author: GRISSOM, Justice.

text:
    CALLIHAN v. WHITE.
    No. 1996.
    Court of Civil Appeals of Texas. Eastland.
    March 29, 1940

      Blanton & Blanton, of Albany, for appellant.
    Floyd Jones, of Breckenridge, for appel-lee.
   GRISSOM, Justice.

C. A. White sued J. F. Jacobs and George Callihan for the title and possession of 1,010 feet of 6⅝ inch pipe, or, in the alternative, for damages for the conversion thereof. Plaintiff alleged substantially as follows: That on March 3, 1936, White entered into a written contract with Jacobs whereby White rented to Jacobs said pipe for a period of 25 days for a consideration of 16‡ per foot, and wherein Jacobs was granted an option to purchase said pipe, within 25 days from March 3, 1936, at a price of 65‡ per foot. It was alleged that said contract further provided for the payment by Jacobs to White of $75 on or before March 7, 1936, to guarantee the expense of returning said pipe to White; that the contract provided in the event Jacobs exercised his option to purchase said pipe within 25 days, the rental paid, to-wit, $160, (which according to the contract should have been $161.60) would be applied on the purchase price. That the pipe was delivered to Jacobs and he paid White the sum of $160 covering the rental for 25 days; “That thereafter the said defendant paid the sum of Fifty ($50.00) Dollars on account. The said sum of Fifty ($50.00) Dollars was paid to the plaintiff by the defendant to guarantee the return of said pipe or casing, which'said amount was to cover trucking charges.” White further alleged that Jacobs failed to exercise his option to purchase the pipe and failed to return the pipe to plaintiff at Breckenridge. Plaintiff sued for the title and possession of the pipe.

In the alternative, plaintiff alleged the pipe was rented to Jacobs under the terms and provisions of the written contract attached to plaintiff’s petition and made a part thereof, and that Jacobs “agreed to pay the sum of sixty-five cents (65‡) per foot for the said pipe or the sum of $656”, and to return the pipe free.and clear of liens and in good condition and to pay a reasonable price for any damage done to the pipe. “This plaintiff would show unto the court the said casing was worth the sum of 65^ per foot, and that the said price was reasonable and the usual price for such pipe at the time same was rented, and that the defendant has failed and refused to pay for the said pipe or any part thereof”, but that Jacobs had sold the casing to some unknown party and had refused to pay therefor, wherefore, plaintiff alleged, he should recover damages from Jacobs “by reason of the wrongful and unlawful taking and conversion of said property” in the sum of $775. Plaintiff alleged a contract on the part of Jacobs to pay reasonable attorney’s fees, which was alleged to be $250.

Plaintiff further alleged that “sometime after March 3, 1936 and prior to the time this cause of action was filed” Jacobs sold the pipe to Callihan, that it was converted by said defendants, that plaintiff had made demand upon both defendants for the “value” of said pipe converted by them; that its reasonable market value at the time and place of conversion by defendants was 75‡ per foot, or a total of $757.50.

Plaintiff prayed (1) that he have judgment against both defendants for the “right, title and possession and return” of said pipe to plaintiff at Breckenridge, and, in the alternative, (2) for judgment against Jacobs for the sum of $775, with interest at 6 per cent per annum, and for attorney’s fees in the amount of $250, and (3) against both defendants for the sum of $757.50 with interest from the date of the conversion, etc.

Plaintiff in said petition, and, more specifically, in a trial amendment, alleged that the provision in the contract between Jacobs and White “that the party of the second part is this day paying party of the first part the sum of $160 to apply on the purchase price” was a mutual mistake in that the said $160 represented a rental of 16⅜⅞ per foot upon said pipe, and that the $160 did not apply on the purchase price, unless and until Jacobs exercised his option to purchase said pipe within 25 days from the date of the contract, and that Jacobs failed to exercise his option.

The contract in question is as follows:

“This Agreement made and entered into in duplicate this 2nd day of March, 1936, by and between C. A. White of Stephens County, Texas, as first party, and J. F. Jacobs of McCulloch County, Texas, as second party,
“Witnesseth:
“First party by these presents for the consideration and covenants hereinafter named rents and lets to the second party the following described personal property, to-wit: 1010 feet 6⅝ inch pipe.
“Party of the first part warrants and represents that he is the lawful owner of the above described personal property and has good title thereto and the right to rent or sell the said property. Said party of the second part agrees to take the above described personal property in the condition in which the same is now in, and all the expenses in moving and making repairs that may be necessary for the use of the above described personal property shall be paid by the said second party, and when the terms of this agreement have been fully complied with, same shall become the absolute property of the second party; and in the event that the .conditions and agreement herein contained are not complied with to return the same to the first party at Breckenridge, Stephens County, Texas, in as good condition as when received, usual wear and tear and damages by the elements excepted. It is further understood and agreed that if it becomes necessary to collect the money through the hands of an attorney or through court proceedings that the second party agrees to pay a reasonable attorney’s fees and court costs. The consideration for the foregoing is as follows:
“The said second party agrees to pay to the first party for the use of the said above described personal property sixteen cents (16<f) per foot for the use of the said pipe as rental.
“Second party is drilling an oil and/or gas well on the following described property, to-wit: Block 26, College Addition Townsight to the City of Baird, Callahan Comity, Texas
“The party of the second part agrees to pay the said sixteen cents (-160) per foot for the rental of the said pipe, with the understanding that he has an option to purchase the said pipe within twenty-five days from the date of this contract at the price of sixty-five cents (650) per foot. The party of the second part is this day paying the party of the first part the sum of One Hundred Sixty ($160.00) Dollars to apply on purchase price, and Seventy-Five ($75.-00) on or before March 7, 1936. It is agreed and understood by and between the parties Of the contract that if the pipe is returned free and clear of all liens and claims of all persons whomsoever and in as good condition as when received, usual wear and tear excepted, that the party of the first part shall return the sum of Seventy-Five ($75.00) Dollars to the party of the second part as a refund covering the payment made this day.
“It is agreed and understood that if the said pipe is returned in a damaged condition then to pay the fair and reasonable damages to the same.
“Witness our hands at Breckenridge, Texas, this 3rd day of March, 1936.
“C. A. White
“First Party
“J. F. Jacobs
“Second Party.”

The contract was acknowledged before a notary by White and Jacobs.

The case was submitted to the jury upon two special issues: Special issue No. 1 was as follows: “Do you find from a preponderance of the evidence that it was mutually understood and agreed by and between C. A. White and J. F. Jacobs at the time the contract in question was entered into by and between the plaintiff, C. A. White, and the defendant, J. F. Jacobs, that- the $160 paid by the said J. F. Jacobs to the said C.. A. White was to be applied as rental on the pipe in question?” The jury answered the question, “Yes.” In answer to special issue No. 2, the jury found that the reasonable market value of said pipe on or about April 4, 1936, at Baird, Texas, was 600 per foot. Jacobs failed to appear and answer, and judgment by default was taken against him.

The defendant Callihan answered, among other things, that the above instrument constituted a conditional sale contract, and, in legal effect, a mortgage, governed by Art. 5489, R.S.1925; that the pipe was delivered to Jacobs and removed to Callahan County with the knowledge of White; that the contract was not recorded; that Callihan purchased the pipe from Jacobs; that he was an innocent purchaser for value without notice of White’s claim, and had paid Jacobs the market value of the pipe.

Upon the verdict the court rendered judgment for White against Callihan for $606 (evidently the value of the pipe at the time of its conversion, to-wit, 600 per foot, as found by the jury), and a judgment against Jacobs for the sum of $656.-50. However, the court found that Jacobs was entitled to a credit of $33.50 (evidently a part of the $50 paid by Jacobs to White about March 7, 1936, plaintiff having testified that the balance of said $50 payment was applied by him, in accordance with an agreement with Jacobs, to an account Jacobs owed White), leaving a judgment against Jacobs for the sum of $623.

The defendant Callihan has appealed.

Callihan objected to, special issue No. 1, (2) “for the reason that the issue as drawn would allow the jury to alter the terms of a written contract without first having found that there was a mutual mistake in the execution of said contract”, and (5) “for the reason- that it does not properly charge upon the ultimate issue of fact to be decided by the jury, which is whether or not there was a mutual mistake by the parties to the contract in the execution thereof.”

Callihan requested special issues- inquiring (1) whether the inclusion in the con-, tract of the provision “the party of the second part is this day paying the party of the first part the sum of $160, to apply on purchase price, and $75.00 on or before March 7, 1936”, was a mutual mistake on the part of White and Jacobs, and (2) whether White acquiesced in the inclusion of said provision in the contract. Said issues were refused.

We are of the opinion, as contended by Callihan, that the answer of the jury to special issue No. 1 does not constitute a finding of mutual mistake. We are further of the opinion that plaintiff’s testimony that Jacobs directed, in White’s presence, the insertion of said clause in the contract, and that thereafter White signed thé contract, affirmatively shows that the insertion of the provision in the contract was not a mutual mistake.

In Sun Oil Co. v. Bennett, 125 Tex. 540, 84 S.W.2d 447, 450, the question was whether or not the description of a 2.59 acre tract in a lease was included 'therein by mutual mistake. The issue submitted to the jury was: “Do you find, from a preponderance of the evidence that it was mutually intended and agreed between Malinda Schuyler and J. H. Liles that the lease which was executed by Malinda Schuyler and Horace Schuyler in favor of the Sun Oil Company should cover and aifect the 2.59 acre tract in question ?” The issue was answered “No.” Bennett contended that the answer to the issue was tantamount to a finding that the inclusion of the tract within the lease was the result of a mutual mistake. The appellate courts held such answer was not a finding of mutual mistake, and did not authorize reformation of the lease. The Supreme Court said: “Since the issue submitted and answered is not a finding of mutual mistake, it cannot support the judgment rendered by the trial court * *

That court further said:

“For another reason, it is our opinion that the issue and answer do not constitute a finding of mutual mistake which could serve as the basis for the reformation of the lease. 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. * * *
“The question submitted to the jury was whether it found from a preponderance of the evidence that the parties mutually intended and agreed that the lease should- cover and affect the tract in controversy. This is not a submission of the true issue, namely, whether the clause of the lease with respect to adjoining land was embodied in the instrument through mutual mistake. The jury’s answer means either that it invaded the province of the court and determined the intention and agreement of the parties by construing the lease or that, without finding that the clause appeared in the lease through mutual mistake, it merely undertook to determine from all of the evidence in the case what the parties intended and agreed. However the issue and answer are viewed, they cannot reasonably be construed as equivalent to a finding that the language manifesting the -intention to include adjoining land was incorporated in the lease as the result of a mutual mistake of the parties.”

