author: HALC, C. J.

text:
    DAVIS et al. v. COX et al.
    (No. 3005.)
    Court of Civil Appeals of Texas. Amarillo.
    March 7, 1928.
    Rehearing Denied April 4, 1928.
    I.Judgment &wkey;>443(l) — Allegations of petition to annul judgment that petitioners believed, and understood that parties tacitly agreed, that trial would remain in abeyance pending subsequent suit against alleged real party in-interest, held insufficient (District and County Court Rule No. 47).
    Allegations of plaintiff’s petition to annul judgment for defendants that petitioners assumed and believed, and understood that parties tacitly agreed, that trial would remain in abeyance pending disposition of subsequent suit against alleged real party in interest in federal court, to which it was removed, A eld insufficient to show any equitable grounds for relief, where it was not alleged nor shown that defendants, court, or opposing counsel were responsible for such belief and defendants were not parties to second suit; tacit agreement not being oral stipulation, enforceable under District and County Court Rule No. 47, if undisputed.
    2. Judgment <§£=3443(1) — Fraudulent assertion of cross-action would' be intrinsic fraud not authorizing annulment of judgment.
    Fraud, if any, in assertion of defendants’ rights by cross-action, is intrinsic fraud, for which no relief can be granted plaintiffs in action to annul judgment for defendants.
    3. Attorney and client <&wkey;d04 — -Notice of cross-action given attorneys still representing plaintiffs so far as defendants and court knew must be taken as notice to plaintiffs.
    Notice of cross-action, given to plaintiffs’ attorneys of record, who were still representing them, so far as trial court and defendants knew, when they stated that they declined to prosecute action further and took bill of exceptions to court’s action in trying case after refusing motion for nonsuit, must be taken as notice to plaintiffs, thereby negativing charge of fraud in asserting cross-action.
    4. Judgment <&wkey;436 — Litigants must exercise diligence respecting litigation.
    Litigants must exercise diligence in respect to pending litigation.
    5. Process <&wkey;>4 — Plaintiff Is charged with knowledge of all proceedings, including cross-action.
    Plaintiff is charged with knowledge of all proceedings in case, including cross-action filed against him by defendant.
    6. Judgment &wkey;»276 — Proceeding to judgment without notice is not fraud, in absence of law or agreement requiring notice.
    It is not fraud to proceed to judgment in. regular way, though without notice to adverse party, if there be no law or agreement requir-_ ing notice.
    7. Judgment <&wkey;435 — Mistake, without inexcus-, abie negligence or fraud of adversary, where-’ by no trial was had, is not ground for equitable relief against judgment.
    Mistake, unaccompanied by inexcusable negligence or fraud of opposite party, whereby trial has not been had, is not ground for equitable relief against judgment.
    8. Judgment <&wkey;435 — Plaintiffs’ misapprehension as to whether case would be tried does not warrant annulment of judgment, unless court or defendants were responsible.
    That plaintiffs were under some misappresion with reference to whether case would be tried is not sufficient ground for annulment of judgment, unless it appears that court or defendants were in some measure responsible for such false impression.
    9. Judgment <&wkey;460(3) — Petition to annul judgment must specifically aver that petitioner was not at fault or exercised due diligence.
    Petition, complaint, or moving paper, in suit to annul judgment, must show, not generally or inferentially, but by specific averments, that applicant was not at fault, or that he exercised due diligence and vigilance.

      10. Judgment &wkey;>460(3)— Petitioner for annulment of judgment must show facts excusing prima facie negligence.
    If prima facie case of negligence appears, petitioner for annulment of judgment must show facts excusing such negligence.
    11. Judgment <&wkey;436 — Plaintiffs’ discharge of attorneys on false assumption that trial would remain in abeyance pending subsequent action held negligence precluding equitable relief against judgment.
    Plaintiffs’ discharge of their attorneys on assumption and belief, not induced by defendants, that trial would remain in abeyance until issues were determined in second action to which defendants were not parties, against alleged real party in interest, •held, negligence precluding equitable relief against judgment for defendants.
    12. Attorney and client t&wkey;76(2)— Litigant whose attorney dies, withdraws, or is discharged must engage another promptly on discovering facts.
    A litigant, unless he means to try his own case, must retain an attorney practicing in particular court, see that such attorney understands and accepts retainer, and, if he dies, withdraws, or is discharged, promptly engage another attorney, unless excused by ignorance of facts requiring it, in which case he must act promptly on discovering facts.
    13. Appeal and error <&wkey;4097(5), 1195(1) — Court of Civil Appeals’ judgment of affirmance, not reversed by Supreme Court, is law of case in trial court and, on appeal from judgment denying annulment of judgment, affirmed.
    Court of Cml Appeals’ judgment, not reversed by Supreme Court, affirming judgment on verdict for defendants in their cross-action, is law of case both in trial court and on appeal from judgment against plaintiffs in suit to annul prior judgment.
    14. Judgment <&wkey;448 — Plaintiffs not moving for new trial, nor to arrest or set aside judgment, during term, on grounds urged in annulment proceedings, but prosecuting writ of error, elected between inconsistent remedies, and are not entitléd to relief.
    Plaintiffs not moving for new trial, nor making any effort to arrest or set aside judgment during term, which might have continued in session for over six weeks, on grounds urged in subsequent annulment proceedings, though presenting bill of exceptions five days after judgment, but prosecuting writ of error to Court of Civil Appeals, which affirmed judgment, elected between inconsistent remedies, and hence were not entitled to relief, prayed.
    15. Pleading &wkey;»l08 — Plea of inexcusable negligence in discharging attorneys on false assumption that case would not be tried pend-, ing second suit may be plea in bar, though called plea in abatement.
    Plea of plaintiffs’ inexcusable negligence in discharging their attorneys on false assumption that case would not be-tried pending determina-' tion of issues in second suit against alleged' real party in interest may properly be a plea in bar, though denominated a plea in abatement.
    Appeal from District Court, Wichita County ; W. W. Cook, Judge.
    Suit by W. F. Davis and others against P. B. Cox and others, in which defendants Cox and another filed a cross-action. Judgment for defendants and cross-complainants, and plaintiffs appeal.
    Affirmed.
    Templeton & Templeton, of Port Worth, for appellants.
    T. St. Boone and Chas. I. Francis, both of Wichita Palls, for appellees.
   HALC, C. J.

On August 30,1924, appellant Davis, J. P. Howe, and H. C. Meier filed a suit in the district court of Wichita county, against the Wichita State Bank & Trust Company and P. B. Cox and I. W..Keyes, to recover the sum of $1,870. -That suit was based upon a contract of settlement entered into by the parties to a certain litigation, under the terms of which contract $10,000 was deposited with I. W. Keyes, as trustee, charged with the payment of certain bills and expenses mentioned in the contract. •

The plaintiffs allege that Keyes breached his trust and sought to recover .from -Keyes and Cox the $1,870, which they allege defendants had misapplied.

Cox and Keyes answered in that case, and by cross-action sought to recover attorney’s fees and trustee’s fees alleged to be due them, growing out of the matters and connected with the contract declared upon in plaintiffs’ petition.

There was a trial on the 13th day of March, 1925, resulting in a judgment that plaintiffs, the appellants in this action, take nothing by their suit against the defendants, and that Keyes recover of plaintiffs the sum of $500 as trustee’s fees; and that Cox and Keyes, as attorneys, recover attorney’s fees in the sum of $2,000.

Prom that judgment, a writ of error was sued out, and under the orders of the Supreme Court equalizing the ‘ dockets of the Courts of Civil Appeals, it found its way into this court, where the- judgment below was reformed and affirmed on May 19, 1926.

Por a fuller statement of the nature and .result of the suit and the holding of this court upon the issues involved, reference is -made to the report of the case in Davis v. Wichita State Bank & Trust Co., 286 S. W. 584.

After the writ of error proceedings had been prosecuted by the appellants and the judgment had been affirmed and application for writ of error dismissed by the Supreme Court on November 10, 1926, and after mandate from this court had been issued to the trial court, an execution was issued, based upon the judgment, and an attempt was being made to collect the amount due. In order to prevent the enforcement of the judgment, the appellants filed their petition in the district court of Wichita county, in which the former judgment was rendered, praying for an injunction and for the purpose of canceling and annulling said judgment.

To this petition, the appellees Cox and Keyes answered by what is termed a plea in abatement and by general demurrer. Evidence was heard upon the plea, and the court sustained the general demurrer and also the plea in abatement, and, the appellants refusing to amend, judgment was entered against them; hence this appeal.

