author: GRISSOM, Justice.

text:
    WISE et al. v. CITY OF ABILENE.
    No. 2017.
    Court of Civil Appeals of Texas. Eastland.
    May 17, 1940.
    Rehearing Denied June 14, 1940.

      Ben L. Cox and Louis S. Wise, both of Abilene, for appellants.
    Will Hair, Scarborough & Ely, and E. M. Overshiner, all of Abilene, for ap-pellee.
   GRISSOM, Justice.

The City of Abilene instituted this suit against John C. and Louis S. Wise, for the purpose of condemning 9.95 acres of land out of a 479-acre tract owned by defendants, for the purpose of extending its airport grounds. The value of the land condemned and damage to the remainder of the tract were the questions involved. The verdict fixed the value of the land taken at $400 and damage to the remainder of the tract at $938. From a judgment in accordance with the verdict, defendants have appealed.

Appellants’ assignments of error Numbers 12 to 15, inclusive, are directed at the action of the court in permitting plaintiff’s counsel, over defendants’ objection, to ask the jury panel on voir dire examination as to whether any member had served as a juror or commissioner in the condemnation of land .owned by defendants in the cases of (1) Western Union Co. v. John C. and Louis S. Wise; Lytle Water Co. v. John C. and Louis S. Wise; (3) Taylor Co. v. John C. and Louis S. Wise and Willis Norwood; and (4) Texas & Pacific Ry. Co. v. John C. and Louis S. Wise. Since each of said assignments and the bills of exception in support thereof are substantially the same, we shall specifically discuss only the first case mentioned above and the bill of exception tendered in support thereof, since it is illustrative of all the others.

Plaintiff’s counsel was permitted to ask the jury panel whether or not any of them had served as a juror or commissioner in the matter of Western Union Co. v. John C. and Louis S. Wise, in the condemnation of certain lands owned by the defendants, in another proceeding. Defendants objected to said interrogation on the ground that said other proceeding was wholly immaterial and irrelevant, was between different parties and involved different lands, and that said interrogation was prejudicial and hurtful to the defendants and was resorted to by plaintiff’s counsel for the purpose of attempting to prejudice' the jury against defendants by causing the jury to believe that defendants were contentious and selfish and that said interrogation did not serve any useful purpose, because if any juror served as such juror or commissioner it would not be a disqualification to serve in the instant case. The court overruled said objections and permitted counsel to so interrogate the jury.

Defendants’ bill of exception presenting the matter, as heretofore stated, was approved by the judge with the following qualification: “that the cause referred to * * * was a condemnation proceeding involving the valuation of and damages to some of the land which the defendants claimed was damaged by the improvements involved in this proceeding. The question propounded was allowed for the purpose stated by counsel of enabling counsel for the city to exercise their peremptory challenges.” The bills relative to the other proceedings were qualified as shown above, except the bill in the Lytle Water Co. proceeding recited: “the cause referred to * * was a condemnation proceeding involving the valuation of and damages to some of the land which the defendants claimed was damaged by the improvements involved in this proceeding.” Relative to the condemnation suit by Taylor Co., the qualification of the bill re^ cited: “the defendants were parties to the cause mentioned in the above and foregoing bill and that the litigation referred to arose from the taking of a strip of land for highway purposes out of a tract situated comparatively near the land involved in this proceeding and near enough to have a reasonable relationship as to the fixing of a valuation.” And, in the Railway case, “the defendants by their pleadings herein had claimed damages to a tract of land adjoining the airport and which they claimed resulted from the uses to which the airport would be devoted and thereby directly putting in issue the value of said adjacent property. The other cause referred to in the above and foregoing bill likewise involved a controversy with the defendants as to a valuation of a part of said adjacent property.” The qualification to each bill showed the question was permitted to enable plaintiff to exercise its peremptory challenges. The bills were accepted as so qualified, and defendants are bound by the qualifications.

Article 2134, R.S.1925, provides, in part:

“The following persons shall be disqualified to serve as jurors in any particular case: * * * 5. Any person who has sat as a petit juror in a former trial of the same, or of another case, involving the same questions of fact.”
“As a rule * * * where the two cases arise out of the same transaction and involve the same issues or are to be determined upon the same evidence, the juror is incompetent; and, if practically the same question is to be decided again, it is immaterial whether or not the parties are identical, or whether the same or other and additional witnesses are to be examined. So also, if during the continuance of a case any of the jurors are impaneled and return a verdict in another case in which the same issues are involved, they are not competent to proceed with the trial of the first case.” 35 C.J. 325, sec. 343.
“The purpose of the inquiry is to elicit facts that will enable counsel to exercise the right of peremptory challenge in an intelligent manner as well as to ascertain that jurors possess the legal qualifications and are not, by bias or otherwise, disqualified to try the particular case. * * * The right is to be liberally construed and some latitude should be allowed, it being a proper consideration whether the injustice of a verdict rendered by a jury one or more of whom are prejudiced will not outweigh any harm thát may ensue from permitting the question.
“ ‘As a general rule great latitude should be allowed a party interrogating a venire in order to enable his counsel to determine the desirability of exercising on the members thereof his right of peremptory challenge, and this court does not look with, favor on any unreasonable limitation of this right.’” 26 Tex.Jur. 644, 645, sec. 81.
“Since the right of examination is predicated on the obtaining of information with a view to using peremptory challenges, it follows that the examiner is not confined to questions which might lead to disqualifying answers. Indeed, since the motive for using a peremptory challenge may not be inquired into, neither may the purpose of the particular question be asked of counsel. And so long as it appears that the question may lead to an answer useful to be considered when exercising the peremptory challenges, the approved practice is to allow the question. This course gives counsel considerable latitude, but that is what the law intends.” 26 Tex.Jur. 647, sec. 83.
“A judgment will not be reversed for an erroneous ruling on the conduct or scope of the. voir dire unless the right of examination has been substantially denied or unless it affirmatively appears that the complaining party has thereby suffered.injury.” 26 Tex.Jur. 661, sec. 96.

Since the bills of -exception tendered in support of said assignments, as qualified by the trial court and accepted by the defendants, show that the other condemnation proceedings inquired about involved “the valuation of and damage to some of the land which the defendants claimed was damaged by the improvements involved in this proceeding”, or involved the valuation of and damage to adjacent tracts of land owned by defendants; and since the determination of the value of and damage to defendants’ same, or adjacent, land, constituted the purpose of this suit it is at least not clearly shown that Subd. 5, of Art. 2134, is inapplicable. But, whether a member of this jury panel, who had served either as a commissioner or juror in a condemnation-proceeding involving the questions of the value of and damage to a part of the same or an adjacent tract of land owned by the defendants was disqualified as a juror under Art. 2134 or not it was certainly a matter of material inquiry whether they had so served in such prior proceedings. If one of said jury panel had answered that he had sat as a juror, or served as a commissioner, in one of said prior proceedings, if such answer had not shown his disqualification under Art. 2134, as a matter 'of law, a question not here necessary to determine, then certainly it would have been proper to further inquire as to whether or not from such experience the prospective juror had an opinion as to the value of the property in question in this proceeding, etc. If such prior service did not disclose the juror’s absolute disqualification then it became material, in that the court might, in his discretion, excuse the juror, or the plaintiff might peremptorily challenge him. The record does not disclose error under the recognized authorities relevant to the question. Houston & T. C. Ry. Co. v. Terrell, 69 Tex. 650, 7 S.W. 670; Galveston, H. & S. A. R. Co. v. Contois, Tex.Civ.App., 279 S.W. 929, 935; Lassiter v. Bouche, Tex.Civ.App., 41 S.W.2d 88, 90; 26 Tex.Jur. 645; Goble v. State, 42 Tex.Cr.R. 501, 60 S.W. 968; Garcia v. State, Tex.Cr.App., 63 S.W. 309; Ross v. State, 53 Tex.Cr.R. 162, 109 S.W. 153; Reich v. State, 94 Tex.Cr.R. 449, 251 S.W. 1072; Plair v. State, 102 Tex.Cr.R. 628, 279 S.W. 267; Darnaby v. State, 108 Tex.Cr.R. 408, 1 S.W.2d 615; Missouri, K. & T. Ry. Co. of Texas v. Rogers, Tex.Cix.App., 141 S.W. 1011; Art. 2144, R.S.1925.

The rule was invoked excluding witnesses from the court room. At plaintiff’s request, the court, over defendants’ objection, excused the witness Derryberry from the rule and permitted him to remain in the court room and testify. Defendants objected to such’ action of the court because Derryberry was not an official of the city, but an employee only, being its airport superintendent. Defendants say that the Mayor and some of the City Commissioners were present and permitted to remain in the court room. The bill was accepted by defendants with the qualification “that only one of the city commissioners was present in court for any length of time and that none of them took any part in the trial of the cause as a witness or otherwise and that the Mayor, Will Hair, is and was a practicing lawyer and one of the attorneys of record for the city, and with the further qualification that the witness, Derryberry, was allowed to remain in court at plaintiff’s suggestion as a technical advisor and representative with respect to the management and operation of the airport and character and degree of use proposed to be made of the land condemned by the city, it being shown that said Derryberry was in charge of said airport and was himself a licensed pilot familiar with the subject-matter of the lawsuit.”

