author: O’QUINN, Justice.

text:
    EDENS-BIRCH LUMBER CO. v. WOOD.
    No. 3636.
    Court of Civil Appeals of Texas. Beaumont.
    April 5, 1940.
    Rehearing Denied April 10, 1940.

      Manry & Cochran, of Livingston, Pitts & Liles, of Conroe, and Battaile & Burr, of Houston, for appellant.
    A. A. Turner, of Conroe, and Fulbright, Crooker & Freeman, of Houston, for ap-pellee.
   O’QUINN, Justice.

L. B. Wood, for himself and as next friend for Martha Wood, his minor daughter, sued appellant, Edens-Birch Lumber Company, a Texas corporation, to recover damages for injuries alleged to have been sustained by Martha Wood in a collision Between the automobile in which she was riding and a lumber truck of appellant, which it was alleged was negligently left standing on the paved portion of the highway, in the ni'ght time without lights, by reason of which the collision occurred, resulting in the damages alleged.

The case was tried to a jury upon special issues, upon their answers to which judgment was rendered in favor of appellee, L. B. Wood, as next friend of Martha Wood, the minor, in the sum of $18,000, and in favor of L. B. Wood, individually, for $1,719. This appeal is from that judgment.

Appellant’s brief contains nine assignments of error upon which it bases five propositions. The first, second, third and fourth are presented together. They, 'in effect, are: (a) That there was no evidence of reasonable present cash value of such doctor’s service and hospital expenses as Martha Wood will, in reasonable probability, have to incur in the future (after she becomes of age) as a proximate result of her injuries, wherefore the court erred in submitting special issue No. II which authorized the jury to consider as an element of damage “the reasonable present cash value, if any, of such doctor’s service, if any, and hospital expenses, if any, which Martha Wood will in reasonable probability incur after she becomes 21 years of age as a proximate result of her injuries, if any,” over its objection that there was no evidence upon which the jury could base a finding of such damage; (b) that the evidence was insufficient to support a finding by the jury of such damage as submitted in special issue No. II; (c) that there was no evidence of probative force upon which the jury could estimate the reasonable present cash value of such doctor’s services and hospital expenses, if any, which Martha Wood would in reasonable probability incur for such services in the future as a proximate result of the injuries she had received, and the submission of special issue No. II erroneously permitted the jury to speculate and guess in determining the value of such future services; and (d) that the pleading of appellee was not sufficient to support a finding on such issue.

These assignments are overruled. The pleadings and the undisputed evidence show that the lumber truck of appellant'was between 1 and 2 o’clock a. m. on January 24, 1939, travelling along the public highway leading from Houston, Texas, to Lufkin, Texas, going north, that is, toward Lufkin, and at the same time Martha Wood, with three other persons, were in an automobile travelling on and over the same highway and in the same direction. They were behind the truck, but neither the driver of the truck nor the persons in the automobile were aware of the position of the other, that is, neither had knowledge of the other until the collision occurred. The night was dark and somewhat cloudy — it had been raining — and there was considerable fog which was in layers or spots, the lower edge of the fog being about head high from the ground. At the time of the collision the truck was stopped on the highway, and the automobile struck the rear end of the trailer attached to the rear of the truck. There were no lights on the truck or trailer either front or rear. The headlights of the automobile were burning. The driver of the automobile testified that he did not— could not — discover the presence of the truck until he was within some 20 to 25 feet, when he instantly put on the brakes and attempted to steer to the left, but could not avoid striking the truck which was standing in the right lane of the road. The truck was dark in color and the dark night and the lowering fog prevented him from sooner discovering the truck. The automobile was going about thirty miles per hour. The driver of the truck testified that he was driving at about twenty-five mile per hour when the truck suddenly went “dead all at once”; that the lights went off and the truck stopped; that he had been making about thirty-five miles just before. The back end of the trailer of the truck slid over the hood' of the automobile and crashed through the windshield, and struck Miss Wood in the face, inflicting the injuries plead. Some 15 acts of negligence on the part of appellant and its agent and servant in operating the truck on the highway were alleged, and each alleged to be a proximate cause of the collision and injury to Miss Wood.

Appellee further alleged :

“V. That as a direct and proximate result of the negligence of the defendant, its agent, servant and employee, the minor plaintiff Martha Wood was severely injured and damaged. That said automobile in which she was traveling struck the rear end of said truck and semi-trailer and the bed of said semi-trailer struck or shoved through, against and into the top or body of said automobile and the minor plaintiff was struck thereby and was thrown in and against the various parts of said automobile, which severely injured her. The said minor plaintiff was struck on the head and face, chest, arms, hands, shoulders, body and on her limbs. She was bruised from her head to her feet over her body; her muscles, bones, tendons and ligaments, nerves and blood vessels were bruised, strained, stretched, cut and torn; that her skull was fractured and the bones of her face and head, nose and ears crushed, broken and fractured and displaced and will continue to be the balance of her life; that-, the muscles, nerves and blood vessels of her face, head and neck were bruised, cut, torn and severed, and the same became infected, inflamed and swollen and her face is now and will be in the future unsightly and permanently scarred. Said minor plaintiff was knocked unconscious and one of her eyes was so injured and damaged that it had to be removed entirely. That the bones of her jaws were broken and fractured and some of her teeth knocked out and some-of them had to be removed as a result of her injury. On account of said injuries, said minor plaintiff lost an extreme amount of blood and was very critically sick.
“Immediately after said minor plaintiff was injured she received first aid treatment and was brought to Houston, Texas, where she was confined in St. Joseph’s Infirmary for treatment. On account of said injuries to Plaintiff’s face, head and ears her said face and head became inflamed and swollen and infected and she had a severe fever, and the same continues to be so and will in the future be so; that the bony fragments of her face failed to heal and unite and the same never will heal and unite, and came out through the flesh and muscles; that since the removal of her eye her face is- unsightly and shows a severe scar, which condition is permanent. That said minor plaintiff was confined to, St. Joseph’s Hospital for 52 days and it was necessary to perform several operations upon her face in order to straighten the bones thereof and her jaws and teeth, and remove fragments of bones, and it will be necessary for other and additional such operations in the future to be performed; that she has been constantly under the care and attention of physicians since said injury, and she will require such attention in the future from time to time. That from the time of said injury down to the present said minor plaintiff has suffered most excruciating physical pain and she will continue to suffer the same during the remainder of her life; that she will require the services and attention of a doctor from time to time to treat said injuries during the remainder of her life; that plaintiff has suffered extreme mental anguish and will continue to suffer mental anguish during the remainder of her life; that plaintiffs have obligated themselves to pay the sum of $353.00 for nursing services; the sum of $300.00 for medicine; the sum of $30.-00 for ambulance to be brought from Cleveland, Texas, to Houston, Texas, the sum of $319.80 for hospitalization, including the use of an operating room, anaesthetics, et cetera, and the sum of $3,500.00 for doctors’ services; that each and all of said expenses were necessary for her proper care, treatment and attention, and the charges made therefor were the usual and customary charges in Houston, Harris County, Texas, where the same were rendered. That prior to her said injury, the minor plaintiff was a healthy and strong young girl, twenty years of age, and able to work and do the usual and ordinary things that a healthy, strong young girl cared to do. That she worked as a waitress and earned from ten to twenty dollars per week which was sufficient to support and maintain herself. That plaintiff L. B. Wood was entitled to her earnings from the time of her injury to the time she becomes twenty-one years of age. That ■ such earnings would have been approximately $1,000.00 per year, and he has become responsible for the medical and hospital and doctors’ expenses which have been incurred as herein alleged and the minor plaintiff, Martha Wood, after attaining her majority ivill be required to provide and pay for her medical, doctors’ and hospital expense in the' future, which he alleges to be $3,500.00. That said minor plaintiff is not' now and. will never be able to work again. That' she is permanently disfigured and injured and will be dependent upon' her father for support and maintenance, care- and attention in'the future. That on account of said’ injury said minor plaintiff has been damaged in the total sum of $65,000.00.’’ '

This pleading discloses ample allegations of necessity in the future for medical treatment and hospital care, and alleges' that same will cost her the sum of $3,500. No special exceptions were levelled against ap-pellee’s petition, neither as to the sufficiency of any matter alleged, nor as to the lack of particularity. But, it is insisted that the pleading (above set out with those portions italicised which relate to the necessity of future medical treatment, and hospital services) will. not support a recovery for such future damages, and so were insufficient for the submission of special issue No. II, which reads:

“Special Issue No. II. What sum of money, if any if paid now in cash do you find from a preponderance of the evidence will reasonably compensate Martha Wood suing herein by and through her father, L. B. Wood, as her next friend, fo'r the personal injuries, if any, sustained by her as a proximate result of the collision between the automobile' in which she was traveling upon the occasion in question, and the defendant’s truck taking into consideration the following elements of damage and none other:
“(1) Such physical pain, if any, and mental suffering, if any, as the said Martha Wood has sustained in the past and up until the trial of this cause as a proximate result of her injuries, if any,
“(2) Such physical pain, if any, and mental suffering, if any, as the said Martha Wood will in reasonable probability experience in the .future beyond the date of this trial, as a. proximate result of her in-, juries, if any,
“(3) ' The reasonable present cash value, if any, of the ioss, if any, of Martha Wood’s capacity to labor and earn money after she becomes 21 years of age which she will in reasonable probability sustain as a proximate result of- her injuries, if any,
“(4) The reasonable present cash value, if any, of such doctor’s service, if any, and hospital expenses, if any, which Martha Wood-will in reasonable prpbability incur after she becomes 21 years of age as a proximate result, of her injuries, if any,
“Answer by stating the amount in dollars and cents, if any.” '

Appellant objected to the submission of this issue as follows:

■ “12. The defendant specially objects and excepts to Special Issue No.. Eleven, * * * because there is no evidence before the jury by which they might determine .the reasonable-doctor’s services, and hospital expenses which she might incur in the future, and such issue leaves the jury free to speculate as to what sums, if any, plaintiff may spend in the future for doctor’s services and hospital expenses, and, therefore, there is no basis from the evidence by which a jury could determine such sum, if any.”
"19. Defendant further objects and excepts to subparagraph four of Special Issue No. Eleven, wherein the Court submits as an element of damage the reasonable present cash value, if any, of such doctor’s services, if any, and hospital expenses, if any, which Martha Wood will, in reasonable probability, incur after she becomes twenty-one years of age as a proximate result, of her injuries, if any;
“(a) Because there is no evidence upon which the jury can base a finding of such reasonable present cash value.
“(b) Because there is insufficient evidence to support a finding by the jury of any given sum of money representing such reasonable present cash value.
“(c) - Because the absence of any evidence of probative force upon which or-from which the jury can estimate such reasonable present cash value permits the jury to indulge in speculation and mere guess work in fixing and determining said submitted item of damage.
“(d) The said item of damage finds no support in the pleadings.”

V/hile appellant in its brief admits that the evidence shows that Martha Wood will have to have medical attention in the future, still it says that the evidence fails to show “what character of treatment will probably be required, what the reasonable cost of such treatment would be for any given treatment or course of treatments, or how long such treatments will probably be necessary” — that the amount and value of the doctor’s services and hospitalization that she may require as a proximate result of her injuries are left entirely to speculation and conjecture.

We think this contention is without merit. In brief, Miss Wood testified that among the injuries she received in the collision, were: a broken and crushed nose, both cheek bones crushed in, right jaw bone broken and left jaw bone knocked out of place, one- eye so badly injured: that it had to. be removed, her skull was- fractured in several places, that she was hit all over her face and the bones crushed, her face became so swollen and inflamed that she felt the skin was going to burst, three operations have been performed on her face since the accident, that three weeks just prior to the trial she suffered an operation for infection- of one of her ears, that the bone of the ear was chiselled, and at that time (three weeks before the trial of the case) she was sick and had 103 degrees of fever; that on Saturday the doctors opened a place in her face and on -Monday they had to go back and reopen it and put in a drainage tube to release pus; that her eye had not healed -where -the ball was removed- and she had infection in it then (when she testified); that the bones over her injured eye were crushed; that she still gets pieces of broken glass out of cuts in her face; that for three weeks after the accident while she was in the hospital, she was wholly unconscious.

Dr. Peterson, a brain specialist and skull surgeon, testified that Martha Wood was brought into the hospital in the early morning of January 24th, and was then in “ex-tremis” — a very d.esperate condition — practically dead; that she was suffering from superficial lacerations of her face, lip, nose, and that her right eye — the cornea —shiny part of the eyeball, had been cut and was protruding — that the iris was extruding and the lens dislocated — her pulse could not be felt; that her condition was so desperate that she had to be sent to the ward without X-ray examination; -that she was given food in the .veins until she had, in a mea-, sure, recovered from shock, and that after she was in a condition to be tested by X-ray she was taken to-the X-ray room and there examined; that she had skull fractures, one over the eye extending into the base of the skull, another across the base of the nose, that both cheek bones were fractured and driven in on each side and underneath the cheek bones in. the sinuses, a broken mandible and a fracture at the base of the skull,.that her face and head were swollen beyond recognition, that her temperature varied between 103 and 104, and one time reached 106 and her pulse rose to 150.

He further testified that' from the time of the accident she had been in the hospital for treatment three times; that the second time was because of-a large abscess which had formed in the left cheek just in front of the ear, which had to be opened and drained; that shortly thereafter she developed and now has a small opening just to the right of her nose, and through that opening -she- expels every two or three days a-small amount of pus, which, he said, disturbed the doctors very much because they felt that they were obviously dealing with a bone infection; that the third time she was in> the hospital the sinus tract was opened and the bone scraped, but that this had not cured the situation, because she still drains pus from the opening', and that, in the doctor’s estimation, was a very-serious complication, perhaps the most serious complication, because it meant an infection in the bone, and with the bones in her face so broken, it will probably go into a chronic infection of the bone, known as osteomyelitis; that ordinarily a bone infection of the hip or leg are not of serious concern to the doctor, because, as a rule, no other complications arise, but in a bone infection in the face there is always a great risk of a brain abscess, because the drainage is back to the roof of the nose and the roof of the mouth, which makes it a very serious situation.

He further testified that three weeks before the trial of the case she was in the hospital for inspection of the mumps gland, which had to be incised and drained, and that she then complained of great pain and had to be administered a sedative; that she had not recovered from her injuries, and that she would have to have medical treatment for her injuries in the future. In answer to a question as to how long she probably would require treatment, he said “That is very problematical. That depends on how this sinus tract clears up. She still has some pus coming from her eye, so much so that we have not been able to get an artificial eye that will satisfactorily do the work, an eye that will simulate in appearance what the other eye does.” That the most important thing that was bothering her at that time was the small facial tract that goes back to some dead bone at the side of the nose in the maxilla, the cheek bone; that he had tried to remove some of the bone in the maxilla on the right side of the base of the nose; that the usual practice in treating such a condition was to pack it and wait for the dead bone to separate, and-then remove it; that this infection set up about six weeks after the accident — that it was a sort of osteo-myelitis ; that it was a little better now, but that it was not his prognosis that she would ever get over it; that usually they speak of these as chronic osteomyelitis; that the history of these things is that it will become infected and the doctor will operate on it half a dozen times and still they persist; that it had never cleared up, though they scraped the bone, and it appeared better, but not cured; that once one had chronic osteomyelitis he has it a long time. .

He further testified that he could not estimate what would be the reasonable-charges for such medical attention as she would require in the future. He was asked: “Are you able to estimate what would be the reasonable charges for such medical attention as she will probably require in the future after this time P” To which he answered: “No, sir. You can’t estimate that very well, but she is going to require medical treatment in my estimation for a long time, she may need it the rest of her life and she may need it a lot less, but chronic osteomyelitis is a chronic disease.”

Evidence of the cost of medical treatment and hospitalization up to the time of the trial showed to be near two thousand dollars. This was shown to be proper and reasonable.

As before stated, appellant in its brief admits that future treatment will be necessary, and we do not find any evidence in the record challenging the nature of such treatment, nor the reasonable cost as indicated by the nature of the required services and their cost prior to the trial. The contention is that the pleadings as to the necessity and cost of future medical services are insufficient to support a judgment for such damages, and that there is no evidence of the reasonable present cash value of such services.

The record without. dispute shows that the injured girl will have to have medical treatment and in all probability hospitalization for a long time as the direct result of her injuries. It is also without dispute that it was impossible to estimate the exact amount of medical attention she will require in the future, and so impossible to estimate the reasonable cash value of such services. There was, however, before the jury ample evidence to show the nature and value of the services which had' been rendered her in the past; and certainly, we think, it plainly shows that she will need the same kind of services in the-future. As to damages of this nature, the jury should be allowed upon the knowledge they have acquired from the testimony as to the reasonable value of services already rendered, to make some estimate of the damages as to services which» will be required in the future.

Appellant, at least by inference, contends that appellee should have had some doctor estimate the damages for future treatment, thus, in effect, asserting that there was no other method by which the jury could have arrived at the amount of such damages. Appellee alleged the need for future services and its costs. He disclosed in minute details the physical condition of the injured girl on the very day of the trial; showed the medical and hospital treatment she had received prior to the trial, and the reasonable value of same, and the progress toward recovery she had made under such treatment. Certainly no doctor could have done more than give his opinion or estimate of her medical requirements in the future. Upon what could he have based his estimate ? The only possible answer to that is, the nature and extent of her injuries, and the progress toward recovery she had made under the treatment she had received. The jury had the right to take the nature and extent of her injuries and her progress toward recovery under the treatment she had received, and the reasonable cost of her medical and hospital treatment in the past, her physical condition at the time of the trial, and estimate the necessity for medical and hospital treatment in the future, and the reasonable value of such future medical treatment and hospital expenses.