Because appellants attach the judgment of the court in sustaining the general demurrer to -the petition, it is proper that the allegations upon which plaintiffs hase their prayer for relief be set out in this opinion. The petition, omitting the formal parts, is as follows:

“Heretofore, on, to wit, the 30th day of August, 1924, the above-named plaintiffs filed in the Eighty-Ninth district court of Wichita county, Tex., their suit against the above-named defendants, to recover of and from said defendants, jointly and severally, the sum of, to wit, $1,870, the nature of which suit and the facts upon which it was based are shown by the plaintiff’s original petition filed in said cause, a true copy of which is made a part of this petition for the purpose of showing the nature of said suit and the matters involved therein.
“Soon after said suit was instituted, it was transferred to the Seventy-Eighth district court of Wichita county, Tex., for trial, where it remained on the docket and undisposed of for several months. Said suit was, in truth and in fact, instituted by said plaintiffs for the use and benefit of the Orient Petroleum. Company, a corporation which was interested in the trust fund involved in said litigation. But by some oversight in bringing said suit, this fact was not stated in the petition therein filed.
“While said suit was pending, and before it had ever come to trial, another and independent suit was • instituted in Eighty-Ninth district court of Wichita county, Tex., against said Orient Petroleum Company, by the Wichita State Bank & Trust Company, of Wichita county, Tex., which suit involved substantially in part the same matters which were involved in the' suit above referred to. Said suit so instituted against said Orient Petroleum Company was thereafter removed to the federal court for trial, 'where it is still pending and undisposed of — all of which facts these plaintiffs charge and believe were well known to the defendants herein.
“After the institution and removal of said second suit to the federal court, these plaintiffs assumed and believed, and, .as they understood, it was tacitly agreed by all the parties connected with the suit first above referred to, that the matters in issue in said cause would be determined in the second action, and that until this was done .the prosecution of the first action would remain in abeyance. Acting upon this assumption and belief, these plaintiffs settled with their attorneys who had originally instituted said suit for these plaintiffs against said defendants, and they were discharged as such attorneys; and thereafter they had no authority to act for plaintiffs in said action. Up to this time one of the defendants, I. W. Keyes, had not .been, as these plaintiffs are informed and believe, served with citation, and the cause was not then ready for trial on its merits.
“The plaintiffs, J. P. Howe and H. C. Meier, are nonresidents of the state of Texas, and they had no personal knowledge of the progress of said litigation; but the plaintiff W. F. Davis was acting for them as well as himself in bringing and prosecuting said action. The plaintiff W. F. Davis himself was engaged in business, and was out of the state of Texas for considerable portion of his time; and, believing that said cause so instituted by plaintiffs against said defendants was to remain in abeyance until the case in the federal court had been tried, he did not give said case in said Seventy-Eighth district court that attention which he otherwise would have done.
“Thereafter, on, to wit,, the 24th day of February, 1925, the defendants P. B. Oox and I. W. Keyes filed in said cause their cross-bill, wherein they set up and claimed for the first time that these plaintiffs were indebted to them for attorneys’ fees as alleged and set out in their cross-bill, a true copy of which is hereto attached marked Exhibit B, and is made a part of this petition, which exhibit is here referred to in explanation of their claim for such attorneys’ fees.
“Plaintiffs aver that no such services were ever rendered by said defendants to these plaintiffs; that said defendants were never employed by these plaintiffs in any capacity whatever; and that plaintiffs never owed them any amount for any such services or for any other claim or demand. They further aver that the identical services for which the said defendants sought and recovered judgment against these "plaintiffs in their cross-action were, rendered during the years 1920 and 1921, in the foreclosure suit of the Wichita State Bank & Trust Company v. Newtex Refining Company et al., and that said services were rendered to and for the Wichita State Bank & Trust Company, plaintiffs in said suit, wherein this plaintiff, W. F. Davis, was not a party and not interested, but wherein the plaintiffs J. P. Howe and H. C. Meier were defendants; that the fees owing to said attorneys for the ■ services so rendered to said Wichita State Bank & Trust Company, in the sum of $3,241.66, which fees were agreed upon, were fully paid, and said claim for attorney’s fees was fully discharged on May 31, 1921. During the months of January to July, inclusive, of the year 1925, the plaintiffs were absent from the.state of Texas practically, all of the time, and the defendants herein, Cox and Keyes, well knowing that the plaintiffs were absent from the state most of the time, fraudulently asserted their cross-action against these plaintiffs, as stated in their cross-bill filed in said cause, and, taking advantage of plaintiffs’ absence and their ignorance of such claim, filed said cross-action and soon thereafter demanded a trial thereof without giving these plaintiffs any notice that such claim was being asserted against them.
“Plaintiffs say that they had no reason to suspect that any such claim would be made against them, and that they knew nothing of it until long after the judgment herein complained of was rendered against them, and after the term of court at which said judgment was rendered had expired. They say that they made no defense to such claim and cross-action, because they knew nothing of it.
“Notwithstanding such facts, which were well known to said defendants, they thereafter, on, to wit: the 13th day of March, 1925, said defendants Oox and Keyes, as plaintiffs, are informed and believe, appeared in court and demanded a trial of said cause, which was -granted by the court; and upon the trial of said cause, judgment was rendered as shown in a true copy thereof, whicli is hereto attached and marked Exhibit O, and is made a part hereof.
“Plaintiffs say it is not true that plaintiffs were represented therein by attorneys wno appeared and acted for them on the trial of said cause. While it may be true, and probably is, that the attorneys therein referred to may have appeared and acted ás plaintiffs’ attorneys in said cause, they had no right or authority so to do, since they had never been so employed or authorized by plaintiffs to appear and act for them in said cause; and plaintiffs had no representative, at said trial, who was authorized to appear and act for them.
“Plaintiffs further say that they had no knowledge that any such cross-action had ever been filed against them, or that any judgment had been rendered thereon, until long after said judgment had been rendered, and after the term of court at which it was rendered had closed. When they did learn of the rendition of said judgment, it was then too late to file a motion for a new trial in said cause, or to make up and prepare a proper record therein, but that all they could do was to endeavor to have the cause reversed on a writ of error, which endeavor was unsuccessful, and said judgment was affirmed by the Court of Civil Appeals, and said judgment of affirmance has become final.
“Plaintiffs say that they 'have a meritorious defense to said action; that the claim on which such judgment is based, as stated above, is wholly unfounded, fictitious, and fraudulent; and that they will be able to show such facts upon a trial if they can have said judgment set aside so that the truth may be shown.
“Plaintiffs say that if they had had any intimation that any such claim was being preferred against them, they would have appeared in said cause and litigated same, but that they were misled by the tacit understanding which they believed existed that no trial was to be had in said cause until after the case in the federal court had been disposed of.
“Notwithstanding the facts above pleaded, the said defendants P. B. Cox and I. W. Keyes have caused to be issued an execution on said judgment to collect the amount thereof, together with costs of suit, and that the sheriff of Wichita county is now threatening to levy said execution upon the property of these plaintiffs for the satisfaction of said judgment against them; and unless restrained by the order of this court from doing so, said sheriff of Wichita county, Tex., will levy said execution on such property, and will cause same to be . sold for the satisfaction of said judgment, to the plaintiffs’ great and irreparable loss and damage.
“All of which facts these plaintiffs are ready to verify.”

It is alleged that while the suit was pending in the district court, another independent suit was instituted against the Orient Petroleum Company, which it is stated was the real party at interest in this suit, and that the other suit involved substantially the same matters, and was thereafter removed to the federal court, where it is still pending; that after the institution and removal of the second-suit to the federal court, the appellants assumed and believed, and as they understood, it was tacitly agreed, by all the parties in the first suit, that the matters in issue in said cause would be determined in the second action; and that' the trial of the first cause would remain in abeyance pending the disposition of the second one. The allegations are wholly insufficient to show any equitable grounds which the court can consider.

District and county court rule No. 47 provides that:

“No agreement between attorneys or parties touching any suit pending will be enforced unless it be in writing, signed and filed with the papers as a part of the record, or unless it be made in open court and entered of record.”

Under this rule, it is held that an oral stipulation will be enforced, provided it is not disputed, but a tacit agreement is not even a stipulation. It is not alleged that either Cox or Keyes said or did anything which induced appellants to believe that they would not insist upon a prompt .trial of the first case, nor. is it shown that either the court or opposing counsel are responsible for any assumption or belief upon which appellants ■acted in discharging their counsel as their representative. Nor is it shown that either the court or opposing counsel knew that appellants had discharged their attorneys and were not expecting the ease to be tried. No facts are alleged even intimating that appellants’ assumption and belief was the result of any fraud or mistake, for which Cox and Keyes are, in any way, responsible.

Appellants had no right to assume that all of the issues involved in the first case could or would be settled by a trial of the second case in the federal court, because Cox and Keyes were not parties to that action, and the rights asserted by them in the first suit could, therefore, not be settled by any judgment rendered in the second case in the federal court.