Also, see Jones v. Sun Oil Co., Tex.Civ. App., 110 S.W.2d 80, writ refused; Gano v. Palo Pinto County, 71 Tex. 99, 8 S.W. 634; Waco Tap R. Co. v. Shirley, 45 Tex. 355, 377; Clemmens v. Kennedy, Tex.Civ. App., 68 S.W.2d 321, 323, writ refused; Dalton v. Dalton, Tex.Civ.App., 143 S.W. 241.

We think it is evident that the ultimate issue, to-wit, whether the provision in question was inserted in the contract by mutual mistake of the parties, was not submitted to the jury. We are further of the opinion that the evidence shows such provision was not inserted in the instrument by mutual mistake. The judgment finds no support in the jury’s answer to special .issue No. 1.

The defendant Callihan contends, in substance, that under plaintiff’s pleadings, if sustained by the evidence, he could obtain from the court one of three inconsistent types of relief: (1) An award of title to and possession of the casing, (2) an award against the defendant Jacobs of damages for breach of contract for the contract price of the casing and attorney’s fees under the contract, (such a judgment, however, must necessarily be based upon the theory that Jacobs exercised his option to purchase the pipe, or that there was a sale to Jacobs, independent of any question of Jacobs’ exercise of his option. It would necessarily rest upon a finding of title in Jacobs and preclude any recovery against Callihan), (3) an award against both defendants in trover for the reasonable market value of the casing at the time of the conversion. Said defendant contends that the judgment gives plaintiff two of the three inconsistent types of relief, to-wit: an award of damages against Jacobs for breach of contract for the contract price of the casing, minus a credit, and an award against Callihan in trover for the reasonable market value of the casing as found by the jury. That if plaintiff obtained a judgment against Jacobs for the contract price of the casing, he must treat the sale to Jacobs as complete and, of course, if title passed from Whjte to Jacobs, Callihan is not guilty of conversion. We Agree with the latter proposition. Plaintiff’s pleading and evidence treat the conversion by Calli-han and Jacobs as occurring at the time of the sale by Jacobs to Callihan of the pipe in question. ' The jury has found, in answer to special issue No. 2, that the value of the casing at that time was 604 per foot, or $606. The judgment against Calli-han is for $606. The judgment against Jacobs is for $656.50, minus a credit of $33.50, heretofore mentioned, leaving a balance of $623. The judgment against Jacobs for $656.50 is evidently based upon the cost of the casing at 654 per foot, the amount agreed to be paid by Jacobs to White in the event Jacobs exercised his option to purchase the pipe. If Jacobs exercised such option and purchased the pipe, Callihan acquired it from the person holding title thereto, and is not guilty of conversion. If the judgment should be against the defendants for conversion, then since under the pleadings and evidence, if converted, it appears to have been converted by both at the same time, the judgment should be against them, jointly and severally, for the same amount, and the money left by Jacobs with White to pay the expenses of returning the pipe to White should have been entered as a credit on the judgment against each of the defendants. Under a judgment against such defendants for conversion, a payment by either of them of $606, less such credit, would, at least so far as plaintiff is concerned, constitute a payment of the judgment against the other defendant.

We construe the contract-to mean, insofar as is here material, that White for a consideration of $160 then paid, rented the casing to Jacobs for 25 days; that Jacobs had an option within 25 days to purchase said casing at 65 4 per foot; that in the event Jacobs did so exercise said option the rental payment of $160 should be credited upon the purchase price. With reference to the provision of payment of an additional $75 ($50 was actually paid) on or before March 7, 1936, we think it is plain such payment was intended to operate as a guaranty of the payment of expenses incident to the return of the pipe to White at Breckenridge, if Jacobs did not purchase it under his option.

We are further of the opinion that there is no evidence that Jacobs exercised his option to purchase, or ever acquired title to the casing. The letters from White’s attorney to Jacobs were simply an offer to enter into a new contract. It is undisputed that Jacobs sold the casing to Callihan April 4, 1936. The jury has found the value of the casing at that time to be $606. ' Jacobs’ possession being by .virtue alone of the rental contract, regardless of Callihan’s good faith and the fact that he paid the market price for the casing, he can not avoid liability as an innocent purchaser.