In 44 Tex.Jur. 1088, the rule is announced that “ * * * the propriety of exempting certain classes of witnesses from the operation of the order * . * * is one that rests largely in the discretion of the trial judge, whose- action will not be disturbed o'n appeal, unless an abuse resulting in injury to the complaining party is shown.”

The bill, as qualified, does’ not show an abuse of discretion, nor is it shown that injury to defendants resulted. Gulf C. & S. F. Ry. Co. v. Bruce, Tex.Civ.App., 24 S.W. 927; Southland Greyhound Lines, Inc. v. Matthews, Tex.Civ.App., 74 S.W.2d 713, 716; Beaumont & G. N. Ry. Co. v. Elliott, Tex.Civ.App., 148 S.W. 1125; Dunnagan v. Lackey, Tex.Civ.App., 283 S.W. 927, 928; Texas Indemnity Ins. Co. v. Hubbard, Tex.Civ.App., 138 S.W.2d 626, 628; 5 C.J.S., Appeal and Error, § 1610, 510; 64 C.J. 119.

Complaint is made of the action of the court in permitting the introduction of a photograph of the municipal airport in Detroit. It was objected tó on the ground that it was immaterial and irrelevant, and because there was no evidence by the “photographer that he took it correctly.” The witness, Hon. Hudson Smart, testified he formerly was an aviator and flew in and out of this airport for a long time. He testified that it was a true and correct picture of the Detroit field; that the picture reflects the true condition on the ground. We think the evidence was not subject to the objection made. It was evidently introduced for the purpose of refuting defendants’ testimony that the use of the land taken as an airport would prevent the use of the remaindfer of the tract, not taken for airport purposes, for residential purposes.

Several of defendants’ witnesses were asked what, in their opinion, was the value of the land in question. Defendants objected “because the question asked by counsel and the answer of the witness does not constitute the proper test.” Defendants say that the correct measure of damages, relative to the land taken, is the market value of said land at the time it was condemned, not at the time of trial.

So far as we have been able to discover, the only time the objection that the value was to be determined as of the date of condemnation and not at the time of the trial, was clearly and specifically made, its correctness was recognized and the inquiry promptly directed to the date of condemnation.

“Objections should be specific and not gener'al and should be addressed to admissibility, not to sufficiency or effect, of the evidence. ‘A party objecting to evidence ought to state his objection clearly and specifically, so that it may be understood by the court, and met and obviated by the opposing party if it be capable of being removed by the production of other evidence.’ It is not fair to allow general or dragnet objections at the trial and then to specify on review specific grounds formulated from the whole record, which were not thought of at the trial. ‘Covert obscure objections should receive no countenance,’ though an objection suffices if it apprises the court of the grounds relied on, even though it might be more specific.” 41 Tex.Jur. p. 908.

See, also, District and County Court Rule 58, and Art. 2237, R.S.1925, Vernon’s Ann.Civ.St. art. 2237.

It is not contended that there is any evidence of, or that there was in fact, a change in market value between the date of condemnation and the date of the trial. The assignments presenting said question' are overruled.

Defendants’ eleventh assignment of error is directed at the action of the court in permitting the introduction of defendants’ tax rendition of the land in controversy. Hon. Louis Wise had testified as to the value of the property, and upon cross-examination his rendition was admissible as a declaration against interest. Boyer & Lucas v. St. Louis, S. F. Ry. Co., 97 Tex. 107, 110, 76 S.W. 441; Aue v. State, Tex.Civ.App., 77 S.W.2d 606, 608, writ refused. It was admissible “as a circumstance tending to show the value of the property.” Burton Lumber Corp. v. City of Houston, 45 Tex.Civ.App. 363, 101 S.W. 822, 827, writ refused. See also, State v. Doom, Tex.Civ.App., 278 S.W. 255; Dickens County v. Dobbins, Tex.Civ.App., 95 S.W.2d 153; 17 A.L.R. 178; Ft. Worth & D. S. P. Ry. v. Gilmore, Tex.Civ.App., 13 S.W.2d 416, 417.

Special issue No. 1 submitted to the jury was “From a preponderance of the evidence, what do you find was the market value of the two tracts of land totaling 9.95 acres condemned by the City of Abilene for airport purposes at the time it was condemned, considered by itself as severed land?” Defendants excepted thereto as follows: “The defendants except to the last clause of Special Issue No. 1, wherein the court instructs the jury in substance that the 9.95 acres of land condemned by the City is to be considered by the jury by itself as severed land. These defendants say that said instruction is on the weight of the evidence; that it is prejudicial and hurtful to the defendants, and same does not properly present the law with reference to said issue.”

The exception was overruled, and that action of the court constitutes the basis of defendants’ first assignment of error and three propositions thereunder. Special issue No. 1 was in the form suggested by the Supreme Court in State v. Carpenter, 126 Tex. 604, 618, 89 S.W.2d 194.

Plaintiff objects to our consideration of defendants’ first assignment and propositions thereunder, among other things, because the objections to special issue No. 1, as shown by appellants’ bill of exception, and as shown above, were too general to point out to the trial court any defect in the charge.

In Isbell v. Lennox, 116 Tex. 522, 525, 295 S.W. 920, 921, the Court of Civil Appeals, 224 S.W. 524, had refused to consider an assignment of error complaining of the court’s charge because the appellant’s objection did not point out the error complained of. The Supreme Court approved such action, saying: “This statute was designed to correct a very important handicap or evil in the trial of cases. Its purpose in requiring the parties or their attorneys to present to the court their objections to the charge clearly is that the party objecting must apprise the court of the error in his charge with a view to its correction.”

In Ford Motor Co. v. Maddin, 124 Tex. 131, 143, 76 S.W.2d 474, 479, our Supreme Court said:

“To come within the rule entitling a party to raise the point on appeal, the objection should point out. specifically wherein the charge is claimed to be erroneous.
“In Isbell v. Lennox * * * the court said the purpose of the statute is to require parties to present their objections to the charge clearly and apprise the court of the error in his charge with a view to its correction; the objection must be more than a mere statement that he objects— it must point out the error complained of. See, also, Walker v. Haley, 110 Tex. 50, 214 S.W. 295.
“An objection that a definition is ‘not full enough and omits some of the essentials of a correct definition’ is too .general; similarly an objection that charges are leading, suggestive, and on the weight of evidence is insufficient when it does not point out the particulars in which they are objectionable, nor can an objection that merely excepts to a portion of the charge without indicating in any way the vice thereof be availed of. 3 Tex.Jur. p. 212.”

The objections made were that the last •clause of special issue No. 1, to-wit, “considered by. itself as severed land” was (1) “on the weight of the evidence”, (2) “prejudicial and hurtful to the defendants”, and (3) “does not properly present the law with reference to said issue.”

(1) An objection that an issue is on the weight of the evidence, without specifically pointing out wherein it is on the weight of the evidence has been many times held to be insufficient “to raise the point on appeal”. Ford Motor Co. v. Maddin, supra; Chicago, R. I. & G. Ry. Co. v. Comstock, Tex.Civ.App., 189 S.W. 109, 110, writ refused; Maryland Cas. Co. v. Bryant, Tex.Civ.App., 84 S.W.2d 492, 494, writ dismissed; Southwestern Bell Tel. Co. v. Ferris, Tex.Civ.App., 89 S.W.2d 229, 232, writ dismissed; Austin Street Ry. Co. v. Oldham, Tex.Civ.App., 109 S.W.2d 235, writ refused; Texas & N. O. Ry. Co. v. Petersilka, Tex.Civ.App., 176 S.W. 70, 72.

(2) The objection that it was “prejudicial and hurtful”, such fact not being manifest, failing to point out in any manner in what particular it was deemed hurtful, cannot be considered.

An' incorrect issue ordinarily is not ground for reversal, unless the specific defect therein is clearly pointed out to the trial court in order that he may be able to observe and correct it Schaff v. Lynn, Tex.Civ.App., 238 S.W. 1034, 1035; Perkins v. Nevill, Tex.Com.App., 58 S.W.2d 50, 52; Abilene & So. Ry. Co. v. Herman, Tex.Civ.App., 47 S.W.2d 915, 920, writ dismissed; Ohio Cas. Co. v. Stewart, Tex.Civ.App., 76 S.W.2d 873, 879, writ dismissed; Texas & N. O. Ry. Co. v. Owens, Tex.Civ.App., 54 S.W.2d 848, 856, writ refused; Panhandle & S. F. Ry. Co. v. Friend, Tex.Civ.App., 91 S.W.2d 922, 931; J. S. Curtiss & Co., Inc. v. White, Tex.Civ.App., 90 S.W.2d 1095; Norwich Union Ind. Co. v. Wilson, Tex.Civ.App., 17 S.W.2d 68, 78; State v. Carpenter, Tex.Civ.App., 55 S.W.2d 219, 222, reversed on other grounds, 126 Tex. 604, 89 S.W.2d 194; Id., 126 Tex. 604, 89 S.W.2d 979.