These allegations show inexcusable negligence on the part of appellant. The allegation in the petition that Cox and Keyes fraudulently asserted their cross-action against plaintiffs is not sustained by the record, since it is shown that their rights were submitted to a jury and upon a trial ripened into a judgment. If it be admitted that the assertion of their rights by a cross-action was fraudulent, it is intrinsic fraud, for which no relief can he granted appellants in this action. Reed v. Bryant et al. (Tex. Oiv. App.) 291 S. W. 605.

So far as the trial court and Oox and Keyes knew, the lawyers of record for appellants were still representing them when they stated that they declined to prosecute the action in behalf of appellants further, and when they took a bill of exception to the court’s action in trying the case, after refusing their motion for a nonsuit. So the notice alleged to have been given to their attorneys must be taken as notice to appellants, and the fact that Oox and Keyes gave notice is inconsistent with any charge of fraud.

Litigants must exercise diligence in respect to pending litigation, and the plaintiff is charged with knowledge of all proceedings in the case, including a cross-action filed by the defendant against him, as declared upon the former appeal in this case.

Freeman on Judgments (5th Ed.) p. 2565, states the rule clearly as follows:

“It is not fraud to proceed in the regular way to a judgment, even though, in the absence of and without notice to the adverse party, if there be no law or agreement requiring notice.”

Mistake, unaccompanied by inexcusable negligence or fraud of the op'posite party, whereby a trial has not been had, is no ground for equitable relief against the judgment. 15 R. C. L. p. 740; St. Paul F. & M. Ins. Co. v. Earnest. et al. (Tex. Civ. App.) 293 S. W. 677, and authorities cited.

It is not sufficient that appellants were under some misapprehension with reference to whether the case would be tried, unless it appears that either the court or Cox ■ and Keyes are, in some measure, responsible for this false impression. “The petition, complaint or moving paper must show, not generally or inferentially, but by specific aver-ments, that the applicant has not been at fault or that he has exercised due diligence and vigilance. If a prima facie case of neg'ligence appears, there must be a showing of facts excusing such negligence.” 34 C. J. 329; Burnley v. Rice et al., 21 Tex. 183; Freeman on Judgments (5th Ed.) p. 2592.

Discharging their attorneys, under the circumstances stated in the petition, shows negligence. The rule is that a litigant “must, unless he means to try his own case, retain an attorney practicing in the particular court, and see that the attorney understands and accepts the retainer, and in case his counsel dies or withdraws, or is discharged from the case, he must promptly engage another, unless excused therefrom by ignorance of the facts requiring it, in which case he must act promptly on discovery of the facts.” 34 C. J. p. 306; Barber v. Sager, 141 Ark. 1, 216 S. W. 36.

The cases cited by appellants have no bearing upon the issue presented by the first propositions urged. Whether Cox arid Keyes were entitled to recover upon their cross-action is now res judicata. They have, in the case, as evidenced by the judgment now sought to be set aside, established their right to recover, to the satisfaction of the trial judge and jury, and that judgment has been duly affirmed by this court. That decision was not reversed by the Supreme Court and is the law of the case, "both in the trial court and on this appeal. M., K. & T. Ry. Co. of Tex. v. Redus, 55 Tex. Civ. App. 205, 118 S. W. 208; Walker v. Gordon, Sewall & Co. (Tex. Civ. App.) 275 S. W. 1093.

As said in Crane v. L. & H. Blum, 56 Tex. 325:

. “The good of society and the preservation of rights and good order require that when once the rights of parties have been determined by the ultimate tribunal provided by law for their adjudication, the same should pass from the field of strife forever: any other rule would fill the court with causes which have once been deteiunined, and render all rights of property uncertain and the most solemn judgments a mockery.”

In the case of Long v. Martin (Tex. Civ. App.) 260 S. W. 327, an injunction was applied for, restraining the collection of a judgment upon the ground that it was void, because the petition on which the judgment was rendered set out no cause of action. Judge Boyce held in that case that a final judgment is as conclusive of questions of law litigated as It is on questions of fact, citing, amongst other cases, Cotton v. Rhea, 106 Tex. 220, 163 S. W. 2, and further held that when the judgment of the appellate court ha.d been rendered and became final, it was not open to further question or discussion in the trial courts, and although plainly erroneous in the judgment of those courts, must be accepted as binding and conclusive. Kendall v. Mather, 48 Tex. 585; Walker v. Gordon, Sewall Co. (Tex. Civ. App.) 275 S. W. 1093; M., K. & T. Ry. Co. of Texas v. Redus (Tex. Civ. App.) 118 S. W. 208; Conley v. Anderson (Tex. Sup.) 164 S. W. 985; Hovey v. Shepherd, 105 Tex. 237, 147 S. W. 229.

It was also said in the Long v. Martin Case:

“If the losers on appeal were permitted, after resisting the enforcement of the judgment of the appellate court in such manner as to force the other party back into such court, with an application to prohibit interference with the execution of its judgment, to come into the appellate court in response to such application, and, claiming that the whole matter was reopened thereby, seek a rehearing on the merits of the case, they would secure indirectly that which they were not entitled to by an indirect proceeding. Such a course cannot be countenanced. See Lowell v. Ball-Hutchins & Co., 58 Tex. 562, 566; Harris v. Hamilton (Tex. Civ. App.) 234 S. W. 684.”

This court granted a writ of prohibition in the Long Case, which, in our opinion, is not as strong as tlie case at bar. In tbe instant case, tbe record shows that -five days after tbe rendition of tbe judgment, and at tbe same term of court, tbe appellants, tbrougb tbeir attorneys, presented a bill of exception to tbe trial judge, wbicb was examined, approved, and ordered filed as part of tbe record. It is thus seen that tbe appellants, tbrougb tbeir attorneys, did knpw of tbe rendition of this judgment during tbe term, wbicb, according to tbe statute, might have continued in session more than six weeks after tbe judgment was rendered. No motion for new trial was filed, non was any effort made by tbe appellants to arrest tbe judgment or set it aside upon tbe grounds urged in tbe present proceeding. All of this might have been done. Tbe appellants, however, prosecuted a writ of error to this court, and, as above stated, tbe judgment was affirmed. They have thereby elected between two inconsistent remedies and have brought themselves within tbe rule declared by this court in Halbrook v. Quinn, 286 S. W- 954. The appellants vigorously attack tbe bolding in tbe I-Ialbrook-Quinn Case; but we believe that Judge Boyce correctly decided tbe question, and we are not prepared to recede from tbe position there taken.

Under tbe rule announced in Waggoner et al. v. Knight (Tex. Com. App.) 231 S. W. 357, citing Hermann v. Allen, 103 Tex. 382, 128 S. W. 115, and Trammell v. Rosen, 106 Tex. 132, 156 S. W. 1161, tbe very issues which appellants seek to inject by this proceeding have been, at least impliedly, decided and finally settled by tbe judgment wbicb they attack and which was affirmed by this court.

We think tbe court correctly sustained tbe demurrer; but in any event tbe evidence introduced sustains the action of tbe court upon tbe plea, wbicb is denominated a plea in abatement, but, wbicb may properly be a plea in bar.

Believing that a correct judgment has been entered, it is affirmed.
      <S^jFor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      <@=JFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: HIGGINS, J.

license: Public Domain

text:
    D. & H. TRUCK LINE et al. v. HOPSON et al.
    (No. 2130.)
    Court of Civil Appeals of Texas. El Paso.
    March 22, 1928.
    Rehearing Denied April 12, 1928.
    I.Automobiles <&wkey;245 (88)— Occupant asleep when automobile collided with truck parked' near road without lights held not guilty of contributory negligence, as matter of law, for failure to warn driver.
    In action for injuries to occupant and driver of ear colliding with truck parked on highway at night without fights, occupant of the automobile held not guilty of contributory-negligence, as matter of law, in going'to sleep and failing to warn driver of the existence of the parked truck on or near the road.
    2. Trial <§=>350(7) — Special issue whether driver, after discovering parked truck, negligently failed to turn out sufficiently to pass held properly refused as mixing evidentiary and ultimate issues.
    Requested special issue in action for injuries resulting from collision with unfighted truck on highway, which submitted question whether driver of automobile negligently failed to turn out a sufficient distance to pass the truck, held properly refused as confusing on account of combination of evidentiary and ultimate issues.
    3. Trial <&wkey;350(7) — -Evidence held insufficient to- r^ise' issue whether automobile driver’s negligence was sole cause of collision with un-iighted truck, parked on highway.
    In action for injuries resulting from collision between automobile and truck parked on or near highway at-night without fights, evidence raised no issue as to 'whether alleged negligence of driver of automobile in failing to turn out was sole cause of collision, though driver admitted having seen truck some distance ahead.
    4. Trial <@=>351 (5) — Refusal of requested special issues, sufficiently covered by issues sub- . mitted, is not error.
    Refusal of requested issues presents no error where matters to which they relate are sufficiently covered by issues in fact submitted to the'jury.
    5. Automobiles <&wkey;244(36) — Finding that negligent parking of truck near road without lights proximately caused collision held sustained by evidence.
    In action for injuries resulting from collision between automobile and truck parked at night without fights with rear end projecting over into traveled portion of highway, jury’s finding that defendant’s employee’s negligence in leaving truck parked without fights was proximate cause of injury held supported by evidence.
    6. Automobiles <&wkey;-201 (5) — Negligence of defendant’s employee in permitting parked truck and timber thereon to protrude over traveled portion of highway supported recovery for injuries from collision.
    Where defendant’s employee negligently permitted truck and timber thereon to protrude over the traveled portion of the highway on parking truck, such negligence was proximate cause of collision, rendering defendant liable, irrespective of question of employee’s negligence in leaving truck without fights.
    7. Damages <@=>216(8) — Submission in charge upon measure of damages of evidence of impairment of injured plaintiff’s working capacity held not error.
    Where evidence in action for injuries raised question of plaintiff’s impaired working capacity, submission of such matter in charge upon measure of damages was not error.

