author: BAUGH, Justice.

text:
    RAILROAD COMMISSION et al. v. STEPHENS.
    No. 9001.
    Court of Civil Appeals of Texas. Austin.
    Jan. 29, 1941.
    Rehearing Denied Feb. 19, 1941.
    Gerald C. Mann, Atty. Gen., and Tom D. Rowell, Asst. Atty. Gen., for appellant.
    James S. Grisham, of Tyler, and Harry S. Pollard, of Austin, for appellee.
   BAUGH, Justice.

This case arose as follows: On October 21, 1938, the District Court of Travis County entered a judgment in two consolidated suits, involving the legality of certain oil and' oil products, sought to be confiscated by the State, located in earthen pits A B C and D in the city of Gladewater in Gregg County, Texas. The trial court found that the oil in pits C and D was illegal oil, and that the oil in pits A and B was legal oil and the property of John M. Stephens, receiver. The court thereupon ordered confiscated and sold, as provided by law, all of the oil' in pits C and D; adjudged all of’the oil then in pits A and B to be lawful oil, and directed the Railroad Commission to issue tenders to the receiver for the sale thereof upon his compliance with the applicable rules and regulations of the Commission. The quantity of oil in pits A and B was, in said judgment, found to be approximately 57,050 barrels. This judgment was not appealed from. Pursuant to it the Railroad Commission, prior to October, 1939, issued tenders for the sale and removal from pits A and B of 57,050 barrels qf oil. • In October, 1939, there still remained in these pits a quantity of oil, estimated at approximately 26,750 barrels, for which the Railroad Commission refused to issue tenders, contending that all the oil in these pits on October 21, 1938, and covered by the judgment of that date, had already been removed, and consequently that the remaining oil here involved was not lawful oil.

Thereupon the receiver filed a motion in the original consolidated suit to require the Commission to show cause for its refusal to issue such tenders, alleging that the oil here involved was included in the original judgment of October 21, 1938; and that the refusal by the Commission to issue such tenders was in violation of that judgment. The motion was duly controverted on-the facts alleged, a full hearing had thereon, and the trial court ordered the Commission to issue such tenders, from which order this appeal is prosecuted.

In response to request duly made, the trial court filed findings of fact and conclusions of law. The appellant here contends that some of these fact findings are wholly without competent evidence to support them; and further that some of such findings are in such irreconcilable conflict with others that no judgment could be based thereon.

Appellee has filed a motion to dismiss the appeal, and urges same also in his brief, on the ground that the order appealed from is not a final appealable judgment ; but is merely the execution of the former judgment wherein the matters attempted to be reviewed on this, appeal have already been adjudicated.

It is true that appellee instituted this proceeding by motion filed in the original suit, on the ground that the subject matter had already been adjudicated; and the trial court found that said oil here in controversy was the same oil that was in pits A and B when the former judgment was rendered. But the State, in answer to appellee’s show cause motion, pleaded that said oil had been run into these' pits without legal authority to do so, since the final judgment of October 21, 1938, was rendered; and that it therefore was unlawful oil. If that were true, then the State could have brought an inde-’ pendent suit to condemn said oil, and the same issues could have been there tried as are here presented. And, if appellee’s motion to show cause be treated as “a supplemental bill seeking to carry into effect a final judgment theretofore entered,” an appeal from a judgment disposing of such plea would .lie. Holland v. Preston, 12 Tex.Civ.App. 585, 34 S.W. 975, writ refused; 3 Tex.Jur., § 74, p. 139. See also Voigtlander v. Brotze, 59 Tex. 286; Newman v. City of El Paso, Tex.Civ.App., 77 S.W.2d 721. Appellee’s motion partakes of the nature of an attempted levy of an execution on property asserted to have been included in a final judgment already rendered, wherein a party claiming an interest in such property, denies that such property" was included in the judgment, and a trial is had on that issue. In such case an order of the court thereon is appealable. 18 Tex.Jur. § 65, p. 608. Such an issue does not constitute an attack on the original judgment.

In the original judgment the "trial court found that these two pits had a total capacity of approximately 66,905 barrels; and that they then contained approximately 57,050 barrels of lawful oil. But he also found that all of the oil then contained in said pits was lawful oil, enjoined the Commission from interfering with the receiver’s sale and transportation of it, and ordered the oil removed from said earthen pits and placed in steel storage tanks.

In his findings in the trial upon the show cause motion, the trial court again found that since the judgment Of October 21, 1938, no additional oil had been placed in pits A and B; and that the oil here in controversy is the remaining portion and a part of the identical oil that was in said pits on October 21, 1938. He also found that the maximum capacity of the two pits, which had not meantime' been increased nor decreased, was approximately 66,905 barrels; that the total maximum amount of oil ever placed in said two pits was approximately 64,127 barrels; that the receiver had removed therefrom 57,-050 barrels of oil; and that there still remained therein approximately 26,739 barrels of oil.

It is the contention of the State that these findings are irreconcilably in conflict. That under such findings, these two pits with a total capacity of 66,905 actually must have contained on October 21,' 1938, 83,789 barrels of oil, or 19,662 more than the court found they would hold; and that it was impossible for there to remain in October, 1939, 26,739 barrels of oil after 57,050 barrels had been removed. Had there been no other findings, this contention would undoubtedly be correct, unless the term “approximately” as used by the trial court in his findings can be construed to cover a leeway of the 26,739 barrels difference.

Not only in the original findings filed herein, however, but in the amended and corrected findings subsequently filed, the trial court also found in substance that it was impossible to calculate within a reasonable degree of accuracy either the capacity of such earthen pits or the amount of oil in them, “as such calculations are subject to error and are approximations of the engineer only.”

These findings are attacked as being unsupported by the evidence in that with measurements made by the engineers the volume of fluid is merely a matter of calculation under fixed mathematical formulas. If all the measurements had been exact, and the physical contour lines of the sides and bottoms of the earthen pits in fact established, such fluid capacity or volume could of course have been accurately calculated. But this was not done. The calculations of the engineer were based, not upon an accurate survey of the bottoms of the pits, but upon soundings or measurements made at 10-foot intervals over the pit from the surface of the oil to where he found the bottom of the pit to be at these particular points. Such method, in an earthen pit with a varying and irregular bottom, must of necessity render possible errors dependent upon the variations encountered. One witness, who had emptied 20 or more of such earthen pits, after the fluid content thereof had been computed in this manner, testified that the quantity, of oil so moved, as established by actual measurement after removal, varied 10% to 30% from that calculated by the engineer upon the methods used in the instant case. Under such circumstances, we think, the amended or corrected findings relating to the “approximate” quantities indicated were justified and supported by the evidence; and in effect reconcile the conflicts that otherwise appear.

