a larger number) was, or was not, influenced, the vice remains and the verdict must be set aside' (Southern Traction Co. v. Wilson, supra) because each juror can rightly agree to the verdict only when guided solely by the instructions of the trial judge and the evidence heard in open court. A proper corollary is that, when misconduct is once shown, and there is reasonable doubt as to its effect, that doubt must be resolved against the verdict. * * * Again, the absence of actual effect cannot be established (conclusively, at least) by the most emphatic denials made by jurors when they are called to account. * * * when it is remembered, as it must be, that every case of misconduct includes violation of the juror’s oath, a species of perjury, and liability to punishment for contempt, it is but natural to expect that the juror, when called into open court to answer about what happened in the jury room and its secrecy, will be earnest in his efforts to excuse and mitigate the offense, but laggard in advancing its actual proportions.”

See, also, Great West Mill & Elevator Co. v. Hess (Tex. Civ. App.) 281 S. W. 234; St. L. S. W. Ry. Co. of Texas v. Smithhart (Tex. Civ. App.) 9 S.W.(2d) 146.

The holdings announced in the foregoing cases have been followed by a long and unbroken line of decisions, and in our opinion the record in this ease, to say the least, makes it appear affirmatively doubtful as to whether or not the verdict was influenced by the discussion of the questions of insurance and attorney fees while the jury was deliberating on their verdict,' none of which was in evidence, and this assignment must be sustained.

The appellant challenges as error the action of the trial court in overruling its motion to discharge the jury and grant it a new trial after the witness Conrad Watson had testified that Dr. Standipher wired the insurance company for'authority to operate upon the knee of the plaintiff, because such testimony apprised the jury of the fact that the defendant carried insurance.

Mr. Watson was vice president or manager of the defendant company and its ticket agent at Lamesa, Tex., and, while on the stand as a witness for the defendant, was asked by appellee’s counsel how many times he saw the plaintiff at the sanitarium and who went with him to the sanitarium, and he replied, “The only thing that I went down there for was once just before the operation ; that was probably the main reason I went down there, was the reason that Dr. Standi-pher had wired the insurance company for authority to operate.” This answer was objected to by appellant, among other things, because it was not responsive, the objection was sustained and the jury instructed not to consider the answer for any purpose whatever. It is obvious that the answer was not responsive to the question of appellee’s counsel, and, if the question of insurance was thereby injected into the case, it was done by appellant’s vice president or manager and it cannot take advantage thereof. Carter-Mullaly Transfer Co. v. Bustos (Tex. Civ. App.) 187 S. W. 396; D. & H. Truck Line v. Lavallee (Tex. Civ. App.) 7 S.W.(2d) 661.

The appellant presents as error the action of the trial court in submitting to the jury the issue, “Do you find from a preponderance of the evidence that the driver of the motor bus immediately preceding and at the time of the accident was guilty of negligence?” because said issue did not confine the jury to the specific grounds of negligence alleged in plaintiff’s petition.

Plaintiff, after having alleged specific acts of negligence, then pleaded that, if she was mistaken as to any or all of such specific allegations, she did not know what caused the wreck, but alleged that defendant had control and operation of the coach, and it was charged with the duty of ordinary care for her safety as a passenger, and, if such care had been used, no wreck would have occurred and no injury been sustained. This assignment is overruled. Simmons v. Terrell Electric Light Co. (Tex. Com. App.) 12 S.W. (2d) 1011; Bower Auto Rent Co. v. Young (Tex. Civ. App.) 274 S. W. 295.

We find no reversible error in the record except that presenting the misconduct of the jurors, for which the judgment is reversed, and the cause remanded.

On Motion for Rehearing.

The appellee filed her motion for a rehearing in this case urging as error the action of this court in reversing the judgment of the trial court in her favor for the sum of $12,000 on account of the misconduct of the jury.

She also filed a remittitur in the sum of $7,000 if her motion for rehearing is overruled, provided the judgment of the trial court should be affirmed for the sum of $5,000.

The testimony shows without controversy that all the special issues submitted by the court 'pertaining to the liability of the appellant had been determined and answered in favor of the appellee before the misconduct of the jury occurred, for which the judgment was reversed.

The only issue answered after the misconduct of the jury was the one assessing the amount of damages appellee was entitled to recover. Prior to the misconduct discussed in the original -opinion, a ballot had been taken by the jurors on the amount of damages to be assessed. The smallest amount voted for by any juror was $4,000, and the greatest amount was $20,000. After the discussion of the extraneous matters that constituted the misconduct, a verdict for $12,000 was returned and a judgment entered therefor.

Under the record, the misconduct of the jury could not have affected the verdict on any issue except the amount of damages. As • the smallest amount any juror voted to assess before the misconduct was $4,000, the only injury that appellant could have suffered was the amount of the verdict in excess of $4,000.

If appellee, within ten days, will file-a re-mittitur of $8,000, the motion for rehearing will be granted, and the judgment of the trial court reformed and rendered for appel-lee for the sum of $4,000; otherwise, the judgment will be reversed as in the original opinion.

This action is based on the holding in the case of Estep v. Bratton et ux. (Tex. Civ. App.) 24 S.W.(2d) 465, 471, on the motion for rehearing and the authorities cited, and also on the case of Texas & N. O. Ky. Co. v. Stevens et'al. (Tex. Com. App.) 24 S.W.(2d) 9.


author: BBAIR, J.

text:
    DAUGHTRY v. BLANKET STATE BANK et al.
    No. 7624.
    Court of Civil Appeals of Texas. Austin.
    July 15, 1931.
    Rehearing Denied July 25, 1931.
    McGaugh & Darroeh, of Brownwood, for appellant.
    Woodruff & Holloway, of Brownwood, for appellees.
   BBAIR, J.