We, therefore, conclude the judgment should be and -it is hereby modified so that White shall have and recover -of and from Jacobs and Callihan, jointly and severally; the sum of $572.50, with interest at 6% per annum, as to Jacobs from April 4, 1936, and as to Callihan from January 16, 1939 (the date this suit was instituted against Callihan). Fidelity Union Ins. Co. v. Hutchins, Tex.Civ.App., 111 S. W.2d 292, 300.

As so modified, the judgment is affirmed, but the costs of the appeal are taxed against the plaintiff White.

Modified and affirmed.


source: Caselaw Access Project

author: LESLIE, Chief Justice.

license: Public Domain

text:
    MURPHY v. CITY OF ROTAN.
    No. 1993.
    Court of Civil Appeals of Texas. Eastland.
    March 29, 1940.
    Rehearing Denied April 19, 1940.

      Smith & Smith, of Anson, for appellant.
    T. J. McMahon, of Abilene, Morris Watson, of Rotan, and Roy Formway, of Roby, for appellee.
   LESLIE, Chief Justice.

Artis Murphy, a minor by next friend, filed this suit against the City of Rotan, a municipal corporation, to recover damages for the loss of “his left hand, except a portion of two fingers.” He alleges the injuries to be the proximate result of defendant’s negligence in storing dynamite caps in the city hall. He alleges the city was guilty of “actual as well as passive negligence in permitting said dynamite caps to be left open and unguarded *, * * and that the appellee’s officers, agents and employees knew * * * or could have known by the exercise of ordinary care of the danger incident to leaving such dangerous explosive substance as dynamite caps exposed and unguarded in a public place and in the public city hall where ap-pellee, its officers, agents and employees knew * * * or could have known by the exercise of ordinary care that the school boys of the town had access to said city hall for the purpose of getting the daily newspapers each day to be delivered over the town, and that the appellee, its officers, agents and employees knew *• * * or could have anticipated the danger or harm that would result from leaving dangerous explosive substance as dynamite caps in said public hall which was daily visited by school boys who were going in and out of said public hall at the time said dangerous instruments were so exposed, etc.”

The appellee answered by general demurrer, general denial, and among other defenses specially alleged contributory negligence as well as an intervening independent cause, relieving the appellee from responsibility, in that the dynamite caps were taken from the city hall unlawfully or by theft, etc.

The trial was before the court and jury and at the close of the plaintiff’s testimony the court sustained the defendant’s motion for an instructed verdict. A judgment was entered accordingly, motion for new trial was overruled and the plaintiff appeals.

Said action of the trial court is assigned as error.

The facts in evidence necessary to reflect the reasons for our conclusions will be stated in substance:

Artis Murphy, the injured minor, was 17 years of age at the date of this unfortunate occurrence on January 28, 1938. He was a member of the senior 'class of the Rotan high school at the 1937-1938 term, and in daily attendance on its sessions. He uniformly made his grades and graduated at the end of that term. The accident occurred in the study hall on the third floor of the building about 11:15 or 11:18 a. m. Murphy testified that “in going from the English class that morning to the stairway that led up” he found a “brass cap”; that it “looked like a 22 special cartridge that had fired — bigger than a 22 cartridge.” That he had not seen one before and “did not know what it was.” That he “found it under a locker where Don [Knott] was; it was about 12 feet from the stairway * * * up to the third floor.” That Don (who had taken five dynamite caps at the city hall) was “at his locker at that time putting some books in or taking some out.” That Don’s locker was “about four feet high.” That there was another locker “under his (Don’s) locker down nearer the floor than” Don’s; that “with reference to where Don was standing” the cap “was just off to one side, just a little bit.” "Q. Did you see it fall there or drop there ? A. No, I had to reach down under his feet to get it.”

The appellant further testified that on picking up the cap, he said nothing about it but took it to the study hall where he showed it to a cousin who wanted it, but from whom he (appellant) “took it * * * before it went off.” “Q. Now, how long after you got in the study hall before you began to fool with this brass cap ? A. Just as soon as I got seated I began fooling with it.” That he “was seeing what was in it; examining it” with a hair pin which he had gotten “from a girl in front”; that the cap was about one third full of something “like chalk.” • That he removed some of it from the cap; that he had no “idea there was any danger to it.” That no one told him what it was. That he “had been fooling with it” when it exploded “but a short while”; that it exploded with the injurious effects above stated.

On cross-examination the appellant testified further that when he picked the cap up he “did not hear it drop.” That when he “first saw it, it was on the floor.” That “it happened that Don Knott was there putting his books up or taking them out of the locker.” “Q. You don’t tell the jury that Don Knott dropped it do you? A. No, I don’t know for sure that Don dropped it.” Appellant also- stated to Mr. Little, a teacher, that he found the cap “under a locker.”

The following stipulation was entered into between the parties with respect to the witness, J. D. Corhn. “It is agreed by the parties that J. D. Corhn, if present and testifying, would testify that he sold the city of Rotan dynamite and dynamite caps during the time that they had the Works Progress going on and that he was paid by the Secretary Mr. [T. B.] Knott, and that he is the only dealer in Rotan that handles dynamite and dynamite caps so far as he knows and that he sold dynamite and dynamite caps to others in and around Rotan, desiring same at or about the same time."