We do not, in the light of the other findings made, consider these discrepancies, or the calculations based upon insufficient measurements of the pits, as of controlling importance. In the original judgment of October 21, 1938, the trial court found that all of the oil then contained in pits A and B was not unlawful oil; that it belonged to the receiver; and that he was entitled to sell and remove it under the supervision of the Railroad Commission. This judgment became final and no attack has been made upon it. In the hearing on the show cause motion, the same court, upon ample evidence to sustain such finding, found that no additional oil had been placed in these pits since October 21, 1938; and that the oil here in controversy was a part of that same oil. Though tenders had been issued between October 21, 1938, and October 3, 1939, to move from these pits 57,050 barrels of oil, the trial court expressly declined to find how many barrels of oil had actually been removed from pits A and B “as no testimony on this point was introduced, either by the movant or by the Railroad Commission at the hearing on this motion.”

Under all the facts and circumstances, therefore, we conclude that there does not exist such irreconcilable conflict in the trial court’s findings that a judgment cannot be based thereon. It is settled law that where there are two findings of fact by court or jury, one of which will support a judgment for one party, while the other finding will require a judgment for the opposing party, such irreconcilable conflict exists that no judgment can be based thereon. Such findings nullify each other. Texas Motor Coaches v. Palmer, 132 Tex. 77, 121 S.W.2d 323; Ford Rent Co. v. Hughes, Tex.Civ.App., 90 S.W.2d 290; 41 Tex.Jur., § 361, p. 1226.

But it is equally well settled that findings as to ultimate facts will control those on merely evidentiary issues. 41 Tex.Jur. § 360, p. 1225. Here the court had found in its judgment of October 21, 1938, which judgment is not only not attacked but relied upon by the State, that all of the oil then in pits A and B was legal oil. This was a definite finding on a controlling issue, whether the quantities then found by approximation only were accurate or not. The physical property therein definitely located and described was adjudicated to be legal and to belong to appellee. The exact quantity was not of controlling importance. The State now contends that the 26,000 barrels here involved is unlawful oil, because under the court’s fact findings other oil must have been added to pits A and B since October 21, 1938. This was the ultimate fact issue involved, which the court expressly found against the State. The quantities in barrels on hand as between October, 1938, and in October, 1939, were but evidentiary of this ultimate fact. These quantities were calculated or arrived at through methods which the court itself, after making such findings, declares to be approximations only and not determinable within a reasonable degree of accuracy. Under these circumstances the court was clearly authorized to render judgment based upon an unequivocal finding on the controlling ultimate issue of fact, even though the equivocal findings on evidentiary issues may appear to conflict therewith. Ford Rent Co. v. Hughes, supra; 41 Tex.Jur. § 363, p. 1230. In the light of the court’s amended or corrected findings, however, the apparent conflict in his findings is, we think, removed. The judgment of the trial court will therefore be affirmed.


source: Caselaw Access Project

author: O’QUINN, Justice.

license: Public Domain

text:
    STEWART TITLE GUARANTY CO. v. RACHFORD et al.
    Nos. 3794, 3795.
    Court of Civil Appeals of Texas. Beaumont.
    Jan. 23, 1941.
    Frank A. Stamper, Robert P. Beman, Jr., Emory T. Carl, and Albert J. DeLange, all of Houston, for appellant.
    Geo. A. Weller and H. C. Keen, both of Beaumont, for appellees.
   O’QUINN, Justice.

Cause No. 3795 was instituted in district court of Jefferson county on May 6, 1940, by appellee James H. Rachford, and East Texas Title Investigation Company, against appellant, Stewart Title Guaranty Company, praying for judgment for damages for conversion of certain personal property described in the petition and for certain other elements of damage. On May 17, 1940, appellant filed suit in the district court of Galveston county against East Texas Title Investigation Company and appellee James H. Rachford, praying for judgment quieting its title to the property described in the petition of appellee and East Texas Title Investigation Company, and for certain other relief. On May 28, 1940, appellee and East Texas Title Investigation Company filed suit No. 3794 in district court of Jefferson county, praying for a temporary injunction, restraining appellant from prosecuting the suit filed by it in Galveston county, which was granted. The parties and the issues were the same in the three suits. By its answer 'to the Jefferson county suits, appellant made the issue that East Texas Title Investigation Company had forfeited its charter, and plead this fact in abatement of the Jefferson county suits. By amended petition, East Texas Title Investigation Company was dismissed from these suits, and they were prosecuted by appellee, for himself and the other stockholders of East Texas Title Investigation Company, on allegations that the power of the Corporation to transact business had been forfeited because of its failure to pay the franchise tax; ap-pellee plead that he owned all the preferred stock of the Corporation and ninety per cent of the common stock. The ’ evidence was that he owned all the preferred stock and ninety-eight per cent of the common stock; and that the Corporation had forfeited its right to do business. Appellant plead its privilege to be sued in Galveston county, and also plead to the jurisdiction of the district court of Jefferson county to entertain these suits. Cause No. 3795 is referred to by appellant in its brief as the “original suit,” and cause No. 3794 as the “injunction suit.”

Appellant makes the following statement in its brief as to the character of judgment rendered by the lower court in cause No. 3795: “By order dated July 1, 1940, the District Court of Jefferson County, Texas, in and for the 60th Judicial District, in said 'Original Suit’ dismissed the plaintiff, East Texas Title Investigation Company, at its costs, overruled the plea of privilege and the plea in abatement and plea to the jurisdiction of the defendant/Stewart Title Guaranty Company, and passed the consideration of the demurrers and exceptions filed by the defendant, Stewart Title Guaranty, Company, until further order of said Court setting the cause for trial, to all of which the defendant excepted and gave notice of appeal.”

It thus appears that the judgment entered by the court was in all respects interlocutory, and that this court has no jurisdiction óf any element of that judgment except the order overruling appellant’s plea of privilege.

Appellant makes the following statement in its brief as to the character of judgment rendered by the lower court in cause No. 3794: “Thereafter, by order dated July 1, 1940, and entered July 10, 1940, the District Court of Jefferson County, Texas, in said ‘Injunction Suit’, entered its order , dismissing the plaintiff, East Texas Title Investigation Company, at its costs, and overruling the plea of privilege, pleas of jurisdiction, and plea in abatement, and motion to dissolve the temporary injunction, filed by defendant, Stewart Title Guaranty Company, continued in effect the temporary restraining order enjoining and restraining defendant from prosecuting the caltse instituted by it in Galveston County, Texas, and passing the demurrers and exceptions filed by the defendant without prejudice until further orders of said Court, to all of which the defendant in open Court then and there excepted and gave notice of appeal to this Honorable Court.”