Appellant, Ellis Daughtry, sued appellees, the Blanket State Bank, and its president and cashier, W. J. Richmond and S. E. Lacy, for damages resulting from the wrongful dishonor of his check for $500 given to J. S. Beck in payment of cattle, alleging that for several months prior to the time appellant gave the check he had been engaged in buying and selling live stock, and had made arrangements with appellee bank through its appellee officers to cash his checks given in payment of live stock, and that upon sale of the live stock the proceeds would be deposited to the credit of the bank, and that, if there were overdrafts, the bank would carry same as loans drawing interest; that appellees refused to pay the $500 check when presented for payment ; that before the check was presented appellant had sold and shipped the cattle purchased from Beck and had deposited the net proceeds of $400 to the credit of appellee bank, and of which deposit all of the appellees had knowledge when payment on the check was refused; that the appellee bank and its appellee officers misappropriates the $400 thus deposited, and applied same as a credit upon a note executed by Perry Daughtry to appellee bank with appellant as surety, and which note was not due and was secured by other property; that, when Beck made inquiry of appellees as to whether the proceeds of the sale of the cattle had been deposited in appellee bank, he was informed by the ap-pellees that no such deposit had been madei, and all appellees, acting together and for the purpose of protecting the appellee bank and themselves in the unlawful conversion of the $400, told Beck that appellant was a “financial crook,” and that, if Beck would prosecute appellant for giving the check and have him arrested, he would get his money; that in thus advising Beck appellees were acting together with the design and for the purpose of injuring and harassing the appellant and for the further .purpose of protecting appellee bank and its appellee officers in the unlawful conversion of the $400 realized from the sale of Beck’s cattle; that, acting upon and being influenced by the aforesaid statements and conduct of appellees, Beck filed a complaint charging appellant with swindling of more than $50 on account of the dishonor by ap-pellee bank of the check; that upon this complaint appellant was arrested and held under bail to-await the action of the grand jury; that after filing the complaint Beck inquired through his attorney by letter whether appellant had deposited the proceeds of the sale of the cattle in appellee bank, and whether appellant had deposited $440 of such proceeds in appellee bank, to which inquiry appellee bank, through its cashier, appellee S. E. Lacy, who, with the knowledge and consent of all the appellees, replied by letter that no such deposit had been made by appellant, and gave no information in regard to appellant having deposited $400 of such proceeds in appellee bank, thereby libeling appellant as a liar, swindler, and thief; that thereafter Beck, acting upon and being influenced by this information, continued prosecution, and the grand jury indicted appellant for swindling of more than $50 on account of the dishonor, of his check by appellee bank; but that the criminal prosecution later resulted favorably to appellant, the case being dismissed on motion of the district attorney for want of sufficient evidence to convict. It was further alleged that appellee bank and its appellee officers acted together as conspirators to injure appellant in his reputation and credit as a dealer in live stock in all the unlawful acts aforementioned; that they caused him to be arrested and prosecuted for swindling, greatly embarrassing and humiliating him; that they made and caused to be made.the libelous and slanderous reports and statements concerning him, thereby greatly damaging his business, his health, and causing him to iri-eur expenses in defense of himself; and that the aforesaid acts and conduct of appellee's were wanton and willful and in disregard of his rights, and designedly done for the purpose of keeping the $400 which he had deposited as proceeds of the sale of Beck’s cattle, to appellant’s actual and exemplary damages in the sum of $30,500, for which he prayed judgment.

Each of the appellees filed similar special exceptions to the.petition, of appellant, urging misjoinder of causes of action, which were sustained, the court holding that appellant could not join in one suit an action against the bank for breach of a contract to pay appellant’s checks when presented, or to advance money under the contract with a tort action against the bank and its officers for alleged false imprisonment, malicious prosecution, slander, and libel; and, upon appellant’s refusing to elect against which appellee he would proceed, the cause was dismissed; hence this appeal.

The court erred in sustaining the special exceptions, holding a misjoinder of causes of action in this suit. It is a settled rule in this state that, in order to avoid a multiplicity of suits, one may sue in the same action to recover damages for breach of contract and for tort, where both claims grow out of the same or related transactions, and are so immediately connected that they may be conveniently litigated together without undue prejudice to the parties, and especially is this the rule where the gist of the action is for tort rather than for breach of contract. Stuart v. Western Union Tel. Co., 66 Tex. 580, 18 S. W. 351, 59 Am. Rep. 623; Miliken & Co. v. Callahan Co., 69 Tex. 205, 6 S. W. 681; Houston, etc., Ry. Co. v. Shirley, 54 Tex. 125; Hooks v. Fitzenrieter, 76 Tex. 277, 13 S. W. 230; Cobb v. Barber, 92 Tex. 309, 47 S. W. 963; Shirley v. Waco Ry. Co., 78 Tex. 131, 10 S. W. 543, in which it was held that a plaintiff might sue in one action to recover damages for breach of a road construction contract and for conversion of property by the unlawful levy of an attachment in another’s name for the purpose of disrupting the contract for the construction of the road. See, also, Cumberland State Bank v. Ison, 218 Ky. 412, 291 S. W. 405; Western Nat’l Bank v. White, 62 Tex. Civ. App. 374, 131 S. W. 828; Bowden v. Bridgman (Tex. Civ. App.) 141 S. W. 1043; Ross v. Cleveland (Tex. Civ. App.) 133 S. W. 315; Kirby Lumber Co. v. Chambers, 41 Tex. Civ. App. 632, 95 S. W. 607; Craig v. City of Dallas (Tex. Civ. App.) 20 S.W.(2d) 154; Townes’ Texas Pleadings (2d) 218.