      8. Appeal and error &wkey;»232 (3) — Objection to court’s charge, not raised in trial court, cannot be considered on appeal.
    Objection to court’s charge, not made in trial court, cannot be considered on appeal, where raised on appeal for the first time.
    Appeal from District Court, Bexar County; W. S. Anderson, Judge.
    Action by Ella Mae Hopson and another against the D. & H. Truck Line and others. Judgment for plaintiffs, and defendants appeal.
    Affirmed.
    E. L. Early and Wm. H. Russell, both of San Antonio, for appellants.
    Randolph L. Carter, Perry J. Lewis, H. C. Carter, and Champe G. Carter, all of San Antonio, for appellees.
   HIGGINS, J.

On the night of July 17, 1926, appellee Ella Mae Hopson, a girl 16 years old, and her father, W. B. Hopson, were riding as invited guests in a car owned and driven by W. H. Yinson, a young man 18 years old. They were going from Devine to Asherton where they all lived. Matthew La-valle was also riding in the car. About midnight the car collided with the rear of a loaded truck owned and operated by appellants which was parked upon the highway without lights/ The driver of the truck was appellants’ employée. He had parked the car and gone to sleep in the' cab of the truck. It was a short distance from Big Wells, and the driver had stopped for the night as he had deliveries to make in Big Wells the next morning. Lavalle and Miss Hopson were asleep at the time the collision occurred. The latter was seriously injured and sued appellants, by her father as next' friend, to recover the damages sustained. The father also sued to recover the damages sustained by him as the result of his daughter’s injuries.

The graveled portion of the highway, at the place of the accident was 16 or 18 feet wide. The left wheels of the truck, according to the driver’s own testimony, testifying for appellants, extended at least 3 feet over upon the graveled portion of the highway and were in the travel lane upon that side of the road. He also admitted the truck was parked at a slight angle so that its rear extended more into the lane of travel than the front end. It was also shown that upon the left side of the truck there was a 4x6 timber about 10 feet long, extending several feet beyond the rear of the truck. To the end of this timber a red rag was tied.

It is not made clear by the evidence whether Vinson’s car first struck the end of this timber or the body of the truck. In either event Vinson’s car failed to clear the obstruction by just a few inches.

The case was submitted upon special issues as follows:

“(1) Did the defendant’s employee in charge of the truck cause or permit said truck to stand on the public highway without any lights?
“(2) If you answer ‘Xes’ to question No. 1, then did this constitute negligence under all the facts and circumstances surrounding the case?
“(3) If you answer ‘Ves’ to question No. 2, then did such negligence directly cause or contribute to the collision and any injuries to the plaintiff shown by the evidence?
“(4) Did the defendant’s employee in charge of the truck permit it to stand so that a portion of the truck or the lumber loaded thereon protruded over the traveled portion of the highway?
“(5) If you answer ‘Ves’ to question No. 4, then did this constitute negligence, under all the facts and circumstances surrounding the case?
“(6) If you answer ‘Yes’ to question No. 5, then did such negligence directly cause or contribute to the collision and any injuries to the plaintiff shown by the evidence?
“(7) Was the plaintiff Ella Mae Hopson negligent in going to sleep and abandoning the exercise of her own faculties and trusting to Vinson the operation of the Ford car, under all the facts and circumstances surrounding the case?
“(8) If you answered ‘Yes’ to question No. 7, then did .such negligence cause or contribute to the plaintiff’s injuries?
“(9) Was the plaintiff Ella Mae Hopson negligent, under all the facts and circumstances, in. continuing to ride in the Ford in the position she was in while Vinson operated the car with two other persons occupying the driver’s seat with him?
“(10) If you answer ‘Yes’ to question No. 9, then did such negligence cause or contribute to the plaintiff’s injuries?
“(11) Was Vinson, at or prior-to the time of the collision, in such physical condition as to render him unfit to operate his Ford car with ordinary care?
“(12) If you answer ‘Yes’ to question No. 11, then did the plaintiff know of such condition of Vinson, or should she have known of it by the exercise of ordinary care?
“(13) If you answer ‘Yes’ to question No. 12, was the plaintiff negligent in continuing to ride in the Ford while operated by Vinson?
“(14) If you answered ‘Yes’ to question No. 13, then did such negligence cause or contribute' to plaintiff’s injuries?
“(15) Was the accident an unavoidable” accident?”

The first six questions were answered in the affirmative; the others in the negative. In response to questions 16 and 17, Miss Hop-son’s damages were assessed at $6,000, the father’s at $500, for which amounts judgment was rendered in their respective favors.

Appellants submit a very lengthy brief containing many assignments of error and supporting propositions. To discuss these numerous assignments and propositions in detail and at length would prolong this opinion beyond all reasonable bounds, and it is unneees-sary to do so for the ease presents no nnusual complication of law or fact.

We shall briefly state our conclusions controlling the various questions presented.

The contention that Miss Hopson, as a matter of law, was guilty of contributory negligence in going to sleep and failing to maintain a lookout and warn the driver, Vinson, of the parked truck is overruled. McAndrews v. Leonard (Vt.) 134 A. 710; Weidlich v. Railway Co., 93 Conn. 438, 106 A. 323.

Upon one sheet of paper appellants requested the submission of six questions. The first is typical of them all and reads:

“Did Vinson, after he discovered defendants’ truck, negligently fail to turn out a sufficient distance to pass such truck without colliding therewith?”

Following the last is this further question:

“If you have answered any of the foregoing questions, Nos. .(a) to (g), ‘Yes,’ then answer:
“Was such negligence of Vinson the sole cause of the collision of the Ford car with the Chevrolet truck?”

The first question is improper, confusing, and misleading by combining the evi-. dentiary issue of whether Vinson failed to turn out and the ultimate issue of whether such failure was negligence. This alone justified refusal to submit the same. Furthermore, for the reason shown later in the discussion of propositions 11 and 12, we do not regard the evidence as raising an issue as to any act of Vinson’s being the sole- cause of the collision.

Propositions 3 to 10, inclusive, are based upon the refusal of various requested issues relating to. alleged • contributory negligence on Miss .Hopson’s part. The refusal of these issues presents no error because the defensive issues to which they relate were sufficiently covered by the issues in fact submitted to the jury.

Under propositions 11- and 12, appellants say the finding that leaving the truck parked as it was, without lights, was the proximate cause of the injury is without evidence to support it.' This contention is based upon the testimony of Vinson that he saw the truck 50 yards ahead before he struck it; wherefore it is argued, Vinson had ample time to stop his car or turn to the left so as to avoid striking the truck.

In this connection appellants cite collision eases where the defendant’s car being operated without lights, but according to the plaintiff’s evidence he nevertheless saw the unlighted car in time to have avoided striking same. In such cases it was held that the' failure to have the car lighted was not the proximate cause of the collision. Cothran v. Cleenewerck, 235 Mich. 351, 209 N. W. 132; Graham v. Hagmann, 270 Ill. 252, 110 N. E. 337; Ireson v. Cunningham, 90 N. J. Law, 690, 101 A. 49; Hughes v. Luther, 189 N. C. 841, 128 S. E. 149; San Antonio, M. & S. Co. v. McKinley (Tex. Civ. App.) 239 S. W. 341.

The theory of these cases is that, because the plaintiff saw the unlighted car in ample time to avoid striking same, there was no causal connection between the negligent operation of the car without lights and the collision. But these rulings have no application to the evidence in the present .case.