T. B. Knott was the father of witness Don Knott, and also secretary of the Rotan city council with office in the city hall where the explosives are alleged to have been kept for the convenience of those engaged in the construction of a municipal swimming pool with the aid and supervision of the Works Progress Administration.

Don Knott, called as a witness by the appellant, testified that at the time of the accident he was 16 years old, a junior in the local high school, boy scout, etc. That he was in the study hall at the time of the accident;- that before that time he had a dynamite cap in his possession; that at first he did not know what the cap was, but found out what it was before the explosion ; that he saw them in a tin box “on a drawing table” at the- city hall about a month before the accident, or sometime from December 1 to December 15. That he got some dynamite caps “out of an office at the city hall”, taking them off a “drawing table” (engineer’s). That he got some of them out of a cabinet in a “back room.” That these were in a “tin box with lid on” and were not open to view as they were behind a-“wooden handle on each side of the cabinet.” “Q. Now, did you ever see a box with those little brass or copper colored caps in any other room in there, except the room where that drawing table was in? A. . No, sir.”

The witness testified that on the first occasion he took four caps from the desk— “the drawing table.” This was about December “before Christmas.” That no one saw him take the caps; that no one knew he had done so, and no one had given him permission to take them. That the caps and fuse had a monetary value at the time he took them.

Soon after taking the caps the witness told Otto Hull, another school boy, that he had taken them, and he gave Hull one of the four caps. Sometime before Christmas the witness talked to Royce Huckaby, another school boy who had clerked in Corhn’s hardware store, and Huckaby told him they were dynamite caps. The witness did not remember for certain that Huck-aby told him 'how to explode the caps, but' that he (the witness) soon found that out.

After this witness (Knott) learned that these objects were dynamite caps he got some regular dynamite fuse with which to explode “the remaining caps.” That he got this fuse from the back room at the city hall out of a shelf under a desk. This, too, was without the knowledge or consent of anyone. That he exploded one of the dynamite caps with a fire cracker and one of the remaining caps with the fuse, and then had only one of the original caps left, having given the third to Otto Hull. However, according to his testimony, when he went back to get the fuse he took one more cap, making five in all — the only caps he ever took, according to his testimony. This last cap he took from a closed box and knew what he was taking when he did so. At the time of the accident this witness had two caps in his pocket, one of the four originally taken, and the one taken with the fuse. Otto Hull had another of the original four. In part the witness, Don Knott, further testified:

“Q. When the explosion occurred * * * what did you do with the two you had in your pocket? A. I first looked to see if I had them.
“Q. Did you find them? A. Yes sir. * * *
“Q. What did you finally do with them? A. I buried them.
“Q. Where did you bury them ? A. In our back yard.
“Q. You never did have any other dyr namite caps except the four that you took from the desk on one occasion and the one you took from the cabinet on another occasion? A. That is all.
“Q. Five dynamite caps are all that you ever had? A. Yes sir.
“Q. You exploded two of them? A. Yes sir.
“Q. Gave one to Ótto Hull? A. Yes.
“Q. And buried two of them? A. Yes.
“Q. Did you lose any of them, Don? A. No sir.
“Q. When you took the additional dynamite cap, when you went back to get the fuse, were they exposed to public view? A. No sir. * * *
“Q. You are positive, though, that you didn’t lose any caps that you took out of the city hall? A. Yes sir.”

Otto Hull, also offered as a witness by appellant, corroborated the testimony of Don Knott to the effect that sometime before Christmas of that school year he obtained one dynamite cap from said Knott; that he had it in his possession, and immediately threw it away after the accident in the study hall. That he never took any caps from the city hall, nor did he see any of the other boys take caps therefrom. That about two weeks after getting the cap from Don Knott he learned from Don what the cap was and that he gained this information before the accident. That of the four boys who delivered papers from the city hall, witness never saw anyone but Don Knott with dynamite caps. The witness was positive as to the time and place where he disposed of the cap given him by Don.

Royce Huckaby, a high school boy at the time of the accident, was introduced as a witness by appellant and testified that he had been a clerk in Corhn’s hardware store, knew what the dynamite caps were and had sold them in the regular course of business.

We have given careful consideration to the testimony in this record and set out the controlling features of the same. From whatever viewpoint considered, we are driven to the conclusion that the testimony utterly fails to show that the dynamite cap (which exploded resulting in appellant’s injury) was ever stored at the city hall, or ever came from that building. In the light of the testimony detailed, it would be mere guess work or speculation to say that the dynamite cap which exploded in the appellant’s hand was ever owned, in charge of, or controlled by the city authorities of Rotan, Texas, or even the agents of the Works Progress Administration engaged in the construction of the swimming pool, or other public works in and about the city. The evidence does not show that any negligence of the city caused the injury and much less does it show such negligence, if any, to be the proximate cause of the injury.