The gist of appellant’s suit is to recover damages for false imprisonment, malicious prosecution, slander, and libel, all of which matters grew out of the wrongful dishonor of his check and the conversion of the proceeds of the sale of the cattle purchased with the check and deposited in appellee bank, the petition alleging that appellees acted together in breaching or causing the breach of the contract to pay the check; in converting or causing to be converted the proceeds of the sale of the cattle purchased with the check and deposited in appellee hank; in thereafter making slanderous statements and writing libelous letters concerning these transactions'; and in bringing anout or causing the arrest, imprisonment, and prosecution of appellant on account of the dishonor of his check by appellees; and that all acts and conduct of ap-pellees were in furtherance of a common design to protect appellee bank in its unlawful conversion of the proceeds of the sale of the cattle. These facts, as against tha special exception sustained,. are taken as true and constitute appellees joint tort-feasors, and, although some of them did certain acts and others did other and different acts in furtherance of the common purpose or design, they are all jointly liable for all acts done in the accomplishment of the common purpose and for the resulting damages, and the causes of action thus arising are properly joined in this suit. And, since the gist of the action is for tort rather than for breach of contract, the joint tort-feasors are properly joined in this action against the bank for breach of contract and tort, because the actions grew directly out of and are immediately connected with the same matter. That is, the petition alleges that the appellee bank, acting through its ap-pellee officers wrongfully dishonored appel-ant’s check, and that appellees converted the proceeds of the sale of the cattle purchased with the check and deposited in appellee bank; that thereafter appellee officers, acting together with the bank and for the purpose of protecting the bank in its unlawful conversion of the proceeds of the sale of such cattle purchased with the cheek, advised the payee of the check to prosecute appellant for giving the cheek, and in that connection uttered the slanderous statements pleaded and made the libelous statements contained in the letter. It was further alleged that the acts, slanders, and libels of each officer were done or made with the knowledge and consent of all appel-lees, and for the common purpose of protecting appellee bank in the conversion of the proceeds of the sale of the cattle. So, under these allegations, each fact pleaded would be admissible in evidence against each joint tort-feasor, even though he be sued separately, thereby necessitating three trials on the same state of facts. It necessarily follows that, if the same evidence can be introduced against each of the joint tort-feasors in separate suits, neither could be unduly prejudiced by being compelled to answer in the same suit; and we therefore conclude that, because the claims of appellant grew out of the same or related transactions, and because the tort actions, which are the gist of the suit, are so immediately connected with and immediately related to the entire claims of appellant, and since all actions may be conveniently litigated together without any undue prejudice to either party to the suit, they are properly joined in this action.

Appellees rely in the main upon the case of First Nat. Bank v. Mangum (Tex. Civ. App.) 176 S. W. 1197; Id. (Tex. Civ. App.) 194 S. W. 647, to sustain the action of the trial court upon the exceptions; but that case is clearly distinguishable from the case at bar. In that case it was not alleged that the damages for breach of the contract and the damages for the tort grew out of or were immediately connected with or incident to the breach of the contract. Nor was the officer of the bank in that ease alleged to have acted jointly with the bank for the purpose of carrying out any common design or purpose in connection with or incident to the breach of the contract, and for which they could be held as joint tort-feasors. In the instant case the petition alleged that all acts done and complained of were done by all the appellees acting together as conspirators, starting with the unlawfui dishonor of the check, conversion of the proceeds of the sale of the cattle paid for by the check, the slanderous statements and libelous letters written in continued and close sequence to those acts, culminating in the arrest, indictment, and prosecution of appellant for the purpose of protecting the bank and all appellees in the unlawful conversion of the funds deposited under the terms of the contract breached.

The trial court also erred in sustaining the several special exceptions of appellees, striking out that portion of appellant’s petition wherein he alleged the manner in which appellees handled the item of $400 deposited in the bank as proceeds of the sale of the cattle, as not constituting any part of appellant’s cause of action. As above pointed out, it was proper for appellant to plead all transactions in connection with or incidental to the breach of the contract as a part of a series of transactions or acts which culminated in the wrongful arrest and prosecution of appellant. If appellant has any cause of action, it grew out of the wrongful dishonor of the check and the conversion of the $400 deposited under the contract, which acts were followed in continued and close sequence by slanderous statements and libels, which culminated in the arrest and prosecution of appellant, for the purpose of protecting appellee bank in its conversion of the deposit.

The trial court also erred in sustaining the several special exceptions of appellees, striking out of appellant’s petition all specific items, statements, writings, or utterances of appellee bank’s officers, and alleged to be slanderous and libelous, upon the ground that said appellee bank officers were not agents or officers of the bank in making such statements or writings; nor were such writings or statements made or written in pursuance of the business of the bank, and in no way binding upon it. Appellees Richmond and Lacy were the bank’s president and cashier, respectively, and were in charge of and managing its entire affairs. They made the contract in suit for the bank; they acted for the bank in breaching this contract; they acted for the bank in converting the $400 deposit; they answered inquiries denying for the bank that appellant had deposited the $400; refused to give any information as to the deposit as agents and officers of the bank, and,, in connection with these inquiries, gave slanderous and libelous statements concerning appellant, causing his arrest and prosecution, and all of which was alleged to have been done for the purpose of protecting the appel-lee bank in its conversion of the deposit. Under these alleged facts the appellee officers of appellee bank must be held to have acted as agents of the bank and within the scope of their authority as agents and officers of the bank. Cumberland State Bank v. Ison, supra; Southwestern Tel. & Tel. Co. v. Long (Tex. Civ. App.) 183 S. W. 421.