Vinson testified:

“I firgt noticed what I took to be the cab of the truck about 50 yards from the truck. I had no indication at that time that any portion of the truck, or any portion of the load on the truck, was extending over into the highway so as to come in contact with my car. I was keeping a lookout on that occasion, I was looking where I was going. I was looking forward. When I first saw this object, I didn’t know what it was: I just saw an object over there. I was traveling about 30 miles an hour. The next thing I knew after I saw this object about 50 yards away was the crash. I did not see- the rear end of the truck, or any portion of it before I struck it. * * * From what I had seen of the truck I did not see anything that led me to believe, or indicate, that I was going to strike any part of the truck, or its load. I was right in the traveled track, the beaten part of the road at the time of the collision, driving about 30 miles an hour. * * * My testimony is that I first saw this truck about 50 yards before I hit it. I saw it outlined against the sky. I think the truck was right over a little hill. I saw it by reason of it being outlined against the sky, and not by reason of my lights. * * * I saw the truck outlined against the sky 50 yards before I hit it. I did not see the truck again between that point and when I hit it. I had seen it outlined against the sky, I had not seen it by my lights. I was looking forward, I wasn’t looking at the truck, I was looking straight down the road. I claim the truck was in my road, and that I hit it because it was in my road. I say I was looking down the road and didn’t see the truck. I didn’t see the truck even when we hit it; the first thing I knew was the crash.”

From this testimony it is plain that if the truck had been properly lighted in the rear the light would have been calculated to make it possible for Vinson to see how .far it protruded over the roadway and to show the nature of the load on the truck, including the protruding timber. It is difficult to imagine a clearer case where lights would have prevented a disastrous collision. It must be remembered the evidence shows that all of the truck except the cab was covered with a dirty gray tarpaulin, covered with dust, which made it very difficult to see in moonlight; and the evidence further showed that, instead of helping matters, -the moonlight actually made it more difficult for Vinson to discern objects with his own lights:- Several witnesses testified to this fact without dispute.

Here Vinson only saw a dim outline of a bulk to the right of the road which did not even appear to be a truck, and which was ascertained after tlie collision to be' the high cab of the truck. A light on the rear end qf this .truck would have disclosed the danger that was not disclosed otherwise. Or a light or lantern upon the protruding timber would certainly have .assisted in the discovery of the dangerous situation. If the protruding-timber was in such a position and so danger-out and difficult to see that it required the hanging of a red flag thereon so that it would be observed by day, as appellants’ driver testified, it was certainly more dangerous and difficult to see by night, and its presence should have been pointed out by lights of some kind. In the case of Roper v. Greenspon, 272 Mo. 288, 198 S. W. 1107, L. R. A. 1918D, 126, where an automobile driver saw the outline of a wagon, yet collided with beams protruding from the rear of the wagon, the court held that an ordinance only requiring a light at the front of the truck was admissible, as the failure to have a light even in that position could be the proximate cause of the collision. The court said:

“It is true that he did see the wagon (in dim outline), as can be inferred from his testimony, yet he says that he did not see the iron, beams thereon. It is also true, as suggested by our Brothers, that a lantern placed on the front portion of this load, so- as to be visible both from front .and rear, would' be a compliance with the ordinance, but it does not follow from this that the jury could not conclude, from all the facts that the absence of this light (even on the front end of the load) was the cause of the injury. Such a light, so located, might have and no doubt would have, indicated to plaintiff the true character of the load on the wagon. A glance at such beams would or might have indicated to him that they were liable to extend beyond the rear wheel, although it be granted that the light on the front end of the load might not have so lighted the protruding ends of the beams as to make them visible. In other words, this light would have shown the character of the load on the wagon, and with a knowledge that the wagon was so loaded, might have indicated to plaintiff that the beams protruded beyond the rear wheels.”

See, also, Horton v. Benson (Tex. Civ. App.) 266 S. W. 213; Stowers Furniture Co. v. Bichon (Tex. Civ. App.) 254 S. W. 607; Rosenthal Co. v. Hillebrandt (Tex. Civ. App.) 299 S. W. 665.

But, even if the issue as to the lights had not been submitted to the jury at all, the judgment still finds ample support in the finding that the truck and the timber were negligently caused to protrude over the traveled portion of the highway so as to cause the collision. This was, a separate finding of negligence distinct from the failure to light the truck, and either group of findings is sufficient to support the judgment.

The evidence raises the issue of Miss Hopson's future impaired capacity to work and perform services of pecuniary value, hence the court did not err in submitting this matter in the charge upon the-measure of damages..

Nor do we regard the damages assessed in her favor or her father’s favor as excessive.

The objection to the court’s charge raised by the eighteenth proposition was not made in the court below, and cannot be here made for the first time.

The' charge is not subject to the criticism made in the nineteenth proposition.

The argument counsel referred to in the twentieth proposition, if justly subject to the criticism made of it, nevertheless is not reversible. Galveston, H. & S. A. R. Co. v. Harling (Tex. Com. App.) 260 S. W. 1016.

The twenty-first proposition is without merit. Anderson Bros. v. Parker Co. (Tex. Civ. App.) 254 S. W. 543; Williams v. Phelps (Tex. Civ. App.) 171 S. W. 1100; Missouri, K. & T. R. Co. of Texas v. Andrews Co. (Tex. Com. App.) 206 S. W. 823; Williams v. Williams, 112 Ark. 507, 166 S. W. 552; Rose v. Tholborn, 153 Mo. App. 408, 134 S. W. 1093; Paul v. Dunham (Mo. App.) 214 S. W. 263; Debes v. Greenstone (Tex. Civ. App.) 260 S. W. 211; Pullman Co. v. Cox (Tex. Civ. App.) 220 S. W. 599.

Affirmed.
      ®=sPor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      ®r»For other oases see-same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    MURCHISON et al. v. DAVIS.
    (No. 2140.)
    Court of Civil Appeals of Texas. El Paso.
    March 8, 1928.
    Supplemental Opinion. March 29, 1928.
    1. Bills and notes <©=3516—In indorsee’s action on note indorsed to secure loan, judgment against one indorser, to whom loan was. not made, not supported by pleadings or evidence, held error.
    In action on note indorsed to plaintiff to secure loan made to one indorser, judgment ágainst another indorser and payee to whom loan was not made, not supported by pleadings or evidence, held error.
    2. Limitation of actions ⅞=>27—Oral promise to repay loan secured by blank note held barred by two-year statute of limitations.
    Oral promise to repay loan, although borrower indorsed in blank note payable to him and another as security for loan held barred by two-year statute of limitations.
    3. Limitation of actions <©=»27—Notation on note indorsed as security for loan held not to take oral promise to pay loan out of two-year statute of limitations.
    Indorsement in blank on note payable to borrower and another, “Interest has not been paid to 4/14/1921—Date of execution, to Dr. Z. E. D. This note is collateral for a Loan of $800.00 due 4/18-1922'”—held merely to evidence pledge contract, and fact that interest had not been paid to specified date, and not to constitute contract of borrower to pay loan so as to take oral promise to pay loan out of two-year statute of limitations.
    4. Limitation of actions <§=I67(I) — That debt secured by pledge of note was barred held not to affect pledgee’s right to sue makers.
    Although debt, to secure payment of which note was pledged, had become barred by two-year statute of limitations, such bar did not affect right of pledgee to maintain action on pledged note against makers thereof, such bar affecting only remedy against borrower.
    5. Trial <§=>350(4) — Under evidence, refusal to submit whether maker instructed application of payment to his note held error.
    In action on note under evidence that plaintiff had placed with collector certain notes and accounts against maker of note in question, and that maker had paid such agent money with certain instructions as to application thereof, refusal to submit to jury issue as to whether maker at time of payment to collecting agent instructed him to apply part thereof to his note, which had been pledged to plaintiff as security, held error.
    6. Trial <§=350 (4)— Refusal to submit issue whether plaintiff suing on note knew of maker’s instructions to collecting agent to apply payment to note held error under evidence.
    In action on note under evidence that plaintiff had placed with agent for collection certain notes and accounts against maker of note in question, and that maker had paid agent money with instructions to apply part of it to note in question, refusal to submit to jury issue whether plaintiff knew of such instruction by maker held error.
    7. Payment <§=38(l) — Party making payment on notes and accounts held entitled to apply part thereof on certain note pledged by payee.
    Maker of note paying certain notes and accounts placed in hands of agent for collection by holder of note held to have right in making payment to agent to'direct that part thereof should be applied to note in question.
    8. Principal anl agent <§=171 (6) — Indorsee of note, informed of maker’s payment to his collecting agent with instructions to apply part to note, was put to election of complying therewith or restoring collection, and, on retaining proceeds, ratified such collection on condition.
    Where indorsee of note pledged to secure loan placed with agent for collection certain notes and accounts against maker of note, and accepted payment made to agent when it came to his knowledge that payment had been made with instructions to apply part to note pledged, he was put to election of complying with such condition or restoring to maker payment which his agent was claimed to have been unauthorized to accept, and his retention of proceeds ratified agent’s alleged acceptance of payment and bound him to comply with maker’s instructions as to application.
    Supplemental Opinion.
    9. Appeal and error <§=l 173(2) — Reversing judgment on note as to maker who did not appeal held error.
    In action on note, reversing judgment as to maker thereof who did not appeal held error.
    10.Appeal and error <§=1185 — Appellate court discovering error in its judgment should correct it, although motion for rehearing was not filed or tendered.
    Appellate court discovering error in' its judgment should correct it, although no motion' for rehearing was filed or tendered.
    Appeal from District Court, Menard County; J. H. McLean, Judge.
    Action by Z. E. Davis against Lee Murchison, W. K. Murchison, Irve Ellis, and Bud Ellis. Action dismissed as to defendant Bud Ellis. From a judgment for plaintiff, defendants Lee Murchison and W. K. Murchison appeal.
    Affirmed as to defendant Irve Ellis; reversed and rendered in favor of defendants Lee Murchison and W.- K. Murchison.
    Flack & Flack and Frank Hartgraves, all of Menard, for appellants.
    J. H. Baker, of San, Saba, and Jno. Davenport, of Wichita Falls, for appellee.
   HIGGINS, J.