The mere fact that the dynamite cap which exploded and injured the appellant was found on the floor near the locker of Don Knott does not make out a case of negligence against the city on any of the alleged grounds presented by the pleadings. This witness (Knott) was introduced by the appellant who vouched for his testimony. He admitted that he had, without the knowledge or consent of anyone, acquired five dynamite caps from the city hall, but in that same testimony he accounted for each of the five caps. It will not do to say that the witness Don Knott told the truth when he said he took five caps from the city hall, but did not tell the truth when he testified as to the disposition he made of each of these caps. Indeed there is nothing but a suspicion or surmise that the exploded dynamite cap ever came from the city hall, or from the possession of the witness Don Knott. In that condition of the testimony, the trial court correctly instructed the verdict.

It will be observed that Don Knott, appellant’s main witness, the appellant himself, and others called to testify, were not at the time of the accident small children lacking in discretion. Certainly there was neither allegation nor proof of extreme youth or incapacity on the part of Don Knott tending to alter the legal effect of the tort involved in his acquisition of the dynamite caps. Neither was there any testimony to establish tender yeárs or immaturity on the part of the appellant Artis Murphy. As stated, however, the evidence establishes the intelligence and responsibility of these apparently young men. Hence, the doctrine of the turn-table cases, or the attractive nuisance doctrine has no application under the undisputed testimony reflected by this record.

Further, if it be assumed (1) that the city of Rotan was negligent in storing and guarding the dynamite caps and thus permitting one to come- into the possession of Don Knott, and (2) that he caused it to come into the possession of the appellant (which assumption is not supported by the testimony) it is undisputed that he, Knott, was a young man 'of intelligence and fully capable of realizing the turpitude involved in taking the property of another under such circumstances as to bring the act within the classification of theft. That was a tort constituting a new and independent cause intervening between the negligence, if any, of the city, and it broke the causal connection between such negligence (alleged and assumed) and the injuries sustained by the appellant as the re-, suit of the explosion, and for this reason the instructed verdict was also correct upon the hypothesis under consideration. It was not incumbent upon the city by virtue of any legal duty to have anticipated as reasonable and likely to happen that some individual with Don Knott’s intelligence and maturity would take the caps from the city hall under the facts of this case, arid by some means (not shown by any testimony) cause one to come into the possession of the appellant. Hence, the independent and intervening cause which was conclusively shown.

These propositions would seem to be elementary. However, in Hale v. Pacific Tel. Co., 42 Cal.App. 55, 183 P. 280, the Supreme Court held, “Where a boy surreptitiously entered the storehouse of a telephone company and took dynamite caps, knowing the turpitude of his act, and gave such caps to another boy, who exploded one in a toy pistol and was injured, the telephone company was not liable; the independent act of the boy who took the caps having been the proximate cause of the injury.”

Also, from Bottorff v. South Construction Co., 184 Ind. 221, 110 N.E. 977, we have the following holding: “Where a 14 year old boy entered the premises of defendant company and removed- therefrom dynamite caps and gave them to plaintiff and plaintiff was injured, the proximate cause of his injury was the tort of the infant, in the absence of any -allegation or proof of his incapacity.” (Italics ours.)

The opinion of the Supreme Court of Massachusetts in Horan v. Town of Watertown, 217 Mass. 185, 104 N.E. 464, 465, is very enlightening on this contention. In that case a group of boys, six or seven to fourteen years of age, took several sticks of dynamite out of a tool box of another at different-times and threw them upon a fire and as a result the plaintiff was badly burned by an explosion. In passing upon the issue of negligence in the case that court said:

“The rule applicable to such cases is well-settled by our decisions. Whe,re as here the original negligence of the defendant is followed by the independent act of third persons which directly results in injurious cori-sequences to the plaintiff, the defendant’s earlier negligence may be found to be the direct and proximate cause of those injurious consequences, if according to human experience and in the natural and ordinary course of events the defendant ought to have seen the intervening act was likely to happen. But if this is not the case, if the intervening act which was the immediate cause of the injury complained of was one which it was not incumbent upon the defendant to have anticipated as reasonably likely to happen, even though a high degree of caution would have shown him that it was possible, then he owed no duty to the plaintiff to anticipate such further acts, the chain of causation is broken and the original negligence cannot be said to have been the proximate cause of the final injury [citing cases]. * * *
“Tested by this rule, the plaintiff’s case fails. While the dynamite and the other contents of the box were left in such way that a thief might not find it very difficult to steal them, it cannot be said that the defendant was bound to anticipate that.this might be done and to guard against the consequences that might follow if a thief should steal the dynamite and so use it as to do injury to others. The general presumption of innocence would be inconsistent with this.”

Upon this phase of the case, see 25 C.J. 187; Dudley & Orr v. Hawkins, Tex.Civ. App., 183 S.W. 776.

The appellant cites a number of authorities in support of the assignment which he presents. These authorities deal with cases in which the injured party was a person of tender years and lacking in discretion, etc. That is the prominent and controlling element in those cases, as we view it,'rendering them inapplicable to the facts of the instant case. The opinion will not be prolonged by a discussion of these authorities.