In this connection we sustain the action of the trial court sustaining special exceptions to the petition, striking out the allegations that appellees, in the presence of many citizens of Brown, Comanche, and Mills counties, unknown to appellant, frequently made slanderous statements of the same tenor and effect as those aforementioned, upon the grounds that such allegations were too indefinite, general, and vague to apprise appellant of the nature of such slanderous statements. Lawless v. Ellis (Tex. Civ. App.) 2S1 S. W. 1090; Miller v. Dorsey, 149 Mo. App. 24, 129 S. W. 66.

The court erred in sustaining the several special exceptions of appellees, striking out of appellant’s petition all allegations with reference to appellees causing the arrest and prosecution of appellant for swindling on account of giving Beck the check which appellee bank dishonored, upon the grounds that the allegations were too vague and indefinite, and alleged no facts showing or constituting a conspiracy on the part of appellees, or to show that they caused or joined in causing any malicious prosecution, imprisonment, libel, slander, or any actionable damage to appellant. The pleadings allege all transactions and facts surrounding the giving of the check, the relation of all parties to these transactions ; the duty of the bank and its officers to make full disclosure to the payee of the cheek as to its contract with appellant, and to reveal, the fact that appellant had deposited $400 of the proceeds of the sale of Beck’s cattle ; but that, disregarding these duties and for the purpose of protecting appellee bank in its conversion of the $400, all appellees conspired and acted together and withheld any information to payee which could show appellant not guilty of swindling on account of giving the cheek, and, in connection with payee’s inquiry concerning the deposit of $400, denied same, and advised and counseled payee to prosecute appellant for swindling on account of giving the check, and urged payee to have appellant arrested as a means of collecting the check; thereby purposely setting in operation the machinery of law against appellant and causing his arrest, indictment, and trial upon the charge of swindling on account of giving" the check which appellees had wrongfully dishonored. If these facts alleged are proved, they show a conspiracy on the part of appellee bank and its appellee officers to cause the prosecution of appellant for swindling of more than $50, in order to protect appellee bank in its conversion of the $400 deposit, which rightfully belonged to Beck, as payee of the dishonored check.

The trial court also erred in sustaining the several special exceptions of appellees, striking out of appellant’s petition loss of earning capacity and expenses for defense of himself against the swindling charge as elements of damages arising oui of the malicious prosecution for alleged swindling and arising out of the.libels and slanders incident thereto, and as destroying appellant’s standing and reputation for business integrity in the community. We think it indisputable that impairment and loss of earning capacity occasioned by the malicious prosecution of a man for swindling is a natural and probable consequence of such malicious prosecution, in that such proceeding necessarily implies that a man is unworthy and without business integrity. Davis v. Teague (Tex. Civ. App.) 256 S. W.. 957; Mo., etc., Ry. Co. v. Craddock (Tex. Civ. App.) 174 S. W. 965; Equitable Life Assur. Society v. Lester (Tex. Civ. App.) 110 S. W. 499; Gulf, C. & S. F. Ry. Co. v. James, 73 Tex. 12, 10 S. W. 744, 15 Am. St. Rep. 743.

Except for the one hereinabove mentioned, we think the trial court erred in sustaining each and all the special exceptions urged by appellees to appellant’s petition, and reverse and remand the cause for trial upon the merits.

Reversed and remanded.


author: BUCK, J.

text:
    DONGES v. BEALL, County Clerk, et al.
    No. 12550.
    Court of Civil Appeals of Texas. Fort Worth.
    Feb. 28, 1931.
    Rehearing Denied April 11, 1931.
    Marvin H. Brown, of Fort Worth, for appellant.
    Charles T. Rowland, Arthur Lee Moore, Raymond E. Buck, Sol Greines, and David Greines, all of Fort Worth, for appellees.
   BUCK, J.

This is a suit by J. R. Donges against Orville Beall, the duly elected and qualified county clerk of Tarrant county, and C. W. Atkinson, the duly elected and qualified county judge of Tarrant county, and against Harve Wright, Joe Schooler, Bill Merritt, and Frank Estil, the duly elected, qualified, and acting commissioners of Tarrant county.

Plaintiff alleged that he had been for a period of four years next preceding the filing of the petition a regularly and lawfully appointed, acting, and qualified deputy county clerk in and for Tarrant county; that he was duly appointed on or about January 27, 1927, to a position as deputy county clerk by Chester Hollis, the then county clerk, and had served as said deputy county clerk for a period of four years, and had performed the duties regularly incumbent upon said position. Plaintiff further alleged that he had been wrongfully and unlawfully discharged and prevented from performing such duties by Orville Beall, the said county clerk; that at the regular session of the Forty-First Legislature, state of Texas, there was passed a general bill and law known as House Bill No. 596, which appears in chapter 81, page 194 et seq., of the General and'Special Laws of the Forty-First Legislature, and which law became effective on October 25, 1929; that section 1 of said bill and law specifically provides that the law so passed should operate in, and apply to, all counties within the state of Texas having a population of not less than 150,000 and not more than 175,000 according to the latest United States census, meaning thereby the last official United States census which was had and taken in the year 1920; that said law applied to Tarrant county, Tex., when passed, because the population of Tar-rant county, as shown by the census, was between 150,000 and 175,000 people; that said bill and law specifically creates a civil service commission in and for such counties as come within the terms and purview of said law, and provides for the remuneration of such commission and the clerk thereof, and provides for the meetings of such commission, and provides for rules for examinations to be held for the employees in the county offices of such counties as are affected by such law, etc.

