author: WALTHALL, Justice. PRICE, Chief Justice

text:
    HENDERSON v. CUMMINGS.
    No. 4016.
    Court of Civil Appeals of Texas. El Paso.
    Jan. 23, 1941.
    Rehearing Denied Feb. 13, 1941.
    John L. Fowler, of Odessa, for appellant.
    John J. Watts, of Crane, for appellee.
   WALTHALL, Justice.

Appellee having adopted the statement of the nature and result of the suit as in appellant’s brief, we make the statement substantially as there made.

This suit was brought by appellee, Earl Cummings, against appellant, W. T. Henderson, to recover damages for personal injuries sustained by appellee’s wife, Mrs. Montia Cummings, in stepping in a hole in the postoffice floor in the City of Odessa, resulting in a fracture of her hip and other injuries described, and alleged to be severe and permanent. Appellant Henderson owned and was operating the postoffice building and leased the building to the United States Government for a postoffice, and for which purpose the building was being used by Henderson at the time of the injuries complained of.

It is alleged that Mrs. Cummings, when injured, had gone into the said postoffice building to mail a letter and to get the mail, and that while in the building the heel of her shoe was caught in a hole in the floor which caused her to fall and sustain the said injuries. Appellee alleged that Mrs. Montia Cummings when injured was an invitee in the building and that appellant owed her the duty of exercising ordinary care to keep said building in a reasonably safe condition, but that appellant breached such duty, in that the floor of said building had became worn and rotten, the hole in the floor resulting; that appellant knew or should have known of the defective condition of the floor; that by reason of the matters alleged appellant was negligent and that the negligence was the proximate cause of the injuries to appellee’s wife, and appellee alleged damages resulting therefrom in the sum of $25,000, for which amount he sued.

Appellant answered by a general demurrer, special exception, pleaded contributory negligence and general denial.

The case was submitted to a jury on special issues. The jury made findings on the issues submitted, and on the jury’s findings the court entered judgment in ap-pellee’s favor in the sum of five thousand dollars, with interest. The court overruled appellant’s motion for a new trial, and appellant, defendant below, duly prosecutes this appeal.

Appellant has filed several assignments of error: Error in admitting in evidence certain X-ray photographs; error in submitting a certain charge to the jury; error in overruling appellant’s motion for a new trial based op alleged improper argument to the jury of one of appellee’s counsel; error in refusing to grant appellant a new trial on account of alleged misconduct of the jury. Based on the assignments appellant submits several propositions.

We overrule appellee’s motion to strike appellant’s brief and refuse to consider any of the propositions or assignments contained therein as not being in compliance with the rules for briefing causes on appeal, the objection to appellant’s brief being that there is no bill of exceptions preserved to the matters complained of. The motion to strike the brief does not show or point out that the matters complained of do not clearly appear of record.

We prefer to consider each proposition and decide from the record whether a bill of exceptions is necessary to present the matter complained of.

None of the assignments of error are presented or requested to be considered as propositions.

Appellant’s first three propositions are as follows:

“1. Appellant is entitled to have the exact injury, if any, of appellee, detailed to the jury as of the time, or immediately following the injury, and the resulting condition of the injured party up to the time of awarding damages must be shown to follow as a natural sequence as a consequence of the injury at the time of its occurrence.
“2. The court commits error in charging the jury as to any element of damages not raised by the pleadings.
“3. The rule is now settled in this State that where improper argument has been indulged in, or where misconduct of the jury is shown to appear, the adverse complaining party is entitled to reversal of the judgment, as a matter of law, if under all the circumstances there is any reasonable doubt of its harmful effect, or unless it affirmatively appears'no reasonable prejudice resulted.”

It will be observed that each of the propositions states only a proposition of law and does not state or embrace in the proposition or in the statement following the proposition a distinct specification of error, as required by the rules.

In presenting the above three propositions appellant groups them, and, as severally applying to each, makes a separate statement. It is not shown in the statement applying to any one of the propositions the point of objection sought to be made and upon which the appeal is predicated; there is a general statement embracing a general reference to the entire evidence’ offered; there is no bill of exceptions shown, certainly none which applies to or points out or indicates the matter complained of. It is not shown that the matter complained of was embraced in the motion for a new trial. Neither the proposition nor the statement under and applying to the proposition acquaints the court with the proposition presented for review or decision.

While we have overruled appellee’s motion to strike appellant’s brief, as not complying with the rules, "we have considered each proposition and have concluded that no one of the propositions complies with the rules for briefing and may not be considered as presenting reversible error, in view of appellee’s motion.

As said above, none of the assignments of error are presented or requested to be considered as propositions.

We have concluded that the case should be affirmed, and it is so ordered.

PRICE, Chief Justice

(concurring).

In my opinion the assignments of error sought to be briefed by appellant fail to show reversible error. There is no bill of exceptions showing that the argument complained of was actually made. It is elementary that a bill of exceptions is necessary in order for the Court of Appeals to review such alleged error.

The objections to the X-ray photographs go rather to their weight than their admissibility. Copies of such photographs do not appear in the statement of facts. Even though the injury occurred in March, an X-ray photograph taken in May, I think, would tend to show the nature of the injuries to the bone and the effect thereof.

Appellant’s objection to-the’court’s charge on the measure of damages was as follows:

“for the reason that future pain and suffering’, under the allegations and proof in this case, are not recoverable and should not be considered by the jury.” Past and future pain and suffering were alleged in appel-lee’s trial petition. Proof was offered thereon. In my opinion issue was made by the pleading and sustained by proof. If it was objectionable for the court to have included mental pain and suffering in the instructions, the objection of appellant was not sufficiently specific to call the court’s attention thereto.

The complaint as to the misconduct of the jury, in my opinion, fails to show reversible error. Giving full credence to the testimony of the one juror touching the discussion of insurance, the extent thereof was that appellant, if he did not have insurance, should have had it. There is no showing that the juror thought or said that appellant had indemnity insurance. The evidence goes no further than to show a mere casual mention of insurance by a juror. It was perhaps an issuable fact as to whether this occurred. Juror Cotter, in his testimony, fails to state what juror made the statement: “Whether he did or 'not, the defendant should have carried insurance.” Further, it was not stated in whose presence it was made. The foreman of the jury, the only other juror testifying, did not hear the statement. When it was made or who made it, or in whose presence same was made, does not appear. As far as the evidence of the juror Cotter goes, it may have been made after the jury were discharged.

While the law zealously guards the purity of verdicts, same are not to be lightly set aside. When the evidence is inconclusive, the finding of the trial court is final thereon. The juror’s opinion that one should carry indemnity insurance does not disqualify him for jury service. A statement by a juror that one should carry such insurance is not reasonably susceptible of the construction that such a one did carry same; it is not reasonably susceptible of the construction that there was a legal duty so to do. It is susceptible of the reasonable construction that it is good business policy to have such insurance.

This verdict is not assailed as being excessive. There is no assignment that it is against the weight of the evidence.

I concur in the affirmance of the case for the reasons stated.


source: Caselaw Access Project

author: CODY, Justice.

license: Public Domain

text:
    BELL v. MOODY.
    No. 11106.
    Court of Civil Appeals of Texas. Galveston.
    Jan. 30, 1941.
    Rehearing Denied Feb. 20, 1941.

      Bailey & Blum, of Houston (Ben Blum, of Hoúston, of counsel), for appellant.
    Frank S. Anderson and Charles G. Dibrell, Jr., both of Galveston, for appellee.
   CODY, Justice.

This is a suit by appellee against appellant for the unpaid balance on appellant’s note after there had been credited thereon the proceeds realized from a trustee’s foreclosure sale of certain real estate. Appellant’s defense was a plea of estoppel; that appellee, acting through J. B. Mills, who had either express, implied or apparent authority, agreed that if appellant would not attend the foreclosure sale, no deficiency judgment would be taken against him on the note, etc. Appellee filed a sworn denial of authority in J. B. Mills to make the alleged agreement. A detailed statement of facts is revealed from the special issues which were submitted to the jury, and the jury’s answers thereto. The Court rendered judgment for appellee non obstante veredicto.

The substance of the issues and the jury’s answers thereto, so far as material, is as follows:

1. Plaintiff, W. L. Moody, Jr., is conducting a private banking business in the County of Galveston under the name of W. L. Moody & Company, Bankers, of which he is the sole owner.

2. Defendant, George W. Bell, Jr., on June 30, 1931, for value received, made and delivered to plaintiff his certain promissory note for the principal sum of $8,498.69, due two years after date, with interest thereon at the rate of 7% p’er annum, secured by a deed of trust executed by the defendant, of even date therewith, to J. B. Mills, trustee, covering the real estate therein described.

3. That on July 7, 1933, the maturity of the indebtedness was duly extended to July 7, 1934.

4. That on July 7, 1934, the maturity of the indebtedness was duly extended to July 7, 1935.

5. That on July 7, 1935, the maturity of the indebtedness was duly extended to July 7, 1936.

6. That on July 7, 1936, the maturity of the indebtedness was duly extended to July 7, 1937.

8. That defendant made default in payment of said indebtedness.

9. That said default continued to September 7, 1937.

10. That on September 7, 1937, the property which was covered by the deed of trust

■ was sold by J. B. Mills, trustee.

11. That the property covered by the deed of trust was sold to plaintiff at the trustee’s sale.

12. That there was realized from said sale the sum of $3,350.

13. That there was owing, at the time of the sale, on the indebtedness the sum of $8,973.25.

14. That there remained unpaid on said indebtedness on March 8, 1940, the sum of $7,166.84.

15. 16, 17 and 18. The answers to these special issues disclose that the reasonable market value of the various *eal estate covered by the deed of trust at the time of the trustee’s sale totalled $2,950.

19. That prior to the foreclosure on the property involved, J. B. Mills agreed with defendant not to take a deficiency judgment against him.

20. That John B. Mills was the vice-president, general manager, agent and employee of W. L. Moody & Company, Bankers, plaintiff, during the months of August and September, 1937, prior to the foreclosure sale.

21. That John B. Mills, when he made the agreement not to take a deficiency judgment against defendant, was acting as vice-president, general manager, agent and employee of plaintiff.