As to the sufficiency of appellee’s allegation of the necessity and cost of future damages we need go no farther than to consider the holding of the Supreme Courts in Dickey v. Phœbe Jackson, Tex.Com.App., 1 S.W.2d 577, cited by appellant. There, the court says, “Miss Jackson averred that ‘as a result of the injuries aforesaid and in her attempt to alleviate the damages caused thereby,’ she has been ‘compelled to employ skillful medical attention and skin experts, and will in the future’ (be compelled to do so), 'and will become liable to pay for said medicine and medical treatment the sum of $1,500.’ ” In passing upon the sufficiency of this allegation, the court said: “If it be true that she will, as alleged, ‘become liable’ in the sum mentioned, it is so, inter alia, because the medicines and services will reasonably have that value * * *. Her allegation is largely that of mere conclusion, and from its terms the essential reasonableness of those expenses must be deduced; yet, absent special exception duly presented and overruled, the pleading must be held sufficient to present the matter of those items of damage.” Citing Texas & P. R. Co. v. Lee, 21 Tex.Civ.App. 174, 51 S.W. 351, 57 S.W. 573, writ refused. The allegation in the Phcebe Jackson case as to the question of future damages was certainly a more general allegation than in the instant case, and here there was no special exception to the allegation.

In 17 C.J. 805, it is said: “The jury may, in assessing damages, consider the circumstance that in the future plaintiff will be subjected to expenses for doctor’s bills, nursing and attendance; and if the condition of the person is such that further outlays for medical or surgical treatment or nursing and attendance will be required, they may give damages for such prospective expenses. There must, of course, be evidence in the case as to the probable necessity of such expense.”

And in 17 C.J. 917 (Damages Future Expenses) : “It has been held that, where there is no evidence as to the probable extent of such services or as .to the amount which might have to be expended therefor, the jury may determine from the services •which at that time have been required and the value thereof vuhat might be reasonably expected in the future.” (Italics ours.)

In 13 Tex.Jur. 78, the rule is stated:

“The elements of injury for which damages compensatory may be given vary in their character. To some of these the means for ascertaining the compensation which ought to be given is such that it may be fixed with almost mathematical certainty, while as to others this degree of certainty cannot be reached. At some periods the tendency has been to restrict the recovery of damages to such matters as are susceptible of having attached to them an exact pecuniary value — e. g., the dollars and cents lost as the result of a breach of contract or tort. At the present time, however, the fact that it may be found difficult to ascertain the exact amount of compensation which ought to be made for an injury is not considered as a sufficient reason why compensation should not be given. This is true as to the loss or damage occasioned by personal injuries or wrongful death.
“The rule forbidding the recovery of damages which are uncertain or contingent does not apply where the amount, measure or extent of loss or injury is uncertain; it ‘only applies to such damages as are not the certain result of the breach, and not to such as are the certain result, but uncertain in amount.’ And, while the amount or extent of loss or damage must be shown with a reasonable degree of certainty, reasonable certainty is all that is required; the loss or damage need not be shown with mathematical exactness. The amount may be fixed by the jury in the exercise of a sound discretion under proper instructions from the court. Nor, in a case where the damages are incapable of exact ascertainment, is it necessary to place a money estimate on the amount of loss or injury; the jury are allowed to use their own judgment and discretion. Consequently, where it is shown that the defendant’s act has occasioned damage .to the plaintiff, and the only uncertainty is as to the amount, there can rarely be good reason for refusing, on account of uncertainty, any recovery whatever for the breach." (Italics ours.)

And in 17 C.J. page 756: “The rule against the recovery of uncertain damages generally has been directed against uncertainty as to cause- rather than uncertainty as to measure or extent. In other words, the rule against uncertain or contingent damages applies only to such damages as are not the certain results of the breach, and not to such as are the certain results but uncertain in-amount. In many cases, although substantial damages are established, their amount is, in so far as susceptible of pecuniary admeasurement, either entirely uncertain or extremely difficult of ascertainment; in such cases plaintiff is not denied all right of recovery, and the amount is fixed by the jury in the exercise of a sound discretion under' proper instructions from the court. This is particularly tme of torts, especially those resulting in personal injuries; but even in the - case of contracts a party who has broken his contract will not ordinarily be permitted to escape liability because of the uncertainty in the amount of damage resulting and the fact that the full extent of the damages for the breach must be a matter of. speculation is not a ground for refusing all damages. So in cases of tort, where there are elements of certainty as to a part only of the damages which have resulted, leaving it apparent that there are actual damages beyond what can be tlms accurately measured, plaintiff’s recovery is not limited to so much only as can be measured with certainty."' (Italics ours.)

In Scurlock v. City of Boone, 142 Iowa 684, 121 N.W. 369, 371 (by the Supreme Court of Iowa), it is said: “As we have heretofore said, the plaintiff's w-ife was-seriously injured by the accident in question. She was confined to her bed for some time, and it became necessary to have the attendance of physicians, and she needed .and recéived nursing and care and attendance from the members of her immediate family and from near relatives. The evidence showed the value of the medical attendance which had been rendered her and showed nursing and care and attendance which she had received from the members of her family and relatives, but there was no evidence as to the value of such nursing and. attendance. The court instructed that the plaintiff would be entitled to recover ‘such reasonable amounts, not exceeding the amount claimed in the petition, as will compensate him for damages suffered by reason of expenses incurred for medical service’ for his wife, damage for furnishing nursing for her and such damages, ‘if any, as it is reasonably certain he will incur in the future for medical services on account of said injuries.’ The complaint of this instruction is based on the grounds that there was no evidence as to the value of the nursing, and no evidence as to the value of future medical attendance. The evidence showed that ’ the condition of Mrs. Scurlock’s health at the time of the trial was such as to warrant the jury in finding that medical services for the injuries would be required in the future; and, while there was no evidence as to the probable extent of such services or as to the amount which might have to be expended therefor, the jury might determine from the services which at that time had been required and the value thereof what might reasonably be expected in the future." (Italics ours.)

The Supreme Court of Missouri, in Stoebier v. St. Louis Transit Co., 203 Mo. 702, 102 S.W. 651, 654, in passing upon the question here involved said: “The third objection lodged against this- instruction is that it permits the jury to-include in its verdict expenditures which might be necessary for plaintiff to incur in the future on account of her injuries,, when there was no evidence to show that they would be necessary, or what they would he reasonably worth. We are also of the opinion that this objection is without merit, because at the trial the evidence showed that plaintiff had three physicians and one or two of them testified that she was then still under their charge, ánd was a helpless, a suffering' paralytic, and would never improve, but would continually grow worse. If that condition of her health does not tend to show she will need medical attention in the future, we are unable to conceive a case where such attention would be necessary. * * * As to what attention . she will require during her life and its prohable value are matters of more .or less speculation. No one can tell how long she will live, what her suffering will he, or zvhat amount of medical attention she will require. The jurors are as capable of judging of those matters as any one else could be. See Curtis v. McNair, 173 Mo. [270] 271, 73 S.W. 167.” (Italics ours.)

Appellant apparently depends mainly upon the case of Dickey v. Phoebe Jackson, Tex.Com.App., 1 S.W.2d 577, for support of its contention. We think that case can be materially differentiated from the instant case: There as here claim was made for damages to be incurred in the future for medical atténtion and hospital services. There no proof was made as to the reasonableness of any charges for medical attention, either past or future. Here there was proof of the amount and its reasonableness of every itepi expended prior to the trial. Also here, as we believe, there was all the proof susceptible to the nature of the case made as to damages to be suffered in the future. The evidence given was the very best evidence susceptible of being shown, which satisfied the rule of law as.to proof of such damages. The charge in the Phoebe Jackson case told the jury that “any amount” which the plaintiff had expended and will likely have to expend might be taken into consideration in.fixing the amount of the damages. The court very properly disapproved this charge. It said, “What was included for ‘medicines and medical treat- ' ment,’ past or future, or both, is of course unknown, and on the record it is unas-certainable. For lack of proof in respect to the reasonable value or cost involved in those items, the jury should not have been allowed to consider them.” As seen, there was no proof of the reasonableness of the charges which had already accrued, while here there was full proof. The case, in our opinion, on the facts, does not support appellant’s contention.

By its fifth proposition appellant urges that the judgment should be reversed because of misconduct of the jury. The substance, of the complaint is that while the jury was considering special issue No'. 11, which related to the damages sustained by Martha Wood, the injured girl, the jurors improperly discussed and considered the attorney fees which she would probably have to-pay her-attorneys for prosecuting the suit in .her behalf, which matter was ■ not before them in the evidence nor in the court’s charge, and that it being reasonably 'doubtful as to whether such improper conduct of the jurors affected the amount of the verdict, the court erred in refusing to’ grant appellant a new trial. The record discloses that appellant procured and offered in evidence an affidavit of one'of the jurors, and summoned that juror and one other as- witnesses - on the hearing of the motion for a new trial. Appellee summoned the other ten jurors. All twelve of the' jurors were in -attendance and testified.