On April 14, 1921, appellee, Davis, loaned appellant Lee Murchison $800. To secure payment of the debt Lee and W. K. Murchison indorsed in blank and delivered to Davis a promissory note in'their favor for the sum of $1,708.37, executed by Bud and Irve Ellis, due April 18,1922. Upon the back of this note appears this indorsement, viz.:

“Interest has not been paid to 4/14/1921— Date of execution to Dr. Z. E. Davis. This note is collateral for a Loan of $800.00 due 4/18 -1922.”

This suit was brought October 6, 1924, by Davis against the Murchisons, Bud and Irve Ellis, judgment being prayed against Lee Murchison for said sum of $800 and against W. K. Murchison, Bud and Irve Ellis for the principal, interest, and attorney’s fees due upon above-mentioned note, the same when collected to be applied to the' judgment against Lee Murchison and the balance paid over to Lee and W. K. Murchison. As to Bud Ellis the suit was dismissed.

Two issues were submitted as follows:-

“First. Does the indorsement on the back of the note for $1,708.37, introduced in evidence, in connection with the facts and circumstances in evidence before you, constitute a written contract by Lee Murchison and W. K. Murchison to repay to Z. E. Davis the $800 borrowed from him on April 18, 1922?
“Second. Was the $800 borrowed by Lee Murchison from Z. B. Davis a part of the $1,-800 of the items placed by Z. E. Davis in the hands of Fred E. Knetsch for collection against Irve Ellis?”

The first issue was answered in the affirmative ; the second in the negative.

Judgment was rendered in favor of plaintiff against the Murchisons for $800 with accrued interest and against Irve Ellis for the amount due upon the note, to be applied as prayed in the petition.

There is no basis in the pleadings or the evidence for the judgment rendered against W. K. Murchison. The $SO0 loan was made to Lee Murchison. The petition so alleges and' the evidence so shows.

' It seems from the first issue submitted the case was tried by the trial court upon the theory that the notation upon the back of the Ellis note constituted a contract upon the part of the Murchisons to repay the $800 borrowed by Lee Murchison; but such is not its nature, nor does the petition declare upon it as such, nor does it seek relief against W. K. Murchison upon any such theory.

The only liability upon the part of W. K. Murchison suggested by the pleadings 'or the evidence is that of indorser upon the Ellis note, and there is neither plea nor evidence that such liability had been fixed as by law required.

The loan to Lee Murchison and his promise to repay same was not evidenced by any contract in writing, and his plea of the two-year statute of limitations was well taken.

The notation upon the back of the Ellis note was not such a contract. Such notation merely evidenced the pledge contract and the fact that interést had not been paid on the note to 4/14-1921.

While the debt, to secure the payment of which the note was pledged, had become barred, such bar did not affect the right of the pledgee to maintain an action upon the pledged note against the makers thereof. 21 R. C. L. 659; Jones on Collateral Securities (3d Ed.) § 583. The bar of the statute affects only the remedy by court action against Lee Murchison.

This brings us to a consideration of the case as it affects the liability of Irve Ellis to the plaintiff upon the note. The contention of Ellis is that he made a payment to be applied upon such note sufficient in amount to liquidate the Murchison debt.

The second issue submitted related to this question which arises upon facts as follows: Plaintiff placed with Fred B. Knetsch for collection certain notes and accounts against Irve Ellis. The plaintiff testified, and there is other testimony to the same effect, that the pledged note was not among those so placed. Ellis paid to Knetsch $1,980, with instructions to apply the same to the payment of two notes held by plaintiff, one for $525, one for $350, and the balance on the pledged note to the extent of the amount of the loan made to Lee Murchison, and with further instructions to Knetsch not to pay the money to plaintiff unless the latter surrendered the pledged' note. Later Knetsch paid the money to plaintiff, less his charges. There is evidence that he was coerced so to do by plaintiff.

Defendants requested the court to submit the issue of whether Ellis, at the time he made the payment to Knetsch, instructed the latter to apply a part of the payment to the payment of the Lee Murchison indebtedness of $800; also requested submission of the issue of whether plaintiff knew of such instructions at the time Knetsch paid him said $1,-980.

It seems this phase of the case was tried by the lower court upon the theory that such instructions were not binding upon plaintiff unless the collection of the Murchison debt had been intrusted to Knetsch. But whether Knetsch was authorized to collect the Murchison debt is immaterial. In making payment Ellisl had the right to apply the same in part upon the pledged note held by Davis. While Knetsch may not have been authorized to receive such payment, his act in so doing would be ratified by Davis, if the latter in accepting the collection from Knetsch did so with knowledge of the instructions given by Ellis at the time the latter made the payment.

Linder all the facts and circumstances disclosed by the record, the jury would have been authorized in finding that plaintiff accepted the collection from Knetsch with knowledge of the instructions and conditions upon which Ellis made the payment to Knetsch.

Indeed, it is immaterial whether plaintiff had such|.notice or not at the time he received the collection from Knetsch. According to plaintiff’s theory, Knetsch was not authorized to collect the pledged note, but his unauthorized aot in so doing must be held'to have been ratified by the plaintiff accepting the collection and retaining same. Plaintiff cannot accept and retain the benefit of the unauthorized collection without assuming the conditions upon which the same was made. American Nat. Bank v. Cruger, 91 Tex. 446, 44 S. W. 278; Campbell v. Jenkins (Tex. Civ. App.) 34 S. W. 673; Merchants’ Nat. Bank v. McAnulty (Tex. Civ. App.) 31 S. W. 1091; Id., 89 Tex. 124, 33 S. W. 963; Fort Worth, etc., v. Hitson & Reed, 80 Tex. 216, 14 S. W. 843, 16 S. W. 551.

When it later came to the plaintiff’s knowledge that the payment had been made with the instructions and upon the condition stated, he was put to the election of complying therewith or restoring to Ellis the unauthorized collection made by his agent.

The court erred in refusing to submit the requested issues.

The matter presented by the first assignment will not recur.

All other questions presented are sufficient ly covered by the rulings made.

Reversed, and rendered in favor of Lee and W. K. Murchison; reversed and remanded as to Irve Ellis.

Supplemental Opinion.

No motion for rehearing has been filed in this case, but immediately after the main opinion was handed down it was discovered that Irve Ellis did not sign the appeal bond, a fact overlooked by us in the original consideration of the case. Appellants’ brief appeared to be for all defendants in the case.

It was error to reverse as to Irve Ellis, who did not appeal. Sullivan v. Doyle, 108 Tex. 368, 194 S. W. 136.

The error having been discovered it is our duty to correct the same, although no motion for rehearing has been filed or tendered.

The judgment heretofore rendered by this court is therefore set aside, and the judgment of the lower court against Irve Ellis is now affirmed, and, as to Lee and W. K. Murchison, reversed and rendered in their favor.