It thus appears that all orders made in cause No. 3794 were interlocutory, and that this court has no jurisdiction of any element of that judgment except the orders overruling the plea of privilege and the motion to dissolve the temporary injunction.

Appellant submits its appeal on nine propositions; by propositions 1, 2, and 3, it is asserted that, having forfeited its right to do business, East Texas Title Investigation Company could not “maintain suit in the Courts of the State of Texas for any affirmative relief”; on the same ground the lower court “erred in maintaining jurisdiction of Cause instituted by said corporation, for the purpose of obtaining affirmative relief”; on the same ground the lower court “erred in overruling the pleas in abatement of the defendant, Stewart Title Guaranty Company, based on such facts.”

By propositions 4, 5, and 6, appellant asserts that appellee Rachford, “claiming solely as stockholder and officer of said corporation could not maintain suit in the Courts of the State of Texas for the benefit of said corporation”; “James H. Rachford, the owner of all the preferred stock of said corporation, and the beneficial owner of all the common stock of said corporation could not maintain suit in the Courts of the State of Texas for the use and benefit of said corporation” ; “James H. Rachford, the owner of all the preferred stock of said corporation, and beneficial owner of all the common stock of said corporation, could not maintain suit in the Courts of the State of Texas for his own benefit on causes of action acquired by him solely as officer and stockholder of said corporation.”

Proposition No. 7: “Where a suit is instituted by parties having no right to institute same in the Courts of the State of Texas, the institution of such suit cannot be urged as grounds for abatement nor as grounds for restraint of prosecution of suit instituted in a Court of concurrent jurisdiction.”

Proposition No. 8: “Where suit is instituted in a Court of the State of Texas by party or parties having no right to maintain action in the Courts of the State of Texas in the capacity in which they appear, the institution of such suit cannot be urged as grounds for abatement of nor as grounds for restraining the prosecution of a second suit instituted in a Court of concurrent jurisdiction, even though subsequent amending of the pleadings in the first suit present a matter of which the Court in which said suit is pending can take cognizance.”

Proposition No. 9: “The District Court of one county of the State of Texas cannot enjoin the prosecution of a cause of action in the District Court of another county of the State of Texas.”

An examination of appellant’s propositions discloses that it assigns no error on, and advances no proposition against, the judgment of the lower court overruling its pleas of privilege and its motion to dissolve the temporary injunc7 tion, which was against appellant and not against the District Coyrt of Galveston county. Since these are the only elements of the judgment that could be reviewed on this appeal and since they are not attacked, it follows that the judgment of the lower court must be affirmed. But, if .the propositions should be construed as against the order overruling the motion to dissolve the temporary injunction, they must be overruled. Since the district court of Jefferson county has jurisdiction of these cases, subject to appellant’s pleas in abatement, which cannot be reviewed on this appeal, appellee was entitled to his temporary injunction, restraining the prosecution of the Galveston county suit pending the rendition of final judgment in his suits. Cleveland v. Ward, 116 Tex. 1, 285 S.W. 1063. However, this affirmance is without prejudice to the rights of appellant to preserve its exceptions to the rulings of the lower court on its pleas in abatement and to the jurisdiction against the rights of-appellant to prosecute its suits in Jefferson county. Our instructions to the lower court are to proceed with the trial of these cases on their merits and to render final judgment therein, from which either . party may prosecute an appeal without limitation as to any ruling herein made, except on the issues made by the pleas of privilege.

The judgment of the lower court should be affirmed, and it is accordingly so ordered.

Affirmed.


author: STOKES, Justice.

text:
    McAFEE v. JETER & TOWNSEND.
    No. 5257.
    Court of Civil Appeals of Texas. Amarillo.
    Feb. 3, 1941.

      C. Land, of Memphis, for appellant.
    Mahan & Broughton, of Childress, for appellees.
   STOKES, Justice.

Appellant, Andy McAfee, filed this suit against appellees in the nature of a bill of review and seeking an injunction against the execution of a judgment which appel-lees had procured against him in the coun-v ty court of Childress County on the 17th of October, 1939. The original suit was upon a promissory note signed by appellant and Lee McAfee in the principal sum of $257.-20, bearing interest at the rate of ten per centum per annum and providing for ten per cent additional as attorneys’ fees if sued upon or placed in the hands of an attorney for collection. The note bore date of September 12, 1935, and was payable October 15,’ 1935. The original suit was filed by appellees on the 31st of March, 1938, and cited appellant and his codefend-ant, Lee McAfee, to appear at the next term of the court which convened on the 6th of June, 1938. Appellant filed an answer, consisting merely of a general demurrer and general denial, on the 6th of June, 1938, and no further action was taken nor orders-entered in the case until October 17, 1,939, when final judgment was rendered by the court in favor of appellees against both of the defendants therein for the amount sued for.

On December 4, 1939, an,execution was issued upon the judgment and placed in thfe hands of the sheriff of Hall County who levied the same upon 130 acres of land in that county as the property of appellant and advertised the same for sale on the 2d of January, 1940. When the advertisement appeared, appellant alleges he ascertained for the first time that the judgment had been rendered against him and he immediately filed this suit.

In addition to the foregoing, he alleged that, when his answer was filed by his attorney in the original suit on June 6, 1938, his attorney and the attorney who had filed the original suit for appellees, in a verbal conversation, entered into an agreement that the suit would not be tried at that time, but would be set for trial at a later date, and appellant’s attorney would be notified of the date in ample time to enable him to prepare the case for trial. He alleged that, in the conversation, his attorney informed appellees’ attorney as to the nature of the defense which appellant would present to the suit on the note. He also alleged that his attorney had another conversation with appellees’ attorney, later in the month of June, 1938, in which the stipulation was renewed and confirmed and that, during the time the cause was pending, his attorney made several trips from Memphis, where he lived, to Child-ress, where the case was pending, to ascertain the status of the pending suit; that the case had been transferred to what he alleged to be the “retired docket” of the court and that he informed the trial judge of his agreement with appellees’ attorney and the trial judge acquiesced in such agreement. He alleged that, notwithstanding his agreement with appellees’ counsel, acquiesced in by the trial judge, on the 17th of October, 1939, at a regular term of the county court, the case was removed from the “retired docket”, placed upon the “active docket” of the court, called for trial by the court and judgment rendered against him for the full amount sued for, all without the knowledge or consent of appellant or his counsel and in direct violation of the agreement and stipulation aforesaid.

Appellant alleged a number of defenses which he would have set up and urged in the trial on the 17th of October, 1939, if he or his attorney had known the cause would be tried at that time, among which defenses were, first, that he did not sign the note as principal, but as a surety, and he was so regarded by appellees; that he did not sign the note until long after it was executed by his codefendant, Lee Mc-Afee, who was the principal thereon; that the transaction in which the note was issued was executed and closed between Lee McAfee and appellees fully three weeks before appellant signed the note as surety, and his act in signing the same was wholly without consideration of any kind. Secondly, that the indebtedness represented by the note had been extended several times by agreement between appellees and the principal, Lee McAfee, without the knowledge or consent of appellant and that, if he had ever been liable thereon, his liability had been released and discharged by such renewals and extensions.

When the instant case was called for trial, the court sustained a general demurrer and a number of special exceptions urged by appellees and, appellant declining to amend his bill, the case was dismissed. The record, particularly the nature of the special exceptions sustained by the court, indicates that the trial judge was of the opinion that, appellant not having pleaded his alleged meritorious defenses in his answer in the original suit on the note, he was not entitled to have the judgment reviewed by means of a bill of review and that the facts pleaded would not constitute such a defense. In a proceeding of this kind the procedure observed by the courts does not require an allegation that meritorious defenses were pleaded in the answer to the original suit. Indeed, if appellant alleged meritorious defenses in his bill, it was not necessary that he allege he had filed any sort of an answer to the petition in the original suit. He would be entitled to a bill of review in so far as that phase of the matter is concerned even though he had filed no answer whatever and judgment by default had been taken against him in the original cause. Lumpkin v. Williams, 1 Tex.Civ.App. 214, 21 S.W. 967.

The record shows that appellant was a resident of Hall County and his attorney resided at Memphis in that county. The original suit was pending in the county court of Childress County, and in our opinion the allegations of appellant to the effect that the attorney for appellee, on June 6, 1938, and again at a later date, agreed with appellant’s counsel that the case would not be called for trial, nor tried, until appellant’s counsel had been notified in ample time to enable him to prepare his defense are sufficient to show that, without fault of either appellant or his attorney, the case was tried in his absence and at a time when he not only did not know it would be tried, but was warranted in believing it would not be tried until he was first notified and given an opportunity to be present and present his defenses. Regardless of whether the act of appellees’ counsel in trying the case and taking judgment was willful or whether, as alleged in the answer, he believed ample notice had been given to appellant’s attorney, an issue on that question was presented and, if appellant’s allegations were true, the effect was the same and resulted in depriving appellant and his counsel of an opportunity to be present and present his defenses in the suit on the note. Upon proof of such facts appellant would have been entitled to have the judgment set aside and to a trial of the original suit upon its merits provided, of course, appellant, in his bill, alleged a meritorious defense thereto. Marsh v. Tiller, Tex.Civ.App., 279 S.W. 283; Connell v. Nickey et al., Tex.Civ.App., 167 S.W. 313; Winters Mutual Aid Ass’n v. Reddin, Tex.Com.App., 49 S.W.2d 1095; Keller v. Young, Tex.Civ.App., 186 S.W. 405; Sloan v. Newton, Tex.Civ.App., 134 S.W.2d 697; Caffarelli et al. v. Reasonover, Tex.Civ.App., 54 S.W.2d 170.

In Keller v. Young, supra [186 S.W. 407], Justice Hendricks, speaking for this court, expressed the rule that has been recognized by the courts of this and most of the other states since an early day in the following language: “It is also the general rule, if one is prevented from presenting his defense and from having it properly considered, it is a sufficient cause for the interposition of a court of equity, if operating to his prejudice. * * * Whenever a litigant or his attorney, by an act or agreement, causes his adversary to relax diligence, which is otherwise required, it is the equitable rule that the failure to present a defense cannot be urged as a sufficient reason for denying the relief.”

The case of Caffarelli et al. v. Reasonover, supra, was before the Court of Civil Appeals of the fourth district upon a state of facts almost identical with those presented in the instant case. It was there alleged that counsel for all of the parties had an agreement, with the knowledge and approval of the trial judge, that the plaintiffs in the former suit would not attempt to try the same without first having it set for a day certain and notice thereof given to opposing counsel, who, as in this case, resided in another county. The former cause had been continued a number of times which made it necessary for out-of-town counsel to make numerous useless trips to the court. The Court- of Civil Appeals held that such agreements were proper and often made; that the agreement in that instance had the approval of the trial judge and should have been observed, and that its breach entitled the appellants to a new trial.

The next question to be noticed is whether or not appellant’s pleading is sufficient to show that he had a meritorious defense to appellee’s suit on the note. While his allegations to the effect that he was only a surety on the note and the knowledge of appellees of his status as such are perhaps not as lucid as they should be, he alleged that, as a matter of fact, he was only a surety on the note and that he was so regarded by appellees. He alleged further that the indebtedness evidenced by the note was the indebtedness of Lee McAfee and that the transaction between ’ Lee McAfee and appellees, in which the note was issued, was executed and completed some three weeks before appellant signed the note as surety. If the court below had considered this allegation as true, as he should have done when acting upon the general demurrer, it would have presented a good defense to appel-lees’ cause of action. If appellant was a surety only and the transaction between appellees and Lee McAfee, the principal thereon, was completed before appellant signed the note as surety, and th,e credit extended to Lee McAfee by appellees was so extended without reliance upon or. regard to the suretyship of appellant, and the note was not accepted upon the strength of any agreement of appellant to become liable thereon, his suretyship and ostensible liability thereon was without consideration and unenforcible. Green v. American Refining Properties, Tex.Civ.App., 22 S.W.2d 343; King v. Wise, Tex.Com.App., 282 S.W. 570, 571.

In the case last cited Judge Nickels, speaking for the Commission of Appeals, said: “The signature of a person, placed upon a note after its completion and delivery as between the original parties, in order to be effective, must have the support of a new and independent consideration [authorities omitted], except, of course, where the signature is for the accommodation of the payee and the paper has been further negotiated.”

Finally, appellant alleged that the indebtedness of Lee McAfee had several times been extended and renewed without appellant’s knowledge or consent. Proof of this allegation would likewise have released appellant from any obligation as a surety on the note and constituted a good defense to appellees’ suit thereon. Howth v. J. I. Case Threshing Machine Co., Tex.Civ.App., 280 S.W. 238; J. I. Case Threshing Machine Co. v. Howth, 116 Tex. 434, 293 S.W. 800; Brinker v. First Nat’l Bank, Tex.Com.App., 37 S.W.2d 136.

From what has been said it is evident that, in our opinion, the court below erred in sustaining the general demurrer to appellant’s bill and in dismissing the case. The judgment will, therefore, be reversed and the cause remanded.


author: BOND, Chief Justice.

text:
    BUSH v. DAVIS.
    No. 12945.
    Court of Civil Appeals of Texas. Dallas.
    Dec. 21, 1940.
    Rehearing Denied Jan. 18, 1941.
    J. W. Hassell, Jr., and Pat H. Candler, both of Dallas, for appellant.
    Leo R. Tresp, of Dallas, for appellee.
   BOND, Chief Justice.

This suit, for an accounting, was instituted by Mrs. Vernon Davis, individually and as administratrix with will annexed of the estate of W. Glen Davis, deceased, against appellant J. E. Bush, doing business under the trade name of Texas Automatic Sprinkler Company. The account involves certain expenditures incurred on contracts entered into by Bush, or Texas Automatic Sprinkler Company, for construction of various and sundry U. S. Government-aided (P.W.A.) projects, including water works, sewer systems, gas installation, and other public utilities for various designated municipalities in Texas. This controversy grew out of the allocation of certain expenditures to the personal account of Davis, rather than to the joint account of Bush and Davis, and to Bush individually. The specific items of receipts and disbursements are not in dispute; the allocation of such designated expenses is the determining feature of the contract, and when determined, the accounting problem can then easily be solved.

Plaintiff alleged that W. Glen Davis and the defendant Bush entered into a verbal contract; that Davis was to furnish such machinery as he then had on hand, consisting of drag lines, tractors, air compressors and other excavating tools, for construction of projects obtained by them; to compute and estimate the cost of construction; make and file bids acceptable to both parties; and “to superintend the construction under said contract”; and that Bush, or Texas Automatic Sprinkler Company, was to advance all necessary money for labor and materials; finance construction and furnish indemnifying and maintenance bonds required of them by cities and towns having work done. The net profits accruing from such contracts were to be divided equally between Davis and Bush, that is, 50% to Davis and 50% to Bush; and, in like manner, they were to bear any losses; such profits to be determined by the contract price of each job, and outlay of expenses for labor and materials used in such construction. Davis was to be allowed a drawing account of $50 per week, to be accounted for and charged to his half of the profits. It was further alleged that, in the event Davis should become unable to perform the duties incumbent upon him under the terms and conditions of the aforesaid agreement, or his services become unsatisfactory to Bush, then, in either case, Bush had the right to subrogate another, and all expenses incident to such subrogation would be charged to Davis and accounted for against his individual profits.

On November 15, 1935, W. Glen Davis •died testate, leaving all his estate, including contracts outstanding with Bush and various municipalities, to his wife, Vernon Davis. Thereafter, plaintiff alleges, she and defendant Bush extended the agreement theretofore existing between her husband and Mr. Bush, to enable Mr. Bush to complete municipal contracts made prior to Davis’ death, and agreed that she should share in all profits and losses on the same terms and conditions theretofore extended to her husband.

Defendant contended in pleadings and proof that salaries and expenses paid by him, or Texas Automatic Sprinkler Company, to employes to supervise work that .Davis was obligated to do, and which was not done because of his death, were properly chargeable to the individual profits accruing to plaintiff, and not to the gross profits of the contracting parties. Such is the gravamen of this controversy. The verdict of the jury was, in effect, favorable to plaintiff and judgment rendered accordingly.

Without attempting to relate the testimony in detail, the chief points in controversy on the trial were (1) the nature of the contract and agreement between Davis and defendant Bush; (2) the propriety of the several charges made against the account of Davis, subsequent to his death, including supervising expenses which were charged against the Davis account. The defendant’s theory, as disclosed by the evidence, is that, after Davis’ death, the expenses of providing employes to supervise construction of the several projects previously contracted, are not properly a part of the cost of the contracts, but that the cost of the contracts, for purposes of accounting between the parties, should be arrived at without including cost of such supervisory employes; that is, the Davis half of the gross profits should be charged with the full amount of all supervisory expenses. On the other hand, plaintiff’s theory is that, upon the death of Davis, any supervisory expense incurred is chargeable directly against the several construction projects, prior to any division or profits.

The foregoing is an outline of the chief issues tried in the rather long and involved controverted statement of facts; and w.e might add, at this juncture, that same is sufficient to demonstrate the errors in the admission and rejection of evidence, assigned for reversal of this cause. Other disclosures will appear more readily from the statements made in connection with appellant’s several propositions.

The first point upon which appellant predicates his appeal is the admission, over objection, of a written report of plaintiff’s auditor, which included transcript and summary of receipts and disbursements from defendant’s books, declaration of his interpretation of the controverted contract, conclusions as to the legal effect of such contract, his deductions as to the proper allocation of expenditures, and adjustment of the account in conformity with his interpretation of the contract; all in line with the contention of plaintiff; and further, over objection, allowing the report, with all the auditor’s conclusions and deductions, to be sent into the jury room and retained by the jury during consideration of its verdict.

The evidence shows that the auditor was selected and engaged by plaintiff, or her attorney, to audit defendant’s books; that he made his report, prefacing the transcript and summary of receipts and disbursements with the remark, addressed to plaintiff’s attorney: “Pursuant to your directions to audit and report on the state of the G. W. Davis account on the books of the Texas Automatic Sprinkler Company of Dallas, hereinafter is our report on same * * The books of the Sprinkler Company were made available to such auditor, and, at the conclusion of the audit, copies of the report were furnished plaintiff and defendant. The report concludes with the statement, addressed to plaintiff’s counsel: “Your auditor takes this occasion to express his appreciation of the courtesies received at the hands of the various employes of the Texas Automatic Sprinkler Company. He has viewed the situation, however, from the standpoint of Mrs. Davis and her interests and trusts that this report, its conclusions and recommendations, may aid her in arriving at a proper and equitable adjustment with the Company.” The auditor’s report assembles figures incident to the audit, showing gross receipts, expenses and profits on the contract between the parties, as interpreted by him, summarizing thusly: -Receipts $136,170.85; expenses $123,814.03; profits $12,356.82; and he then concludes his calculations, that plaintiff is entitled to $6,178.41, less $3,-252.49, saying: “* * * and he (Davis) and his estate have drawn $3,252.49, leaving due his estate $2,925.92.” The report shows the summary to be based upon an allocation of the gross profits on each job before applying the cost, which defendant contended should be deducted from Davis’ part of the gross profits. With respect to these entries, the report continues: “Your auditor has eliminated these credits likewise by transferring them back to costs where they originally came from, which is necessary in order to show true costs.” The report further says: “These are profits as at date shown on books and were transferred to credit of W. G. Davis’ personal account * * - * your auditor believes these credits should be canceled and reserved”; continuing, “These are items (items in dispute) charged to Mr. W. G. Davis’ personal account, which your auditor has charged to costs where, in his opinion, it properly belongs * * The report teemed with other like conclusions, deductions and opinions, and argument of the auditor, based upon hearsay, the inadmissibility of which is sufficiently illustrated by the above, requires the reversal of the case.

Furthermore, the court permitted the jury to take into the jury room and retain during its consideration, the auditor’s report containing, as it did, the series of opinions, conclusions, deductions, arguments and hearsay statements on controverted is'sues. Clearly, the admission of the report was calculated to influence the jury and impress it with the importance of the document.

Where facts can only be ascertained by inspection of a large number of documents, detailed statements or summaries of conflicting accounts, rather than admit the books themselves in evidence, it is advisable to effect the same result by testimony, before the jury, of a qualified auditor as to his findings on examination of the books or documents. Such testimony, however, shall go no further than to relate what is reflected by the books or documents examined. The report in question not only shows the books and document entry of the amounts paid Davis and Bush, but also shows which should, and which should not, be charged to Davis, and thereupon entry was made charging such items back to the contract. This involves issues which the jury was impaneled to try. The auditor’s testimony, as well as his report, if admissible in evidence, should have been restricted to the grouping of items shown on the books. Such would have enabled the jury to determine whether or not such items were properly accountable as gross expenses. The auditor’s opinions, conclusions, and deductions were not admissible as evidence to aid the jury in determining the issues.

In view of another trial, without attempting to discuss the testimony in detail, we sustain appellant’s further assignment of error on the action of the trial court in sustaining plaintiff’s objection to defendant’s proffered testimony of the witness, Tom E. Hay, Jr., to the effect that the terms and conditions of the contract between Davis and Bush, here in dispute were, in his presence, negotiated and discussed by them, and, by Bush, dictated to said witness in the presence of Davis. The witness, we think, should have been permitted to relate the conversation had between the parties and refer to his transcribed shorthand notes in support of his testimony. Such evidence was in line with and germane to defendant’s contention, and if offered on another trial, should be admitted.

We have carefully reviewed all other assignments presented; they are overruled, and, for the errors above discussed, judgment of the trial court is reversed and the cause remanded.

Reversed and remanded.


text:
    LINTHICUM et al. v. TUCKER et ux.
    No. 3800.
    Court of Civil Appeals of Texas. Beaumont.
    Jan. 23, 1941.
    John W. Ford, of Kilgore, for appellants.
    S. M. Adams and R. A. McAlister, both of Nacogdoches, for appellees.
   O’QUINN, Justice.

This is an appeal from a judgment of the district court of Nacogdoches county. Neither party has filed briefs, and there is no excuse offered for not doing so.

The appeal is dismissed for want of prosecution.


text:
    ROOF MAINTENANCE SERVICE v. RABE et al.
    No. 3719.
    Court of Civil Appeals of Texas. Beaumont.
    Jan. 31, 1941.
    Rehearing Denied Feb. 12, 1941.

      Glenn Faver, of Jasper, for appellant.
    Synnott & Smith, of Jasper, for appel-lees.
   O’QUINN, Justice.

This suit was filed in District Court of Jasper County by appellants, J. H. and Harry Haynes, doing business as partners under the name of Roof Maintenance Service, against appellees, Miss Etta Rabe, H. C. Rabe, and J. R. Rabe, praying for judgment on a promissory note in the sum of $574.90, dated June 21, 1938, payable in monthly installments of $15.97 each, installment number one maturing on August 1, 1938, and for foreclosure of a mechanic’s lien on certain property described in the petition executed by Miss Etta Rabe to secure the amount of the note. We give the following material portions of the mechanic’s lien contract:

(a) “It is understood and agreed that the above described note provides for ten percent attorney’s fees in the event same is placed in the hands of an attorney for collection, or collected through any courts, •and further provides for accelerated maturity for failure to pay any installment of principal or interest thereon when due, or the failure to pay any installment of principal or interest on any prior encumbrance on said property, or failure to keep said property insured or to pay any taxes when due, and being additionally secured by a Deed of Trust of even date herewith to Trustee.

(b) “It is stipulated and agreed that the taking of the possession by parties of the first part of the improvements to be erected either before and after same has been completed shall constitute a full and complete acceptance of same by parties of the first part, and the lien herein created shall be valid and enforceable lien for the full amount of the above described note and parties of the first part by taking such possession shall then and there waive all defenses, offsets, and counter claim to such indebtness and the lien securing same, and the same shall become valid and enforceable for the full amount of said note.

(c)“It is understood and agreed that a failure to complete said improvements in accordance with said contract and plans and specifications, shall not make this Mechanic’s lien void in whole but the lien shall be a valid lien for such labor and material as may be actually put upon the premises or in the event any Assignee shall acquire said note and lien, then such Assignee shall have a valid lien upon said premises for the amount paid by it or him for said note, or such Assignee shall be given the right to complete said improvements according to the plans and specifications and shall in that event have a valid lien for the full amount of said note.”

Appellant also plead that the first installment on the note had been paid, that no other installment had been paid, that exercising the option given in the note they had declared all unpaid installments due, and that appellees had become liable for attorney’s fees, etc.

Appellees answered by general and special demurrers, general denial, and specially* denied that the improvements were made by appellants according to the contract. It was specially plead the building described in the contract was not improved according to the terms of the contract, but was torn down and rebuilt by appellants.

Appellants by supplemental petition specially plead that the contract was changed by agreement between them and Miss Rabe, and on a new consideration in the amount of $400, additional work was done on the building, and that the $400 additional consideration had been paid.

The case was submitted to the jury on the following special issues answered as indicated:

“Issue No. 1. Do you find from a preponderance of the evidence that the defendant, Etta Rabe, ratified the act of Plaintiff in constructing the building in the manner it did?” To which the jury answered “Yes.”
“Issue No. 2. Do you find from a preponderance of the evidence that the defendant, Etta Rabe, reentered her home immediately after the completion of the work is any?” To which the jury answered “Yes.”
“Issue No. 3. What amount of money if any, do you find from a preponderance of the evidence is due the plaintiff for services rendered the defendant herein ?” To which the jury answered “$614.49.”
“Issue No. 4. Do you find from a preponderance of the evidence that Etta Rabe was damaged by tearing down her house and rebuilding it instead of merely repairing the old house?” To- which the jury answered “No.”
“Issue No. S. If you have answered the foregoing Issue No. 4 ‘Yes’, and only in that event, then answer this question: ‘What amount of'money if any, do you find from a preponderance of the evidence will reasonably compensate Etta Rabe for damages, if any, for tearing down and rebuilding the old house instead of repairing it?’ ” To which the jury answered “None.”
“Issue No. 6. 'Do you find from a preponderance of the evidence that the defendants agreed to pay the amount as stipulated by the note after the completion of building if any, by the plaintiff, in addition to the $400.00 already paid?” To which the jury answered “Yes.”
“Issue No. 7. Do you find from a preponderance of the evidence that the plaintiff did ‘repair, paint, paper, etc, (two) 12 x 14 rooms, two (2) 12 x 12 rooms, two (2)6x8 rooms, two (2) 13 x 16 rooms and one (1) 8 x 14 porch, install fixtures in one (1) bathroom, partly install fixtures in one (1). bathroom, reroof entire house and porch, as agreed in the contract in writing introduced before you?’” To which the jury answered “No.”
“Issue No. 8. Do you find from a preponderance of the evidence that Miss Etta Rabe, by taking possession of the house in controversy and placing furniture therein meant to accept the work as complying with the contract between the parties in evidence before you?” To which the jury answered, “Yes.”

On the verdict, judgment was rendered in favor of appellees, from which appellants have duly prosecuted their appeal to this court. ■

On the verdict of the jury, judgment should have been in favor of appellants. Miss Rabe had authorized the changes in the original contract, and after the building had been inspected under her direction and after appellants had complied with all requirements made by her inspector, Miss Rabe took possession of the building, thereby giving effect to clause (b) of the mechanic’s lien contract as copied above. If an issue of fact arose on her act in taking possession of the improved premises, that issue was resolved against her by the jury’s answer to special issue No. 8.

Appellees were not entitled to judgment on the jury’s answer to special issue No. 7. Under all the evidence, appellants and Miss Rabe changed the original contract by their mutual agreement, and the failure to do the work submitted by special issue No. 7, as called for in the original contract, constituted no defense. No issue was sent to the jury submitting any failure to comply with the contract under which-the work was in fact done; that is, to comply with the contract as changed by the mutual agreement of the parties.

The fact that appellants plead the changed contract in their supplemental petition did not destroy their cause of action. They plead in their original petition the original contract 'and appellees’ promise to pay for the work under the original contract. Answering the original petition, ap-pellees plead that the work had not been performed as called for in the original contract. By their supplemental petition, appellants plead that the contract had been changed by mutual agreement, which was in due order of pleading.

Appellants concede that the amount found by the jury is excessive, and to cure that error make the following tender of re-mittitur: “In keeping with this contention plaintiff filed a remitter and now request the court that this cause be rendered in plaintiff’s favor the same be for the amount of the note of $574.00 less the $15.67 installment plus interest, costs and 10% attorneys fees as stipulated in the contract.”

On the third day of this month, after this case was submitted on the 2nd, appellees tendered to our clerk a supplemental transcript, which the clerk properly refused to file. Appellees tendered the . supplemental transcript for filing without asking the permission of this court, and without praying for a writ of certiorari to correct the record.

The judgment of the lower court in favor of appellees is reversed, and judgment here rendered for appellants against appellees for the amount due on the nóte in issue, with foreclosure of the mechanic’s lien. The clerk- is directed to make the calculation as to the balance due on the note.

Reversed and rendered.


author: CODY, Justice.

text:
    BLAIR et al. v. CHAMPION PAPER & FIBRE CO.
    No. 11065.
    Court of Civil Appeals of Texas. Galveston.
    Jan. 16, 1941.
    Rehearing Denied Feb. 13, 1941.
    Devereaux Henderson, Frank Morris, and J. A. Copeland, all of Houston, for appellants.
    Kemper, Hicks & Cramer, of Houston (W. L. Kemper and John G. Cramer, both of Houston, of counsel), for appellee.
   CODY, Justice.

This is a suit under the Workmen’s Compensation Law, Section 5 of Article 8306, Vernon’s Annotated Texas Civil Statutes, to recover exemplary damages in addition to the compensation which was' awarded his surviving widow under the Workmen's Compensation Law, upon the contention that appellee had been guilty of gross negligence which proximately caused the death of A. W. Blair. We might add that appellants other than the deceased’s surviving widow were not dependent upon him and are, in effect, nominal parties.

Appellants rely for reversal of the judgment of the court below solely upon the contention that the jury was guilty of misconduct which vitiated the verdict upon which the judgment was based. If, as ap-pellee'contends, appellant failed as a matter of law to adduce any evidence of gross negligence on the part of appellee which proximately caused the death of deceased, then, in such case, there was no issue t'o go to the jury, so that the question of whether the jury was guilty of misconduct is immaterial, as in such case the court should have rendered judgment for appellee without any issues to the jury. Hansen v. Christie, Tex.Civ.App., 132 S.W.2d 910, 912. And particularly where appellee requested an instructed verdict as in this case.

We have carefully examined the evidence and have reached the conclusion that appellee is correct in its contention that there was no evidence in the record which presented any issue of whether ap-pellee was guilty of gross negligence which proximately caused the death of the deceased. Appellants alleged that appellee was guilty of gross negligence in the following particulars which proximately caused deceased’s death (the following pleadings, where they are not clear in themselves, will be made clear from the facts hereinafter stated as the undisputed evidence adduced at the trial) :

“1. In negligently, recklessly and carelessly maintaining in said narrow passageway in its said electric room, an uninsulated, unguarded and exposed conductor of electricity, carrying a high, dangerous and deadly amount of electricity; and in permitting the said concealed danger and fatal instrumentality to remain uninsulated, unguarded, open and exposed in said place, when defendant knew, and by the exercise of ordinary care could and should have known, its employees, and in particular, the said August W. Blair, deceased, could and would enter such place and be exposed to such danger, in the course of employment and work for Defendant.
“2. In negligently, recklessly and carelessly constructing and maintaining in its electric room adjoining the wood room at its plant a passageway behind the panel board too small for ordinary freedom of movement for the ordinary man, and in particular the said August W. Blair, deceased.
“3. In negligently, recklessly and carelessly failing to enlarge the said passageway and make the same large enough for ordinary persons, and in particular the said August W. Blair, deceased, to enter and pass through in safety without coming in contact with or ' in close proximity to the aforementioned metal conductor of electricity.
“4. In negligently, recklessly and carelessly failing to insulate and cover and erect guards around the aforementioned metal conductor of electricity.
“5. In negligently, recklessly and carelessly failing to erect gates around the deadly instrumentalities contained in its electric room; and in failing to keep said room securely locked; and in failing to keep said passageway barred and locked; and in failing to keep the dangerous portions of said electric room securely locked away from all its employees (except electricians) and in particular the said August W. Blair, deceased.
“6. In negligently, recklessly and carelessly failing to maintain signs and otherwise in failing to warn the said August W. Blair of the concealed dangers and the deadly amount of electricity that were exposed and uninsulated within Defendant’s said electric room.
“7. In negligently, recklessly and carelessly failing to provide a watchman, guard or other human custodian of said electric room, so as to prevent the entry therein of employees, including deceased, who were unfamiliar with the dangerous electrical devices, and the powerful electric currents therein maintained, when the Defendant knew and by the exercise of ordinary care should and would have known, that such employees could and would enter such highly dangerous place in the course of work as employees of Defendant.
“8. In negligently, recklessly and' carelessly carrying a high and dangerous amount of electricity, through the aforementioned metal conductor of electricity, while the said metal conductor of electricity remained in the said narrow passageway and remained uninsulated, uncovered and unguarded.
“9. In negligently and carelessly placing, and in negligently permitting to remain, a quantity of said taps on the floor of said electric room, in such close proximity to said bus bar, when Defendant knew, and should have known that the need of the employees, including deceased, would 'lead them to enter into said extremely dangerous zone, to recover and use said taps in the course of their duties and employment.
“10. In negligently, recklessly and carelessly failing to use a high degree of care to provide the said August W. Blair, now deceased, with a safe place in which to. perform his work for the Defendant.
“11. In negligently and carelessly failing to inspect said premises and machinery, so as to see that same constituted a reasonably safe place in which to work.
“12. In negligently and carelessly failing to discharge the Defendant’s absolute and non-delegable duty, under all the circumstances, to protect and guard, in some appropriate manner, against said highly dangerous agency, those employees, including deceased, who might, in the course of their employment be required to go into said concealed dangerous trap.
“That each and all of said acts and omissions constitute negligence on the part of the Defendant; and that such negligence in one, or more, or all of said respects, was the direct and proximate cause of the death of the said August W. Blair, deceased, and of all the injuries and damages of which plaintiff complains.”

The undisputed evidence adduced at the trial established the following:

Appellee conducts a paper mill in Harris County wherein it makes paper out of logs. It appears that the first step in making pulp and paper out of logs is to cut them up on the same principle that a pencil sharpener reduces a pencil. This is done in the “wood-room”. And blades -used in reducing the logs were run or operated by electricity. If the load on the blades became too heavy the electric power, by a safety device, automatically cut off. If the blades were kept sharp enough there were practically no shut downs. The deceased was the foreman of the wood-room, and his duty therefore was to see that the blades were kept sharpened. Portable electrically driven emory wheels were provided with which to sharpen sets of blades. On June 14, 1937, while one of these portable emory wheels was in use in the wood-room, it was found that a nut or tap was missing therefrom. Near the wood-room was located the electric room or control room.* Appellee kept a supply or store-room at which the missing nut could have been obtained, or deceased could have called an electrician, or a mechanical engineer to fix the emory wheel. It evidently occurred to deceased that he could find a nut suited to his purpose in the electric room. Whether he expected to detach a nut from the machinery in the electric room does not appear. In any case nuts were not in storage there.

The electric room was the room where 'the parts of the machinery capable of inflicting electrocution were concentrated. This was doubtless for convenience as well as a measure of safety. The power which operates the blades or chippers could be controlled in the wood-room by a remote control switch which was located there. And when the load on the blades became too heavy the switch would automatically operate on the same principle that a fuse blows out when the load carried by electric light wires is too heavy. When this occurred it became necessary to start the machinery again. This was normally done by remote control, and within the wood-room. Sometimes, however, it was necessary to go to the electric room itself to operate the switch which controlled the power in the wood-room. Various switches were installed in the electric room on a panel, and on the side of the panels where the switches were located there were no exposed wires or currents.- It would serve no good purpose to detail all the various measures which appellee had installed in the electric room to increase the safety of its employees. It did not keep the doors' locked, but it had printed warnings of danger from high voltage both within and without. The deceased was an experienced paper mill man and had warned one of the men under him who sometimes went to the electric room to “keep his hands in his pockets” • whenever he was in the room. For present purposes it must be taken as true that men from the wood-room had authority to go into the electric room for the purpose of .throwing the switch which controlled the power in the wood-room. And in the part of the electric room where the switches were located all danger from contact was paneled off. The place where danger of contact had not been paneled off was in a remote part of the room and this condition • existed to enable the electricians to have rapid and convenient access to the electric machinery for its maintenance. There is 'no evidence that the duties of any of appel-lee’s employees other tha!n electricians ever required them to be in that remote part of the room. And there was printed warning , that there was 'danger from high voltage there.

Now we are not here concerned with whether appellee was guilty of ordinary negligence in not keeping the electric room locked so that none but electricians possessing keys could enter there, etc. The suit is not to recover damages for death caused by ordinary negligence. The suit is to recover damages caused by gross carelessness. Now, “Gross negligence, to be the ground for exemplary damages, should be that entire want of care which would raise the belief that the act or omission complained of was the result of a conscious indifference to the rights or welfare of the person or persons to be affected by it.” Texas Pacific Coal & Oil Co., 125 Tex. 4, 79 S.W.2d 830, 831, 98 A.L.R. 262. And see the recent case of Tullos v. Texas Pipe Line Company, 145 S.W.2d 267, by this Court.

As the undisputed evidence failed to raise an issue to go to the jury on the question of the death being caused by gross negligence of appellee, the question of whether the jury was guilty of misconduct is not material.

We have omitted discussing other grounds urged by appellee for affirming the judgment of the trial court as they are rendered immaterial by the view which we have here expressed.

Affirmed.