Juror A. J. Buchanan, in substance, testified on direct examination that on the question of damages, the jurors were all split up, the lowest amount being $10,000 and the highest $30,000. That he was for $10,000. That some one of -the jurors said to him" that if “ydu gave- her $10,-000.00, she wouldn’t get none of it/after you paid the attorney fees, she wouldn’t have nothing left.” That after that statement 'he agreed to give her $18,000. He was then asked:

“Q. Was your decision, in agreeing to give $18,000.00 .based on the statement made to you as to the attorneys receiving a portion of the award? A. Not altogether. We stayed in there and split from $30,000.00 down to that far.
“Q. Was it not partly based upon that statement? Was your decision to give her $18,000.00 partly based on the .statement of that juror that the attorneys would get a part of the.award? A. Yes, sir.
“Q. From the conversation that took place, how much attorney fees did you think Miss Wood’s attorneys would get out of the judgment? A. I wouldn’t know myself.
“Q. From the discussion that took place there? A. That was discussed from several angles. They didn’t know just what. Some of them thought maybe they might get fifty percent and some twenty-five percent and some thirty percent. There wasn’t no certain amount.
“Q. When you consented to give $18,-000.00, state whether or not that was done for the purpose of enabling Miss Wood to get a net of $18,000.00? A. That is right.”

On cross-examination, he testified that he followed the court’s charge; that he didn’t consider anything but the evidence given on the witness stand; that he based his verdict solely on the court’s charge and the evidence; that he didn’t think he considered anything else; that he didn’t consider anything outside of the evidence; that he wanted Miss Wood to get $10,000 and that he came up to $18,000 in order for her to do so; that he did not know who of the jurors first mentioned the attorney ' fees; that in coming up from $10,000 to $18,000 he took as his guide the charge of the court and the evidence, and that he didn’t think he considered anything else.

The other eleven jurors were oifered by appellee. Juror Cochran testified that he was foreman of the jury; that he thought the question of attorney fees was mentioned — it was not discussed, that if it had been he would have heard it and that he did not hear it. On cross-examination he'testified that there were seven of the jurors that favored $30,000; some favored $20,000 and one $10,000; that the matter of attorney fees was not discussed generally, but the subject was mentioned; that he did not hear the statement that her attorneys would get from a fourth to one-half of what she got; that the jurors were told that they could not discuss that matter.

J. H. Goodson, juror, testified that he did not hear anything said about attorney fees; that if it had been mentioned he would have heard it. On cross-examination, he said attorney fees were mentioned, but that there was no argument with juror Buchanan that he ought to come up so that Miss Wood would get $10,000 after paying her attorneys; that they talked about it a little, but there wasn’t any argument.

Juror R.. L. Curd testified that the subject of attorney fees was mentioned, and -he told the jurors that they could not discuss that and it was not mentioned any more; that he did not hear any of the jurors tell juror Buchanan that if they awarded Miss Wood $10,000 that her attorneys would get half of it and that he ought to come up so she could get more money. On cross-examination he testified that attorney fees were mentioned, but there was no general discussion; that “it was not discussed because two or three of us stopped it when it started.”

Juror John Sallee testified that he did not hear attorney fees mentioned while they were discussing the case; that he believed he did hear juror Buchanan mention it, but that there was no general discussion of the matter, and that he did not hear attorney fees mentioned but the one time when Buchanan mentioned it. On cross-examination he testified that he did not hear any one tell Buchanan that he ought to raise his figures from $10,000 because if they did not she would not have much left after she paid her attorneys.

Juror Pete Novark testified that he heard attorney fees mentioned; that he did not hear any one say to Buchanan that if they only gave Miss Wood $10,000 after she paid her attorneys she would not have much left. On cross-examination he testified that he did not hear any such, and didn’t think it was said.

' Juror M. Patrick testified that attorney fees were mentioned once, but were not discussed. On ’Cross-examination he testified that 'the jury were divided, some for $30,000 and down to $10,000; that juror Buchanan was for $10,000; that there was considerable discussion with Buchanan in an effort to get him to raise his estimate, but that he did not hear any one say to him that Miss Wood would not have much left after she paid her attorneys, if, they gave her only $10,000; that there was no discussion of attorney fees; that he did not think that any one said the lawyers would get a part of her award.

Juror T. R. Sanders testified that he did hot think anything was said about attorney fees, and if it was mentioned he did not pay any attention to it. On cross-examination he testified they (the other members of the jury) did not work “pretty hard” to get Buchanan to come up, saying: “Well, I don’t believe anyone insisted on him very heavily.” And in answer to the question: “But it was done by the others to try to get him to come up?”, he said: “I don’t think so.” He said that he did not hear it said that if they gave the girl only $10,000 that after paying her attorneys she would not have much left, he said: “Attorney fees wasn’t mentioned that I remember of.”

Juror R. D. Ellison testified that he did not hear anything said about Miss Wood would have to pay attorney fees. On cross-examination he testified that juror Buchanan favored awarding Miss Wood $10,000, and that some wanted to give her $30,000; that some of the jurors tried to get Buchanan to give her more than $10,-000; that some one made the remark that after paying her lawyers she would not have much left, when some one said we shouldn’t discuss that.

Juror C. H. Williams testified that something was said about attorney fees, but it was not discussed; that some one said we did not have the right to discuss attorney fees, and nothing more was said about it. On cross-examination he testified that he heard some one say to juror Buchanan that he ought to give Miss Wood more than $10,000 because the lawyers would get half of what she got, or “something like that;” that as near as he could remember that remark was made to Buchanan after they had arrived at their verdict; that after that everybody agreed on $18,000; on redirect, in answer to the question “How long after,” he said “From sometime Sunday until Monday morning.”

Juror A. H. Inglett testified that “Something was said about attorney fees that she would have to pay her lawyers and doctor bills and that was about the only thing that come up about the attorneys”; that some one said that we didn’t have anything to say about that; and that he did not hear the matter mentioned after that; that the remark about the attorney fees was made before the jury arrived at its verdict.

Juror J. K. Hoke testified that the subject of attorney fees was “just casually mentioned.” On cross-examination he testified that the matter of attorney fees was mentioned, and that he said, “I do not know anything about what they get,” and some one said fifty or forty percent was customary, and that he expected that the jury thought, when they agreed on $18,-000, that the attorneys would get half, or a big part of it; that he thought that one of the reasons why he agreed to the $18,-000; that the talk about attorney fees was before they had agreed on the verdict. He (Hoke) at first voted to give'Miss Wood $20,000; this was before they agreed on $18,000.

There is in the record a complete statement of facts adduced on the hearing of the motion for a new trial. We have given what we deemed the substance of each juror's testimony that was material.

It is seen that there is a substantial conflict in the testimony of the jury as to what occurred relating to discussing attorney fees. Answering special issue No. 11 (what amount of damages should be given to Miss Wood) was the chief cause of delay in returning the verdict. We think the record shows that if the attorney fees question was discussed, that juror Buchanan was the member that broached the matter. He also was the juror who made the affidavit upon which the question of misconduct of the jury was based. While he says that some one stated to him that if the jury gave the injured party only $10,000 that she would not have much left after paying her attorneys, and that as he wanted her to have that amount net, that by reason of the attorney fees question, he came up to $18,000, he also stated that he did not do so “altogether for that reason” ; that he followed the court’s charge; that he didn’t consider anything but the evidence given on the stand; that he didn’t consider anything outside of the evidence; that he based his verdict solely on the court’s charge and the evidence! In view of these statements made under oath, he rendered very doubtful the weight to be given to his evidence.