22. That when John B. Mills made the agreement with defendant, he was expressly authorized to make said agreement as vice-president, general manager, agent and employee of plaintiff.

23. That when John B. Mills made the agreement not to take a deficiency judgment against defendant, he had the apparent authority to make said agreement in the capacity of vice-president, general manager, agent and employee of plaintiff.

24. That the defendant would have attended .the foreclosure sale and bid on said property had not John B. Mills, acting for plaintiff, agreed with him not to take a deficiency judgment.

25. That defendant relied on the agreement with John B. Mills, acting as vice-president, agent, employee, and general manager of plaintiff, and in relying upon said agreement did not attend the foreclosure sale, and thereby changed his position.

The first fourteen special issues were not defensive and appellant makes no contention that any of the answers thereto entitled him to a judgment.

Answers to special issues 15 to 18, inclusive, establish the reasonable value of appellant’s property covered by the deed of trust at the time of the foreclosure sale as being $2,950. It is asserted by appellee, and not denied by appellant, that appellant had suffered the property to become delinquent as to the payment of taxes to the extent of $1,200. The property was worth therefore at the time of the foreclosure sale $1,200 less than its market value of $2,950 or $1,-750. The amount of the indebtedness secured by this $1,750 worth of property at the time of the foreclosure sale was $8,973.-25. The amount for which appellee bid in this property worth $1,750 was $3,350. As a matter of simple calculation, it appears therefore that appellee bid in property worth $1,750 for $1,600 more than it was worth.

Now in order to sustain a plea of estoppel the party asserting such must prove that he was misled by the party against him to his injury.

“The final element of an equitable estop-pel is that the person claiming it must have been misled into such action that he will suffer injury if the estoppel is not declared. That is, the person setting up the estoppel must have been induced to alter his position, in such a way that he will he injured if the other person is not held to the representation or attitude on which the estoppel is predicated. Furthermore, an equitable estoppel cannot arise except when justice to the rights of others demands. It was never intended to work a positive gain to a party. Its whole office is to protect him from a loss which, but for the estoppel, he could not escape. Consequently the estop-pel should be limited to what may be necessary to put the parties in the same relative position which they would have occupied if the predicate of the estoppel had never existed.” 10 R.C.L. 697, 698, par. 25.

Again, as stated in 19 Amer.Jur. 735, par. 85: “Estoppel rests largely upon injury or prejudice to the rights of him who asserts it. Since the function and purpose of the doctrine are the prevention of fraud and injustice, there can be no estoppel where there is no loss, injury, damage, or prejudice to the party claiming it. Moreover, the injury or prejudice involved must be actual and substantial, and not merely technical or formal.”

To the same effect: Jones v. United States, 96 U.S. 24, 24 L.Ed. 644; Nelson v. Wilson, Tex.Civ.App., 97 S.W.2d 287, error refused; Superior Brewing Co. v. Curtis, Tex.Civ.App., 116 S.W.2d 853.

It follows, in view of the jury’s answers to the special issues just discussed, which establish that appellant suffered no injury through not attending the sale, that the court could not render judgment sustaining appellant’s plea of estoppel.

In answer to special issue No. 19, the jury found that Mills agreed with defendant not to take a deficiency judgment against him, and in' answer to special issues Nos. 20 and 21, that Mills was, at the time they found he made the agreement, the vice-president, general manager, agent and employee of appellee, and in making such agreement was acting as such. The defensive issues Nos. 20 and 21 were evidently submitted to the jury upon the mistaken opinion that a vice-president or general manager, as such, has the implied authority to gratuitously release an indebtedness, or a part thereof, due his bank. It is elementary that no agent has any implied authority to surrender the vested rights of his principal, or to give away his money or other assets. 2 Tex.Jur. p. 446, par. 51. In Potts v. Wallace, 146 U.S. 689, 13 S.Ct 196, 201, 36 L.Ed. 1135, it was held:

“The president had no legal power or authority to deplete the coffers of the company, by instructing the treasurer to refuse to accept subscription money when tendered.
“In Bank [of the United States] v. Dunn [31 U.S. 51], 6 Pet. 51 [8 L.Ed. 316], it was held that an agreement by the president and cashier that the indorser on a note shall not be liable on his indorsement does not bind the bank; that it is not the duty of the cashier and president to make such •contracts, nor have they the power to bind the bank, except in the discharge of their ordinary duties.
“It is true that if the acts of the President are ratified by the corporation, or if the corporation permits a general course of conduct, or accepts the benefit of his act, they will be bound by it; but the general rule is that the president cannot act or contract for the corporation, except in the course of his usual duties.
“And the rule is still stronger against the power of the president to bind the corporation by giving up its securities or releasing claims in its favor.”

See also Miles et al. v. Atlanta National Bank, Tex.Civ.App., 71 S.W.2d 933; Russell v. Brooks, 254 S.W. 404. It would serve no useful purpose to multiply citation of authority.

There is no evidence in the record to support the jury finding that John B. Mills was expressly authorized to make the agreement in question (special issue No. 22) as vice-president, general manager, etc. W. L. Moody, Jr., testified that he was the sole owner of‘“W. L. Moody & Co., Bankers”, an unincorporated banking business. On cross-examination he was asked: “Didn’t you give John Mills a power of attorney to run the bank in 1937?” To which he answered : “Probably, because he was running the bank. I don’t know when it was.” The power of attorney referred to was one given J. B. Mills and a son of W. L. Moody, Jr., under which, when acting jointly, they could execute deeds to real estate, after having been expressly directed by W. L. Moody so to do, though a purchaser was authorized to rely on a recitation in said deed to such effect. But the testimony that J. B. Mills was authorized to run the bank was, as we have seen, not testimony that he was authorized to gratuitously release a debtor from liability on a note. We fail to see, however, that, had there been evidence to support the answer to special issue No. 22, appellant would have been entitled to prevail on .his plea of estoppel. And this we take to be true because appellant failed to show any injury or prejudice resulted to him as pointed out above.

There is no evidence in the record to support the jury finding to the effect that Mills had the apparent authority to make the agreement in question, as vice-president, general manager, etc., (special issue No. 23). “'Where an act for which it is sought to hold the principal was within the authority actually conferred by the principal, whether expressly or impliedly * * *, it is not necessary for the third person to show that he had notice of that fact and acted on the faith of it’ [Authority] ; but, where it is sought to hold the principal on the ground of ‘apparent authority,’ it is necessary ‘that the person dealing with the agent was aware of the principal’s acts from which the apparent authority is deduced, and that he dealt with the agent in reliance therein in good faith and in the exercise of reasonable prudence.’ 2 C.J. p. 575, § 215.

“It is not permissible to take into consideration, as a basis for a conclusion as to the extent of apparent authority, the power that the agent pretends to have or his activities that are unknown to and unratified by the principal.” Citing authorities. Continental Oil Co. v. Baxter, Tex.Civ.App., 59 S.W.2d 463, 466.

Appellant’s plea of estoppel is, of course, in the nature of confession and avoidance. Appellee was admittedly entitled to recover the unpaid balance of the note, unless appellant established his plea of equitable estoppel. It having been found that no injury or prejudice to his rights resulted from the acts complained of, appellant failed to establish an element essential to support his plea. No useful purpose therefore will be served by discussing special issues Nos. 24 and 25.

It is appellant’s further contention that his pleading setting up the agreement in question, and his acceptance by acting on it, constitutes a declaration upon a binding contract. The proof failed to establish any contract binding on appellee.

The court did not err in rendering judgment for appellee, and it is accordingly affirmed.

Affirmed.


text:
    SMITH v. FIRST NAT. BANK IN GROVETON.
    No. 11148.
    Court of Civil Appeals of Texas. Galveston.
    Jan. 23, 1941.
    Adams & Morgan, of Crockett, and Wiley B. Thomas, of Groveton, for appellant.
    No brief filed herein for appellee. , ■

   CODY, Justice.

At its January Term, 1940, the court below overruled appellant’s plea of privilege to be sued in Houston County, Texas, the County of his residence. And from that judgment appellant perfected his appeal to this Court. Thereafter, at the June Term of the Court below, though appellant duly insisted on his plea of privilege, the cause was tried on its merits, and from a judgment against him, appellant has duly perfected this appeal to this Court. On December 12, 1940, this Court, 146 S.W.2d 270, reversed the judgment of the court below on appellant’s plea of privilege, and remanded the plea of privilege case to the trial court with instructions to transfer this cause, now on appeal from a judgment rendered on a trial on its merits, to the District Court of Houston County, Texas, to be there tried upon its merits. The appeal of the plea of privilege case bore the same style, of course, in this Court as does this appeal; but bore the docket number, 11,067.

Jurisdiction to try this case on its merits was not in the court below,-so the judgment now before us on appeal is accordingly reversed and the cause remanded to enable the court to transfer same to the District Court of Houston County in conformity with the instructions giv,en upon remanding the plea of privilege case. Slaughter Co. v. Slaughter, Tex.Civ.App., 288 S.W. 1107; O’Brien v. Smith, Tex.Civ.App., 80 S.W.2d 459; Trustees of Motley Ind. School Dist. v. Stock Co., Tex.Civ.App., 122 S.W.2d 321; Saulsbury v. Atlas Supply Co. Tex.Civ.App., 144 S.W.2d 930.

Reversed and remanded.


author: MURRAY, Justice.

text:
    HAUSMAN PACKING CO. v. BADWEY.
    No. 10846.
    Court of Civil Appeals of Texas. San Antonio.
    Jan. 22, 1941.
    Rehearing Denied Feb. 19, 1941.

      Abney & Whitelaw, of Brownsville, for appellant.
    Kent & Brown, of Harlingen, for ap-pellee.
   MURRAY, Justice.

George A. Badwey instituted this suit against Hausman Packing Company, a private corporation, seeking to recover damages for personal injuries sustained by him when he fell from a refrigerated truck belonging to the Packing Company.