For the reason assigned the judgment of the trial court is affirmed.


author: TIREY, Justice.

text:
    BARLOW v. BARLOW.
    No. 2203.
    Court of Civil Appeals of Texas. Waco.
    April 4, 1940.
    Lovett, Lovett & Ralston and J. S. Sim-kins, all of Corsicana, for appellant.
    Richard & A. P. Mays, of Corsicana, for appellee.
   TIREY, Justice.

Plaintiff, Mrs. Freda Barlow, adminis-tratrix of the estate of Thomas M. Barlow, deceased, her husband, brought this suit against Mrs. C. P. Barlow, a feme sole, mother of the deceased, for the possession of three and three-fourths shares of the capital stock of The First National Bank of Kerens, Texas. The parties will be here designated as in the trial court. Plaintiff alleged that her husband was the legal owner of the shares of stock at the time of his death. The defendant defended on the ground that she was in truth and in fact the owner of the stock, and, in the alternative, that she held it as collateral security for the payment of a debt due her by the deceased. The case was tried to a jury, and, at the conclusion of the evidence, the court peremptorily instructed the jury to return a verdjct for the defendant. Said instruction has been assigned as error.

Plaintiff called 'the defendant as her first witness and developed from her on direct examination the following facts: (a) that the stock in question at the time of the death of deceased was on the books of the bank in question in the name of the deceased ; (b) that at the time of his death the stock certificates were in the writing desk of the defendant; (.c) that deceased kept no papers in.defendant’s writing desk; (d) that the three and three-fourths shares of stock had been in the defendant’s writing desk since the bank merger; (e) that .the certificate of the three and three-fourths shares of stock in question left the defendant’s possession one time, after the bank merger. The defendant, on cross-examination by her counsel, testified that the certificate of the three and three-fourths shares of stock was returned to her “by the same hands to whom it was at first delivered.” The defendant further testified on cross-examination, over objection of plaintiff, that her deceased son, in January, 1929, became indebted to The First National Bank of Corsicana in the amount of $1,500; that this indebtedness was evidenced. by a note that became due November 1, 1929; that attached to her son’s note was the pledge agreement reciting that certificate No. 194 for 17 shares of stock in The Kerens National Bank, of Kerens, Texas, issued to Tom M. Barlow, had been pledged to secure the payment of said note. Certificate No. 194 for 17 shares aforesaid was attached to said note. Said stock certificate was endorsed in blank on the back thereof by Tom M. Barlow. On November 4, 1929, Tom M. Barlow drew a voucher in favor of The First National Bank, of Corsicana for $1,600.67 on The Kerens National Bank of Kerens, Texas, and signed Mrs. F. E. Barlow by T. M. B. Mrs. F. F. Barlow was the same person as the defendant. The defendant testified that her son arranged with her to pay the note in question and that the note and the pledge agreement and the stock certificate for the 17 shares pledged to secure the payment of the note had been delivered, to her by her son and that he had never repaid said indebtedness to her. The three and three-fourths shares of stock in The First National Bank of Kerens, Texas, were issued on the 31st day of July, 1935. The evidence further discloses that “The Kerens National Bank,” of Kerens, Texas (this being the bank in which Tom M. Barlow held the 17 shares of stock) merged with The First National Bank of Kerens in January, 1933. After the merger, the new bank was known as “The First National Bank of Kerens, Texas.” In March of 1933, five and three-fourths shares of stock in “The First National Bank of Kerens, Texas,” were issued and delivered to T. M. Barlow in one certificate. In July of 1935, the bank issued one certificate for three and three-fourths shares and another certificate for two shares in the name of T. M. Barlow. The -plaintiff’s testimony disclosed that the certificate for the two shares of stock was later pledged by the said T. M. Barlow to the Presbyterian Missionary Society to secure a loan for approximately $200, and that after the death of T. M. Barlow, said two shares so pledged were sold and the proceeds of the same applied to the payment of the debt to said Society; that defendant made no objection to the sale of the two'shares of bank stock, and that the sale was made by the plaintiff. The evidence further showed that the dividends _ on the stock after the bank merger were paid direct to the said T. M. Barlow as long as he lived. In July of 1935, T. M. Barlow obtained a loan 'from the State National Bank of Corsicana for the sum of $125. This debt was due September 15, 1935; the note was signed by T. M. Barlow and his brother, H. C. Barlow, and attached to the note was the stock certificate for the three and three-fourths shares of stock in question as collateral security. That debt was paid September 21, 1935. Mrs. Freda Barlow, the plaintiff, testified on direct examination that she saw the certificate of the three and three-fourths shares of stock in the family box in Joe Sheppard’s office twice before T. M. Barlow’s death; that the stock certificate was not in the box after his death, and that she next saw the stock.certificate in the home of the defendant; that she .did not know who took the stock certificate ■out of the family box in Joe Sheppard’s office and carried it to the home of the defendant. She further testified that when the dividends were paid on the stock to her husband, that she and / her husband went to the bank and that her husband gave her one-half of the dividends. The defendant’s son, H. C. Barlow, testified that his brother gave the stock in question to his mother in order to get her to pay his original indebtedness of $1,500 and interest to The First National Bank of Corsicana back in 1929.