The other jurors who remembered that the subject of attorney fees was mentioned, all say that there was no general discussion of the matter, but that its mention was casual, and that the jurors were told that they should not discuss the matter, and that it was not mentioned again. Whether there was such misconduct of the jury as would likely affect their verdict was a question of fact. In passing upon this question the court has the same latitude in determining the credibility of witnesses and the weight to be given their testimony as the jury had upon the trial. Its duty is to weigh all of the evidence of the witnesses who testified, and to consider it as a whole. If there are inconsistencies or contradictions in the testimony of a witness it rests within the sound discretion of the court to harmonize and reconcile them as far as possible. The court may disbelieve the testimony of a witness who stands impeached as to material matters, or who has violated his oath by returning' a verdict which he believed to be false, or whose testimony is so uncertain, contradictory and confusing as to render its merit uncertain. It has been said that the testimony of jurors who seek to stultify themselves, or reflect upon'the conduct of their fellows, should always be scrutinized with great caution, if not suspicion, and should never be resolved against their .verdict regularly returned, except in clear cases of. abuse and' injury to the complaining party. Where the evidence as to whether alleged misconduct actually occurred is conflicting, it is the province of the judge to determine the issue of fact, and his- determination should not be disturbed except when it is palpably wrong, and on appeal from an order made on the motion for a new trial based upon alleged misconduct of the jury, the appellate court will take the most favorable view of the evidence that the trial court was authorized to take. 31 Tex.Jur. 166, Sec. 154; Monkey Grip Rubber Co. v. Walton, 122 Tex. 185, 53 S.W.2d 770; Dallas Ry. & Terminal Co. v. Horton, Tex.Civ.App., 119 S.W.2d 122, writ dismissed; Bradshaw v. Abrams, Tex.Com.App., 24 S.W.2d 372; El Paso Electric Co. v. Prince, Tex.Civ.App., 95 S.W.2d 147, writ dismissed; State Teachers’ Mutual Life Ins. Co. v. Mims, Tex.Civ.App., 74 S.W.2d 549, writ refused; Texas & Pacific Ry. Co. v. Aaron, Tex.Civ.App., 19 S.W.2d 930, writ refused. The last cited case is on the facts very similar to the instant case. There the juror who said attorney fees were discussed was the one who, if any one, mentioned the subject. It was so in the instant case. There the juror who said he was influenced by the discussion of attorney fees voted at first for $10,000, the others were five for $25,000 and six for $20,000. They rendered a verdict for $20,000. Here the juror Buchanan first voted for $10,-000 and finally for $18,000, the verdict returned. There when the subject of attorney fees was mentioned, the foreman promptly told the jurors that they could not consider or discuss that subject, and that the matter was not again mentioned. So, here it is definitely shown that the jurors were told they could not consider attorney fees, and there was no further mention of the matter. In that case the jurors for more than $20,000 came down to $20,000 and the juror for $10,000 came up to $20,000 to get a verdict. Here the jurors (all of them but Buchanan) were for from $20,000 to $30,000, and they came down to $18,000 and Buchanan, came up to $18,000 to get a verdict. The one juror in the cited case said the question of attorney fees influenced him to go up in his amount, here Buchanan testified both ways on that question; In the cited case the court heard the evidence on the question of misconduct, and overruled the motion for a new trial, and the Supreme Court refused a writ of error, and the United States Supreme Court (281 U.S. 756, 50 S.Ct. 409, 74 L.Ed. 1166) refused certiorari. Many authorities could be cited supporting the rule.

Apparently appellant relies to some extent upon the testimony of the juror Hoke as supporting its contention that attorney fees were discussed by the jury before arriving at its verdict, and that such discussion influenced him in arriving at the verdict. Hoke did testify that attorney fees were mentioned, and that he thought one of the reasons why he' voted for the verdict of $18,000 was the mention of attorney fees. That such was the fact is on its face impossible. According to his own testimony, on'the first ballot he voted for $20,-000 before he finally voted for the' $18,000 verdict. He went down instead of up in his estimate of what damages should be given. The assignment is overruled.

We have discussed all the assignments of error presented by appellant, and finding no reversible error, the judgment should be affirmed, and it is so ordered.

Affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    BLOUNT et al. v. McMILLAN.
    No. 3711.
    Court of Civil Appeals of Texas. Beaumont.
    April 25, 1940.
    Ramsey & Ramsey, of San Augustine, for appellants.
    Charles McMillan, of San Augustine, for appellee.
   O’QUINN, Justice.

On November 25, 1939, an election was held in San Augustine County, Texas, to determine whether or not the sale of beer containing alcohol not exceeding four per cent in weight should -be prohibited. The election returns showed on their -face that a majority of the votes cast were against the sale of beer, and the commissioners’ court of the county passed an order declaring the result of the election and prohibiting the sale of beer in said county, as provided by law.

This suit was instituted by T. W. Blount and J. H. Halbert, resident citizens and qualified voters of said San Augustine County, Texas, contesting the validity of said election and the declared result of same for in that they alleged votes in certain election precincts or boxes that did not have the name of the presiding election judge written thereon by said judge as required by law were' counted, and that votes in certain election precincts or boxes that were not numbered as required by law were counted, the whole showing, a majority of 38 votes against the sale of four per cent beer, whereas if said alleged illegal votes had been refused and not counted' there would have been a majority of the legal votes in favor of selling beer.

The case was tried to the court without a jury .and judgment rendered sustaining the validity of the election by a majority of 25 votes, that is, that by a majority of 25 votes the county had voted against the sale of four per cent beer. From that judgment this appeal was taken.

Appellants, in their petition, contested the validity of eleven of the boxes, but in their brief they have challenged the validity of but four, Denning, McCune, Attoyac, and White City. The matters alleged to have vitiated the - others were disproven.

At the Denning box 125 votes were polled. Of this number 69 of the ballots did not. bear the genuine signature of the presiding judge. He testified that the other ballots were signed by himself, and that he authorized one of the assistants helping to hold the election to sign his (the presiding officer’s) name on 69 of the ballots. Appellants insist that the votes not bearing the genuine signature of the presiding judge were illegal;'that under the law he could not delegate this duty to an assistant, but must sign same himself. We sustain this contention. Article 666—35, Vernon’s Annotated Penal Code, subdivision (b), provides that no ballot shall be counted that “is not an official ballot, and that has not the name of the presiding officer of such election written thereon in the handwriting of such presiding officer as provided by this Act.” The plain language of the statute discloses that the presiding officer must sign his name on the back of the ballot — he cannot authorize some one else to sign his name for him, for in that event it would not be “in the handwriting of such presiding officer.” This statute, being a special statute regulating the holding of a special election, controls and is mandatory. Miller v. Coffee, 118 Tex. 381, 15 S.W.2d 1036; Ramsay v. Wilhelm, Tex.Civ.App., 52 S.W.2d 757, writ refused; Scherz v. Telfer, Tex.Civ.App., 74 S.W.2d 327; Border v. Abell, Tex.Civ.App., 111 S.W.2d 1186. Of the 69 votes not signed by the presiding officer, 44 voted for prohibiting the sale of beer, and 25 voted against prohibiting the sale of beer. These votes will be deducted from the ' respective totals of 'the vote.

At the McCune voting box 65 votes were cast, of *which 5 were not signed by the presiding officer, and of these 3 were for prohibiting the sale of beer, and 2 were against prohibiting the sale of beer. These votes will be deducted from the respective totals of the vote.

At the Attoyac box there were 31 votes cast, and of these 14 were not signed by the presiding officer, and of these 6 were for prohibiting the sale of beer, and 8 against prohibiting the sale of b'eer. These votes will be deducted from the respective totals of the vote.

At the Logville box it was shown that six persons voted who did not reside within the voting precinct, and so were illegal votes. They voted for prohibiting the sale of beer, and will be deducted from the total votes for prohibiting the sale of beer.

The court found such irregularities and non-compliance with the election laws that he threw out the entire vote at the Camp Worth box. The record amply sustains his action.

Votes at several of the voting boxes were shown not to have been numbered. It is insisted that they should have not been counted. This contention is overruled. It being a special election, the law under which the election was held, Article 666—35, Vernon’s Annotated Penal Code, subdivision (b), (Liquor Control Act), does not provide that the ballots shall be numbered, and so the failure to number the ballots did not render them void. Being a special law, its provisions control over the general law on the subject. Tate v. Farmer, Tex.Civ.App., 112 S.W.2d 782.

The vote as declared by the commissioners court showed 729 for prohibiting the sale of beer, and 691 against prohibiting the sale of beer, or a majority of 38 for prohibiting the sale of beer. As above stated, there were 44 votes in the Denning box; and 3 votes in the McCune box; and 6 votes in the Attoyac box; and 6 votes in the Logville box, amounting to 59 votes, that should not have been counted for prohibiting the sale of beer. Deducting these from 729, leaves a total of 670 votes for prohibiting the sale of beer. There were 25 votes in the Denning box; and 2 votes in the McCune box; and 8 votes in the Attoyac box, amounting to 35 votes, that should not have been counted against prohibiting the sale of beer. • Deducting these from 691, leaves a total of 656 against prohibiting the sale of beer. This results in a majority of 14 votes for prohibiting the sale of beer in the county.

From what we have said, it follows that the judgment declaring that the election resulted in favor of prohibiting the sale of beer in the county, should be affirmed, and it is so ordered. Affirmed.


author: COMBS, Justice.

text:
    JASPER et al. v. MAYS MFG. CO. et al.
    No. 3637.
    Court of Civil Appeals of Texas. Beaumont.
    April 4, 1940.
    W. M. Harmon, of Waco, Jeff Cochran, of Cleveland, T. F. Green, Jr., of Conroe, Thos. A. Wheat, of Liberty, and Pitts & Liles, of Conroe, for appellants.
    W. R. Horrell, of Cold Springs, and John O. Douglas, of Houston, for appel-lees.
   COMBS, Justice.