Affirmed in part; reversed and rendered in part.
      <S=3E'or other eases seé same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes '

      <§=For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: COBBS, J.

text:
    ST. LOUIS, B. & M. RY. CO. v. COLE.
    (No. 7950.)
    Court of Civil Appeals of Texas. San Antonio.
    March 14, 1928.
    Rehearing Denied April 11, 1928.
    1. Trial <®=>I39(I) — Refusal to instruct verdict held not error, where evidence raised issues for jury.
    Refusal to grant motion for instructed verdict held, not error, where evidence in .ease raised issues for jury.
    2. Railroads <®=»327(l), 350(16) — One need not stop, look, or listen for train before crossing railroad track, and failure to do so is not negligence per se.
    One attempting to cross railroad track is not required to stop, look, or listen for approaching train, and it is not negligence per se to fail to do so.
    3. Railroads <§=>350(33) — Evidence held to raise issue of discovered peril in wife’s action for death of husband in collision with train at crossing in city at night.
    In action by wife for benefit of self and children against railroad company where husband was killed when his automobile collided with train at crossing at about 11 o’clock at night within city limits, evidence held sufficient to raise issue of discovered peril.
    4. Railroads <S=>350(I3) — Contributory negligence held question for jury in wife’s action for husband’s death in collision with train at crossing.
    In action by the wife for benefit of self and children for death of husband occasioned by collision with train at railroad crossing in city at 11 o’clock at night, evidence held to make question of husband’s contributory negligence one for jury.
    5. Death <§=>58(l) — No presumption Is indulged that deceased was contributorily negligent, but court assumes deceased acted as reasonably prudent person.
    In absence of testimony, there can be no presumption indulged that deceased was guilty of contributory negligence, but court will assume, m absence of evidence to contrary, that deceased acted as reasonably prudent person would act under circumstances.
    6. Appeal and error <S=>882(I4) — Where no objection was made at trial to inconsistencies of issues, held error, if any was invited by defendant and not cause for reversal.
    Where no objection was raised in trial court calling attention to alleged inconsistencies of issues submitted to jury dealing with question of discovered peril and whether or not lookout was maintained, held, on appeal, that error, if any, was invited by defendant and not cause for reversal, since defendant could not have case tried upon different theory than that upon which it was presented in trial court.
    7. Jury <§=>l 10(12) — Objections to juror’s competency because of disclosures that he was at scene of accident and was familiar with circumstances held waived, where he was accepted.
    In wife’s action for death of husband at railroad crossing where juror, when examined on voir dire, stated he had lived in city where deceased was killed and had creamery at crossing where accident occurred, and that he was at scene of accident- very quickly thereafter, but notwithstanding answers he was accepted as juror, held, that objections to his competency raised by his statements must be considered as waived by taking him as juror.
    8. New trial <§=>52 — Jurors fixing verdict to prevent appeal held not misconduct invalidating verdict, since if excessive it could be reduced by appellate court.
    In' wife’s action for death of husband against railroad company, where jurors in discussions among themselves considered fixing amount of verdict to prevent appeal, held, that such conduct did not invalidate their verdict, since, if excessive, it could be reduced by appellate court.
    9. . New trial <®=>52 — Jurors’ argument in good faith to secure verdict is of no consequence when they finally reach verdict which they all approve.
    Argument of jurors, in good faith addressed to each other to secure verdict, is of no consequence, when jurors finally conclude and reach verdict which they all approve, and mere illogical reason given for verdict that is supported by testimony will not affect it.
    10. Death <§=>99(4) — $42,500 verdict to wife ' and children of automobilist killed by train earning $3,500 per annum held not excessive.
    Verdict of $42,500 to wife and three children of automobile driver, killed in collision with train at railroad crossing, earning $3,500 the year preceding his death, held not excessive.
    11. Negligence <⅞=»139(1) — Charge defining negligence, using term “reasonably prudent” rather than “ordinarily prudent” person, held not erroneous.
    In wife’s action against railroad for death of husband killed in collision at crossing, charge defining negligence as something that reasonably prudent person would not do, or failure to do something that reasonably prudent person would do, under circumstances, held not erroneous for having used words “reasonably prudent” instead of “ordinarily prudent” person.
    [Ed. Nóte. — Por other definitions, see Words and Phrases, First and Second Series, Negligence.]
    12. Evidence 3=^366(1) — Speed ordinance held admissible, where city secretary testified he was its custodian and that it was being enforced.
    In wife’s action for death of husband against railroad company, ordinance relating to speed of trains held admissible, where it was offered by city secretary, who testified he was its custodian and that it was in use in city and was enforced; city being duly incorporated.
    13. Appeal and error <§=^1027 — Where there are several grounds of negligence found, any one of which would entitle plaintiff to Judgment, verdict should be sustained notwithstanding errors with reference to other grounds.
    Where there are several grounds of negligence found by jury, any one of which would entitle plaintiff to judgment, verdict should be sustained notwithstanding there may have been committed errors with reference to other grounds of negligence proved.
    Appeal from District Court, Hidalgo County ; J. E. Leslie, Judge.
    Suit by Lillian A. Cole, individually and as next friend of her minor children, Charles L., Jr., William J., and Wayne, against the St. Louis, Brownsville & Mexico Railway Company. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    E. H. Crenshaw, Jr., of Kingsville, and Davenport, West & Ransome, of Brownsville, for appellant.
    Rabel, Napier & Pristoe, of Harlingen, for appellee.
   COBBS, J.

Appellee, Lillian Cole, brings this suit for damages against appellant, individually as the surviving wife of Charles L. Cole, who was hilled by appellant, and as next friend of their minor children, Charles L. Cole, Jr., William J. Cole, and Wayne Cole. It is alleged appellant negligently caused one of its engines to collide with an automobile driven by Charles L. Cole, deceased, at about 11 o’clock at night within the city limits of the city of Mercedes, from which collision said Cole was killed at a railroad crossing in said city.

. The alleged grounds of negligence were:

“(a) Appellant failed to ring the bell as the locomotive approached the crossing as required by article 1672, P. C. 1925, (b) the appellant failed to blow the whistle or give any other adequate warning of the approach of the locomotive, (c) the appellant operated its locomotive at an unreasonable and dangerous rate of speed, (d), the appellant operated its locomotive at a rate of speed in excess of 20 miles per hour in violation of the ordinances of the city of Mercedes, (e) appellant failed to keep a lookout for persons lawfully using the crossing, (f) appeL lant was negligent in failing to provide a flagman, electric bell, light or other adequate sig-nalling devices on said crossing, (g) discovered peril.”

Appellant filed original answer and general demurrer which were overruled. The answer contained denials of each of the alleged grounds of negligence, and also pleaded contributory negligence on the part of the said Charles L. Cole, alleging that his contributory negligence was a direct and proximate cause of the collision.

The case was tried with a jury upon special issues, and all the isspes being favorable to appellees, the court entered judgment for Mrs. Charles L. Cole in the sum of $12,500; for Charles L. Cole, Jr., $10,000; for Wm. J. Cole, $10,000; and for Wayne Cole, $10,000 — aggregating the sum of $42,-500. We might.here add that all the findings of the jury are supported by the testimony.

The first and second propositions challenge the holding of the court as error in refusing to grant the motion of appellant to instruct a verdict. Since there was evidence in the casé that made it a jury question, the court committed no error in refusing the request. On every issue in the case, including discovered peril, there was controverting testimony.

The third proposition is to the same effect. The testimony makes the issue of Cole’s alleged contributory negligence a question of fact and not of law, as well as the question of discovered peril. There was testimony •on both issues that made them questions for the jury to pass on, and no error was committed by the court’s submission of the questions to them.

There is no rule of law in this state that requires one, before attempting to cross a railroad track, to stop look or listen for an approaching train, or that it is negligence per se not to do so. It involves an issue of negligence. St. Louis, B. & M. Ry. Co. v. Watkins (Tex. Civ. App.) 245 S. W. 797; T. & N. O. Ry. Co. v. Harrington (Tex. Com. App.) 235 S. W. 188; Trochta v. M., K. & T. Ry. Co. (Tex. Com. App.) 218 S. W. 1038; B. & O. Ry. Co. v. Goodman, 275 U. S. 66, 48 S. Ct. 24, 72 L. Ed. -.

Appellant assumes that the uncontradicted evidence shows that the operators of the train did not discover the peril of the deceased in time to avoid the collision by the exercise of ordinary care in using all means at hand to stop the train, and hence challenges the ruling of the court in submitting that issue. Appellant would be right if the assumption were true. However, there was direct evidence on the issues. There was evidence showing the train’s speed was 20 miles an hour or more, running on a side track off the main line. The fireman on the train stated he saw the automobile approaching the crossing at a rapid rate of speed 250 feet before it reached the track, and the conductor saw it a block and a half away, traveling at something like 40 miles per hour. It was a foggy night, and the pavement wet and slick.

The fireman also testified the train was traveling 4 or 5 miles an hour when he discovered the automobile, and the automobile was traveling at 20 miles an hour. He testified the -train was traveling at 4 or 5 miles per hour and could have been stopped within 10 feet. There was other testimony to the same fact, and the issue of discovered peril was clearly in the case.