Plaintiff further pleaded that for two and one-half years prior to the time said bill and law became effective plaintiff has been a duly appointed acting and qualified deputy county clerk in and for Tarrant county, has had the experience of such deputy county clerk, and has performed, and was capable of performing, the offices, duties, and obligations of such deputy county clerk, and has been at all times since the law became effective acting as such deputy county clerk, and no charge of any character has been filed against him.

Plaintiff alleged that he had drawn a salary of $175 a month, or $2,100 a year, and that such salary was approved by the commissioners’ court of Tarrant county. He prayed for a mandatory injunction requiring Orville Beall to permit him to perform the functions and duties of deputy county clerk and to pay him the salary and emoluments that are rightfully his, and an injunction against the commissioners’ court to restrain them from paying out to any other person the salary which he alleged belonged rightfully to him.

This petition was duly verified, and upon a hearing before Hon. Bruce Young, judge of the Forty-Eighth Judicial court, he sustained defendants’ general demurrer, and the plaintiff has appealed to this court.

Opinion.

One of the grounds upon which appellees rely is that the Constitution, art. 16, § 30, provides: “The duration of all offices not fixed by this constitution shall never exceed two years.”

Appellee urged that a deputy county clerk comes within this inhibition; that he is an officer, and cannot hold his office by reason of appointment for a longer time than two years, and that the petition shows that he had held the office for a period of four years.

In City of Houston v. Albers, 32 Tex. Civ. App. 70, 73 S. W. 1084, by the Court of Civil Appeals of the first district, it was held that under the city charter of Houston, providing that the terms of service of all employees of the police department of said city shall continue during efficient service and good behavior, and under the state Constitution, art. 16, § 30, declaring that the terms of all officers not fixed by the Constitution shall not exceed two years, on the expiration of two years from the date of a policeman’s appointment, in the absence of reappointment,-he ceased to be an officer de jure, after which the city was only liable for services actually rendered by him and accepted.

In the case of San Antonio Independent School District v. State (Tex. Civ. App.) 173 S. W. 525, writ of error denied, the court held that that part of the local act of 1913, constituting the school board of San Antonio, is unconstitutional in so far as it endeavors to increase the tenure of office to more than two years. See, also, Proctor v. Blackburn, 28 Tex. Civ. App. 351, 67 S. W. 548.

In the case of Pfeffer v. Mahnke, 260 S. W: 1031, 1033, the Commission of Appeals held that chief clerks of the comptroller and secretary of state are “public officers,” and cannot hold their office for a longer period than two years without reappointment. Justice Hamilton, speaking for the court, said:

“The service of the secretary of state and the comptroller on the board of education is the performance by each of a duty attached by the statute to the office held by each. The duties are not personal. They are duties attached to the offices. Any holder of the office of secretary of state or comptroller must serve as a member of the board of education as a part of the duties of those offices respectively. Since the statutes provide that the chief clerks may respectively perform the duties attaching to those offices, the chief clerks may, in the contingencies mentioned in the statutes, perform ■ the particular duties attaching to the offices of secretary of state and comptroller by virtue of the statutes making them members of the board of education. In such cases the chief clerks do not perform those duties by delegation of authority from their chiefs. They perform them by virtue of authority of the Legislature in the same way that their chiefs are authorized to perform them. The Legislature could have provided that, in the absence, etc., of the secretary of state and comptroller, the chief clerks of either or each should he members of the board of education. The Legislature has done the same thing in a different way by prescribing that the chief clerks provided by statute shall and may, in the absence of the secretary of state ánd the comptroller, perform the duties of those officers, among which are duties arising from their membership on the state board of education. Thus the chief clerks are officers provided by statute, and authorized by statute, to perform the duties attaching to the officers of secretary of state and comptroller, making those officers members of the board of education. The full authority of the chief clerks thus to act arises irom the acts of the Legislature investing them with such authority when the contingencies mentioned in the statutes arise. There is no delegation of authority to the chief clerks by the secretary of state and the comptroller. In truth and in fact, the secretary of state and the comptroller are impotent to prevent the chief clerks from thus performing the duties of those offices in the contingencies of the statutes authorizing them to act. The chief clerks have the same authority to perform the duties of those offices in those contingencies that the secretary of state and comptroller have to perform them at all other times — the authority of the Legislature. The chief clerks are public officers in the same sense and created by the same legal authority as other statutory officers of the state.”

In the case of Towns v. Harris, 13 Tex. 507, it was held that a return of process signed by the deputy sheriff was proper. The court said: “The Deputy Sheriff is an officer known to the law; and as such, his official acts are to be regarded as- valid.”

Appellant urges that the opinion of Robertson v. Ellis County, 38 Tex. Civ. App. 146, 84 S. W. 1097, 1098, by the Dallas Court of Civil Appeals, is contrary to the contention of the appellees. In this case an official court stenographer appointed under the statutes in force at that time was held to be not an officer, within the meaning of article 16, § 30. Justice Talbot, speaking for the court, said:

“The first question to be disposed of is whether or not the act under consideration is unconstitutional, for the above-stated reasons urged by appellee. This depends, in our opinion, upon the further question whether the position of stenographer created by said act is an office, within the nieaning of the word ‘office’ as used in said section 30, art. 16, of the Constitution, which reads, ‘The duration of all offices not fixed by this Constitution shall never exceed two years.’ The definition of the term ‘office,’ as given by Mr. Mechem in his work on Public Officers, is quoted with approval by our Supreme Court in the case of Kimbrough v. Barnett, 93 Tex. 301, 55 S. W. 120, and is as follows:- ‘A public office is the right, authority, and duty created and conferred by law, by which, for a given period, either fixed by law or enduring at the pleasure of the creating power, an individual is invested with some portion of the sovereign functions of the government, to be exercised by Mm for tbe benefit of the public.’ The act authorizing the appointment of- official stenographers provides for their appointment by the judges of the district courts, and decláres that they shall be sworn officers of the court, and shall hold their office during the pleasure of the court, and further declares that the purpose of such appointment is to preserve the record in all cases for tlfe information of the court, jury, and parties, and, to that end, fit shall be the duty of the official stenographer to attend all sessions of the court; to take full stenographic notes of the oral evidence in every case tried in said court, together with all objections to the admissibility of testimony, the rulings of the court thereon, and all exceptions to such rulings; to preserve all official notes taken.in said court for future use or reference and to furnish to any person a transcript of all or any part of said evidence or other proceedings upon the payment to him of the compensation,” etc. Does the act confer upon the stenographer any sovereign function of government? We think not. There is quite a material difference between a public office and a public employment. As said by Chief Justice Marshall, ‘Although an office is an employment, it does not follow that every employment is an office.’ Mr. Mechem, in his work on Public Officers, says: ‘The most important characteristic which distinguishes an office from an employment or contract is that the creation and conferring of an office involves a delegation to the individual of some of the sovereign functions of government, to be exercised by him for the benefit of the public; that some portion of the sovereignty of the country, either legislative, executive, or judicial, attaches for the time being, to be exercised for the public benefit. Unless the powers conferred are of this nature, the individual is not a public officer.’ Now, while the fact that the position of stenographer is designated in the act providing for ifs creation as- an office, and that it declares that the person who may be called to perform its duties ‘shall be a sworn .officer of the court,’ affords some reason for determining it to be such, still it is believed the place possesses none of those sovereign functions of the judicial department of the government to which it relates, to distinguish it from a mere employment to perform a species of service, under public authority, for the assistance and convenience of the court and parties litigant therein, in which no judicial discretion or judgment is involved. The creation of the position, as shown by the very terms of the act,' was designed for no other purpose than to provide some one by whom the oral evidence offered, and other proceedings involving objections made to admissibility of testimony, the ruling of the court, and exceptions thereto, might be taken in shorthand, as a method of preserving those matters as they occurred, without delaying trials, to be aft-erwards transcribed and furnished the court and parties to the suit, to aid them in an accurate and prompt preparation of the record. The report or transcript of the proceedings by the stenographer is not binding, however, upon the court, and may be adopted or rejected at his discretion. No'act which he is authorized to do is independent of the control of others, or vested in him as a supreme power to be exercised as a right or prerogative of a judicial office. We conclude that while the position of a stenographer, under the statute in this state, may be, in a sense, an office, and the term thereof may continue for a longer period than two years, yet there is no such sovereign function of government embraced in the powers conferred upon the individual performing its duties as brings it within the meaning of the word ‘office’ as used in the section of the Constitution quoted.”

It was held in that opinion that a stenographer, appointed by the court, did not come within the term of a “public officer.”

In the case of Garrett v. Commissioners’ Court of Limestone County, 230 S. W. 1010, 1014, by the Dallas Court of Civil Appeals, it was held that the members of the board of road commissioners were officers. The court said:

“ ‘The term “office” implies a delegation of a portion of the sovereign power to, and possession of, it by the person filling the office; a public office being an agency for the state, and the person whose duty it is to perform the agency being a public officer. The term embraces the idea of tenure, duration, emolument and duties, and has respect to a permanent public trust to be exercised in behalf of government, and not to a merely transient, occasional or incidental employment. A person in the service of the government who derives his position from a duly and legally authorized election or appointment, whose duties are continuous in their nature and defined by rules prescribed by government, 'and not by contracts consisting of the exercise of important public powers, trusts, or duties, as a part of the regular administration of government, the place and the duties remaining, though the incumbent dies or is changed, every office in the constitutional meaning of the term implying an authority to exercise some portion of the sovereign power, either in making, executing or administering the laws.’ Mechem on Public Officers, §§ 1-9.”

This case involved the right to enjoin the commissioners’ court of Limestone' county from unlawfully conferring and usurping the functions of the board in laying out and constructing public roads. The injunction was denied by the trial court, arid the plaintiffs below appealed. The trial court’s conclusions, upon which the judgment was appealed, may be predicated, as found by the Court of Civil Appeals, that the position held by the members of the board are offices, and the members themselves are officers within the meaning of the Constitution of Texas, and that the creation of such offices and the prescribing of the duties and powers of such of-, fleers by the special legislative enactment violated section 56 of article 3 of the state Constitution; that sections 5 and 9 of the special road law and other parts of the law (Sp. Laws 30th Leg., 1919, c. 74), constitute a legislative attempt to control the affairs of Limestone county by special law, taking away from the commissioners’ court the power conferred by section 18 of article 5 of the Texas Constitution, and by general statutes, and bestowing that power upon the road board; that the power to locate, change, control, and supervise roads having been conferred upon the commissioners’ court by section IS of article 5 of the Constitution and by general statutory law, the creation of the district board by special law, and clothing it with the powers and duties therein prescribed, is void and in contravention of section 56 of article 3 and section 18 of article 5 of the Constitution; that the law fixes no definite tenure for the members of the board; and that their tenure may be any period of time until the work is completed, which may be less than two years or more than two years, rendering the law in conflict with section 30 of article 16 of the Constitution. This case went to the Supreme Court on a writ of error, and the judgment of the Court of Civil Appeals was reversed and the judgment of the trial court was affirmed in Commissioners’ Court of Limestone County v. Garrett, 236 S. W. 970. A motion for rehearing was overruled in 238 S. W. 894. Hence that decision of the Court of Civil Appeals seems to have been overruled by the Commission of Appeals, approved by the Supreme Court.

In the case of Cawthon v. City of Houston, 31 Tex. Civ. App. 1, 71 S. W. 329, it was held, in the light of the constitutional provision fixing the term of office of all qfficers whose term is not otherwise fixed by the Constitution at two years, to mean that the duration of the term of service of policemen of said city is, during efficient service and good behavior, for two years, as limited by the Constitution.

There are many other questions discussed in the briefs of appellant and appellee, and relied on, but we do not find it necessary to discuss them or to decide the questions therein involved. We believe that under the Constitution, art. 16, § 30, plaintiff below was not entitled ⅛ bring the suit, and that the court correctly ruled that the general demurrer should be sustained.

Judgment below is affirmed.

CONNER, C. J., not sitting.


text:
    WALKER v. QUANAH, A. &. P. RY. CO.

    No. 3611.
    Court of Civil Appeals of Texas. Amarillo.
    May 13, 1931.
    Rehearing Denied June 10, 1931.
    Killough & Dotson, of Vernon, for plaintiff in error.
    C. Y. Welch, of Quanah, and G. E. Hamilton, of Matador, for defendant in error.

      Writ of error granted.

   JACKSON, J.

The appellant, H. J. Walker, instituted this suit in the district court of Hardeman county, Tex., against the appellee, the Quanah, Acme & Pacific Railway Company, to recover damages for personal injuries alleged to have been sustained by appellant as the result of a collision between one of the appellee’s trains and an automobile driven and operated by appellant on January 29, 1929.

The appellee answered by general demurrer, special exceptions, general denial, and pleaded that the appellant was guilty of contributory negligence.

In response to special issues submitted by the court, the jury found that the appellee was guilty of negligence in the particulars alleged and that such negligence was the proximate cause of plaintiff’s injuries; that the agents of the appellee operating its train did not discover the peril of appellant in time to avoid the collision; that appellant had been damaged in the sum of $3,000; but that appellant was guilty of contributory negligence in approaching the crossing where the collision occurred and that such contributory negligence was ⅞ proximate cause of appellant’s damages. On these findings the court rendered judgment that appellant take nothing by his suit and the appellee go hence without day, from which judgment the appellant, by writ of error, prosecutes this appeal.

The appellant, by proper assignments, urges as error the action of the court in rendering judgment against him because he should have been granted a new trial on account of the misconduct of the jury.

At the request of appellee, the court filed findings of fact on the testimony introduced on the hearing of the motion for a new trial, which, so far as are necessary to a disposition of this appeal, are, in effect, that the first sixteen special issues submitted by the court in his main charge were answered the first day of the jury’s deliberations. That the issue submitting the amount of damages and the issue submitting plaintiff’s contributory negligence were not answered, but a vote was had by the jury on plaintiff’s contributory negligence, and ten of them were in favor of finding that he had used ordiuary care and two favored finding him guilty of contributory negligence. That on assembling the next morning, the jury requested that the testimony of the plaintiff be reproduced, which was done, the jury returning to their room, and six of them voted that plaintiff had used ordinary care and six voted that he was guilty of contributory negligence and, in a reasonably short time thereafter, returned their answers, including the finding that appellant was guilty of contributory negligence. That after hearing the testimony of plaintiff reread and returning to their jury room, considerable discussion arose as to the effect the answer on contributory negligence would have on plaintiff’s right to recover. That one of the jurors stated that their finding on the issue of contributory negligence would make no material difference, as plaintiff would get the $3,000 damages assessed by them, regardless of how that issue was answered.

In addition to these findings, which are sustained by the testimony, the record discloses that the statement that the jury’s finding on the issue submitting plaintiff’s contributory negligence would be immaterial, was contradicted by another juror, who stated that in his opinion, if they found plaintiff was guilty of contributory negligence, the court would not allow him a recovery. That the statement was also made by some of the jurors substantially that the effect of their finding was not any concern of the jury. One of the jurors, Mr. Walser, testified that he advised the jury before they agreed to answer that plaintiff was guilty of contributory negligence, that plaintiff would recover nothing in the suit, and that he was certain when the question was so answered that plaintiff would not be allowed to recover. That during the deliberations, some juror stated that if they found plaintiff guilty of contributory negligence; he would be allowed to recover his judgment for $3,000. Some of the jurors testified that the impression was left on their minds that the plaintiff would be allowed to recover the damages the jury assesed, even if they did find the plaintiff guilty of contributory negligence, and they agreed to that finding because of such impression. That in their opinion the evidence did not show that plaintiff had failed to use ordinary care. They all testified that they agreed to and returned the issues as answered and that it was their verdict, though some of them believed that plaintiff would be given judgment for $3,000 on the issues as answered.

The testimony disclose that some of the jurors thought that the proper way to proceed was to first determine the amount that plaintiff should be allowed to recover and then answer the issues so as to allow the recovery of the amount agreed upon, but this procedure was not followed.

The court, in the first paragraph of his charge, instructed the jury to “answer each question having regard solely to the truth of the matter therein inquired about as nearly as you may be able to ascertain it from the evidence admitted on the trial of this case and from that alone, without regard to what effect any answer of yours may have on the result of this suit.”

It has been held that the sole purpose of the law providing for the submission of cases on special issues is to remove from the jury any bias in favor of or prejudice against either party to the litigation and relieve the jury from the duty of directly passing upon who shall prevail in the suit and to require the jury to base its answer on the facts disclosed by the evidence, without regard to the result of such answer. McFaddin et al. v. Hebert et al., 118 Tex. 314, 15 S.W.(2d) 213; Texas Indemnity Co. v. Davis (Tex. Civ. App.) 32 S.W.(2d) 240.

In Texas Employers’ Insurance Association v. Eubanks, 294 S. W. 905, 909, this court held that: “A juror cannot impeach his verdict, and illogical reasons therefor are not misconduct. Ross v. Texas Utilities Co. (Tex. Civ. App.) 281 S. W. 641. The views and notions that jurors may entertain individually or collectively, of the law, cannot affect their verdict. Kilgore v. Jordan, 17 Tex. 342. And the failure of the jury to ‘comprehend the charge of the court with reference to the facts proven,’ and the failure ‘to apply the law given in the charge to the evidence before them,’ cannot be urged as misconduct. Phillips v. T. & P. Ry. Co. (Tex. Civ. App.) 281 S. W. 1104.”

In Bradley v. T. & P. Ry. Co., 1 S.W.(2d) 861, 864, the Commission of Appeals quotes the above statement, together with other excerpts from numerous opinions by the Courts of Civil Appeals of this state, stating: “We are thoroughly in accord with the construction given the statute in the above cases. Trial courts should permit no inquiry into the mental processes or calculations of a juror in arriving at his -verdict until such inquiry is made necessary to determine the effect on a juror’s mind of some proven overt act of misconduct.”

' It is not contended that any fact or circumstance relative to proving or disproving contributory negligence of the plaintiff, except such as was admitted by the court, was even suggested by any one during the jury’s deliberation upon their verdict. The misconduct urged is based wholly on the views and notions that some of the jurors entertained, which appellant claims affected their findings.

In Chandler et ux. v. Wiemers, 4 S.W.(2d) 669, 671, in an opinion by the Court of Civil Appeals of El Paso, the record shows that a statement as to the law, made by one of the jurors while the jury was deliberating, influenced at least one of the jurors to some extent to find a verdict contrary to what, in his opinion, the evidence warranted. In passing upon the issue of the misconduct of the jury, the court says: “We are not prepared to say that the conduct of the jury, as detailed by the juror Cook, was not improper conduct. The jury, as stated by Cook, agreed to a false verdict, in that they agreed to a verdict which they believed ‘to be contrary to the true facts. The testimony of the juror Cook simply impeaches the verity of the verdict which all of the jury, including the juror Cook, agreed to return, and did return,” and held, “that such conduct on the part' of the jury is not statutory misconduct, but impeachment.” In this case the Supreme Court refused a writ of error.

Under the facts revealed in this record and these authorities, it is our opinion that appellant’s contentions would constitute an impeachment of the jury’s verdict rather than an overt act of statutory misconduct requiring a reversal of the case.

In this case the court had directed the jury specifically to answer the issues submitted with' regard solely to the truth of' the matters therein inquired about and to ascertain the answer to each question from the evidence admitted without regard to the effect any answer would have on the result of the suit.

In Maloney v. G. A. Stowers Eurniture Co., 28 S.W.(2d) 306, 308, in passing upon a very similar question, the Court of Civil Appeals of San Antonio says: “The testimony presents a sad commentary on a jury trial, and, if it was the common or usual procedure with juries in the consideration of cases, would shake the foundations of the jury system. * * ⅜ We are disposed to believe that it was not corruption or disregard of the law that caused the discussion as to the effect of the verdict and the subsequent admission by several of the jurors that they would have foresworn themselves had they known the effect of the same. It was merely a lack of knowledge of the duties devolved upon them by their oaths under the instructions of the court.”

The trial court heard the testimony offered relative to the misconduct of the jury, and concluded that, notwithstanding the controversy as to the effect that the finding of contributory negligence would have on the judgment to be rendered, such controversy had no material influence on the jury’s findings. “It has often been held that the trial court, in considering evidence offered on the hearing of a motion for new trial, has the same latitude in passing on the credibility of the witnesses, and of the weight to be given to their testimony, as a jury has on the original trial.” St. L., B. & M. Ry. Co. v. Cole et al. (Tex. Com. App.) 14 S.W.(2d) 1024, 1025, and authorities cited. For additional authorities see Parks et ux. v. M., K. & T. Ry. Co. of Texas (Tex. Civ. App.) 19 S.W.(2d) 373.

In Lackey et al. v. Southland Greyhound Lines, Inc., 35 S.W.(2d) 739, 740, by the San Antonio Court of Civil Appeals, the record discloses that four jurors testified that they found appellant guilty of contributory negligence in the erroneous belief that the answer to such issue was immaterial because of their finding that appellant had been damaged in the sum of $5,000. That the jury had first determined the amount of damages, and upon reaching the issue of contributory negligence, some of the jurors stated that the answer to that question was immaterial, - as it would not affect the right to recover, and that the agreement to such answer was made contrary to the belief of some of the jurors that the finding was contrary to the evidence. The court states: “The most that may be said in support of appellants’ contention is that the testimony raised an issue of fact as to whether or not there was misconduct in the particular urged, which question the trial judge in his discretion resolved against appellants. That finding is amply supported by the testimony, and is binding upon this court.”

The testimony is amply sufficient to support the finding of the jury that the plaintiff was guilty of contributory negligence; and the assignment challenging such finding because of insufficient testimony is overruled.

Appellant’s other assignments present no reversible error, and the judgment is affirmed.