This suit involves title to several tracts of land in San Jacinto County, Texas. The trial court sustained defendants’ pleas in abatement on the ground that plaintiff, Mays Manufacturing Company, an Arkansas corporation, was engaged in business in Texas without a permit and hence could not maintain the suit. The trial court of its own motion also dismissed the cross-actions of the defendants and all parties have appealed from that order. Attorneys for the appellants, L. O. Jasper et al., have made an accurate and succinct statement of the case in their brief from which we quote as follows

“There were three separate and distinct suits filed, the first of which is styled Ed Mays v. Mrs. Lizzie Boyj- et al., No. 4332, in the District Court of San Jacinto County, Texas. In this suit the Mays Manufacturing Company filed its petition of intervention. The second suit was stwled Mays Manufacturing Company v. L. O. Jasper et al., No. 4359, in the District Court of San Jacinto County, Texas. The third suit was styled Mays Manufacturing Company v. J. E. Eason et al., No. 4363, in the District Court of San Jacinto County, Texas.
“In the Jasper case and the Eason case, the plaintiff was the Mays Manufacturing Company, a corporation organized under the laws of the State of Arkansas. However, in the Boyd case, Ed Mays, as an individual, was the plaintiff, and the Mays Manufacturing Company intervened in the cause.
“Thereafter, the defendants in the Jasper and Eason cases each filed a plea in abatement to the plaintiff’s cause of action, alleging that the plaintiff was a foreign corporation doing business in the State of Texas without a permit to do business. At the same time, the defendants in the Boyd case filed a similar plea in abatement to the intervention of the Mays Manufacturing Company.
“Each of the defendants in the three cases filed a cross-action over and against the plaintiffs in each case, and in the Boyd case the intervenor was made a cross-defendant to said cross-action. Ed Mays and the Mays Manufacturing Company both waived service on the cross-action and entered their appearance, or else filed their answer to the cross-action.
“Thereafter all three cases were consolidated upon agreement of the parties insofar as the bearing upon the pleas in abatement were concerned.
“Thereafter on September 19, 1939, the pleas in abatement were heard, and by the Court sustained. However, the plaintiffs and intervenors, Mays Manufacturing Company, and Ed Mays did not appeal from such order at the same time all three cases were dismissed in their entirety; the order of dismissal being done on the action of the Court, and not by any of the parties thereto. From this order of dismissal all of the original defendants, the cross-plaintiffs, have appealed to this court.”

Opinion.

The sustaining of the defendants’ several pleas in abatement to the suit of the Mays Manufacturing Company did not affect the right of the defendants to prosecute their cross-action against said company. It has been repeatedly held by our courts that where a plaintiff dismisses his suit, or where as here the court dismisses it, such dismissal will not deprive a defendant of his right'to an adjudication on' the merits of his cross-action theretofore filed and with respect to which the plaintiff is before the court. In such case the plaintiff simply assumes the defensive position, and the defendant becomes the plaintiff on his cross-action. Cunningham v. Wheatly, 21 Tex. 184; Harris v. Schlinke, 95 Tex. 88, 65 S.W. 172; Barrier v. Lowery, 118 Tex. 227, 11 S.W.2d 298, 13 S.W.2d 688; 38 Tex. Jur. 411.

The trial 'court was evidently of the view that since the Mays Manufacturing Company, an Arkansas corporation having no permit to do business'in Texas, was denied by the statute (Vernon’s Ann. Civ.St. art. 1536) the right to prosecute the action which it had brought, the defendants were also denied the right to prosecute a cross-action against it. This was error. The fact that the Mays Manufacturing Company could not prosecute its cause did not prevent it from being sued as a defendant nor hinder it from defending this suit which involved title to property it claims in Texas. Jordan v. Grandfield Bridge Company, Tex.Civ.App., 290 S.W. 866; Atcheson v. Modern Woodmen of America, Tex.Civ.App., 262 S.W. 876; Bankers’ Trust Co. v. Cooper, Merrill & Lumpkin, Tex.Civ.App., 179 S.W. 541; Banco Minero v. Ross & Masterson, Tex.Civ.App., 138 S.W. 224; 11 Tex.Jur. 170.

The judgment of the trial court is reversed and the cause remanded.

Reversed and remanded.


author: GRAVES, Judge.

text:
    Jaffa SPURLOCK v. STATE.
    No. 21057.
    Court of Criminal Appeals of Texas.
    May 8, 1940.
    L. B. Hightower and V. A. Collins, both of Livingston, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   GRAVES, Judge.

Appellant was convicted of murder with malice, and his punishment assessed at ■fifteen years’ confinement in the penitentiary.

Since his appeal was perfected, the appellant has filed a written request, verified by his affidavit, asking the ■ privilege of withdrawing his appeal. The request is granted and the appeal ordered dismissed.


author: LEDDY, J.

text:
    C. A. BRYANT CO. v. HAMLIN INDEPENDENT SCHOOL DIST.
    (No. 1106-5023.)
    Commission of Appeals of Texas, Section A.
    March 7, 1929.
    Stinson, Hair, Brooks & Duke, of Abilene, and Charles E. Ooombes, of Stamford, for appellant.
    Thomas, Pope & Shapard, of Anson, for ap-pellee.
   LEDDY, J.

Certified questions from the Court of Civil Appeals for the Eleventh supreme judicial district. The certificate is as follows: “The above styled and numbered cause is under submission in this court and the appeal is the second one. The first is reported under the same style in (Tex. Civ. App.) 274 S. W. 266. Writ of error was applied for by appellees and dismissed for want o'f jurisdiction. Attention is called to the decision in that case to the effect that the letter copied in the opinion, together with the order executed by appellee, constituted the contract of the parties and that said contract did not evidence the sale of an installed system and could not be varied by parol evidence unless authorized by appropriate pleadings. Further, that there was no evidence that the equipment sold by appellant to ap-pellee was wholly without value. After the remand there ordered appellee’s pleadings were amended so as to allege that the contract sued on was partly oral and partly written and was for the sale and installation of a toilet system supplanting the system ap-pellee then had in use. That the oral offer was subsequently and before its acceptance confirmed by a written letter, expressly guar-untying the toilet system odorless, sanitary and satisfactory in every respect, and in compliance with the sanitary laws then in effect, which letter induced the acceptance of the oral offer. That said letter thereby became a material part of the contract of sale and installation, but that said letter and its acceptance did not evidence, nor does it purport to evidence the entire contract of sale and installation of the toilet system. That, in fact, the contract between the parties was for an installed system and guaranteed as a system and not merely as to its integral parts, to wit: eighteen toilet seats with merely a competent installation man to install the same at appellee’s expense. That the warranty had failed in that after a few months service said system proved to be unsatisfactory, and worthless, and the odor therefrom became so offensive that appellee was required to discontinue the use of same and that the system as such and its integral parts were wholly worthless, although said system had been operated and cared for strictly in accordance with the directions given by appellant for its use. That the system' had been so defectively installed that the contents of the metallic drums, instead of running through the drain pipes furnished and installed by the appellant, percolated and oozed out under the foundations of said building, causing the floors thereof to crack and burst, and that said system was so built into said brick houses that said brick houses could not be used for any other purpose and were wholly worthless to appellee as such. That on account of the breach of said warranty by appellant the value of said buildings had been reduced in the sum of $2,500.00, to appellee’s damage in said sum, which damages were in contemplation of the parties at the time said contract for the sale and installation of said toilet system wasl made, and at the time the written warranty was executed, and that said special damage in the sum of $2,500.00 was directly and proximately caused by the failure of the toilet system in question and the breach by appeh lant of its written warranty.”

“On the trial appellee introduced evidence to the effect that appellant’s representative, Hansen, called upon the appellee’s agents in person at Hamlin, Texas, for the purpose of selling to appellee a Pease Chemical Toilet System; that said Hansen had notice at .the time that appellee then had in use the ordinary dry outside toilets and had no buildings or place to house the proposed toilet system. That Hansen, representing the appellant, offered to sell and install said chemical toilet system, representing that it consisted of commodes, receptacle tanks, septic tanks, ventilators and all pipes and connections that went therewith. That appellee’s agents did not have in use any chemical toilet system, had never seen one before, knew nothing about same. That appellant, through its said agent, while on the ground, ascertained the number of students enrolled, the possible population of the' district, and therefrom' figured the size of the plant, the number of commodes needed and that he with knowledge of the ignorance of the board on such matter, undertook to and did estimate the number of stools needed and the size of the plant and agreed that same be installed and buildings be erected therefor, and to furnish plans and specifications for the buildings and entire system.”

“All the above explanation and representations were orally made at the same time by the said Hansen as the representative of the' appellant. Said Hansen stated that the system, after it was installed, would be odorless, sanitary and satisfactory in every respect. That the proposition was not then accepted and Hansen was instructed to confirm the proposition in writing before it could be accepted. That appellant, through its said agent, therefore, furnished the following warranty of said system: (Said petition then sets out verbatim the letter heretofore referred to and copied in the opinion of the Court of Civil Appeals, except that as shown in this record said letter contains the following postcript:)

■ “ ‘I want to impress upon you the necessity of ordering these toilets before the end of the week if you expect to get them in before school starts. At this time we can promise installation by September 1st, but at the rate work is piling up on us we will not be able to do this unless we get your order before Saturday.’