In determining the propriety of the court’s action in giving the peremptory instruction in favor of the defendant, we can only consider the evidence tending to support the material allegations of the appellant’s petition, wholly disregarding that which is opposed to it or contradictory in its nature. Anchor v. Gose, Tex.Civ.App., 8 S.W.2d 690; Wininger v. Ft. Worth & D. C. Ry. Co., 105 Tex. 56, 143 S.W. 1150. The question therefore arises, first, does the evidence raise a fact issue of ownership of the three and three-fourths shares of stock in the estate of deceased, and second, if the stock in question belonged to the estate of deceased, whether or not the defendant was holding it as collateral security for the $1,500 note which she paid for T. M. Barlow in 1929? The foregoing questions have given us some concern and we have studied the testimony introduced very carefully. This record is uncontra-dicted that Tom Barlow acquired the 17 shares of bank stock in June, 1924. He pledged it as collateral security for a debt in January, 1929, and the defendant paid this debt for her son in November, 1929. It appears that when the banks merged in January, 1933, that the consolidated bank issued and delivered to T. M. Barlow five and three-fourths shares of stock. Thereafter, in- July, 1935, the consolidated bank apparently took up the old stock certificate for five and three-fourths shares and issued two new certificates, one for two shares and the other for three and three-fourths shares. T. M. Barlow pledged the certificate for two shares of stock to a church society to secure his debt to it and after his death, this certificate was sold by the plaintiff and the proceeds applied to the payment of the debt. There is no evidence that the defendant made any objection to the sale of same nor the application of the proceeds thereof to the payment of the debt for which it was pledged. Moreover, Tom Barlow, in July, 1935, pledged the certificate to the three and three-fourths shares of stock in question to the State National Bank of Corsicana to secure a loan of $125. In addition thereto, the plaintiff testified thát she saw the' certificate to the three and three-fourths shares in a family box at Joe Sheppard’s store twice before her husband’s death and did not see the stock certificate in the family box after his death, but did see the stock certificate in the home of the defendant after her husband’s death. Surely, the above testimony was sufficient to raise a fact question of ownership of the stock in question. We think that this evidence raises the fact issue that T. iM. Barlow was exercising dominion and control over the certificate of stock in question up until the time of his death, because the evidence is uncon-troverted that the stock was on the books of the bank in his name and that he had been receiving and using the dividends paid thereon. In the case of Joske v. Irvine, 91 Tex. 574, 44 S.W. 1059, point page 1063, the Supreme Court said: “To authorize the court to take the question from the jury, the evidence must be of such a character that there is no room for ordinary minds to differ as to the conclusion to be drawn from it.”

Under the above rule, the plaintiff was entitled to go to the jury on the question of whether or not the stock in truth and in fact belonged to T. M. Barlow at the date of his death. Of course, it is true that if the defendant was holding the stock as collateral security for the debt that she paid for her son in 1929, such fact, if true, would give her the right to retain possession of the stock until her debt was paid, even though her debt was barred by limitation. See Central National Bank v. Latham & Co., Tex.Civ.App., 22 S.W.2d 765, point page 768, writ dismissed; Harde v. Germania Life.Ins. Co., Tex.Civ.App., 153 S.W. 666, point page 670; Jasper State Bank v. Braswell, 130 Tex. 549, 111 S.W.2d 1079, point page 1081, 115 A.L.R. 329. However, we think that the question of whether or not the defendant held the stock in question as collateral security under the evidence was a question of fact to be submitted to ,the jury. For these reasons, we think the court erred in giving the peremptory instruction and that this cause will have to be reversed.

Appellant has assigned as error the cross-examination of the defendant by her attorney as to her transactions with her son because same are in Violation of the provisions of Article 3716 of our Revised Statutes'. The plaintiff called the defendr-ant to the witness stand, which she had a right to do, and interrogated the defendant on direct examination about possession of the bank stock in question (1) as to where she kept it; (2) as to the length of time she had it; (3) as to the date of the merger of the banks; and (4) after the shares of stock came into her possession, after the merger, as to whether or not they ev.er left her possession. It would serve no useful purpose to discuss this matter at length, but we have considered it very carefully and have concluded that the testimony adduced on cross-examination of the defendant was so related to the facts elicited by plaintiff on direct examination as to bring it within the exception of Article 3716, supra. See Ramirez v. Sanchez, Tex.Civ.App., 97 S.W.2d 1034, point page 1038; Ramirez v. Vela, Tex.Cix.App., 102 S.W.2d 447, point page 449, writ dismissed.

It is true that plaintiff made the defendant her witness, but under Article 3769c of Vernon's Ann.Civ.St., the jury had the right to disregard the testimony of the defendant in toto. See Schumacher v. Missouri Pacific Transportation Co., Tex.Civ. App., 116 S.W.2d 1136. The court erred in giving the directed verdict, and, for that reason, the judgment of the trial court is reversed and the cause is remanded.