(3) The objection “that said instruction * * * does not properly present the law with reference to said issue” obviously failed to specifically inform the trial court of any alleged defect in the issue. The issue was not an “instruction.” It did not purport to “present the law with reference to said issue”, nor should it have done so. Appellants contend in a lengthy and intricate argument in this court that the proper measure of damages relative to the land taken was the value of the land taken considered as a part of the entire tract. That it was improper to consider the value of the land taken “considered by itself as severed land.” (The argument, as an original proposition, would be persuasive.) Treating the objection made with the utmost liberality, considered in the light of appellants’ brief and argument in this court, if it may be considered as tantamount to an objection that the court was submitting an incorrect measure of damages, is insufficient. Such an objection has been often condemned as insufficient to raise the point on appeal. Guillot v. Halman, Tex.Civ.App., 91 S.W.2d 402, 403; Abilene & S. Ry. Co. v. Herman, Tex.Civ.App., 47 S.W.2d 915; Scruggs v. Dean, Tex.Civ.App., 47 S.W.2d 378; Chase Bag Co. v. Longoria, Tex.Civ.App., 45 S.W.2d 242, 244; Carter v. Ferris, Tex.Civ.App., 93 S.W.2d 504, 508; Pecos & N. T. Ry. Co. v. Grundy, Tex.Civ.App., 171 S.W. 318; Holder v. Martin, Tex.Civ.App., 131 S.W.2d 165, 169; International & G. N. Ry. Co. v. Acker, Tex.Civ.App., 128 S.W.2d 506, 523.

Said objection certainly failed to specifically point out to the court, as required by the foregoing authorities, that the court should submit to the jury the question of the value of the land taken as a part of the entire tract of land, rather than as a severed tract, as is now contended.

However, if we were permitted to consider the first assignment and propositions thereunder, as if it had been objected to so as to specifically point out to the trial court the error now alleged, we think it must be overruled.

In State v. Carpenter, 126 Tex. 604, 89 S.W.2d 194, 196, special issue No.’ 1 asked the jury to determine the market value of the land taken. In connection therewith the jury was instructed as follows: “In connection with Special Issue No. 1, you are instructed that the market value of the 8%oo acres of land within 'the right of way, is not the market value of said- land taken for right of way purposes when considered by itself alone, but is its market value as a part of the entire tract of which it forms a part.” Relative thereto, the Supreme Court said: (126 Tex. at page 608, 89 S.W.2d at page 196) “The first question for decision concerns the action of the court in giving the instruction set out above in connection with special issue No. 1. Perhaps if the value of the strip of land taken had-been the only issue submitted, it would have been proper to submit the question of its value, considered as a part of the whole tract. However, it seems to us obvious that when the value of this strip was ascertained ‘as a part of the entire tract of which it forms a part,’ this necessarily included to some extent a .part of the damages to the remaining portion. In submitting the issue of damages to the remainder of the tract, consideration is taken of damages caused by the severance of the part taken from the whole tract as well as of consequential damages to the remainder of the farm. From this it necessarily follows, it seems to us, that if the part taken be valued as a part of the entire tract of which it forms a part, there would be opportunity for double damages.”

The court further said: (126 Tex. at page 609, 89 S.W.2d at page 196)

“The true doctrine of just compensation is this: ‘Compensation is awarded not merely for the property taken, but for the taking of the property.’ It necessarily follows that if the part taken is valued in its relation to the whole, and the damage is allowed to the remainder because of the severance of the part taken, there is a duplication of damages. * * *
“In order, therefore, to avoid the possibility of double damages, the value of the part taken should be ascertained by considering such portion alone, and not as a part of the larger tract; unless, of course the issue of damages to the remainder of the tract is not involved.”

The manner of submitting the issue of the value of the land taken was suggested as follows: (126 Tex. at page 617, 89 S.W.2d at page 201)

“As this case is to some extent a representative one, and as it must be reversed and remanded for another trial, we are suggesting what occurs to us is a proper method of submitting same; on the assumption, of course, that it will be submitted on special issues. Without intimating that this method should be followed in all like cases, we believe it will furnish a practical method of submission in most-similar cases. We suggest the following special issues:
“Question No. 1. From a preponderance of the evidence what do you find was the market value of the Strip of land condemned by the state for highway purposes at the time it was condemned, considered as severed land ?”

On motion for rehearing relative to this question, the court said (126 Tex. at page 620, 89 S.W.2d at page 981): “We have again carefully considered the question of the proper method of submitting the issue of value of the tract of land taken, and are still of the conclusion'that, when damages are sought because of depreciation in the market value of the remainder of the tract, the proper method of submitting the question is as stated in our original opinion. If it be true, as argued by counsel in this case, that the 8.03 acres of land taken was, when considered as a part of the farm, worth $100 per acre, it necessarily follows that the value of the farm as a whole included the sum of $803 by reason of this 8.03 acres being included therein. If, after the land was severed from the tract, the 8.03 acres was worth, as severed land, only $100, it must follow, it seems to us, that, when proof was made of this fact, a jury would necessarily conclude that the value of the balance of the farm had been diminished $703 by reason of the severance of the strip alone.”

Defendants’ contention finds support in the authorities cited by them, to-wit: Routh v. Texas Traction Co., Tex.Civ.App., 148 S.W. 1152; San Antonio etc. Ry. Co. v. Bobo, Tex.Civ.App., 163 S.W. 377; Pillot v. City of Houston, Tex.Civ.App., 51 S.W.2d 794; State v. Carpenter, Tex.Civ.App., 55 S.W.2d 219; Swetland v. Curtiss Airports Corp., 6 Cir., 55 F.2d 201, 83 A.L.R. 319. The first two of said cases were cited by the Court of Civil Appeals in the Carpenter case and said court’s decision on this question was expressly disapproved by the Supreme Court and its judgment reversed.

These cited cases, other than the Carpenter case, did not reach the Supreme Court. Substantially the same contentions as those made by defendants were disapproved by the Supreme Court. We see no room for distinction on the facts. All the defendants’ contentions, not specifically discussed, have been considered and are overruled

The judgment is affirmed.


source: Caselaw Access Project

author: YOUNG,’ Justice.

license: Public Domain

text:
    WILMANS v. GREAT SOUTHERN LIFE INS. CO.
    No. 13005.
    Court of Civil Appeals of Texas. Dallas.
    May 18, 1940.
    Mrs. Edith Wilmans, of Vineyard, pro se for appellant.
    ■ Cecil L. Simpson, of Dallas, and Vinson, Elkins, Weems & Francis and Fred R. Switzer, all of Houston, for appellee.
   YOUNG,’ Justice.

This is an appeal from an order denying a temporary injunction. Appellant, Mrs. .Edith Wilmans, filed suit for damages against appellee in a District Court of Dallas County, and ancillary thereto, prayed for immediate relief, restraining defendant Insurance Company from having execution issued on a justice court judgment in forcible entry and detainer; also asking for restraint against the Justice of the Peace, Precinct No. 7, from issuing any further orders in such cause. A fiat or notice was endorsed on the sworn petition, and upon hearing, defendant appeared by counsel and agent, but filed no answer. No testimony was offered by either party, plaintiff’s verified allegations alone being considered by the court, and, as already stated, her motion for injunctive relief was disallowed.

Plaintiff’s main complaint (the damage suit) set forth, in brief, that she had sold certain property to J. B. Hubble and wife, who had assumed and agreed to pay a mortgage 'thereon held by appellee, and, in addition, to give her certain equities’ in other property; that pending the consummation of such deal, appellee, the Insurance Company, made statements to Hubble and wife that plaintiff had no equity in the Woodin Street property which she had agreed to convey to Hubble, such acts and statements being false and fraudulent, causing the latter and wife to repudiate the trade, with consequent damages, both actual and exemplary. This part of the cause has not been tried. The material features of plaintiff’s said petition, as regards the forcible entry and detainer judgment complained of, are: “That said defendants, notwithstanding they knew that plaintiff held their deed to said property she sold to Hubbles, did file a suit in the Justice Court of Dallas County, in Oak Cliff, in forcible detainer, and alleged therein certain contracts and deeds which passed back and forth between said defendants and plaintiff, and attempted to prove title under such contracts and deeds in defendants. Plaintiff alleged that said contracts and deeds and proof of their title thereunder was beyond the jurisdiction of the Justice Court; * * * Plaintiff alleges that said contracts and deeds above mentioned in paragraph 4, were secured from plaintiff by the defendant and that she received no consideration therefor. * * * That one of said statements written by defendant attempts to take from the jurisdiction of the District Court. * * * Plaintiff further alleges that said defendant in fraud of the jurisdiction of this court has filed a suit in forcible detainer in the justice court of Dallas County. That a judgment was entered therein in favor of defendant. That said justice court did not have jurisdiction over said cause in that the sole issue before said justice court in said cause was one of title. That in the said cause this plaintiff plead the lack of jurisdiction of said court to hear said cause, which was overruled by the justice of peace hearing same, to-wit, Joe B. Brown, who entered a judgment against this plaintiff.”

Nowhere in the record does it appear that appellant appealed, or applied for cer-tiorari from the justice court judgment, this fact being tacitly admitted in her brief; neither is any reason or excuse given for such failure, except as appears in the assignments of error here presented. They are: (1) That as defendant did not in anywise contravene plaintiff’s sworn petition by verified answer or testimony, the injunction should have been granted; (2) the forcible detainer hearing and judgment attempted to adjudicate title to realty and, in effect, foreclose a purported mortgage on real estate. The district court alone having cognizance of such matters, there was an entire want of jurisdiction in the justice court, and its judgment was void; hence, the trial court was competent to take jurisdiction in the instant case without the necessity of statutory appeal; (3) an aggrieved party is riot compelled to appeal from a void judgment, but may at once assert its invalidity in any court of adequate jurisdiction.