Plaintiff alleged the defendant was negligent in the following particulars:

“(1) In permitting the floor of said truck to become wet and slippery.
“(2) In permitting the step leading from the floor of the truck to the ground to become wet and slippery.
“(3) In failing to have the back of said truck equipped with some character of handhold for the safety and protection of persons getting in and out of said truck.
“(4) In having only one step for the use of customers in getting from the ground to the floor of said truck, a distance of thirty-three (33) inches.
“(5) In permitting the floor of said truck to become worn and in such condition as to be dangerous to persons getting in and out of said truck.
“(6) In failing to warn the plaintiff of the wet, slippery and worn condition of said floor and step.”

The trial was to a jury and upon their verdict judgment was rendered in plaintiff’s favor in the sum of $5,000, from which judgment defendant, Hausman Packing Company, has prosecuted this appeal.

Appellant contends that the trial court erred in not giving it an instructed verdict.

The record shows that appellee was an invitee in the truck owned by appellant. He entered the truck for the purpose of purchasing meat for his restaurant. In attempting to get out of the truck he slipped and fell out the back end of the truck, thereby sustaining certain personal injuries. Appellant had been operating this truck for some time. The truck was a refrigerated truck with meat hooks on each side. A number of beef carcasses would be hung upon these hooks and appellant’s driver would call upon a number of hotel and restaurant owners for the purpose of selling them meat at wholesale. He would drive up and park near the place of business of his prospective customer, then invite the customer to enter the truck and select such meat as he might desire. Appellant’s driver had been calling upon appellee and selling him meat for more than six months. Appellee had entered the truck and selected meat on many occasions. He had ample opportunity to observe the condition of the truck, including the fact that the floor of the truck was often slippery, due to the fact that meat was sometimes cut in the truck causing pieces of meat and bone to fall on the floor, coupled with the drainage from the carcasses hanging in the truck. He also had an opportunity to notice that there was no handhold at the rear end of the truck to assist him in climbing into or alighting .from the truck. He also liad many opportunities to notice that there was but one step between the floor of the truck and the ground, a distance of some 33 inches. In other words, all of the dangerous conditions with reference to the use of the truck were open and obvious and as well known to appellee as to appellant. There is no allegation that appellee was entrapped or that he was injured as a result of any hidden defect in the truck.

It occurs to us that the fact that the place from which appellee fell was a truck is unimportant, it might as well have been a stationary house. As a matter of fact, when the truck was stopped in the alley near appellee’s place of business and the brakes applied, it became for the time being a house. The fact that it was resting on wheels or might very easily be set in motion does not change the fact that while appellee was in the truck and trying to alight therefrom it was in every respect similar to a house.

The rule is well settled that the owner of premises is not required to keep them safe for invitees in so far as open, obvious and known defects or conditions are. concerned. It is only when the conditions complained of are hidden and unknown that the invitee can recover damages for injuries resulting therefrom. Fort Worth Ry. Co. v. Hambright, Tex.Civ.App., 130 S.W.2d 436; Gulf Ry. Co. v. Irick, Tex.Civ.App., 116 S.W.2d 1099; Beeville Cotton Oil Company v. Sells, Tex.Civ.App., 84 S.W.2d 575; Marshall v. San Jacinto Building, Tex.Civ.App., 67 S.W.2d 372; Brockman, et ux. v. J. Weingarten, Inc., Tex.Civ.App., 115 S.W.2d 753; J. Weingarten, Inc. v. Brockman, 134 Tex. 451, 135 S.W.2d 698; McAfee v. Travis Gas Corporation, Tex.Civ.App., 131 S.W.2d 139; Walgreen Texas Co. v. Shivers, Tex.Civ.App., 131 S.W.2d 650; Boggus Motor Company v. Standridge, Tex.Civ.App., 138 S.W.2d 643; F. W. Woolworth Co. v. Graham, Tex.Civ.App., 257 S.W. 574; Graham v. F. W. Woolworth Co., Tex. Civ.App., 277 S.W. 223.

In Marshall v. San Jacinto Bldg., Inc., Tex.Civ.App., 67 S.W.2d 372, 374, it is said: “The trial court ruled correctly in instructing the verdict against appellant. * * * The duty to keep premises safe for invitees applies only to defects or conditions which are in the nature of hidden dangers, traps, snares, pitfalls, and the like, in that they are not known to the invitee, and would not be observed by him in the exercise of ordinary care. The invitee assumes all normal or ordinary risks attendant upon the use of the premises, and the owner or occupant is’ under no duty to reconstruct or alter the premises so as to obviate known and obvious dangers, nor is he liable for injury to an invitee resulting from a danger which was obvious or should have been observed in the exercise of reasonable care.”

Appellee contends that appellant’s liability should be measured more by the rule applied to common carriers of passengers, such as railroad cars, street cars and motorbusses, than the rule above announced. We cannot agree with this contention. The duty which the owner of a store or other premises owes to an invitee is quite different from the duty of a common carrier of passengers.

Appellee had been climbing in and out of this truck for many months; he knew, or by the exercise of ordinary care should have known, that the floor was defective and slippery, that there was no handhold at the rear of the truck and that there was only one step between the floor of the truck and the ground, a distance of 33 inches. Being charged with full knowledge of these obvious defects, which were not hidden in any way, he cannot recover for personal injuries caused by such defects or conditions.

The trial court erred in not instructing a verdict for appellant. The judgment will therefore be reversed and judgment here entered that appellee take nothing and pay all costs of this Court and the court below.

Reversed and rendered.


text:
    SMITH v. YOUNG.
    No. 11142.
    Court of Civil Appeals of Texas. Galveston.
    Jan. 23, 1941.
    Rehearing Denied Feb. 13, 1941.
    Albert R. Young, of Houston, for appellant.
    W. P. Hamblen and W. P. Hamblen, Jr., both of Houston, for appellee.
   CODY, Justice.

This is a personal injury suit brought by appellant for damages sustained in a collision which occurred between a car being driven by himself and a bread truck which was being driven by an employee of appel-lee. The collision occurred on November 7, 1936, at the corner of 26th Street and Airline Road within the City of Houston.

The jury answered the issues on primary negligence in favor of appellant, as they did also various issues submitted on contributory negligence. Indeed, it is apparent that appellant would have been entitled to judgment on the jury’s verdict except for the jury’s answer to special issue No. 17 which reads as follows: “Do you find from a preponderance of the evidence that the act of the plaintiff, David R. Smith, in driving his automobile at the time of and immediately before the collision in question, in excess of twenty miles per hour was a proximate cause, as that term is herein defined to you, of the collision in question? Answer ‘Yes’ or ‘No’.”

The jury answered the foregoing issue in the affirmative, and upon such answer the court rendered judgment for appellee.

Appellant’s first assignment of error, which he submits also as a proposition of law, reads as follows: “The court erred in overruling Plaintiff’s Motion for Judgment upon the verdict and entering judgment for Defendant because a proper interpretation of the verdict is for the Plaintiff in that there is no finding by the jury of any act or acts of contributory negligence of the Plaintiff and the Court was without authority to find such act or acts of contributory negligence upon mere expressions of opinion which were not binding upon Plaintiff as admissions against interest.” ,

It is appellant’s contention here, and urged under his first assignment of error, that whether appellant was driving in excess of 20 miles per hour on the occasion in question was a disputed fact issue to be submitted to the jury, and that the court, by the very form in which he submitted the issue, did himself determine a disputed fact issue, which should have gone to the jury. Of course the form of the issue does assume that it is undisputed that appellant was driving in excess of twenty miles per hour-. And it is not now disputed that appellant himself testified that he was driving between 22 to 25 miles per hour. Pie contends, however, that his testimony related to a matter of opinion and not to matter of fact. It may be that his testimony was a mere estimate, but if it was, it was outstanding as the lowest estimate made by any of the witnesses that testified as to the rate of speed at which appellant was driving. The opinion was universal among the witnesses who testified in that connection that appellant was driving in excess of 20 miles per hour; one of such witnesses testified that he was driving 55 miles per hour. However, we do not think we need here concern ourselves with whether appellant’s testimony related to an opinion or to a fact, for appellant does not claim to have objected to the submission of the issue as framed prior to the return of the jury’s verdict thereon.

There was certainly no legal obstacle to prevent the parties trying the cause on the theory that it was not disputed that appellant was driving at the time in question in excess of 20 miles per hour, and that there remained an issue of fact to go to the jury only on whether the admitted driving by appellant in excess of 20 miles per Jiour was a proximate cause t)f the collision. And in such situation, under Article 2185, Vernon’s Annotated Texas Civil Statutes, the objection which appellant belatedly made after the verdict was returned — after both sides had taken their chances on a verdict upon such theory —was waived. Montgomery v. Cunningham, Tex.Civ.App., 137 S.W.2d 818, 819, writ refused. Neither is Article 2190 of said Statutes, nor the cases of Ormsby v. Ratcliffe, 117 Tex. 242, 1 S.W.2d 1084, and Wichita Falls & O. R. R. Co. v. Pepper, 134 Tex. 360, 135 S.W.2d 79, here applicable. Id. We are therefore constrained to overrule appellant’s first assignment.

Appellant’s second assignment of error is as follows: “The court erred in entering judgment upon the verdict because the fatal and irreconcilable conflict of answers which were given to special issues Numbers 17 and 15 were mutually destructive, rendering any judgment for Defendant based thereupon improper.”

Special issue No. 17 is set forth above, and will not be here repeated. Special issue No. 15 reads as follows:

“Do you find from a preponderance of the evidence that the plaintiff, David R. Smith, failed to have his said Ford automobile under proper control at the time of and immediately before the collision in question ?
“Answer ‘Yes’ or ‘No’. -
“By the term ‘proper control’ as used in the foregoing issue, is meant such control as a person of ordinary prudence in the exercise of ordinary care would have kept under the same or similar circumstances.”

To special issue No. 15, the jury answered “No”.

To special issue No. 17, the jury answered “Yes”.

In connection with his second assignment of error, appellant cites the holding in Manlove v. Lavelle, Tex.Civ.App., 235 S.W. 324, 325, which was followed in Austin v. DeGeorge, Tex.Civ.App., 55 S.W.2d 585, as follows: “A vehicle may be traveling at a highly excessive rate of speed, and yet be under such control as to proceed in safety in the normal course unless some unexpected danger suddenly intervene which could not have reasonably been anticipated.”

Appellant concedes that the quoted holding at first blush seems to be against him, but he contends that the definition of “control” given by the trial court in connection with special issue No. 15, when considered in light of the definition given by the court of “proximate cause”, distinguishes the instant case from the two cited cases, and when such distinction is allowed for, that the cited cases support his contention. We will not undertake to labor the point with appellant, for it is patent to us that the answers of spécial issues 15 and 17 are not necessarily in conflict. It is obvious that it may well be that the rate of speed fixed by law as the maximum lawful rate at which an automobile may be driven within a city may well be less than the rate at which a person of ordinary prudence would consider reasonable and proper in order to keep his car under control. A moment’s reflection makes it manifest that the statutory limitation upon the maximum rate of speed at which an automobile may’be lawfully operated is fixed for the purpose, not of defining and enforcing the control or care which a person or ordinary prudence must exercise in driving a car, but is done to change from such looser common law standard to a stricter statutory standard which is calculated to promote greater safety by laying a fixed top speed. The second assignment of error is overruled.

Appellant makes as his third assignment of error and proposition the following: “The court erred in entering judgment after the verdict of the jury for the reason that the jury in considering their verdict had recourse to and necessarily considered evidence, admissions, declarations, notations, written memoranda and documents extraneous of the record and outside, of the evidence which was produced upon the trial all of which even though accidental is prejudicial as a matter of law.”

Appellant complained in paragraph 7 of his motion for a new trial that, through inadvertence, his carbon copy of the court’s charge had been handed to the jury along with the other papers, and taken by them in their retirement. Appellant further complains that he had made certain pencil-led notations on his copy of the charge to prompt his memory in addressing the jury on said charge. Appellant contends that, under article 2193, Vernon’s Annotated Texas Civil Statutes, the taking by the jury of his marked copy of the court’s charge vitiated their verdict.

While the complaint referred to is made at considerable length in the motion for new trial, and it appears that the court heard and overruled the motion for a new trial, it does not appear what evidence appellant adduced in support of his said complaint. In the absence of a statement of facts of the evidence adduced at said hearing we must assume that there was ample evidence to sustain the court’s denial of a mistrial on the stated ground. So far as the record 'before us discloses the appellant did not prove that his copy of the charge was taken by the jury in its retirement.

If it was established that the jury did take the marked copy of the court’s charge in its retirement, and if it was further established that the jury or any member read or was influenced thereby, we would be inclined to think that the fact the notations were favorable to appellant would not necessarily make the matter harmless error so far as appellant is concerned. For if the notations came to the attention of the jury and were of such a nature as was calculated to influence the jury for appellant, then had the jury found for appellant instead of for appellee, the court would upon complaint of appellee have to hold the verdict vitiated. Under such circumstances then, appellant would not have had a chance to prevail, for if he obtained the verdict, it would have been set aside at the instance of appellee. Therefore, the fact that notations may have been favorable in their nature to appellant would not prevent them vitiating a "verdict based thereon. And if a favorable verdict for appellant would have been set aside at the instance of appellee an unfavorable one should be set aside at his instance.

It would serve no useful purpose to set forth the notations, and it would serve no purpose for us to express an opinion on whether said notations were of a character capable of vitiating the verdict if it had been established that they came to the attention of the jury.

The trial court’s judgment is affirmed.

Affirmed.

On Motion for Rehearing.

A witness for appellant who was riding with him at the time testified that the rate at which appellant was driving on the occasion in question was probably 20 miles per hour. This does not affect our ruling to the effect that appellant’s complaint that the court submitted special issue No. 17 to the jury comes too late.

Appellant calls our attention to the fact that his motion for a new trial, which presents the complaint that his marked copy of court’s charge was inadvertently handed the jury, was not presented to the court, but overruled by operation of law. As we' have no jurisdiction in the first instance to pass on whether there was evidence sufficient to vitiate the verdict, but can only rule on whether the trial court erred in overruling appellant’s complaint that there was such evidence, we assumed erroneously that the complaint had been presented below. We are unable to sustain appellant’s assignment of error in that connection because the error, if any there was, was waived. Accordingly, we withdraw the last three paragraphs of our original opinion filed herein on January 23, 1941.

Appellant’s motion for rehearing will be refused.

Motion refused.


author: MONTEITH, Chief Justice.

text:
    KOST FURNITURE CO. v. LOS ANGELES PERIOD FURNITURE CO.
    No. 11089.
    Court of Civil Appeals of Texas. Galveston.
    Jan. 30, 1941.
    Rehearing Denied Feb. 20, 1941.
    C. M. Wunderman, of Efouston, for plaintiff in error.

      George E. Ross and George B. Banks, both of Houston, for defendant in error.
   MONTEITH, Chief Justice.

This is an appeal from a default judgment rendered in favor of defendant in error, Los Angeles Period Furniture Company, for debt arising out of the execution by plaintiff in error, Kost Furniture Company, of a series of promissory notes. The parties hereto will be designated as in the trial court.

Service was had upon defendant, a corporation with principal office and residence in Harris County, Texas, by leaving a copy of the citation at its principal office at Plouston, Texas. No answer having been filed or appearance entered, judgment by default was rendered against defendant and in favor of plaintiff in the sum of $1,-322.75, which included the amount of principal due on said notes and 10% attorney’s fees thereon. The citation was directed to the Kost Furniture Company. It contains the following return: “Received this writ on the 4th day of December, A. D. 1939, at 4:32 o’clock P. M. and executed the same in Houston, Harris County, Texas, on the 5th day of December, A. D. 1939, at 3:30 o’clock P. M. by summoning the Kost Furniture Company, a corporation, the within named defendant, by leaving in the principal office of the said Kost Furniture Company a true copy of the citation, during office hours.”

The controlling questions presented in the appeal are: (1) Whether the return on the citation showing service thereof by leaving a copy at the principal office of defendant was sufficient to confer jurisdiction on the trial court; and (2) whether, in the absence of a showing in the record of evidence of an agreement between plaintiff and its attorney for collection fees, the judgment in an amount exceeding the amount of the principal on the notes was erroneous.

Article 2029, Revised Statutes of 1925, as amended in 1933, Vernon’s Ann.Civ.St. art. 2029, reads: “In suits against any incorporated company or joint stock association, the-citation may be served on the President, Vice President, Secretary, Cashier, Assistant Cashier, or Treasurer of such company or association, or upon the local agent of such company or association in' the county where the suit is brought, or by leaving a copy of the same át the principal office of the company during office hours. If neither the President, Vice President, Secretary, Assistant Secretary, Cashier, Assistant Cashier, or Treasurer reside in the county in which suit is brought, and such company or association has no agent in the county, then the citation may be served upon any agent representing such company, corporation, or association in the State.”

The object of a citation is to give the court in which a petition has been filed jurisdiction over the person of defendant and to notify the defendant of the suit brought against him in order that he may have an opportunity to be heard. The provision of the statute authorizing service of citation on an incorporated company by leaving a copy of the writ at the principal office of such company, during office hours, contemplates that the company, its officers or agents, would, in the ordinary course of events, find the writ or would legally be charged with failure to do so. Bozeman v. Arlington Heights Sanitarium, Tex.Civ.App., 134 S.W.2d 350, writ refused.

In construing said Article 2029, the Commission of Appeals in the case of First National Bank v. Guaranty Bond State Bank, 23 S.W.2d 312, 314, says: “It is a general law, and, in construing the meaning of its provisions, that construction will be given which will accomplish the result evidently sought to be attained by the Legislature in enacting it. It appears from the reading of this article that the Legislature intended to permit an incorporated company to be served with citation in a suit against it in several ways, one of which was to serve the citation on the president; another upon the secretary; another upon the treasurer; another upon the local agent in the county where the suit is brought; and another by leaving a copy of the same at the principal office of the company during office hours. A service in [any] of these ways, under the law, is a legal one, and is sufficient, when shown thus to have been had, to confer jurisdiction over the incorporated company by the court in which the suit against it has been filed.”

In discussing the scope of the service under said article it is said in 11 Tex. Jur., page 71, Section 41, that: “This article provides for alternate modes of service and service thereunder is legal and sufficient if made in any one of the prescribed ways.”

This text cites the cases of First National Bank v. Guaranty Bond State Bank, Tex.Com.App., 23 S.W.2d 312, and Household Furniture Co. v. Alvarado, Tex.Civ. App., 246 S.W. 1111.

Defendant relies upon the case of Delta Orchards Company v. Gregory et al., Tex.Civ.App., 40 S.W.2d 864, writ of error refused, as authority for the proposition that the provision of said Article 2029 applies only in suits in which the principal office of defendant is other than the county in which the suit was instituted.

While this case holds that the provision of said article which authorizes service of citation on an incorporated company by leaving a copy of the writ at its principal office during business hours applies to service of citation in a county other than the one in which the suit was instituted, it- does not hold that such service in a county where the suit is pending is not also valid service.

Under the above authorities, we think that it was the intention of the legislature to permit an incorporated company to be served with citation in a suit against it in any one of the ways authorized by said Article 2029.

Defendant’s contention that said judgment was void for the alleged reason that no proof was offered as to an agreement to pay an attorney’s fee cannot be sustained.

It is the established law in this state that where a case is tried before the court, without a jury, and the record contains no statement of the facts proven and no findings of fact by the trial court, a reviewing court must assume that eyery fact alleged and necessary to support the judgment was found by the trial court upon sufficient evidence unless the contrary is clearly shown. Miller v. Texas Central Agency Co., Tex.Civ.App., 141 S.W.2d 441; Kinney v. Johnson et al., Tex.Civ.App., 135 S.W.2d 773; Massachusetts Bonding & Ins. Co. v. Pittsburg Pipe & Supply Co., Tex.Civ.App., 135 S.W.2d 818.

In the instant case the record is silent ás to whether the court found any facts relative to the attorney’s fees awarded in the judgment.

Further, it has been uniformly held that a holder of notes containing stipulations for attorney’s fees if notes are placed in the hands of an attorney for collection is prima facie entitled to recover the amount stipulated therefor upon the happening of the event, and if there is any reason why the amount so stipulated should not be paid it is a matter for affirmative defense. Kansas City Life Ins. Co. v. Duvall et ux., Tex.Civ.App., 129 S.W.2d 770; Amuny v. Seaboard Bank & Trust Co., Tex.Com.App., 23 S.W.2d 287; Gunter v. Merchant, Tex.Com.App., 213 S.W. 604.

It follows from the above conclusions that the judgment of the tiial court must be in all things affirmed; it is so ordered.

Affirmed.


author: WALKER, Chief Justice.

text:
    ENGLISH et al. v. WARE.
    No. 3798.
    Court of Civil Appeals of Texas. Beaumont.
    Jan. 30, 1941.

      Darden & Burleson, of Waco, for appellant.
    S. M. Adams and R. A. McAlister, both of Nacogdoches, for appellee.
   WALKER, Chief Justice.

On the 6th day of February, 1940, an automobile in which Ray Ware was riding as a passenger ran into the rear end of a truck owned and operated by appellant, J. M. English. Ware’s wife, appel-lee herein, and a third person were with him in the automobile; Ware was killed in the collision. At the time of the collision, appellant’s truck, in operation in his business, was parked on the west side of North Street in the corporate limits of the City of Nacogdoches, near the Eat-a-Bite cafe. The truck driver, David I. Sawyer, was in the truck. The lights on the truck were not burning. Appellant was not present at the time of the collision. North Street constitutes a section of State Highway No. 35.

This suit was filed by appellee, the widow of the deceased, against appellant, praying for judgment for damages suffered by her by reason of the death of her husband. She plead against appellant the facts generally as stated above, and the following acts of negligence, based on the facts as proximate causes of the collision: (a) the parking of his truck, after night, on the main travelled portion of a street or highway within the corporate limits of the City of Nacogdoches; (b) the parking of his truck on.a public street or highway without any lights; and a general allegation of (c) the parking of his truck without taking any precautions to warn the travel-ling public of the location of the truck.

In reply to appellant’s plea of privilege to be sued in Harris County, the county of his residence, appellee filed her controverting affidavit in due form, sufficient to support the introduction of the facts detailed above, and .in support of her venue laid in Nacogdoches County, she plead Subdivision 9 of Art. 1995, R.C.S. 1925, which provides that: “A suit based upon a crime, offense, or trespass may be brought in the county where such crime, offense, or trespass was committed, * *

On trial to the court without a jury, judgment was rendered overruling the plea of privilege.

Opinion.

In parking the truck on North Street without its lights burning, appellant’s truck driver committed a crime or offense within the meaning of Subdivision 9,' Art. 1995, in that he violated the provisions of Art. 798 of the Penal Code: “Every motor vehicle * * * while on the public highways, when in operation, during one-half hour after sunset to one-half hour before sunrise * * * shall carry at the front at least two lighted lamps * * * and shall also carry at the rear a lighted lamp exhibiting one red light. * * * Any person who while operating such vehicle on a public highway shall violate any provision of this article shall be fined not to exceed one hundred dollars.”

At the time of the collision, appellant’s truck was being operated in his business. Sawyer, the truck driver, was in charge, driving it to Houston in the course of his employment. At the time of the collision, it was parked temporarily, only for a short period of time, Mr. Sawyer intending to resume its active, operation and to drive it on to Houston. On this statement, at the time of the collision, appellant’s truck was “in operation” as that term is used in Art. 798 of the Penal Code. Horton v. Benson, Tex.Civ.App., 266 S.W. 213; Pennington Produce Company v. Wonn, Tex.Civ.App., 49 S.W.2d 482; Sproles v. Rosen, 126 Tex. 51, 84 S.W.2d 1001.

The fact that appellant was not present at the time of the collision, in charge of his truck, is immaterial. Appellee.’s cause of action is “based” upon the “crime” or “offense” committed by Sawyer, appellant’s agent, in the City of Nacogdoches, Nacogdoches County. Roadway Transport Company v. Gray, Tex.Civ.App., 135 S.W.2d 200.

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

Affirmed.


author: SPEER, Justice.

text:
    TRADERS & GENERAL INS. CO. v. WILSON et al.
    No. 14168.
    Court of Civil Appeals of Texas. Fort Worth.
    Jan. 31, 1941.

      Lightfoot, Robertson & Gano, of Fort Worth (E. B. Robertson, of Fort Worth, of counsel), for appellant.
    John W. Culp, of Gainesville, for appel-lee Gordon Wilson.
    Napier & Napier, of Wichita Falls, for appellee W. A. Wilson.
   SPEER, Justice.

This is a Workmen’s Compensation case, growing out of the death of William Woodrow Wilson from accidental injuries sustained while in the discharge of his duties as an employee of Hipp, Inc.

Deceased was a minor at the time of his death. He left surviving him his father, W. A. Wilson, and a dependent minor brother, Gordon Wilson. The father and minor son sought to recover compensation for the statutory period allowed by law, from Traders & General Insurance Company, carrier of compensation insurance for the employer, Hipp, Inc. Gordon Wilsop, the minor, was represented by an attorney ad litem, appointed by the court for that purpose.

The Industrial Accident Board made a final award of $7.79 compensation, payable weekly to the father, W. A. Wilson, for 360 weeks. Denial by the Board was made of any compensation to the child, Gordon Wilson. The insurance carrier gave notice of its dissatisfaction with the award and timely perfected its appeal to the district court of Cooke County, and prayed that a guardian ad litem be appointed to represent the interest of the child and that the award of the Board be set aside, for general relief, including costs of suit.

W. A. Wilson answered with general denial and by cross action for recovery of all the compensation, alleging that his deceased son’s average weekly wage rate was $63, fixed, first, by sub-section 1 of Section 1, Article 8309, R.C.S., and alternatively to be fixed by sub-section 2 of said Section 1, and again alternatively under sub-section 3 of said Section of the statute named by us. W. A. Wilson plead and prayed for a lump sum settlement.

An attorney ad litem was appointed by the court for the child, Gordon Wilson, who in turn joined the father in his answer to the carrier’s petition, as well also the cross action, alleging his dependency upon his deceased brother for support, and asked for recovery of one-half of the compensation to be allowed.

Funeral directors, who prepared and interred the body of deceased, intervened and prayed for allowance of their bill. No complaint is made of this phase of the case, and we need not devote any further attention to it.

The case was tried to a jury on special issues. Judgment was entered on the verdict that deceased’s average weekly wage rate, based on sub-section 3 of Section 1, Article 8309 R.C.S., was $30 per week; that sixty per cent of that wage rate was $18 per week. For the total of 360 weeks, being $6,480, one-half or $3,240, with six per cent per annum interest from the date of the death of William Woodrow Wilson, was awarded to the father, W. A. Wilson, payable in a lump sum. The judgment divides this recovery by awarding one-third thereof to the attorneys of record.

The other half of the recovery was awarded to Gordon Wilson, the dependent child, in the following manner: $387 covering weekly compensation for the time expired since the death of his brother to the date of trial; to this amount was added $9.46 as interest accrued on the instalments past due; in addition to the amount past due, Gordon Wilson was awarded a weekly compensation of $9 per week (one-half of the total of $18) for the remaining 317 weeks. Motion for new trial by Traders. & General Insurance Company being overruled, it has perfected this appeal.

Because of the complications involved when Traders & General Insurance Company appealed to the district court and there it became plaintiff and W. A. Wilson and Gordon Wilson became defendants, and the two Wilsons thereafter became cross plaintiffs and the insurance company a cross defendant, and because of the recovery by the Wilsons and the appeal by the company it became the appellant and the Wilsons are the appellees, we find it difficult to designate the parties in this discussion. We shall therefore refer to them and others when necessary, calling Traders & General Insurance Company appellant, the Wilsons appellees, except when necessary to distinguish between them, and then W. A. Wilson will be called the father and Gordon Wilson will be mentioned as the child or minor son.

The appellant frankly confesses liability for compensation in this case, but, as we understand its briefs and oral arguments, the principal contention is that the recovery was based upon the wrong measure of deceased’s average weekly wage rate. This point is presented by its seventh, eighth and ninth propositions, based upon adequate assignments of error. The average weekly wage rate was based upon the jury verdict, which found $30 per week. This finding was in response to special issue 10, which inquired about the rate based upon sub-section 3 of Section 1, Article 8309, R.C.S., commonly referred to as being the amount shown to be just and fair between the parties.

It is not contended j>y appellant that deceased had worked either for the employer or any other person in similar work for substantially a whole year next prior to the date of his death. But because it appears that he had been employed by Hipp, Inc., at intervals (by the hour aggregating 191 days) during the preceding year and had earned $675, the average weekly rate should have been found to be one 52nd part of $675, viz., $12.98; that any other finding such as that of $30 made by the jury was not just and fair between the parties.

The provisions of the Workmen’s Compensation Act by which the average weekly rate shall be calculated, have been before the courts so many times, and quoted at length in numerous decisions, we think it unnecessary to quote them here. Suffice it to say, the rate is to be fixed by one of three methods known as sub-sections 1, 2 and 3 of Section 1, Article 8309; R.C.S. Means employed must be in the order these sub-sections are named. By 1, if the employee has worked for one or more employers in the kind of the work engaged in when injured, for substantially a whole year next preceding the date of the injury (about 300 days, Petroleum Casualty Co. v. Williams, Tex.Com.App., 15 S.W.2d 553) the annual wage shall be 300 times the daily wage. Under subsection 2, if the employee had not so worked for the time mentioned, then the annual wage rate is to be fixed at 300 times the daily wage of other employees engaged in similar work for substantially a year next preceding the date of the injury, in the same or a neighboring place. By subsection 3, it is provided that if for good and sufficient reasons it is impracticable to fix the rate under 1 or 2, it shall be computed by the Board (or court) in any manner which may seem just and fair to both parties.

The evidence unmistakably discloses that the e'mployer was engaged in cleaning out oil wells and that his work was irregular, not continuous; that when the manager had work to be done during the year next preceding the date of the injury on May 13th, 1939, he employed the deceased to perform certain labors in connection with the job; that when thus called to work by the employer, deceased worked part time as a truck driver at $40 per month; as machine helper he received fifty cents per hour, and as machine operator he received seventy-five cents per hour. The time devoted to all of these duties during the year aggregated 191 days. He had worked as machine operator 19 days during the year; he was such operator on the date he received his fatal injuries. Deceased was free to accept employment from other persons .during the time he was not employed by Hipp, Inc., and he is shown to have done so during the year, but the number of days he worked for others, or the amount received is not shown.

The purpose of the Workmen’s Compensation Act is designed to compensate an injured employee, not merely for the loss of earnings, but for loss of earning capacity, at a wage rate based on his capacity to earn when employed on a full time basis. Texas Employers’ Ins. Ass’n v. Clack, 134 Tex. 151, 132 S.W.2d 399; Maryland Casualty Co. v. Drummond, Tex.Civ.App., 114 S.W.2d 356, writ refused; Traders & General Ins. Co. v. O’Quinn, Tex.Civ.App., 111 S.W.2d 859, writ refused. We think the rule announced is a correct one and should be followed in arriving at a correct interpretation of the Legislative intent. In this case the deceased unquestionably had the capacity and ability to earn the wages of a machine operator — he was performing that duty when fatally injured. However, with this particular employer, and perhaps with others, deceased could not work full time at that class of labor and of necessity was required to accept less wages at times during the preceding year. But we repeat, his compensation was not for the loss of wages, but for the loss of ability to earn wages (death in this case) when employed on full time basis.

Deceased’s income during the preceding year was derived in part from earnings at such labor as he could procure at times when he could not get work as a machine operator. In addition to this, he is shown to have worked in the oil fields for others than Hipp, Inc., during' that year. We do not know how much he worked or what he earned, but do know that he had about 109 days in which he was not working for Hipp, Inc. Such earnings for others are not included in the $675 paid by Hipp, Inc., which appellant contends should be divided by 52 to arrive at a just and fair average weekly wage rate.

In Maryland Casualty Co. v. Drummond, Tex.Civ.App., 114 S.W.2d 356, 359, writ refused, the average weekly wage rate was fixed on the “just and fair” rule. In that case the employee was injured, while performing common labor at a small wage and attempted to show that in fact he had the ability to perform skilled labor at a much higher wage rate; this was denied him. It was held that to ascertain the just and fair wage rate, the evidence must tend reasonably to establish the capacity of the claimant to earn wages in the same or similar employment to that in which he was engaged at the time of his injury. It was there asserted that the principle announced was not in conflict with the rule in Traders & General Ins. Co. v. Bulis, 129 Tex. 362, 104 S.W.2d 488. In the case at bar, deceased was in fact performing the services of a skilled laborer, drawing the wage common to that class of workman, and was classified by his employer at the time as a machine operator. The rate of insurance for compensation is based upon the classification of the laborers covered, and the payroll of the employer covering them. It may be assumed that appellant was receiving insurance premiums based upon the classification of the laborers and the wages paid.

It cannot be denied that the Legislature intended that sub-sections 1 and 2 of Section 1 should not be ignored altogether when the rate cannot be fixed thereunder, and resort taken to sub-section. 3 for an. arbitrary means of fixing the rate. By its provisions it was intended' that the Board (and courts) should use their sound discretion in each case and consider what the employee or like employee engaged in the same kind of work in that vicinity did in fact earn at such, employment along with any other facts or circumstances shedding light 'on the subject. Traders & General Ins. Co. v. Bulis, 129 Tex. 362, 104 S.W.2d 488; Texas Employers’ Ins. Ass’n v. Van Pelt, Tex.Civ.App., 68 S.W.2d 514. Reverting to our foregoing statement referable to the purposes of the Act, to compensate an injured employee for his diminished capacity to earn wages, then the Board (and courts) may take into account in cases like this, the fact that deceased was qualified to earn and was earning, when he met his death, seven.ty-five cents an hour, and this may be multiplied by the number of hours necessary to make a week under his contract of employment. A calculation upon this basis would be much more than that allowed by the jury when considering a just and fair rate. We do not lay down the method mentioned as being necessarily the only one to be employed, but because it is persuasive that the average weekly rate of $30 found by the jury was not an arbitrary amount, so excessive as to find no support in the record, as cdntended for by appellant. We do not believe that the rate should have been fixed by a division of the amount shown to have been earned from Hipp, Inc., by 52 weeks, as the only just and fair means by which the rate could be established, nor do we believe reversible error is shown because this was not done.

Appellant’s tenth proposition is closely associated with those just discussed. In connection with special issue No. 10, inquiring about a just and fair average weekly wage rate, the court gave this explanation : “In answering No. 10 you may take into consideration any increase in wages William Woodrow Wilson might have reasonably expected under normal conditions.” Complaint is made of this part of the charge. The objections to it are: (a) It is a general charge, (b) not a definition of any term used in the charge, and (c) there is nothing involved in the case or any issue as to any reasonable prospects of advancement or increase in wages of the deceased.

The instruction complained of is not a general charge, nor did it necessarily have to be confined to definitions of terms used in the charge. It was such an explanation as the court deemed proper to enable the jury to understand and properly answer the question to which it related. This was not improper. Lee v. Wilson, Tex.Civ.App., 91 S.W.2d 461, writ refused; Fort Worth Sand & Gravel Co. v. Peters, Tex.Civ.App., 103 S.W.2d 407, writ dismissed.

Appellant argues that there is nothing in this case to warrant the explanation complained of, that there was nothing in the case to indicate that deceased could have reasonably anticipated any advancement or increase in his wages; that he was receiving the same wages at the time of his death that other men who were more than twenty-one years old were being paid.

Deceased was 18 years old when he was killed; he had been engaged at work in the oil fields of various kinds for about a year and a half. He is shown to have been promoted by his last employer during the year from a truck driver at $40 per month to a machinist’s helper at fifty cents an hour, and from that to operator of the machine at seventy-five cents an hour. This is the price paid all operators in the field. His brother testified that he and Mr. Hipp (the employer) had been training deceased to become an operator and he was doing that work on alternating tours with the witness, prior to his death. His employer testified that deceased was classified as an operator at the time of his death; that deceased was an extra good man, intelligent and took an interest in his work; that he was such a man that would remain and advance in his work.

Article 8306, Sec. 12(i), Vernon’s Ann. Civ.St. art. 8306, § 12(i), reads: “If it be established that the injured employé was a minor when injured and that under normal condition his wages would be expected to increase, that fact may be considered in arriving at his average weekly wages and compensation may be fixed accordingly. * *

The deceased in this case began work in the oil fields when he was 17 years old; he apparently drew nominal wages as a truck driver. Because of his sterling worth he rapidly progressed within a little over a year to the position of machine operator, drawing a wage of seventy-five cents an hour, and was doing this when killed. He was the type of young man employers delight to find, his employer said he was of type who takes an interest in his work and that of his employer and such as would remain with an employer and advance in his work. This testimony, along with other evidence that deceased had been in training during the year for more skilled labor and advancement, we think raised the issue of whether or not, if he had lived, he could have reasonably anticipated advancement under normal conditions.

However, we think also that there, is nothing in the record to indicate that any additional amount was added to 'the average weekly wage rate found by the jury, as a result of the explanation given by the court. As indicated above, based on the wages being received at the time of his death, his average wage rate would have been much mote than that allowed by the jury. See Associated Indemnity Corp. v. Wilson, Tex.Civ.App., 21 S.W.2d 314, writ refused; United Employers Casualty Co. v. Knight, Tex.Civ.App., 139 S.W.2d 613, writ dismissed, correct judgment. In the last cited case the injured employee became 21 pending trial below, and it was shown that he was receiving, from time to time, promotions and advanced wages during his minority. We see no error in the court’s charge and the assignment is overruled.

Eleventh, twelfth and thirteenth propositions complain of argument made to the jury by appellees’ counsel. We have carefully read the bills of exception upon which the objections are based and are convinced that no harmful error is presented and they are overruled.

First to fourth propositions, inclusive, complain because a lump sum settlement of the recovery by the father was allowed by the jury verdict. These propositions are based upon the insufficiency of the pleadings and evidence to support a judgment in this respect.

It is evident to us that the prime object of the Workmen’s Compensation Act is to require payment of compensation by the week, unless the liability of the insurance carrier be redeemed as provided by law. Art. 8306, R.C.S., § 18.

By section 15 of the same article it is provided that in death cases, such as this, the insurance carrier’s liability may be redeemed. It is there said: “In special cases where in the judgment of the board manifest hardship and injustice would otherwise result, the board may compel the association [carrier] * * * to redeem their liability by payment of a lump sum as may be determined by the board.”

The above' provisions apply with equal force to courts when an appeal is perfected from the award of the Board, as provided by the Act. In case of appeal the pleadings of the parties are controlled by the rules of procedure in civil cases. It would unnecessarily extend this opinion to quote appellees’ pleadings in this respect. There are allegations to the. effect that the father owned no property, was employed at a small salary and is compelled to live in a very cheap boarding house, which makes it undesirable to keep' his minor son in such a place. That if his compensation be paid in a lump sum he will be enabled to procure suitable living quarters for himself and child and to engage in a small business of his own, the nature of which is described; that he is familiar with the work connected' therewith and will be able to thus support and maintain himself and child, the minor appellee here. He alleges in the statutory words that to deny him a lump sum award “will work a manifest hardship and injustice” upon him.

The evidence adduced supports the allegations made; it is disclosed that the father is earning from $1.25 to $1.50 per day driving a taxicab; he owns no other property and that none of his other adult children, all now married, contribute anything to his support, or to the support of the child.

The jury answered a special issue finding the facts alleged and proved to be true. Upon this finding the court awarded to the father a lump sum settlement. We think the pleadings sufficient and the evidence supports the verdict. We are not at liberty to disregard the jury’s findings on the facts. The assigned error is overruled.

This brings us to a consideration of propositions five and six, which we have purposely left for a final discussion. The points raised are that the lump sum award made to the father, W. A. Wilson, was not discounted by the court in the manner and amount provided by law. The contention is well taken. By Article 8306a, Vernon’s Ann.Civ.St., it is provided that when the liability of the insurance carrier is redeemed by lump sum payment under order of the court, discount shall be allowed on the total amount awarded in weekly payments, at the rate of six per cent compounded annually.

The award in this case was for compensation to W. A. Wilson, the father, on a basis of $9 per week, for 360 weeks; the total amount aggregated $3,240. Of that time 43 weeks had expired at the date of trial and were due and unpaid. Interest at six per cent per annum being added to the amount due, amounted -to $396.46. The remaining 317 weeks at $9 per week discounted at six per cent compounded annually, would make the then present value of deferred payments $2,399.96; this amount added to the $396.46 due on matured payments aggregates $2,796.42, the amount which appellee, W. A. Wilson, should have recovered. No complaint is made of the award to the child, Gordon Wilson, except that the average weekly wage rate was found‘to be too much. This question we have disposed of against appellant’s contention in á previous part of this discussion.

The judgment of the court awarding to W. A. Wilson the sum of $3,240, to be paid in a lump sum, is set aside and judgment here rendered in his favor for $2,796.42, with interest thereon at six per cent per annum from and after February 19th, 1940, the date of judgment entered in the trial court. In all other respects the judgment of the trial 'court is affirmed. The costs of this appeal will be taxed in equal amounts against appellant and appellee W. A. Wilson.

Judgment of the trial court is. set aside and reformed in part, and, as reformed, is affirmed.


text:
    NOXON v. COCKBURN et al.
    No. 11117.
    Court of Civil Appeals of Texas. Galveston.
    Jan. 16, 1941.
    Rehearing Denied Feb. 20, 1941.

      Chester H.' Johnson and A. D. Dyess, both of Houston, for appellant.
    J. L. Webb, of Houston, for appellees.
   MONTEITH, Chief Justice.

This is an appeal from a judgment of the District Court of Harris County sustaining a general demurrer and a special exception urged by appellees, H. C. Cockburn and Cockburn Oil Corporation, against an action brought by E. G. Noxon, appellant, for specific performance of an alleged parol contract for the purchase of certain oil, gas and mineral leases claimed to have been owned by him and for damages alleged to have been caused by the breach of said contract.

Appellant alleged that appellees orally agreed to purchase said leases for the sum of $100,000, appellant to retain a 1/24 overriding royalty therein ; that appellees took possession of said properties and caused an oil well to be drilled thereon under the terms of said contract, but that, when said well was abandoned as a dry hole, they had refused ,to comply with the terms of their said contract of purchase or to pay the balance of the purchase price due thereon. Appellant admitted in his pleading that the contract between bimself and appellees for the purchase and sale of said properties was “never reduced to writing and signed by both plaintiff and defendants or either of said defendants”, but, in anticipation of appellees’ plea of the statute of frauds, he alleged the .payment of $1,-500 on the purchase price for said properties, the delivery of possession, and the use thereof by appellees, including the erection of a derrick, the installation of drilling machinery, and the digging of a slush pit thereon and that, by reason thereof, the value of said properties had been totally destroyed. He alleged that by reason of these facts appellees were es-topped from claiming the benefits of the statute of frauds.

Appellees answered by general demurrer and special exceptions, setting up the statute of frauds.

Upon a'hearing upon the questions of law presented thereon, the court sustained ap-pellees’ general demurrer and their special exception No. 13, wherein they excepted to appellant’s petition on the ground that it appeared from the face thereof that appellant’s cause of action was based upon a parol agreement for the transfer of land' and interest in land and that it disclosed that said contract was in parol and was within the statute of frauds. Appellant having declined to amend, his cause of action was dismissed by the court.

The controlling question .presented in this appeal is whether, under the facts alleged by appellant, appellees are estopped from claiming the benefits of the statute of frauds.

The parts of said Article 3995, Revised Statutes of 1925, known as the statute of frauds, read:

“No action shall be brought in any court in any of the following cases, unless the promise or agreement upon which such action shall be brought, or some memorandum thereof, shall be in writing and signed oy the party to be charged therewith or by .'•ome person by. him thereunto lawfully authorized. * * *
“4. Upon any contract for the sale of real estate or the lease thereof for a longer term than one year.”

Article 1288, Revised Statutes of 1925, reads: “No estate of inheritance or freehold, or for a term of more than one year, in lands and tenements, shall be conveyed from one to another, unless the conveyance be declared by an instrument in writing, subscribed and delivered by the party disposing of the same, or by his agent thereunto authorized by writing.”

Our courts have held by an unbroken line of authorities that to relieve a parol sale of land from the operation of the statute of frauds, three elements are necessary: (1) The. payment of the consideration, whether it be in money or services ; (2) the possession of the property by the vendee; and (3) the making by the vendee of valuable and permanent improvements upon the land with the consent of the vendor, or, without such improvements, the presence of such facts as would make the transaction a fraud upon the purchaser thereof if it were not enforced. Hooks v. Bridgewater, 111 Tex. 122, 229 S.W. 1114, 15 A.L.R. 216; American National Ins. Co. v. Warnock, 131 Tex. 457, 114 S.W.2d 1161.

It is further held that the payment of the consideration in itself, though it be a payment in full, is not sufficient; nor is possession of the premises, or the making of valuable improvements thereon sufficient; each of these three elements is indispensable and they must all exist. To .hold otherwise would, in effect, annul the act. Robertson v. Melton, 131 Tex. 325, 115 S.W.2d 624, 118 A.L.R. 1505.

It is also held that where the action is brought upon a verbal and executory contract of sale, by the vendor, as in the instant case, a tender to the purchaser of a deed to the property in question, which is not accepted by him, cannot be held to be a payment of the consideration, but that it is merely a tender of performance of the contract. Clegg v. Brannan, 111 Tex. 367, 234 S.W. 1076; Lechenger v. Merchants’ National Bank, Tex.Civ.App., 96 S.W. 638.

It is the established law in this state that the statute of frauds applies to oil and gas leases, and that: “Since an oil and gas lease is effective as the sale of the minerals in place — the sale of the realty — it, of course, follows that the instrument must be in writing. The same rule applies to a contract for a lease, as well as to the assignment of the rights and estate under a lease.” Guerra v. Chancellor, Tex.Civ.App., 103 S.W.2d 775, 778.

Further, it is the established rule that an action for damages for the breach of a contract is, in effect, an action for its enforcement and the statute, in denying an action for its enforcement, likewise denies an action for damages for its breach. Robertson v. Melton, 131 Tex. 325, 115 S.W.2d 624, 118 A.L.R. 1505; Alworth v. Ellison, Tex.Civ.App., 27 S.W.2d 639; Moore v. Rice, Tex.Civ.App., 110 S.W.2d 973 ; 20 Tex.Jur. 303-306; 27 C. J. page 314.

In the instant case, under the facts alleged, appellant suffered a possible loss in that he might have been able to dispose of said leases prior to the time appellees abandoned said oil well. However, as stated in the case of. Robertson v. Melton, supra, the possibility of loss is present in every casé of the breach of a parol contract for the sale of real estate. The statute prohibits the bringing of any action upon a contract for the sale of real estate unless some memorandum thereof be in writing and signed, and it cannot be disregarded for the prevention of mere wrongs or to remedy possible wrongs.

In the case of Hooks v. Bridgewater, 111 Tex. 122, 229 S.W. 1114, 1116, 15 A.L.R. 216, our Supreme Court, speaking through Chief Justice Phillips, in discussing the elements which must be shown to exist in order to justify a court of equity in relieving a parol contract for the sale of land from, the operation of the statute of frauds, says: “Equity has no concern in such cases except to prevent the perpetration of a fraud. That is the only-ground that can justify its interference. * * * 'The statute was made for the purpose of preventing fraud and perjuries, and nothing can be more manifest to any person who has been in the habit of practicing in the courts of equity than that the relaxation of the statute has been the ground of much perjury and much fraud. If the statute had been rigorously observed, the result would probably have been that few instances of parol agreements would have occurred. Agreements would, from the necessity of the case, have been reduced to writing; whereas it is manifest that the decisions- on the subject have opened a new door to fraud, and that under the pretense of part execution, if possession is had in any way whatever, means are frequently found to put a court of equity in such a situation that, without departing from its rule, it feels obliged to break through the statute.’ * * * it is clear that to warrant equity’s ‘breaking through the statute’ to enforce such a parol contract, the case must be such that the non-enforcement of the contract — or the enforcement of the statute — would, itself, plainly amount to a fraud. This is the basis, and the only basis, for the jurisdiction which courts of equity have assumed in their creation of exceptions to the statute. * * * There is hq fraud in refusing to enforce the contract where only the consideration is paid. * * * Nor where only possession of the premises is. given. In such case there is no performance by the purchaser of any obligation. Nor even where there is both payment of the consideration and possession; without valuable and permanent improvements made on the faith of contract, or their equivalent. Merely the transfer of the possession by the vendor could create no estoppel against him. * * * to permit a person who can show no other act done beyond the transfer of the possession of the soil from the owner to himself, to enforce an oral agreement for the sale of the fee, would practically repeal the statute of frauds and let in all the mis-chiefs it was intended to guard against. But where there is payment of the consideration, the surrender of possession and the making of valuable and permanent improvements on the faith of the purchase with the owner’s knowledge or consent, there is created an estoppel against him' and it may fairly be said that a fraud upon the purchaser would result if -the owner were permitted to repudiate the contract.”

Appellant bases his plea that appellees were estopped'.from claiming the benefits of the statute on the alleged facts that he had turned over the use and possession of said properties to appellees; that they had announced through the daily press and through maps on which ownership of lands were shown, that they had'purchased said properties; and that appellees had entered into a drilling contract with one George Echols in which they had asserted ownership thereof. Appellant’s pleadings, however, disclose that each of' the acts above referred to, with the exception of the allegation that appellees had caused map owners to show that the properties in question belonged to appellees, was done with the knowledge and with the apparent consent of appellant.

In 21 C.J. 1113, in discussing an estoppel of this character, it is Said that,

“This estoppel arises where one, by his acts, intentionally or through culpable neglect induces another to believe certain facts to exist, and such other rightfully -relies and acts on said belief.
“There are many fundamentals of the law which are applicable to and explanatory of this doctrine of equitable estoppel. No one can maintain an action for a wrong where he has consented to the wrong. He who does not forbid what he" can forbid seems to assent.”

Our Supreme Court, in the case of Bynum v. Preston, 69 Tex. 287, 6 S.W. 428, 5 Am.St.Rep. 49, in passing on the question of estoppel by fraud, says: “To constitute an estoppel there must have been: -(1) A false representation or concealment of material facts. (2) The representation must have been made with the knowledge of the facts. (3) The party to whom it was made must have been ignorant of the truth of the matter. (4) It must have been made with the intention that the other party should act upon it, and (5) The other party must have been induced to act on it.”

A careful analysis of appellant’s pleadings fails to -disclose a sufficient showing of the elements held necessary to sustain his contention that appellees, by their acts, are estopped from claiming the benefits of the statute of frauds and, there-foré, under above authorities, the first count in his petition, that of specific performance, cannot be maintained, and since the statute has been asserted as a defense to appellant’s cause of action, and the alleged contract being unenforceable when the statute of frauds is interposed as a defense thereto, appellant cannot recover damages for the breach thereof.

It follows from these conclusions that the action of the trial court in sustaining the general demurrer and special exception No. 13 urged by appellees to appellant’s trial petition must be sustained; ac-. cordingly, the judgment of the trial court is in all things affirmed.

Affirmed.


author: GRAVES, Justice.

text:
    SORSBY et al. v. RUSS.
    No. 11075.
    Court of Civil Appeals of Texas. Galveston.
    Jan. 30, 1941.
    Rehearing Denied Feb. 20, 1941.
    Wm. H. Betts, of Hempstead, for appellants.
    Marvin Sprain, of Bellville, Richard Spinn, of Brenham, and C. D. Duncan and J. Lee Dittert, both of Bellville, for ap-pellee.
   GRAVES, Justice.

This appeal by E. D. Sorsby and H. D. Schwarz, who were the sureties of Mabel Guthrie Russ upon a certiorari bond, whereby she sought in the, district court of Austin County to have reviewed an order of the probate court of such county refusing to probate the will of Kinch Russ, deceased, is from only so much of the district court’s judgment on that appeal (after it had likewise refused the probate of such will) as further taxed the costs of such proceeding against their principal on such bond, Mabel Guthrie Russ, and themselves, as accrued subsequent to her resignation as the nominated independent executrix in that will.

The same court that rendered this appealed-from judgment on January 9 of 1940, had theretofore, on September 26 of 1939, accepted the resignation of Mabel Guthrie Russ as such executrix and decreed that “The said Mabel Guthrie Russ is hereby dismissed and discharged as and from being a party to the above entitled and numbered cause.”

In view of such dismissal of their principal at that time as a party to the proceedings, appellants contend that this part of the court’s judgment notwithstanding, providing that all costs therein adjudged against Mabel Guthrie Russ be “likewise adjudged against H. D. Schwarz and E. D. Sorsby, as Sureties, * * * but as to said Sureties, there shall be no recovery of costs beyond the penal sum of said Bond, and they are herein adjudged to pay whatever costs that may have incurred incident to such Bond in said Cause No. 7315 and as consolidated with Cause No. 7299, after its consolidation”, was improper and beyond the court’s power; they present in this court these among other assignments of error against the court’s action:

“No. 1. After the making and filing by Mabel Guthrie Russ of her resignation of the nomination as independent Executrix, she was in no wise a party to the consolidated Cause No. 7299-7315 in the District Court of Austin County, Texas.
“No. 2. After the judgment and decree of the District Court, made and entered on September 26, 1939, dismissing and discharging Mabel Guthrie Russ ‘from being a party to’ Consolidated Cause No. 7299-7315, the District Court of Austin County, Texas, was without jurisdiction to enter any affirmative judgment against her, individually and/or in a representative capacity.
“No. 3. Mabel Guthrie Russ having been nominated Independent Executrix of and in the instrument dated October 31, 1938, and offered for probate as the Last Will and Testament of Kinch Russ, deceased, it was her legal duty to offer the same for probate, and in the absence of a finding by the court that she was guilty of fraud or undue influence in the procurement of such Will, all costs incurred in such proceeding should be taxed against the Estate of Kinch Russ, deceased.
“No. 4. By reason of the judgment and decree of the District Court of Austin County, Texas, dismissing and discharging Mabel Guthrie Russ from and as a party to Consolidated cause No. 7299-7315, rendered September 26, 1939, the said Mabel Guthrie Russ was dismissed from said Cause, with her costs.
“No. 5. By reason of the resignation and disclaimer filed by Mabel Guthrie Russ on September 26, 1939, and the judgment of the Court accepting the same and dismissing her as a party to said Consolidated Cause' No. 7299-7315,' the said Mabel Guthrie Russ was liable for no costs in said cause thereafter incurred.
“No. 6. The liability of Appellants for costs are co-extensive with the liability of the Principal, Mabel G. Russ; subject, however, to the limitation of the amount of the bond.
“No. 7. There being no judgment rendered by the District Court of Austin County, Texas, at the July Term, 1939, of said Court and at which the said Mabel G. Russ was discharged and dismissed as a party to said Cause No. 7299-7315, said Court was. without jurisdiction or authority to enter a judgment against Mabel G. Russ for costs at the January Term, 1940.”

These positions are supported, seriatim, under the same numbers, by citation of these authorities:

(1) Article 2182, KC.S.; 15 Tex.Jur, 265, Section 24; 41 Tex.Jur, 574, Section 94; 18 Corpus Juris, 1170; 9 R.C.L, 199, Section 13.

(2) 18 C.J, 1171, Section 63; 41 Tex.Jur., 594, Section 94; 15 Tex.Jur. 265, Section 24; Watts v. Overstreet, 78 Tex. 571, 14 S.W. 704; McKibban v. Scott, 131 Tex. 182, 114 S.W.2d 213, 115 A.L.R. 1421; Sharp v. Hall, Tex.Civ.App., 49 S.W.2d 523, 525; Rankin v. Rankin, Tex.Civ.App., 134 S.W. 392; Bridges v. Continental Southland Savings & Loan Association, Tex.Civ.App., 86 S.W.2d 659, 661, error refused; Keyser v. Meuseback, 77 Tex. 64, 13 S.W. 967; Davis v. Wichita State Bank & Trust Co., Tex.Civ.App., 286 S.W. 584, 589.

(4) 41 Tex.Jur. 574, Section 94; 41 Tex.Jur, 578, Section 96; 14 Amer.Jur, 35, Section 38.

(5) 41 Tex.Jur., 574, Section 94; 11 Tex.Jur., 246, Section 12; Capt et al. v. Stubbs et al., 68 Tex. 222, 48 S.W. 467; Vogt v. Bexar County, 91 Tex. 285, 286, 43 S.W. 14; Barnes v. Lightfoot, 26 Tex.Civ.App. 113, 62 S.W. 564; Askey v. Williams, 74 Tex. 294, 11 S.W. 1101, 5 L.R.A. 176.

(6) 11 Tex.Jur., 291, Section 39.

(7) Article 199, Section 22, R.C.S. (as amended), Vernon’s Ann.Civ.St. art. 199 subd. 22; 11 Tex.Jur., 306-7, Section 46; Waggoner v. Davis, Tex.Civ.App., 261 S.W. 482, 484; Randall v. Collins, 52 Tex. 435; Hall v. Reese’s Heirs, 26 Tex.Civ.App. 395, 64 S.W. 687; Collins v. Hines, Tex.Civ.App., 100 S.W. 359.

It is determined that these contentions, to the extent of holding the appellants not liable for the part of the costs they challenge, should he sustained; the stated order of the court, accepting her resignation as the nominated independent executrix of the will of Kindi Russ, was unconditional and unaccompanied by any findings at that time made that would have properly visited upon Mabel Guthrie Russ any further liability than the general law imposes upon one no longer a party to a judicial proceeding; whether or not the costs, up to the time of her discharge as a party, incident to the contest in the district court over the probate of the will, should have been taxed vel non against the estate of Kinch Russ, is not involved, because these appellants only protest against the assessment of subsequent costs against them. Such protesf seems to be sound, both upon reason and authority.

It is well settled by our authorities that only costs incurred by a party prior to his disclaimer of any further interest in a judicial proceeding may be taxed against him; this would seem to be a not dissimilar situation; in other words, the dismissal of the cause would at least seem to have entailed an acquittance as to all future costs also. It may be conceded, in that connection, that the liability of these appellants for costs was co-existent with that of their principal, Mabel Guthrie Russ, and that they were liable with her for all costs accruing prior to her discharge and dismissal, subject, of course, to the express limitation of the amount stated in the bond; even so, if she was hot liable for subsequent costs, by the same token, they were not either.

These conclusions require a reversal and a rendition in appellants’ favor of the cause of action for so much of the costs as they herein challenge; it will be so ordered.

Reversed and rendered.

On Motions for Rehearing.

' Both sides to this appeal have filed motions for rehearing, tne appellee seeking an affirmance of the trial court’s judgment, the appellants’ a • reversal and rendition in their favor “sustaining their propositions to the effect that the District Court of Austin County had no jurisdiction to render the judgment herein appealed from and that the same is void as to appellants’ said principal, Mabel Guthrie Russ, and, therefore, invalid as to them; and that this Honorable Court reverse and render such judgment in favor of appellants.”

Both motions are refused; appellants were parties to this appeal, and prosecuted the same against only so much of the trial court’s judgment as adjudged costs against them that accrued subsequent to the resignation and discharge of Mabel Guthrie Russ from the cause below on September 26 of 1939; this court’s original judgment herein sustained that contention in their favor; so that, nothing else than such costs as did so accrue subsequent to such discharge of their principal was at all involved herein.

Wherefore, the question the appellee in her motion raises, as to whether or not i't was shown that the costs incurred in the cause below equaled the $200 sum by which the bond they were sureties on itself limited their liability, is not here involved.

Furthermore, it does appear from this record that at least some of the costs so adjudged against the appellants below did accrue subsequent to the resignation and discharge of their principal, Mabel Guthrie Russ, on September 26 of 1939.

It follows from this court’s judgment that appellants are not liable for such costs, nor can they be held thereon, whatever they may amount to, hence no further order is necessary herein.

Under the conclusion that the cause was rightly decided upon original submission, both motions for rehearing will be refused.

Rehearings refused.