“That after the receipt of the above letter appellee accepted the proposition theretofore made by the said Hansen and appellant afterward furnished the plans and specifications for the building, shipped all material necessary for the installation of the system, including eighteen seats, four cylindrical receptacle tanks, two for each- building, furnishing the tees, drain pipes to connect same. That appellant furnished also ventilators and after the foundation of the building was laid, appellant’s installation man came out in December, 1920, and undertook to install the system, according to the plans and specifications furnished by appellant. That the-installation man furnished by appellant put the drums or receptacle tanks in each building, connected them with the septic tanks built under his supervision and the entire system was completed and installed by Van Turner in the latter part of December, 1920, in accordance with the plans and specifications so furnished.

“That the letter written by appellant here-inbefore referred to was written several days-after the oral negotiations between said Hansen and appellee’s agents at Hamlin. That after the installation of said system the same operated successfully for a period of some four or five months until some time in May, 1921, at which time appellee’s agents attempted to drain the receptacles into the septic tanks, but that the contents, instead of running into said tanks, flowed in and under the foundations of the buildings and that the system became so offensive that its use had to be abandoned, and that the foundations of said buildings settled and cracked, and that the buildings were thereafter of ho use to appellee, because so connected with said system as to be incapable of use for any other purpose, and that the buildings were worthless to appellee except for the salvage contained therein, which was of the value of |150.00. That appellant furnished the plans and specifications for the erection of the said brick buildings and his representative was on the ground shortly after the foundation for the said buildings were laid and knew the manner in which the buildings were being erected and installed the system therein.

“The acceptance referred to in appellee’s evidence consisted of an order for the various parts necessary when properly installed to complete the system. It was admitted that appellee paid for the installing of said system as provided’ for in the letter referred to.

“The case was submitted to the jury upon special issues, which, with their answers indicated are as follows:

“Special Issue No. 1: Were the toilets m question odorless, sanitary and satisfactory? Answer ‘Yes’ or ‘No.’ Answer: No.

“Special Issue No. 2: If you have answered Special Issue No. 1 in the negative or no, then was the failure of the toilets to be odorless or sanitary or satisfactory caused by the failure of the plaintiff to comply with the rules and regulations given by defendant for the operation of said system of toilets? Answer ‘Yes’ or ‘No.’ Answer: No.

“Special Issue No. 3: If you answer Special Issue No. 1 in the negative or no, then could any unsatisfactory condition of the toilets have been remedied by the use of ordinary diligence on the part of plaintiff? Answer: No.

“Special Issue No. 4: What was the difference in the market value at Hamlin, Texas, of the integral parts of the toilet system in question at the time it was installed and the time its use was abandoned by the Hamlin School Board? Answer: $1,980.00.

“Special Issue No. 5: At the time plaintiff and defendant entered into the contract for the toilet system in question, was it contemplated and understood between them that it would be necessary in the installation of said toilet system to erect the two small brick buildings described in the pleadings? Answer: Yes.

“Special Issue No. 6: What did it cost plaintiff to construct the two small brick buildings mentioned in the pleadings? Answer: $2,650.00.

“Special Issue No. 7: What was the reasonable market value of the two small brick buildings mentioned in the pleadings at the time plaintiff ceased using the toilets in question? Answer: $150.00.

. “It was shown that the contract price for the material sold and furnished by appellant was $1,980.00 F. O. B. Hamlin, Texas.

“Upon this verdict judgment was entered against appellant, denying it a recovery on the note executed by appellee and for a recovery for the sum of $873.80, being the amount paid by appellee to plaintiff on the purchase price of the material and equipment, and the further sum of $2,500.00 as special damages due for injury to and deterioration in the buildings erected in whi.ch to house the said toilet system, which special damages had been pleaded by the plaintiff as being incident to and growing out of the breach of the contract alleged.

“From that judgment the appellant has prosecuted an appeal and vigorously asserts that the appellee’s amended pleadings have not in any manner changed the character of its suit but that its cause of action is for a breach of the warranty, not for the sale of said installed system, but for the sale of its integral parts and that the court below has refused to follow the decision of the Court of Civil Appeals on the first appeal.

“Appellee, on the other hand, asserts that the case as made by the pleadings in the instant case have materially changed the cause of action and authorized the introduction of parol evidence, which shows a contract partly oral and partly written, and insists that its proof shows a contract orally for the sale of said installed system, with a written warranty of the system when installed.

“Some of the members of this court are in doubt as to a proper decision of the questions presented, and we, therefore, deem it advisable to certify to Your Honors the following questions:

“Question No. 1: Did the letter se't out in the opinion of the Court of Civil Appeals, together with the postscript as shown in this certificate, constitute, together with the order of appellee for material sold, the entire contract between the parties, and if so, does same provide for the sale by appellant to appellee of an installed system?

“Question No. 2: Under the amended pleadings, was it permissible for appellee to prove the prior oral statements and representations of appellant’s agent, in substance, that appellant would for the price quoted, sell to ap-pellee and install a 'Pease Chemical Toilet System? ”

We answer question 1 that the letter written by appellant, including the postscript, together with the order for material sold, constitutes the contract between the parties, and such contract does not provide for the sale by appellant to appellee of an installed system.

To question 2 we answer that it was not permissible for appellee to prove the prior oral statements and representations of appellant’s agent that appellant would, for the price quoted, sell to appellee and install a Pease chemical toilet system.

It is well established that a contract may be partly oral and partly in writing. 6 R. O. E. § 56, and authorities there cited. The question whether the parties to this suit made such a contract passes out of the case under the finding of fact contained in the certificate of the Court of Civil Appeals1, as it is there recited that Hansen, as the representative of appellant, made a certain oral proposition to appellee for the sale of the toilet, system, but that such proposition was not then accepted, Hansen being instructed to confirm the proposition in writing before it could be accepted. In passing on certified questions, this court is bound by- the findings of fact recited in the certificate. A proposition made by one party does not constitute a contract. When appellee declined to accept the oral proposition made by appellant’s agent and requested him to confirm the proposition in writing, all prior oral negotiations were merged in the written proposition, and the written order thereafter made by ap-pellee constituted an acceptance thereof. Ap-pellee was not entitled to offer parol evidence of any representations preceding the written proposition, the effect of which would be to vary or modify the terms of the writing, in the absence of a plea setting up fraud, accident, or mistake in the procuring of the written contract.

It appears, however, that the contract is ambiguous as to what constitutes a “toilet,” as it is provided that appellant will furnish a certain number of toilets, “complete in every respect.” Appellee should be permitted to show by parol testimony that the toilets as specified consisted of pipes, connections, tanks, chemicals, etc., so as to constitute a complete- system. Ry. Co. v. Bramlette (Tex. Civ. App.) 35 S. W. 25; Long Mfg. Co. v. Gray, 13 Tex. Civ. App. 172, 35 S. W. 32; Moore v. Waco Bldg. Ass’n, 9 Tex. Civ. App. 404, 28 S. W. 1033; Cohn v. Sherman Refining Co., 39 Tex. Civ. App. 296, 87 S. W. 1170.

To permit parol proof to the effect that appellant agreed to sell an installed system for a certain price contradicts the express terms of the written contract. The agreement was to furnish the number of 'toilets specified at the price named, f. o. b. Hamlin. It was further agreed that appellant would “furnish an installation man, thoroughly competent to install same, at $6.00 per day and his expenses.” Selling a toilet system completely installed at a certain price and selling one with the provision that the seller would furnish a competent- man to install it upon the buyer paying for the installation at $6 per day and the expenses are two different contracts.

It is insisted that the postscript to the company’s letter shows that it was intended that the system was to be sold as an installed system. The postscript is as follows:

“I want to impress upon you the necessity of ordering these toilets before the end of the week if you expect to get them in before school starts.
“At this time we can promise installation by Sept. 1st, but at the rate work is piling up on us we will not be able to do this unless we get your order before Saturday.”

If the contract contained no other reference to installing the system, then ap-pellee’s insistence would be well taken. The contract, however, must be construed as a whole. Hearne v. Gillett, 62 Tex. 23; Knapp v. Patterson, 99 Tex. 409, 90 S. W. 163; Perry & Co. v. Langbehn, 113 Tex. 72, 252 S. W. 472. When so construed, it becomes apparent that appellant did not obligate itself to do more than furnish a competent man, at ap-pellee’s expense, to install the system. The effect of the postcript, when considered in connection with What precedes it, is to inform-appellee that, unless it received an order before the end of the week, it could not furnish an installation man to get the system installed by September 1st, on account of its men being busily engaged in other installation work.

We do not mean to hold that, because appellant did not obligate itself to sell this system installed it cannot be held liable if' the warranty made by it in the written contract has been breached. Thie warranty plainly refers to the operation of the system when installed, and this regardless- of whose-duty it was to Install it under the contract. If, therefore, the system when installed did not operate satisfactorily or was n'ot odorless, as it was warranted to be, and such results were not attributable to any fault of the school district, it would be entitled to-appropriate relief.

We recommend that the questions certified be answered as herein indicated.

OURETON, O. J: The opinion of the Commission of Appeals answering the certified questions is adopted and ordered certified.


author: NICKELS, J.

text:
    ROAD DIST. NO. 3, JACKSON COUNTY, et al. v. POLLARD, Atty. Gen.
    (No. 1160-5132.)
    Commission of Appeals of Texas, Section A.
    March 7, 1929.
    John T. Vance, of Edna, and W. M. Harris, of Dallas, for relators.
    Claude Pollard, Atty. Gen., and D. L. Whitehurst, Asst. Atty. Gen., for respondent.
   NICKELS, J.

Relator is a “road district” established September 12, 1927, by order of the commissioners’ court of Jackson county in virtue of the authority of chapter 16, § 3, Acts of Thirty-Ninth Legislature 1926, First Called Session, amended by chapter 92, § 1, Acts of Fortieth Legislature, First Called Session, 1927 (article 752e, Vernon’s Ann. Tex. Stat.). No question is made about the regularity of its creation.

September 12, 1927, after creation of the district, there was presented.to the commissioners’ court a petition purportedly signed by persons with the representations (included in the paper signed) that each of them was a “resident tax-paying voter” within certain territorial boundaries therein described, and that they constituted a majority of such “resident tax-paying voters.” The boundaries described in the petition are coincident with the boundaries laid out in the order of the commissioners’ court creating the district. The paper had been filed before entry of the order' creating the district, and it included a prayer for creation of the district with the boundaries such as were, in fact, defined in the order of creation. In the petition it was prayed that an election be ordered within the territory named (as a district) to determine whether or not the bonds of such “district” (in amount of $100,000) should be issued for the-purpose of construction, etc., of macadamized, graveled, or paved roads, etc., and appropriate tax levy made. See article 752d, Vernon’s Ann. Tex. Stat.

Thereafter, and on September 12, 1927, an order was entered by the commissioners’ court fixing October 10, 1927, as the time and the courthouse of the county as the place “for the hearing of such petition.”

Thereupon notices were duly given as provided for in article 752d. “Hearing and determination” of the matter was had at the time and place therefor provided and in accordance with the terms of article 752e, Vernon’s Ann. Tex. Stat. The election was called and held; returns were canvassed, and result favorable to issuance of the bonds and tax levy was declared; bonds were prepared and issued and presented to the Attorney General for approval.

All proceedings were regular, it is admitted by respondent, the Attorney General, unless it be that a petition such as is described in article 752d must be filed after creation of a district such as is provided for in article 752c. He took the position that the petition as actually filed before entry of the order of creation and acted upon after entry of that order was not such as was authorized for invocation of the jurisdiction of the commissioners’ court; in such a case, it is said, signers of the petition may not be residents, etc., of the “district” created. Accordingly, approval of the bonds was refused. In this proceeding, brought to compel approval by ■ the Attorney General, the sole question is whether the commissioners’ court had authority to act upon the petition (described) as presented.

Amongst the powers which have to be exercised by the commissioners’ court in providing for an election is that of determining whether or not the petitioners, or a sufficient number of them to constitute a majority, are “resident property tax-paying voters” of the district. Article 752e. Its determination of that matter is immune to collateral attack. Hence, in this proceeding, it must be regarded as true that the signers of the petition actually presented or a sufficient number of the signers, then — i. e., on October 10, 1927 —made up a majority of the resident taxpaying voters of the district as created. As stated, the boundaries shown in the .petition as inclosing the residence, etc., of the petitioners are coincident with the boundaries established by the commissioners’ court in creating the district.

That which by the statute is made jurisdictional is “presentation” of a “petition signed by * * * a majority of the resident taxpaying voters of said * * * district.” “Presentation” is not by the statute defined as, or made synonymous with, “filing.” In the present instance the paper was filed before creation of the district, but it was presented afterward; and, as shown, it bore, when presented, the requisite number of signatures of persons who were then, and were ascertained to be, “resident tax-paying voters of said * * * district.” In our opinion, the petition as presented and viewed, as it must be in this proceeding, with consequent orders adjudging, expressly or impliedly, inquiry into and determination of facts of then present residences and other qualifications of the signers, was sufficient.

It might be that a situation of materially different consequence would be presented if the territorial boundaries of the residences, etc., of the signers as described in a petition varied from the boundaries as subsequently laid out by the commissioners’ court. We say this merely by way of precaution against attempts to apply the present decision to a different set of facts.

Accordingly, we recommend that the writ of mandamus be issued requiring the respondent, Hon. Claude Pollard, as Attorney General, to approve the bonds tendered for approval.

CURETON, C. J. The opinion of the Commission of Appeals is adopted, and the mandamus awarded.


author: SPEER, J.

text:
    FARMERS’ LIFE INS. CO. v. WOLTERS et al.
    (No. 870-4078.)
    Commission of Appeals of Texas, Section B.
    March 7, 1929.
    For former opinions, see 2G3 S. W. 259, and 10 S.W.(2d) 698.
    Bryan, Dyess & Golgin, of Houston, and W. W. Searcy, of Brenham, for plaintiff in error.
    Wolters, Storey, Blanchard & Battaile, L. A. Adamson, and Green & Boyd, all of Houston, for defendants in error.
   SPEER, J.

In our original opinion we made no express disposition of intervener Walter Lane’s appeal. This had been done in the former opinion of the Commission of Appeals by Judge Chapman (263 S. W. 259), but since the case was thereafter withdrawn from the commission, it is proper that we should indicate our views upon his rights. Intervener claims the land in controversy under a deed from Jonathan Lane executed and delivered to him prior to the execution of the mortgage under which Farmers’ Life Insurance Company claims. This deed was not of record, but he relies upon the possession of the land by H. A. Lane, who was holding the same under instructions from Jonathan Lane for the'benefit of intervener; the contention being, of course, that possession through his tenant was notice of any rights he enjoyed as to the insurance company. Upon the trial the intervener requested a summary instruction in his favor upon the ground that the-undisputed evidence showed that Jonathan Lane had executed and delivered to him the-deed to the land in question prior to the inception of the insurance company’s rights, and that he had been in actual and continuous possession thereafter. At the same time he requested the submission of fact issues as follows:

“(1) Was the deed from Jonathan Lane to-Walter Lane for the land in controversy in this suit executed and delivered to Walter Lane before March 1, 1912?
“(2) For whom was H. A. Lane holding the possession of the land in controversy in this suit?
“(3) For whom was P. L. Lane holding the-possession of the land in controversy in this suit?” \

The request for the submission of these fact issues was not made dependent upon the refusal of the court to give the requested summary instruction. For aught that appears, they were all requested at the same time, possibly upon the same sheet of paper, for the group of requests appears to provide a single place for the judge’s signature and that at the end of the last issue requested. The judge, however, actually indorsed his refusal and signature upon the request for a summary instruction and likewise upon the •request for issues; and the clerk also indorsed his filing in the same way; both bearing the same date. But the request for submission of fact issues precludes the intervener from attacking such submission if it be necessary to resort to such rule to support the action of the trial judge.

The trial court did submit the issue of' execution and delivery of the deed in the following language: “Was the deed from Jonathan Lane to Walter Lane for the land in controversy executed and delivered to Walter Lane before March 1, 1912, with the intention on the part of Jonathan Lane to then and there pass and vest unconditional title to said property to Walter Lane?” To this the jury answered, “No.” This was the submission of the fact issue of execution and delivery of the deed prior to the inception of the insurance company’s rights in somewhat different phraseology from that requested by intervener, but nevertheless in a form not obnoxious to the law. “Delivery,” as used in the requested issue, in law, means “delivery with intention to pass title,” and as applied to the present case, “to pass and vest unconditional title,” for there is nothing in the record to show any other purpose if there was a lawful “delivery.” The court having submitted then the fact issue of execution and delivery of the deed and the jury having answered unfavorably to intervener, he is bound thereby until the verdict has in some way been set aside.

It is, of course, obvious that the issue of notice by the possession of H. A. Lane or P. L. Lane became absolutely immaterial if in-tervener had no rights in the land at the time the insurance company acquired its mortgage. Besides, the issue of notice, in any way, was not submitted to the jury, and no objections were made because of that fact and no request was submitted with respect thereto, and the trial court expressly stated in his judgment that all the issues not submitted to the jury were found in favor of plaintiff. 'This was pointed out in Judge Chapman’s opinion already referred to by us.

We therefore recommend that both motions for rehearing be overruled.


author: MARTIN, J.

text:
    JONES v. STATE.
    (No. 12475.)
    Court of Criminal Appeals of Texas.
    Feb. 20, 1929.
    A. A. Dawson, State’s Atty, of Austin, for the State.
   MARTIN, J.

Offense, the unlawful possession of intoxicating liquor for the purpose of sale; penalty, two years in the penitentiary.

The record is without any statement of facts, bills of exception, or sentence. A sentence is tbe final judgment in a criminal case and is necessary to the jurisdiction of this court in a felony case. Thompkins v. State, 87 Tex. Cr. R. S02, 222 S. W. 1103, 224 S. W. 687.

Because this court is without jurisdiction, the motion of the state’s attorney to dismiss this appeal is granted. >

Appeal dismissed.

PER CURIAM. The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the court.