Appellant was not entitled to in-junctive relief as a matter of law, because; of any failure to controvert her sworn pleading; the relief sought being determinable in such case solely on the sufficiency of the bill which, for the purpose, is. taken as true. Midleton v. Presidio County, Tex.Civ.App., 129 S.W. 637; Johnson v. Echols, Tex.Civ.App., 21 S.W.2d 382. Viewing the facts then from the .standpoint of the plaintiff (as did the trial court), we-think all assignments here presented are-effectually disposed of by appellee’s first, counter proposition. It reads: “The appellant’s petition for injunction shows affirmatively that she was present at the trial of the forcible detainer case in the-Justice Court, and there being no allegation of good cause or excuse why she did not appeal to correct the alleged erroneous, judgment entered in the Justice Court, the District Court was right in denying her any injunctive relief”. The principle involved has long been recognized in Texas-jurisprudence, In A. B. Richards Medicine Co. v. Johnson, Tex.Civ.App., 267 S. W. 1067, 1068, writ refused, where want of jurisdiction and invalidity of the justice-court judgment were both plead and proved,. Judge Looney, speaking for this court,.said: “Was appellee required under the-circumstances to avail himself of the legal' remedy of certiorari in order to vacate the-justice court judgment, instead of resorting-to equity? We think so. The leading case on the subject, similar in all material respects to the case under consideration, is. Galveston, H. & S. A. Ry. Co. v. Ware, 74 Tex. 47, 11 S.W. 918, in deciding which the-Supreme Court, among other things, said:: We are of opinion, however, that the general rule of equity should apply, and that,, if the defendant in the void judgment has. had an opportunity -to avail himself of a legal remedy (meaning by appeal or cer-tiorari) to vacate it and has neglected to make use of it, relief by injunction should be denied him.’ This doctrine was later followed by the Supreme Court in Texas Mexican Ry. Co. v. Wright, 88 Tex. 346, 31 S.W. 614, 31 L.R.A. 200, as shown by the following. The court said: ‘The judgment of the justice of the peace, enjoined in this case, was void because the court which rendered it had'no jurisdiction of the defendant. Gulf, C. & S. F. Railway Co. v. Rawlins, 80 Tex. [579], 581, 16 S.W. 430. But the court below and the Court of Civil Appeals correctly held that the de-^ fendant in that judgment, having the right to a writ of certiorari, could not sue out an injunction to stop the execution of the judgment. The case of Railway Co. v. Ware, 74 Tex. 47, 11 S.W. 918, cited and followed by the Court of Civil Appeals, lays down the correct doctrine upon this question.’ There are numerous later cases to the same effect, so the rule definitely established in this state is that, whether the judgment complained of is void, or voidable, if the complaining party has a remedy by appeal or certiorari and neglects to make use of the same, he will not be permitted to invoke relief by injunction.”

See, also, 19 T.J., Forcible Entry and Detainer, sec. 5, p. 763; Smith v. Ryan, 20 Tex. 661, 662; Cohran v. Fischer, Tex.Civ. App., 61 S.W.2d 577.

Moreover, the contracts and deeds {concerning which, appellant contends the trial in the justice court was one of title and not of possession) were not before the district court. Plaintiff’s motion for injunction being in the nature of a collateral attack on the forcible detainer judgment, the rule announced in Endel v. Norris, 93 Tex. 540, 57 S.W. 25, is quite in point. It was there argued in a subsequent suit for damages, that the value of the property under attachment exceeded the jurisdiction of the justice court, and the proceeding was therefore void. The Supreme Court held: “In this condition of the record, proof might have been made upon the trial of the case showing the value to be within the jurisdiction of the court; and it will be conclusively presumed that such proof was made, and that the court, upon inquiry, found it had jurisdiction of the subject-matter of the suit.”

So, in this case, under plaintiff’s own allegations, it is apparent that evidence was adduced in the justice court that resulted. we must assume, in a finding of jurisdiction. Sikes v. Keller, Tex.Civ.App., 197 S.W. 311. The trial court’s action denying the particular restraint must be affirmed.

Affirmed.


author: MURRAY, Justice.

text:
    BAKER v. WALSTON, Sheriff, et al.
    No. 10719.
    Court of Civil Appeals of Texas. San Antonio.
    April 24, 1940.
    Rehearing Denied June 12, 1940.

      Wm. E. Davenport, and T. R. Johnston, both of San Angelo, for appellant.
    Sam McCollum of Brady, Frank Hart-graves, and T. A. Scruggs, both of Menard, and Upton & Upton, of San Angelo; for appellees.
   MURRAY, Justice.

This suit was instituted by Mary Baker against Cecil Walston, Sheriff of Menard County, and the sureties on .his official bond, J. M. Treadwell, H. H. Wheless and F. L. Seiker, to recover damages allegedly sustained by her as the result of the death of her son, Lenzie Baker, who died from suffocation in the Menard County jail.

Lenzie Baker was' a prisoner and lawfully confined in the Menard County jail. A mattress in the run-around of the jail caught on fire on the night of February 4, 1939. Baker and one other prisoner were locked in the steel cells of the jail and were suffocated by the smoke. Cecil Wal-ston was sheriff of Menard County at the time, and the prisoners wqre at least constructively in his custody.

The trial was to a jury and the following constitute the findings of the jury, to-wit:

1. On the night of February 4, 1939, all windows and doors of the Menard County jail were closed.

2. On the night of February 4, 1939, the Menard County jail was properly ventilated.

3. The lack of proper ventilation, if any, did not constitute negligence on the part of Cecil Walston, nor was same ,the proximate cause of the • death of Lenzie Baker.

4. On the night of February 4, 1939, Cecil Walston, or his deputy, knew the cotton mattress was in the run-around of the Menard County-jail.

5. Cecil Walston and his deputy were not guilty of negligence in leaving the cotton mattress in the run-around of the jail on that night.

6. Such negligence, if any, was not the proximate cause of the death of Lenzie Baker.

7. The failure of Cecil Walston to keep a guard at the Menard County jail on the night of February 4, 1939, did not constitute negligence on his part.

8. Such negligence, if any, was not the proximate cause- of the death of Lenzie Baker.

9. Neither Cecil Walston, nor his deputy, could have foreseen, by the exercise of ordinary care, that the mattress in question would catch on fire.

10. Neither could they have foreseen, by the use of ordinary care, that such fire would cause the death or injury of Lenzie Baker.

11. The death of Lenzie Baker was not the result of an unavoidable accident.

. 12. Lenzie Baker did not set fire to the mattress on the night of February 4, 1939.

13. Clayton Kirk (the other prisoner) and Lenzie Baker acting together, did not set fire to the mattress in the run-around of the jail on the night of February 4, 1939.

14. Lenzie Baker, in the exercise of ordinary care, under the facts and conditions as they were found by the jury to exist on the night of February 4, 1939, could have prevented his death, and that the failure to do so constituted contributory negligence on the part of Lenzie Baker.

15. Mary Baker sustained no damages by reason of the death of her son.

Judgment was rendered and entered based upon these findings and Mary Baker has prosecuted this appeal.

Appellees in their answer set up as a defense the contributory negligence of the deceased, Lenzie Baker. Appellant’s first contention is that such answer was subject to general demurrer. We overrule this contention. The evidence shows that the prisoners were allowed to stay in the run-around of the jail during the day but were locked in the cell in the middle of the jail during the night. There were several mattresses in the jail and the prisoners were allowed to use these mattresses as they saw fit during the day. They were also allowed to open and close the windows as they might choose. Of course, after they were locked in the cell they could not then move any mattress which might be in the run-around, neither could they then open or close the windows. They could only do these things before they were locked in the cell. There was also running water and buckets in the cell, which might have enabled them to extinguish the fire after it was discovered. Such matters presented questions of fact for the jury to decide from a preponderance of the evidence. Appellant contends, in effect, that the sheriff should have foreseen that the windows should be raised and the mattress should have been moved. By the same token the prisoners should have foreseen these matters and have attended to them before they were locked up for the night. The jury determined these matters favorably to the sheriff and his bondsmen, and the pleadings setting up such defenses were not subject to either general or special demurrer.

Appellant next contends that the sheriff was negligent in not having a guard at the jail throughout the night to look after the safety of the prisoners. It is not shown that the county had furnished any quarters which a guard might occupy over night, neither is it shown that the commissioners’ court of the county had authorized any salary for such a guard, and in the absence of a showing of these matters the sheriff of the county would not be guilty of negligence in this particular.

Appellant next complains because in the definition of proximate cause the term “new and independent” cause is used and defined. We overrule this contention. Under the facts in this case the jury may have regarded the catching on fire of the mattress as a “new and independent cause” and therefore it was proper to define the term. Gunther v. Johnson, 36 App.Div. 437, 55 N.Y.S. 869, 870.

Appellant next complains because the court did not correctly place the burden of proof as to the issues on contributory negligence. It is apparent that the court did not properly place the burden of proof as to these issues upon the appellees, but inasmuch as the jury did not find Cecil Walston, or his deputies, guilty of original negligence proximately causing the death of Lenzie Baker, it becomes immaterial whether or not Lenzie Baker was guilty of contributory negligence. Beaty v. El Paso Elec. Ry. Co., Tex.Civ.App., 91 S.W. 365; Leap v. Braziel, Tex.Civ.App., 93 S.W.2d 1213.

Appellant next complains because evidence was admitted showing that two men from the inside of the cell, with the use of the buckets and the running water which were in the cell the night Lenzie Baker lost his life, extinguished a mattress set on fire outside of the cell similar to the one which burned on the fatal night. We are of the opinion the record shows that the experiment was made under substantially the same conditions as existed on the fatal night and therefore the evidence was admissible. The fact that the experiment was not made under the exact circumstances as existed on the fatal night goes rather to the credibility of the testimony rather than to its admissibility.

Appellant next complains that the trial judge overruled her motion for a new-trial without extending the term of the court and giving her more time to produce additional testimony concerning jury misconduct. The record shows that testimony was heard before the motion was overruled, but that testimony has not been properly brought forward in the record. The trial judge offered to give the appellant another day within which to secure more evidence, but this was declined because her attorneys could not be present the next day and further that one day would not be sufficient time. Appellant having declined to use the additional time offered by the court, and having failed to properly bring forward the evidence which was offered on the motion, is not now entitled to have the cause reversed on the ground that the trial judge abused his discretion in not giving her'more time.

The judgment is affirmed.


author: O’QUINN, Justice.

text:
    COX et al. v. SHANNON.
    No. 3607.
    Court of Civil Appeals of Texas. Beaumont.
    April 18, 1940.
    Rehearing Denied May 4, 1940.

      Lipscomb & Lipscomb, of Beaumont, and H. M. Kinard, of Orange, for appellants.
    K. W. Stephenson, of Orange, for ap-pellee.
   O’QUINN, Justice.

On May 5, 1938, appellee, G. C. Shannon, owned and operated a filling station, store and garage in the town of Maurice-ville, in Orange County, Texas. His dwelling was located about 20 feet from these buildings. Under written contracts he bought his gasoline from appellant Magnolia Petroleum Company. These contracts were executed by appellee, acting for himself, and by appellant Magnolia Petroleum Company.

This action was brought by appellee, Shannon, against the Magnolia Petroleum Company and Lausen Cox, the agent of the Magnolia Petroleum Company, to recover damages for the destruction by fire of his dwelling, store, filling station, garage, and certain personal property located therein, and for alleged personal injuries sustained by his wife at the time the fire occurred. Briefly, appellee alleged, in substance, that Lausen Cox was the wholesale distributing agent for appellant Mag-< nolia Petroleum Company, and that Jack Dees, an employee of appellants, was delivering a wholesale quantity of gasoline to appellee’s filling station on May 5, 1938, when because of the negligence of said employee, Dees, the gasoline was permitted to leak or flow upon the concrete floor of the store building and become ignited; that Mrs. Shannon, wife of appellant, was in the store at the time of the fire, and in trying to escape from the burning store building, she ran into and against some object, striking her right hip and ankle against same, bruising and lacerating her hip and ankle; "that she suffered burns upon her legs, and other portions of her body by reason of which she suffered damages in the Sum of $10,000; that the market value of the residence destroyed was $1,500; that the market value of the garage destroyed was $850; that the market value of the store building and garage destroyed was $750;' that the value of certain enumerated household goods was $450; the value of certain enumerated ■equipment, tools and machinery was $1,-695; and that the value of other .merchandise and fixtures located in the store and filling station destroyed by the fire was $658.65. And in the alternative that if it appear that said property did not have a market value, then that the value stated was its real or intrinsic value.

As before stated, appellee alleged that the fire that destroyed the property and caused the injuries to Mrs. Shannon, was caused by the negligence of one Dees, an employee of appellants. In substance and effect, the acts of negligence charged .against appellants were: employment of an inexperienced and incompetent driver; making delivery of gasoline from the east door of the store instead of the front door; use of a coupled rather than a .single hose in making delivery of the gasoline; failing to provide adequate and efficient hose; permitting gasoline to escape from the hose upon the cement floor of the store; permitting the agent to use two hose in bad state of repair; permitting gasoline to leak therefrom; permitting gasoline to flow upon the floor; not •extinguishing the fire when the gasoline first became ignited; leaving the hose connected with the gasoline truck so as to permit gasoline to flow freely upon the floor of the store after the gasoline became ignited; failing to cut off the valve so as to keep the gasoline from flowing through the hose; in not cutting off the valve when the gasoline first began to .leak; and in the alternative making a general allegation of negligence on the ground that the instrumentalities causing the fire were in the sole custody of defendants and that the fire and resulting ■damages would not have occurred but for some negligence of the defendants, the ■exact nature of which was to appellee unknown.

Defendants, appellants, answered by general demurrer, special exceptions, general denial, pleas of contributory negligence, and specially denied that they were under any obligation to pay appellee for the loss and damages occasioned by the fire because of two indemnification contracts made between appellee and appellant Magnolia Petroleum Company prior to the fire, each of which contained clauses indemnifying the Magnolia Petroleum Company against any and all liability for loss or damage, injury or casualty, to-wit:

(a) One of date December 10, 1937, in which it was stipulated:

That Shannon, referred to as customer “Shall protect and indemnify Company (meaning Magnolia Petroleum Company) against any and all liability for loss, damage, injury or casualty of any nature to Customer or to any person or property resulting directly or indirectly from the use of said equipment, or its existence or location on said premises, or from the storing of gasoline in, or withdrawing it from said equipment, or from its use in any manner, whether such loss, damage, injury or other casualty arises from negligence, or otherwise, and whether due to imperfection of said equipment or any part of it, whether latent or patent, or to any fault in the installation thereof, or caused from leakage, fire, or any cause whatever.”

(b) One of date January 29, 1938, in which it was stipulated: “Buyer (meaning Shannon appellee) agrees to protect and indemnify Seller (meaning appellants) from and against any and all losses, damages, claims or suits which shall arise or grow out of any injury to, or death from of persons (including Buyer and employees of Seller and Buyer) or property (including property of Seller, Buyer and employees of either) caused by or resulting from the use or condition of said premises, tanks, pumps, equipment and other facilities, or -from the sale, storage or delivery of products on said premises. Seller does not warrant or guarantee said pumps, tanks, equipment or facilities in any respect.”

By supplemental petition, appellee replied to appellants’ answer, and, among other things, alleged that the contracts set up by appellants were unilateral and against public policy, as attempting to contract against one’s own negligence; that said provisions in said contracts were included in said contracts by mutual mistake because representations were made to ap-pellee by Lausen Cox, the agent and representative of appellant Magnolia Petroleum Company, in explaining the meaning of said provisions, that the non-liability provisions “only had to do with any injuries or damages that might occur outside of plaintiff's buildings, or, in other words, that said provisions only related to things that might occur at the gasoline pumps or when parties were being served with gasoline or other products,” and prayed for a reformation of said contracts.

The case was submitted to a jury upon ninety five special issues, which were answered in favor of appellee, and judgment rendered in his favor for $6,350, and the judgment also reformed the contracts in the particulars mentioned (mutual mistake). The court entered an order on the last day of the term extending same for a period of thirty days for the purpose of concluding the trial of the case, expressly limiting it to matters then pending in the instant case only. Motion for a new trial was filed within the thirty days, extension, was duly overruled, and appellants have brought this appeal.

On May 5, 1938, while appellants were attempting to deliver gasoline to appellee at his filling station, under the terms of their contract with him, the gasoline caught fire, destroying the personal property described in appellee’s petition, and as a result of the fire appellee’s wife received severe personal injuries. •

This suit was brought by appellee against appellants, jointly and severally, for the damages suffered by him, proximately resulting from the fire. All. issues of negligence plead by appellee against appellants were found in his favor by the jury; and he was acquitted of all matters of .contributory negligence alleged against him by appellants.

As a complete defense to the cause of action plead by appellee, appellants plead the two contracts set out above. In answer-to this special plea, by supplemental petition appellee plead that Lausen Cox, as the agent of the Magnolia Petroleum Company, executed said contracts; that, in executing the contracts he, appellee, told Lausen Cox that he did not understand the meaning of said provisions in said contracts; that he was poorly educated, and knowing that Cox was an educated man, and believing that Cox was fully familiar with all the terms and provisions of the contracts and was clothed with authority to act. for the Magnolia Petroleum Company .in their- execution and delivery, he-explained to Cox that he was uneducated and did not comprehend the meaning of the provisions, and asked Cox to explain same to him; that Cox stated to him that the provisions were unimportant, that they were contained in all contracts signed by other parties, and that the contracts were of standard form, and stated further to him that said provisions only had to do with injuries ’or damages that might occur at the gasoline pumps or when parties were being served with gasoline or other products; that he relied upon the statements and representations made to him at the time by Lausen Cox and believed them to be true; that he confided in Cox and particularly relied upon the statements and representations of Cox in regard to the provisions — the provisions in said contracts specially plead by appellants — and that he would not have signed the contracts otherwise; that the representations made to him by Cox were made “as expressions of fact,” and were not made “as expressions of opinions”; that he had good reason to believe, and that he did believe, that the statements and representations made to him by Cox were made in good faith and were true. He plead facts showing that he executed the contracts containing the provisions plead by appellants in defense, as the result of a mutual mistake between him and Lausen Cox; that he and Lausen Cox mutually believed that these provisions of the contracts . only had to do with any injuries or damages that might occur outside of appellee’s buildings, or, in other words, that the -said provisions only related .to-things that might occur at the gasoline pumps or when parties were being served with gasoline or other products; that in executing the contracts neither he nor Lausen Cox, as agent for the Magnolia Petroleum Company, believed that said provisions in said contracts were subject to the construction now contended for by-appellants, and that had he known that, the contracts ■ were subject to such construction he would not have executed them. He plead further that if the execution of the contracts by Lausen Cox was not the result of a mistake by him as to the meaning, that then in that event the said Lausen Cox fraudulently represented to him the meaning of the contracts, knowing that he would accept his construction in their execution and that he would not have executed the contracts had he known they were subject to the meaning now insisted upon by appellants; that upon the expiration of the original contracts executed in 1937, in the renewal contracts, the contracts in controversy, the same representations as to the meaning of said provisions were made by him to Cox and by Cox to him as in the execution of the original contracts. Appellee prayed that the contracts be reformed so as to state and express the actual terms and conditions agreed to and understood in their execution, and that if the contracts are not subject to reformation, that the conditions plead by appellants be stricken, and that the contracts “in such particulars be can-celled and held for naught.”

The jury by its verdict found in appel-lee’s favor on all issues submitted to them in avoidance of the contracts plead by appellants. Thus the jury found that ap-pellee “was not able to comprehend or understand the meaning” of the paragraphs of the contracts plead by appellants; that appellee explained to Lausen Cox that he, appellee, did not understand “what was meant” by the terms and provisions of these sections, and that he believed at the time he signed the contracts that Lausen Cox was fully acquainted “with the meaning of all the terms and provisions thereof”; that he made inquiry of Lausen Cox “as to the true meaning” of the provisions in controversy; that Lausen Cox stated to appellee that the paragraphs in controversy “was not important,” and “only had to do with the injuries and damages that might occur outside of” appellee’s buildings; that ap-pellee relied upon the representations made to him by Lausen Cox, and that he would not have signed the contracts had the representations not been made; that there was a mutual mistake between appellee and Lausen Cox as to the meaning of the paragraphs in said contracts plead by appellants; that Lausen Cox believed the representations made by him to appellee were true, and made such representations “as a statement or representation of fact,” and in making such representations did not “express same as an opinion”; that the representations made by Lausen Cox to appellee were made “in good ’ faith.”

On the verdict of the jury, judgment was entered in appellee’s favor against appellants, jointly and severally, for the damages assessed by the jury. And it was further ordered by the judgment that the provisions in the contracts plead by appellants in defense of appellee’s cause of action be expunged from said contracts “because of mutual mistake and reformed in accordance with the true agreement of the parties.”- And the court being of the further opinion that the contracts should be reformed by inserting therein the true agreement had by the parties at the time of their execution, then the judgment proceeded to reform said contracts by inserting in the contract dated December 10, 1937, the following: “Customer hereby agrees that should any injury, damage or casualty be sustained by any person or persons outside of customer’s buildings when being served with gasoline or otherwise, or should said equipment, or any property of any such person or persons be injured, damaged or destroyed by fire or otherwise as a result of any injury, damage- or casualty happening or occurring outside of customer’s buildings, then the customer' not only agrees to protect the Company and save it harmless, but likewise agrees to pay the Company such damages as it ’may show itself entitled to receive as a result’ of any such injury, damage or destruction of said equipment or any part thereof.”

And in the contract dated January 29, 1938, the following: “Customer hereby agrees that should any injury, damage or casualty be sustained by any person or persons outside of customer’s buildings when being served with gasoline or otherwise, or should said equipment, or any property of any such person or persons be injured, damaged or destroyed by fire or otherwise, as a result of any injury, damage or casualty happening or occurring outside of customer’s buildings, then customer not only agrees to protect the Company and save it harmless, but likewise agrees to pay Company such damages as it may show itself entitled to receive as a result of any such injury, damage or destruction of said equipment - or any part thereof.”

The provisions thus made a part of the contracts by the judgment, by its terms, were inserted in said contracts in lieu of the provisions originally inserted therein, and struck therefrom by the judgment.

From the judgment entered against them, appellants have prosecuted this appeal.

By their first and second propositions, advanced under their general demurrer, appellants contend that appellee, by a supplemental petition, could not plead a defense to the contracts set up by them in their answer. The contention is that, by due order of pleading, appellee was bound to anticipate their defense, and, therefore, in his original petition plead facts in avoidance of the contracts in issue. This contention is denied. The true office of a supplemental petition is thus stated in 33 Tex.Jur., page 487: “The office of plaintiff’s supplemental pleading is to answer, by way of reply, some new matter of fact injected into the case by the defendant.”

See, also, Eldridge v. Poirier, Tex.Civ.App., 50 S.W.2d 888, writ refused. Ap-pellee filed his supplemental petition pleading facts in avoidance of the contracts in issue, in due order of pleading.

We sustain appellants’ contention that the contracts in issue were on a valuable consideration, and overrule the counter proposition that they were n-ull and void, and so we set aside the verdict of the jury finding these issues in appellee’s favor.

In view of the disposition we are making of the case, we pretermit a discussion of appellants’ propositions that, as written, the contracts were binding on the parties thereto, and of appellee’s counter propositions that, by their terms, the contracts were void and against public policy, in that they purported to relieve appellants from the legal consequences of their common law negligence in their 'execution.

Appellants contend that they were entitled to an instructed verdict on the following grounds, asserting in their propositions that the contracts were on a valuable consideration, and, as written, were binding on the contracting parties, and not subject to contradiction or reformation by parol testimony.

They say, first, that appellee, as a matter of law, could not plead in a supplemental petition facts in avoidance of the contracts; that appellee should have anticipated these contracts would be urged as a defense in his original petition, and in his original petition have plead facts in avoidance of them. What we have said above in overruling the first and second propositions under their general demurrer disposes of this contention as advanced on the facts.

They contend, second, that parol testimony was not admissible to vary or explain the contracts as executed and delivered. The general principle contended for by appellants, of course, is conceded. But parol evidence is admissible to establish the issue that certain stipulations and conditions of a written contract were induced by fraud, accident or mistake—in the instant case by mistake. On this point we quote from Judge Smedley’s opinion, speaking for the Commission of Appeals, in Sun Oil Co. v. Bennett, 125 Tex. 540, 84 S.W.2d 447, 451: “In a case where the agreement of the parties has been reduced to writing and the effort on the part of one of them is to avoid on account of mistake the effect of a part of the written agreement, the mistake from or on account of which relief is sought is the incorporation in the agreement of terms or conditions not representing the true agreement of the parties. What the parties mutually intended and agreed is not the vital inquiry. The party seeking reformation must of course prove what the true agreement was, but his case is not made by proof that there was an agreement which is at variance with the writing. He must go further and establish the fact that the terms or provisions of the writing which differ from the true agreement made were placed in the instrument by mutual mistake.”

Appellee’s pleading in avoidance of the contracts on the issue of mutual mistake conforms strictly to the proposition we have quoted from Judge Smedley’s opinion. On this theory of the case, appellants were not entitled to an instructed verdict.

They contend, third, that the evidence was insufficient to establish the mistake plead by appellee, and that the jury’s verdict finding these issues in appellee’s favor is without support in the evidence. We give the following summary of the evidence on the jury’s verdict (Q. and A. reduced to narrative form) :.

Appellee testified: “Previous to the time I signed this contract dated the 10th of December, 1937, I discussed its terms with Mr. Lausen Cox. I was not able to understand the meaning of this particular provision — referring to the one in issue — - and I would not sign it without it being explained. I was not able to understand it. At that time I knew Mr. Cox well; he was representing the Magnolia Petroleum Company at that time as its local agent, and presented this contract to me at his office. He delivered it to me in person. At that time I confided in Mr. Cox; I trusted him; I understood that he was an educated man. I knew that he had been representing the Magnolia Petroleum Company for a considerable period of time. When Mr. Cox and I were discussing the contract — well, I could tell you in my way. I looked over the contract with my best knowledge and wouldn’t be able to understand half of it; so I told him I didn’t understand it; it looked like that I didn’t know what I was' doing or getting into, something like that; so he looked at me and in a few words he said, ‘Well, that won’t affect you.’ -* * * And he just told me that it was a matter of form with the company, that everybody had to' do that to handle their products, and I just taken it for myself that it wouldn’t affect me or affect anything on my premises, why naturally I would be willing to sign the contract. In that conversation Mr. Cox told me that this was only to protect the equipment and the company; that anything that might occur outside, such as waiting on customers, anything that happened like fire broke out and burned a car up or damaged some person outside, that that was the purpose of this to protect them against anything that might happen on the premises, not including me. This conversation occurred in the office of the Magnolia Petroleum Company; Mr. Cox’s office. I believed the statements made to me by Mr. Cox. I relied on what he told me — -well, I had a lot of dealings with him and he would be fair, he would be fair with me in the dealings, so far as I know. In executing the contract, I took into consideration that Mr. Cox was an educated man. I really understood and knew he was an educated man, and naturally, my dealings with him, I could tell that and I relied upon him for that because — ; and I relied on what he told me because he was acting as the agent of Magnolia Petroleum Company and had full charge of the affairs of Magnolia Petroleum Company in Orange County; I relied on that fact. I had the contract in my possession in Mr. Cox’s office. The things that Mr. Cox told me, he told me as facts, and not as expressing his opinion; I wouldn’t have signed the contract had Mr. Cox not made these statements to me. I asked Mr. Cox the direct question as to the meaning of the provisions of the contract I read to you a minute ago just what was meant by that. After Mr. Cox explained the contracts to me, I understood what he told me and relied on what he told me, and would not have signed the contracts had he not told me what he did and had I not believed that what he told me was true. On the 29th of January, 1938, I made another contract with Magnolia Petroleum Company whereby I agreed to purchase gasoline and its products; I signed that contract. (Appellee then proceeded’ to detail the circumstances under which he signed it, representations made to him by Lausen Cox as inducing its execution, in substance as stated above.) Previous to the time I signed the first contract, Mr. Cox told me he wanted to help, me build up and try to build up some good business up there; my business was kinda dropped off; and he would kinda help me build it up. He didn’t say he would profit by what he had told me; I believed that he would assist me in building up my business; and that had an influence on me. I believed everything Mr. Cox told me and I believed that he told me those things in good faith.”

It is our conclusion that the evidence, as summarized, supports the verdict of the jury as against appellants’ motion for an instructed verdict, and accordingly the third ground urged for an instructed verdict is overruled.

The seventh proposition brings forward exceptions to' the court’s charge that were advanced for' the first time in their amended motion for a new trial. These exceptions present notching for review. Article 2185, Vernon’s Annotated Civil Statutes; Hines v. Jones, Tex.Civ.App., 225 S.W. 412; Guillot v. Halman, Tex.Civ.App., 91 S.W.2d 402.

The court did not err in refusing to submit appellants’ requested issues pleading negligence against appellee in the manner of the construction of his filling station. There is no contention that appellee created a trap for appellants, nor that the fire resulted as the result of hidden or concealed danger. Marshall v. San Jacinto Bldg. Co., Tex.Civ.App., 67 S.W.2d 372; 45 C.J. 837; Texas & P. Ry. Co. v. Howell, Tex.Civ.App., 117 S.W.2d 857.

Appellants’ thirteenth proposition is:

“It was affirmative error for the trial court to overrule defendants’ sixty-fourth objection to the charge, wherein complaint was lodged against the submission of any issues to the jury calling for a finding as to ‘representations or statements alleged to have been made by the defendant, Lausen Cox, for the reason that such special issues so submitted to the jury assume that Cox had authority from his principal to modify the terms of said contracts and to make representations at variance with the express provisions thereof.’
“This was error, not only for the reason here stated, but also because of the court’s failure to submit the controverted issues as to (a) whether Cox had such authority; and (b) whether the defendant company had knowledge- of the alleged representations; and (c) whether it ratified the alleged representations.”

On the undisputed proof, Lausen Cox was the agent of Magnolia Petroleum Company in its execution of the contracts in controversy, and there was no evidence limiting the scope of his agency as to matters involved in the contracts, and as to their execution. As the agent of Magnolia Petroleum Company, when appellee advised him that he, appellee, did not understand the contracts, certainly he had the right, dealing in good faith with appel-lee, to explain the contracts to him, and his explanation, if accepted by appellee and believed by appellee to be true, and if appellee acted thereon in the execution of the contracts, was binding on Magnolia Petroleum Company.

Again, appellants present this point only by exception to the court’s charge; they did not prepare a special issue and present it to the court with request for its submission. The jury found facts establishing Cox’s agency for Magnolia Petroleum Company in the execution of the contracts. Since appellants did not prepare special issues and request their submission, they waived the points pointed out by their thirteenth proposition. Wichita Falls & O. R. Co. v. Pepper, Tex. Sup., 135 S.W.2d 79. Therefore under the Pepper case, the trial court had the right, which it exercised, to find as supplemental facts the issues to which the thirteenth proposition is directed.

Appellants complain of the questions submitting to the jury the issue of “real value” of the personal property destroyed by the fire on the ground that “each were erroneous in the form submitted, because such issues as worded assumed that the property had no market value, and that the real value therefore was the measure of damages.” This proposition is overruled. On the undisputed proof the personal property had no “market value/’ as distinguished from its “real value” or “intrinsic” value. It would not serve any useful purpose to summarize the evidence on the issue of the “intrinsic” value of the property; appellants’ statement does not impeach the findings by the jury. Ap-pellee’s testimony fully supports the findings.

On the -issue of “intrinsic” value, the court did not err in receiving evidence as to the original cost of the personal property, its age, its present condition, the cost to replace it, etc. 17 Tex. Jur. 440, Section 163.

Without quoting the issue submitting the question of damages for the personal injuries received by Mrs. Shannon, we overrule appellants’ contention- that it “mislead the jury into an award of double damages.”

On the supplemental petition of appellee, pleading facts in avoidance of the contract as plead by appellants, and on the evidence offered by him in support of his supplemental petition, and on the verdict of the jury finding in his favor the issues made by the supplemental petition, the court did not err in striking from the contracts the paragraphs plead by appellants in avoidance of liability and in reforming the contracts so as to speak the actual agreement as made by the parties— as mutually understood by them at the time the contracts were executed.

From, what we have said it follows that the judgment of the lower court should be in all things affirmed, and it is so ordered.

Affirmed.


author: JACKSON, Chief Justice.

text:
    EAKIN et ux. v. GLENN et al.
    No. 5151.
    Court of Civil Appeals of Texas. Amarillo.
    April 29, 1940.
    Rehearing Denied June 3, 1940.

      G. E. Lockhart and W. R. Porter, both of Lubbock, for appellants.
    Jno. B. Daniel, of Temple, for appellees.
   JACKSON, Chief Justice.

This is an action in trespass to try title institutedin the District Court of Lubbock County by the appellants, R. R. Eakin and wife, Hettye Eakin, against the appellees, Vaughn D. Power and H. C. Glenn, the legally appointed receiver for the Temple Trust Company, to recover Lots Nos. 8, 9 and 10 in Block 160 of the Original Town of Lubbock, Texas.

In addition to the statutory plea of trespass to try title, in a second count the appellants alleged that about February 18, 1935, in Cause No. 20736, H. C. Glenn, receiver, was plaintiff and R. R. Eakin, his wife and E. F. Couch were defendants, an agreed judgment was entered in favor of the receiver against R. R. Eakin for the sum of $2,911.75 and the lien foreclosed on the lots and premises above described given to secure said indebtedness but with the understanding that no order of sale should issue on the judgment until the expiration of ninety days from the date thereof; thát on March 11, 1935, an order of sale was issued and placed in the hands of the sheriff of Lubbock County, who levied upon said property, advertised and sold the same on the first Tuesday in May. The property was bid in for $1,500 and the property at that time was of the reasonable market value of $5,000.

For the purpose of showing the invalidity of the sale, appellants alleged that the order of sale was issued before ninety days after the rendition of the judgment; that such order recited that it was issued on February 18, 1935; that the sheriff’s notice of sale was published in “The South .Plains Farmer” which was not a newspaper of general circulation of Lubbock County; that a part of the property involved was the homestead of appellants and a part non-homestead and the sheriff in making the sale failed to sell the non-homestead property before offering for sale the homestead; that such irregularities caused the property to sell for an inadequate consideration; that appellee Vaughn Power was claiming some right, title or interest to the property the character of which was not known.

In their pleading they say they have been ready, able and willing to pay any sum since June 1, 1937, that might be due under and by virtue of the judgment and in their petition offer payment, pray for cancellation of the deed and for title and possession of the property.

The appellee H. C. Glenn, receiver, answered by general demurrer, general denial, alleged that .the proceedings in Cause No. 20736 in the District Court of Bell County were regular and valid; that on September 2, 1930, Eakin and his wife executed to the Temple Trust Company a deed of trust lien to secure a note for the sum of $2,700 due and payable in monthly installments; that the lien was a blanket lien on the property and in the agreed foreclosure judgment no question of homestead was asserted and no homestead property designated; that at the time of the purchase at the execution sale there was due against it delinquent taxes in the sum of $223.36 and a debt for paving in the sum of $281.15 for which the property and R. R. Eakin were responsible; that the lots were sold and conveyed to Vaughn Power February 15, 1937, by H. G Glenn for the sum of $4,200, $400 cash and the balance evidenced by a note executed .for $3,800 payable in monthly installments.

Appellee Vaughn Power pleaded the same defenses urged by H. C. Glenn and in addition innocent purchaser.

A jury was selected, impaneled and sworn but at the close of the testimony the court directed a verdict in behalf of the appellees and upon the verdict so directed judgment was rendered that appellants take nothing by their suit and that the appellees go hence without day.

The appellants challenge as error the action of the court in directing a verdict against them asserting that the testimony presented fact issues which should have been submitted to the jury for determination.

The record discloses that appellants had defaulted in the payment of the loan obtained from the Temple Trust Company, which was the basis of Cause No. 20736 filed by H. C. Glenn, receiver, in the District Court of Bell County, to obtain a judgment for the debt and foreclose the lien on the lots involved in this controversy; that T. A. Helm of Dallas, the brother of Mrs. Eakin, with the consent of appellants, employed the firm of Cox and Brown, attorneys of Waco, to represent them in the suit. There is no claim that Mr. Brown, who had charge of the case for appellants, was not authorized to represent them in the litigation and no claim that the Eakins had any defense to the suit. After the expiration of several months an agreed judgment was entered on February 18,s 1935, decreeing the receiver a recovery for the sum of $2,911.75 and a foreclosure of the deed of trust lien. The attorneys agreed that the receiver would not have execution issued before ninety days from the date of the judgment. Mr. Brown testified, however, that he, as the attorney for appellants, was cooperating with them in an effort to secure a loan from the Home Owners Loan Corporation for the purpose of paying off the judgment and securing a renewal and extension of the loan for appellants with said loan corporation; that A. M. Frazier, the general attorney for the Home Owners Loan Corporation, advised him or agreed with him that for the purpose of removing some homestead claim that might be asserted to the property by appellants it was necessary that an order of sale should issue on the judgment in the District Court of Bell County, the property advertised and sold thereunder; that ■ he discussed this matter with H. C. Glenn, Receiver, and his attorney, John B. Daniel, and as appellants’ attorney requested that the agreement to withhold the execution be ignored, an order of sale issued and the property sold. The order of sale was issued -March 11, 1935, the property advertised, sale made by the sheriff and the land deeded to H. C. Glenn as receiver on May 7, 1935. The property was thereafter, on February 15, 1937, conveyed by the receiver to Vaughn D. Power and this suit was filed January 10, 1939. Appellant R. R. Eakin testified that he received a notice of the sheriff’s sale had on May 7, 1935.

The record indicates that a second order of sale was issued on the judgment in the District Court of Bell County and the property advertised for sale by the sheriff of Lubbock County but the order of sale was withdrawn and no sale had thereunder.

On June 2, 1937, appellants instituted suit in the District Court of Luhbock County against H. C. Glenn as receiver and Vaughn D. Power, Cause No. 7285, which suit was dismissed in December following.

The appellants did not attend the sale and made no tender to the sheriff or anyone else of the indebtedness and, in our opinion, while they allege they were ready, willing and able to pay in this suit and claim they had made arrangements for the money with which to discharge the indebtedness, the evidence fails to show that any legal tender was ever made. This is emphasized by the fact that appellants failed to request the parties from whom they claimed they could have secured the money to sign a bond to enable them to prosecute an appeal but are before this court on a pauper’s affidavit. There is nothing to indicate or even suggest that appellees would not have accepted the money that appellants admit they owed at any time if tendered. Stern v. Maxwell et al., Tex.Civ.App., 44 S.W.2d 482; Bachrach v. Di Carlo, Tex.Civ.App., 80 S.W.2d 815.

There is no allegation of misrepresentation or fraud on the part of ap-pellees or anyone else in connection with the sale and purchase of the land under the first execution issued. This is a collateral attack upon a judgment and a judicial sale and unless such judgment is void this suit cannot be maintained.

⅛ 26 Tex.Jur. 551, para. 15, the author says: “A judicial sale is<. not open to collateral attack for irregularities which at most would render the proceedings voidable — such as an omission with respect to the order or notice of sale, or mis-description in the deed — or. for -intrinsic fraud.”

In McCardell et al. v. Lea et al., 111 Tex. 380, 235 S.W. 518, 520, Judge Greenwood, speaking for the Supreme Court, says: “It should now be accepted as settled in this state: * * * that ‘the policy of the law does not require courts to scrutinize the proceedings of a judicial sale with a view to. defeat them; on the contrary, every reasonable intendment will be made in their favor, so as to secure, if it can be done consistent with legal-rules, the object they were intended to accomplish’ ”,

See also Chapman, Commissioner of Insurance and Banking, et al. v. Guaranty State Bank et al., Tex.Com.App., 267 S.W. 690; Bowers v. Chaney, 21 Tex. 363; and Rule v. Richards, Tex.Civ.App., 149 S.W. 1073.

In our opinion, the judgment and sale were at most voidable and the testimony was sufficient to authorize the court to direct a verdict in behalf of appellees.

Appellants by several assignments present as error the action of the court in overruling their motion to suppress the answers to direct interrogatories Nos. 5 and 16 .and the answers to cross-interrogatories Nos. 3, 4, 5, 6 and 8 in the deposition of the witness, W. R. Brown, because such answers were not responsive, were hearsay and conclusions of the witness. They also complain of the action of the court in admitting during the trial these answers over their objection that they were not responsive, were hearsay and conclusions of the witness.

The record shows that Mr. Brown was appellants’ attorney in Cause No. 20736 in which the agreed judgment was had against them and upon which the order of sale issued and the lots sold to H. C. Glenn by the sheriff of Lubbock County on May 7, 1935. The attorney was employed to represent appellants by T. A. Helm, the brother of 'Mrs. Eakin. An analysis of each answer to the admission of which complaint is made shows that the facts stated were not all irrespon-sive nor hearsay nor conclusions but part of the contents of each answer was competent and admissible and appellants neither in their motion to suppress nor in their objections to the admission of such answers undertook to separate the admissible from the inadmissible, and these assignments are overruled because as presented they .do not constitute reversible error. Thweatt et al. v. Ocean Accident & Guarantee Corporation, Limited, et al., Tex.Civ.App., 62 S.W.2d 250, writ refused; Bernard Gloekler Co. v. Westbrook Hotel Co., Tex.Civ.App., 258 S.W. 870; Farmers’ & Merchants’ State Bank of Lelia Lake v. Guffey et al., Tex.Civ.App., 255 S.W. 462.

These assignments do not present reversible error for the additional reason that appellants permitted evidence to the same or similar effect introduced without objection. 17 Tex.Jur. 370, para. 126; Slayden v. Palmo, 108 Tex. 413, 194 S.W. 1103.

The appellants urge as error the- action of the court in excluding on appellees’ objection the testimony of R. R. Eakin to the effect that he was advised through his attorney, W. R. Brown, that no order of sale would issue on the judgment entered in the District Court of Bell County on February 18, 1935, before ninety days after the rendition of such judgment.

The appellants contend that this testimony would tend to explain the absence of appellant Eakin from the execution sale and why he had made no effort to secure bidders to attend and bid on the property at the sale.

The record -fails to show that if the witness had been permitted to answer he would -have testified that he received such information, hence, the bill does not require consideration.

He -admits he did receive notice from the sheriff of the sale that was made on May 7, 1935, made no inquiry to learn why the sale was not delayed for ninety days and did not attend the sale, and his absence appears to have resulted from his own failure to exercise ordinary care. Johnson v. Crawl, 55 Tex. 571. However, had he testified that he was advised that an execution was to be delayed for ninety days it would not have justified him in absenting himself from the sale and failing to solicit prospective purchasers to be present because he had received a notice of such sale from the sheriff, the officer authorized to give notice, and his lawyer, who made the agreement to postpone the issuance of an execution for ninety days and later asked H. C. Glenn and his attorney to ignore such agreement and proceed with such sale for the purpose of removing some objection to the title in order that a loan might be obtained from the Home Owners Loan Corporation for appellants. This attorney was the agent of appellants and the knowledge of such agent and his acts, within the scope of his authority imputable to and binding on them. Great American Indemnity Co. v. Dabney, Tex.Civ.App., 128 S.W.2d 496.

The appellants assail as error the action of the court in excluding the testimony of R. R. Eakin to the effect that “The South Plains Funnier” was not a newspaper of general circulation published in Lubbock County. Article 3808 ®f the Revised Civil Statutes provides that the sale of real estate under order of sale shall be advertised “by having the notice thereof published in the English language once a week for three consecutive weeks preceding such sale, in some newspaper published in said county”. It will be observed that the statute does not require that the notice of such sale be published in a newspaper of general circulation and this article was so construed in Saylors et al. v. Wood et al., Tex.Civ.App., 120 S.W.2d 835, writ granted on another point. The record shows that “The South Plains Farmer” is a newspaper published in Lubbock County by the Avalanche Journal Publishing Company; that it had been published continuously for more than fifty-two consecutive weeks prior to the first insertion of the notice of the sale under consideration. The notice was published in the English language within the time required by law. It is not claimed that any fraud was perpetrated by the sheriff in selecting this newspaper. It is not shown that the witness had ever engaged in the publication of a newspaper or in the circulation of one or that he knew what would constitute a newspaper of general circulation and, in our opinion, he was not qualified to testify but had he been permitted to state that in his opinion “The South Plains Farmer’’ was not a newspaper of general circulation in that county it would not have invalidated the publication of the notice or the sale, since general circulation, whatever it may mean, is not required by law.

The court did not err in excluding the petition that appellants filed in Cause No. 7285 on June 12, 1937, which was dismissed December, 1937, since H. C. Glenn had sold the property to Mr. Vaughn Power on February 15, 1937, before the institution of such suit and it could not have constituted notice to Mr. Power. It was not error to refuse to admit in evidence the second order of sale issued out of the District Court of Bell County since the property was never sold thereunder. The contention that the sheriff should have sold the non-homestead property before placing the homestead property on sale is not tenable. The decree was an agreed judgment and foreclosed the lien on the property as a whole. The record indicates that there was a valid debt against the homestead and no tender of the amount secured by such valid lien was made. Floyd v. Hammond, Tex.Com.App., 268 S.W. 146.

There is in the record testimony to the effect that the property at the time of the execution sale had a market value of from $4,000 to $5,000. The property was purchased at the sale for $1,500 subject to taxes for $223.36 and the cost of paving, $281.15, or an aggregate of $2,-004.51, but this difference with the irregularities shown do not, we think, invalidate the sale where the attack on the proceeding is collateral.

What we have said we think sufficient to dispose of all the assignments urged. The judgment is therefore affirmed.