As to deceased’s contributory negligence, witness Townsend testified to the effect that he was traveling right behind the deceased in his own car. He further testified:

“That crossing sign was there, but you couldn’t see it that night, or you couldn’t see the track. You can’t see the track on a day like to-day, because there is concrete built right over it, and it is just like a street car track, and there is nothing to indicate a railroad is there. In fact, the railroad crosses the highway right at the rise to the bridge and you won’t see it at all. You won’t see it now running along there unless some one called your attention to it, or you see that cross or something to indicate it. The elevation at that point is something about two feet—no, it is more than that; it is something like three feet, and in approaching the bridge you wouldn’t notice it. Apparently, it is like a street car track and you would run upon it without seeing it. As to whether or not, on a foggy night such as that, you could have seen cross-arms sign, I went over it that night and I positively didn’t see it. I didn’t know it was there when I came back that night. I think that cross-arms sign is about 15 feet or 20 feet from the center of the highway. The highway is narrow at that point. I couldn’t tell by that picture how high up those eross-arms are, but I have looked at’ it, and they are up somewhere about 8 or 9 feet high. It is up above the ordinary vision in driving along in a car. I am sure it couldn’t be seen that night at all. There wouldn’t-be any earthly chance to see it. You couldn’t have seen it if you had been looking down the road. You can’t see the tracks in the daytime. You can’t see it SO feet away. Those tracks are in concrete and built so cars will run over them smoothly. Not only that,_ but the approach to the railroad on each side is concrete and high and even and comes on gradually, and the approach to the bridge comes up like this, and you just don’t see it at all. In the course of my business I am taken over the Valley a good deal. I am over the Valley every week nearly, and I drive a car. I had been along this highway at the place in question a number of times, but I never did see it. I have never seen a train on it before or since.”

Mr. Townsend testified that he was directly behind Cole, in fact within 80 feet of his car, at the time of the collision, and that he did not know of the existence of the track, and on this particular night did not know where he was; and in this connection he testified as follows:

“In fact, I didn’t know a side track was there at all. I just thought it was a passenger train. It just looked like a passenger train. I did not know where we were then. I thought that we hadn’t gotten onto the highway. I didn’t know we had gotten onto the highway. I thought that was the main line and that this was a passenger train on the main line.”

He testified further that there was a packing shed just across the track and about 40 or 50 steps to the right of the highway, and that along the side of the packing plant there was a string of-electric lights which were so situated that “the locomotive as it approached the crossing had to pass in Mr. Cole’s line of vision as he approached the crossing; that is, between him and those electric lights.”

Whether or not deceased was guilty of contributory ' negligence became under the facts-a jury question. Beaumont S. L. & W. Ry. Co. v. Sterling (Tex. Civ. App.) 260 S. W. 322. This case is a striking case in point with the last-named case, because Sterling, who was struck, was driving a noisy Ford roadster along a highway when nothing except a line of telegraph poles obstructed his view of the railroad track, and killed while crossing in front of a passenger train; and the defense urged there, as here, that Sterling was guilty of contributory negligence as a matter of law. The opinion is interesting as applicable here.

In the absence of testimony, there can be no presumption indulged that deceased was guilty of contributory negligence. The court will assume, in the absence of evidence to the contrary, that the deceased acted as a reasonably prudent person would act under the circumstances. There is nothing shown that the deceased saw the approaching train. Townsend testified that no whistle was blown, but they were ringing the bell about the time of the collision.

No objection was raised in the trial court calling attention to the alleged inconsistencies of issues 7 and 9 dealing with the question of discovered peril, and whether or not a proper look out was maintained. If error, it was invited by appellant and cannot now have the case tried upon a different theory than was presented in the trial court. There is no such error presented or shown upon this issue harmful to appellant or should cause a reversal of the judgment.

It is contended that the judgment should be reversed on the alleged ground of the misconduct of the jury. There is no evidence to support this contention. When the jury assembled to discuss the matter, they desired an opinion of each of the jurors as to any recovery or not on the whole case as a working basis. They all “agreed that the lady was entitled to damages.” Juror Borchelt said he would rather the rest give opinion first, because he knew all about the situation’ down there .and would rather have the opinion of the others before he said anything. He did not tell the rest about it. When he was examined on his voir dire as a juror, he stated that he lived in Mercedes, that he had a creamery right at the crossing where the accident occurred, that he had operated that creamery many years and was very familiar with the situation there at the crossing, and not only that, but that he was at the scene of the accident very quickly after it occurred. He answered these questions before he was accepted as a juror. There is nothing shown that tends to show, misconduct of. the jury. If it was, that was the time for the challenge, and objections raising his competency after his statements must be considered, waived, when taking him as one of the jurors. It has not been shown that any juror was improperly influenced thereby so as to bring in an improper or corrupt verdict. Instead of any misconduct of the juror, we think he acted in a straightforward manner, square and honest enough; he having the other' jurors express themselves first. He did not talk with any of them or in any way attempt to influence their judgment.'.

The discussion of the jury among themselves in fixing the amount of the verdict to prevent an appeal by appellant, while appellant may think it improper, is not such misconduct as to invalidate their verdict; besides, if shown excessive, could be reduced by this court. They may have thought if placed at a nominal amount there would be no appeal. If that were the reason, -no injury would perhaps follow to appellant. It was in the interest of appellant to have a small recovery.

We have so often said that the argument in good faith addressed to each other to secure a verdict is of no consequence when the jurors finally conclude and reach a verdict which they all approve. A mere illogical reason given for a verdict that is supported by the testimony' will not affect it. Germane to this question in. G., H. & S. A. Ry. Co. v. Pingenot, 142 S. W. 95, Chief justice Ply, in writing the opinion for this court, said:

“If verdicts are to be set aside on account of the unfounded vagaries and impertinent conversation of jurors, none would be safe, and every trial would be followed by an arraignment and trial of the jury. The statute under which jurors are permitted to detail every trivial act and idle word in the jury room is an insatiate consumer of time and patience of courts and a prolific breeder of trouble; its only saving clause being the investiture of the trial judge with discretion in the granting of new trials on the ground of improper conduct of the jury. This court will not interfere..with that discretion when soundly and reasonably exercized.”

We cannot agree with appellant that the verdict of $42,500 is excessive. Mrs. Chas. L. Cole testified that she was the widow of Chas. L. Cole'; that they had been married 16 years prior to Cole’s death, during which time Mr. Cole had followed various occupations; that during the year next preceding his death he was engaged in the insurance' business and had earned during that year $3,500; that they had three children, Charles Lee, Jr., who was 7 years of age, William J., who was 3½ years of age, and A. Wayne, who was 18 months of age, all of whom were living and being supported by Chas. L. Cole up to the time of his death. Mr. Ool« was an industrious and intelligent man and was a sober man, and during the 16 years of their married life she never knew of him drinking. He was an economical man, and he spent a good deal of time with his family and children. He devoted quite a bit of his time to the instruction of his children, physical and1 intellectual.

Appellant challenges the court’s charge in defining “negligence” as something that a reasonably prudent person would not do, or the failure to do something that a reasonably prudent person would do, under the circumstances. We do not think it erroneous for having used the words “reasonable prudent person,” instead of “an ordinarily prudent person.” Taylor, B. & H. R. Co. v. Warner (Tex. Civ. App.) 60 S. W. 442; H. & T. C. Ry. Co. v. Everett (Tex. Civ. App.) 86 S. W. 18.

Appellee urges the objection to appellant’s propositions Nos. 10 and 11 that an objection to an ordinance based upon the ground that, “inasmuch as there is no proof as to its pasr sage, and the evidence offered here is insufficient to show the fact that the purported copy he has is the ordinance of the city of Mercedes,” did not amount to an objection that the ordinance had not been published, and the assignment of error predicated upon such objection ought not to be considered.

The original ordinance was offered in evidence by the city secretary, who testified he was its custodian, and it was in use in the city of Mercedes and enforced since the 21st day of July, 1921. Mercedes is a duly incorporated city. The ordinance was properly established by proof; no issue was submitted to the jury in respect to the ordinance.

The appellant’s negligence did not rest entirely upon the ordinance. The jury found that the rate of speed that the train was traveling at the time of the collision was 12 miles per hour and that it was guilty of negligence in so traveling at the time.

It is a sound proposition of law that where there are several grounds of negligence found by a jury, any one of which would entitle the plaintiff to a judgment, the verdict should be sustained, notwithstanding there may have been committed errors with reference' to other grounds of negligence proven. The jury found that there was no flagman stationed at the crossing with reference to trains approaching, from the south side, which was a dangerqus crossing, which failure under the circumstances constituted negligence.

An examination and consideration of all of appellant’s propositions and assignments convinces us that no error apparent from the record has been committed by the trial court. The case seems fairly tried, and the judgment is affirmed.
      ®»For other cases see same topic and KEYtNUMBJSR, in all Key-Numbered Digests and Indexes

      <§=»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes