author: DUNKLIN, Chief Justice.

text:
    JARRELL et ux. v. BOEDEKER.
    No. 14140.
    Court of Civil Appeals of Texas. Fort Worth.
    Nov. 29, 1940.
    Rehearing Denied Dec. 27, 1940.
    Homer B. Latham, of Bowie, and Glenn Wilson, of Nocona, for appellants.
    Benson & Benson, of Bowie, for appel-lee.
   DUNKLIN, Chief Justice.

This is a suit in trespass to try title, instituted by G. A. Jarrell and wife against P. E. Boedeker, to recover title to two tracts of land, alleged to be within the boundaries of Section 2861, Texas Emigration & Land Co. Survey, in Montague County. The first tract is along the 'north boundary line of the section, and the second tract is along the west boundary line of the section.'

Plaintiffs’ claim of title to the first tract was under the statute of limitation of ten 'years, while their claim of title to the second tract was under general statutory provisions of trespass to try title. Defendant answered by pleas of not guilty.

At the conclusion of the evidence the court instructed a verdict in favor of the defendant, and plaintiffs have prosecuted this appeal from the judgment rendered on the verdict returned in obedience to the court’s instruction.

During the introduction of evidence counsel for defendant admitted plaintiffs’ ownership of title to said Section 2861; thus narrowing the first inquiry to whether or not the tracts sued for were within the boundaries of that section, as evidenced by its field notes.

During the year 1938, the defendant, the owner of lands adjoining Section 2861, reset and rebuilt the fences enclosing the section on the north and west. In plaintiffs’ petition the first tract sued for was described by metes and bounds as being a strip off the north side of the section, four feet wide at the northwest corner of the section, and running east over ½ the length of the north line of the section to a point west of the northeast corner; the strip narrowing in width from the northwest corner until it peached that point, and including an area of .18 of an acre, excluded from the section in rebuilding the fences.

According to the testimony of a surveyor introduced as a witness for the plaintiffs, the fences, as rebuilt by the defendant, excluded that first tract from the rest of the section and included the same with the defendant’s enclosure. Although that testimony was in conflict with the defend- • ant’s testimony on that point, yet the same, in connection with plaintiffs’ further testimony that he and Ed May, from whom he purchased the section, had held peaceable, continuous and adverse possession of the section for some 35 years, using and enjoying the same for pasturage purposes, with the enclosing fences on the boundary lines of the section; presented a controverted issue of fact for determination of the jury, to the exclusion of the province of the court to determine that issue as a conclusion of law.

The proof showed that the west fence of Section 2861, at the time defendant repaired it, abutted on a lane about 27 feet wide, extending along the entire length of the west boundary of the section, which had been a public highway for travel for some 30 years. On the west boundary of the lane defendant had maintained a fence for the east boundary of his adjoining tract.

The second tract which plaintiffs sought to recover, alleged to be 1.93 acres, was described by metes and bounds, which included within its boundaries the lane above mentioned. According to the testimony of one surveyor introduced as a witness for the plaintiffs, all of that lane was within the boundary lines of Section 2861,. while another surveyor testified that a part of it was so included.

Following the introduction of that testimony, the defendant introduced in evidence an order of the Commissioners’ Court of Montague County, dated February 15th, 1938, closing the lane, in exchange for a new road therein described, with this recitation : “This action is being taken in view of the fact that the road.to be closed is no longer maintained by the county and has not been so maintained for a period of at least 30 years and is now of no benefit to the citizenship of the vicinity of the said road.” Defendant testified -that he furnished the new road on his land for which the exchange was made, and acting under that order of the Commissioners’ Court he removed his fence on the west side of the lane, thus placing the lane within his enclosure, and thereafter he claimed title thereto. After that order of the Commissioners’ Court was admitted, the court sustained defendant’s motion to exclude the testimony of the surveyors noted above, to the effect that the lane, or at least a portion thereof, was within the boundary lines of the section.

That ruling was based upon the theory presented by the defendant to the effect that the order of the Commissioners’ Court was evidence of a prescriptive title in the county, to an interest in the land, and it was incumbent upon plaintiff to overcome the same because he must recover upon the strength of his own title rather than upon the weakness of defendant’s claim of title.

We conclude that there is merit in plaintiffs’ assignment of e'rror to that ruling, especially so in view of defendant’s admission of title to Section 2861 in plaintiffs. Furthermore, it appears upon the face of the order the only claim the county had ever made to the lane was that of a highway easement. In 21 Tex.Jur., para. 98, page 622, this is said: “Under the law of eminent domain, a highway easement only is acquired by condemnation; the fee remains vested in him whose property was condemned. Also, the public right is but an easement when the roadway is dedicated by the owner or acquired by purchase or established by prescription.”

And in paragraph 99, page 623, are further announcements to the same effect. Nor was there any pleading by defendant that the county had acquired title to the lane by limitation. 41 Tex.Jur., § 159, page 664; Miller v. Gist, 91 Tex. 335, 43 S.W. 263; Campbell v. Castle, Tex.Civ.App., 204 S.W. 484.

It is to be noted further the Commissioners’ Court did not order a conveyance of any interest in the lane to the defendant for the highway furnished, by him, nor was any such conveyance ever made.

The testimony of the defendant showed conclusively that in rebuilding the fences he acted not merely as a voluntary trespasser but in perfect good faith, under the belief that he reset the fences on practically the old lines, as a partition fence between plaintiffs’ land and his own, and that the fences, as rebuilt by him, were much better than the old fences.

On July 17th, 1939, he wrote plaintiff this letter:

“Mr. G. A. Jarrell
“Separ, New Mexico
“Dear Sir:
“I am in receipt of your letter and I am sorry that you have had reports that make you think that you are being imposed upon.
“We built this fence several months ago and it is a good five wire fence with new posts and I thought that you would be pleased to have a new fence without any expense in the place of the old one which was nearly down. We will always need a partition fence and it is all right with me for you to own this fence so long as it remains where it is. I did straighten out a bow in the fence which threw a few feet of your land into the Thomas pasture and if you feel that you are damaged I am willing to make it satisfactory with you.
“With best wishes, I am,
“Yours very truly,
(Signed) “P. E. Boedeker.
“The report about changing the fence line is exaggerated. There is not more than a small fraction of an acre of land involved.”

Plaintiff made no reply to that letter and never accepted the proposition therein made.

Article 7393, Vernon’s Texas Civil Statutes, requiring pleading of improvements in good faith, was not applicable here, since there was no reason to suppose that the rebuilding of the fences constituted valuable improvements on either of the two tracts sued for. But the fences, as rebuilt, did constitute valuable improvements upon the entire section of land owned by the plaintiffs, and thus showed an equity in the defendant, for which he should be accorded some relief. And according to the following authorities, defendant’s right to that equity could be awarded even under his plea of not guilty. Galveston, H. & S. A. Ry. Co. v. Blakeney, 73 Tex. 180, 11 S.W. 174; 1 Tex.Jur., para. 71, page 690; 17 Tex.Jur., para. 3, page 5, para. 36, page 38-39; 41 Tex.Jur., para. 138, page 631; Wright v. Doherty, 50 Tex. 34; McDow v. Rabb, 56 Tex. 154; Mayer v. Ramsey, 46 Tex. 371.

There was no determination of that issue on the trial; seemingly it was entirely overlooked.

No testimony was introduced which could serve as a b,asis- for a determination of equities in defendant’s favor arising from his acts in rebuilding the old fences.

For the errors noted above, the judgment of the trial court will be reversed and the cause will be remanded. But we will add that upon another trial, the defendant will have a right to any equities in his favor growing out of any claim he may make for valuable improvements upon Section 2861, by reason of his expenses in replacing the old fences with better ones; with the right also of the plaintiffs, in connection therewith, to an adjustment of any equities in their favor ,as an offset to the equities so claimed by the defendant; all such equities to be presented by proper pleadings.

Reversed and remanded.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    CALDWELL et ux. v. BOYD, District Judge.
    No. 12179.
    Court of Civil Appeals of Texas. Galveston.
    Jan. 9, 1941.

    Bailey P. Loftin, of Houston, for re-lators.
    No appearance for respondent.
   PER CURIAM.

This is a motion for leave to file petition for mandamus filed herein on January 3, 1941, by' K. J. Caldwell and wife as re-lators against the Honorable Ewing Boyd, Judge of the 55th Judicial District Court of Harris County, Texas, as respondent. Relators seek in their petition an order-from this Court commanding the said respondent to set aside his order sustaining the contest to their affidavit of inability to pay the costs of appeal or to give security therefor in a cause numbered B-257,865 and styled Claude Clark v. Pretty Clark et al. on the docket of said District Court in which said cause the trial court rendered judgment against the relators, and from which adverse judgment relators desire to prosecute an appeal to this Court. Re-lators further request this Court to order* the respondent to direct the District Clerk of Harris County to prepare a transcript of all proceedings had in said cause without charge, and to likewise direct the Official Court Reporter for said 55th Judicial District Court to prepare and deliver to relators’ attorneys, without charge, a statement of facts in the cause. Neither the District Clerk nor the Official Court Reporter are made parties respondent to the petition for mandamus, nor are the adverse litigants brought before this Court in the petition.

Under this statement, it becomes obvious that the petition for the writ of mandamus is fatally defective for want of necessary parties. It is, therefore, our duty to refuse the motion for leave to file the petition without prejudice to relators’ right to make necessary parties and again present their cause. in this court. H. M. Cohen Lumber & Bldg. Co. v. McCalla, Tex.Civ.App., 142 S.W.2d 685; Kelly v. Lobit, Tex.Civ.App., 134 S.W.2d 428; Durden v. Patterson et al., 146 S.W.2d 296, decided by this Court on December 19, 1940, and Williams v. Wray, 123 Tex. 466, 72 S.W.2d 577.

Motion for leave to file petition for mandamus refused without- prejudice.


author: GRAVES, Justice.

text:
    DURDEN v. PATTERSON et al.
    No. 11204.
    Court of Civil Appeals of Texas. Galveston.
    Dec. 19, 1940.

      A. L. Pierson, Harold Kahn, and J. R. Hill, all of Houston, for relator.
    Carlos B. Masterson, of Angleton, for respondents.
   GRAVES, Justice.

The relator herein, an administratrix de bonis non of the estate of Jacob Kiehl-bauch, deceased, sued the respondents, Miss Jimmie Patterson and Sul Ross Harrington, as' district clerk and court reporter, respectively, of the Twenty-Third District Court of Brazoria County, alone, in an original application to this court for a writ of mandamus to compel them to prepare and furnish her a requested transcript and statement of facts, as being in compliance with their official duties to her under R.S. Articles 2072 and 2276, without payment or without security therefor, in cause No. 27,-679, in such district court, styled “The Estate of Jacob Kiehlbauch, deceased, by ad-ministratrix, d. b. n., Bernice Kiehlbauch Durden v. Mrs. Kittie Nash Groce et al.”

It is also made to appear that that suit was one between relator, as plaintiff and cross-defendant, against Mrs. Kittie Nash Groce and the Federal Land Bank of Houston, as defendants and cross-plaintiffs, in trespass to try title to 283 acres of land located in Brazoria County, Texas, wherein the district court of that county, on the 16th day of September, 1940, rendered a judgment for such land adverse to this relator in both her capacities therein, and in favor of such defendants and cross-plaintiffs therein, to wit, Mrs. Kittie Nash Groce and the Federal Land Bank of Houston, whereupon the relator excepted to that judgment and gave notice of appeal therefrom; it further appears that the transcript and statement of facts now made the subject matter of this application for mandamus, constitute the means and bases by which this relator is seeking to have officially shown the proceedings had upon that trial.

Under the facts stated, it is obvious that the adverse parties to the relator in such cause No. 27,679 in the Brazoria County district court are vitally interested in the controversy to which such application for mandamus relates — that is, the proper procurement, filing, and fixing of responsibility among those parties for the transcript and statement of facts, upon which any appeal therein is to be determined, and that each of them is a necessary party to this proceeding in mandamus; wherefore, since neither one of such parties is either named in this application, or brought before this court, it becomes plain that it is fatally defective for the want of both of them as necessary parties thereto.

The petition will accordingly be dismissed, without prejudice to any right the relator may have to again present the same to this court, with all necessary parties included. H. M. Cohen Lumber & Bldg. Co. v. McCalla, Judge, Tex.Civ.App., 142 S.W.2d 685; Kelly v. Lobit, Tex.Civ.App., 134 S.W.2d 420, and cited authorities.

Application dismissed without prejudice.


author: WALKER, Chief Justice.

text:
    HARBIN et al. v. CITY OF BEAUMONT et al.
    No. 3739.
    Court of Civil Appeals of Texas. Beaumont.
    Nov. 20, 1940.
    Rehearing Denied Dec. 11, 1940.

      Strickland, Ewers & Wilkins, of Mission, W. O. Bowers, Jr., of Beaumont, and Orville I. Cox and R. D. Cox, Jr., both of Mission, for appellant.
    Baker, Botts, Andrews & Wharton, of Houston, and E. B. Votaw, City Atty., of Beaumont, for appellees.
   WALKER, Chief Justice.

On or about the 16th day of June, 1938, Walter L. Harbin, an employee of appel-lee, City of Beaumont, while working on Weiss street, in the City of Beaumont, in the course of his employment — filling up and repairing a hole in the street made by appellee, United Gas Corporation, in repairing its gas main — was run over while in the hole by M. D. Lee, and killed. Lee drove his truck across the hole, inflicting on Harbin serious injuries, from which he died June 23, 1938. This suit was filed in district court of Jefferson county by Henrietta Harbin, surviving widow of the deceased, and their two children, Beulah Harbin and Jesse R. Harbin, sole heirs at law of the deceased, praying for judgment for the damages suffered by them because of the death of Walter L. Harbin. They named as defendants the City of Beaumont, the United Gas Corporation, and M. D. Lee.

On trial to a jury, judgment was entered in favor of United Gas Corporation on an instructed verdict, of which no complaint is made on this appeal. The jury found that the' two children of the deceased had suffered no damages because of the death of their father, and no complaint is made against that finding. M. D. Lee filed no answer, and judgment was entered against him in favor of Henrietta Harbin for $10,500, the amount of her damages as assessed by the jury, and no complaint is made of that judgment. Appellee, City of Beaumont, filed its motion for judgment non obstante veredicto, and subject thereto for judgment on the jury’s verdict. The motion for judgment non obstante veredicto was overruled, but judgment was in favor of appellee on the verdict that Henrietta Harbin take nothing, from which she has prosecuted her appeal to this court.

Henrietta Harbin, hereinafter referred to as appellant, alleged that- the City of Beaumont, hereinafter referred to as ap-pellee, was guilty of negligence proximately causing the death of Walter L. Harbin in the following respects, summarized from her brief:

“(a) In failing to place and maintain a signal, device or barricade to warn persons passing along the street of the hole or excavation;
“(b) In failing to place some signal or warning sign or device around the excavation sufficient to' warn of the dangerous condition existing by reason of the excavation and to warn of the perilous position of the workman in the hole;
“(c) In failing to provide ample and sufficient safeguards and protection for the said Harbin while repairing the street;
“(d) In permitting traffic to pass along the street and over and across the excavated hole while the said Harbin was working therein;
“(e) In failing to provide a safe and secure place in which the said Walter L. Harbin could perform the work required of him by the City of Beaumont.”
Appellee answered by general and special demurrers, and by pleading specially the defensive issues submitted to the jury. The jury made the following findings on the issues of negligence plead by appellant against appellee, and on ap-pellee’s defensive issues:
“Special Issue No. 1. Do you find from a preponderance of the evidence that the defendant, City of Beaumont, failed to place and maintain a barricade sufficient to warn ordinary prudent persons driving upon Weiss Street of the hole or excavation in which said Walter L. Harbin was working on the afternoon of June 17, 1938. Answer: No.
“Special Issue No. 4. Do you find from a preponderance of the evidence that the defendant, City of Beaumont, failed to furnish a reasonably safe place for Walter L. Harbin to work at the time and on the occasion of his injuries? Answer: Yes.
“Special Issue No. 5. If .you have answered Special Issue No. 4 in the affirmative, do you find from a preponderance of the evidence that such failure to furnish such reasonably safe place was negligence? Answer: Yes.
“Special Issue No. 6. If you have answered Special Issue No. 5 in the affirmative, do you find from a preponderance of the evidence that such negligence was the proximate cause of the injury sustained by Walter L.-Harbin? Answer: Yes.
“Special Issue No. 17. Do you find from a preponderance of the evidence that the act of M. D. Lee in driving his automobile against and over Walter L.‘ Harbin, was the sole, proximate cause of the injuries to Harbin? Answer: No.
“Special Issue No. 18. Do you find from a preponderance of the evidence that Walter L. Harbin was guilty of negligence in failing to erect any warning sign or signal on the occasion in question for his own protection. Answer: No.
“Special Issue No. 20. Do you find from a preponderance of the evidence that the dirt barricade around the hole in Weiss Street, at the point where Walter L. Harbin was injured, was of itself sufficient warning to motorists, exercising ordinary care, of the existence of said hole? Answer: Yes.”

As stated above, United Gas Corporation dug the hole in the street to repair leaks in its gas main. After finishing the repair work, the gas company filled the hole with dirt and notified appellee. Appellee then sent Harbin, the deceased, and other workmen to repair the street, but did not furnish them barricades to guard the hole. While Harbin was working in the hole, Lee drove his truck across the hole and killed Harbin. In cleaning out the hole, Harbin built a dirt barricade around it, about 18 inches high.

The jury found against appellant on' .all issues of negligence except that appel-lee was guilty of negligence in failing to furnish Walter L. Harbin “a reasonably safe place to work”; the jury found that appellee was not guilty of negligence in failing to maintain a “barricade” around the hole, and that the dirt barricade made by the deceased was itself “sufficient warning-.”

Appellee owed Walter L. Harbin the duty to use ordinary care to furnish him a reasonably safe place to work. City of Galveston v. Rowan, 5 Cir., 20 F.2d 501; Magnolia Pet. Co. v. Studdard, Tex.Civ.App., 84 S.W.2d 1047; Texas City Transportation Co. v. Winters, Tex.Civ.App., 193 S.W. 366. But the exercise of ordinary care to furnish Harbin a reasonably safe place to work was the full measure of appellee’s duty to him; appellee was not the insurer of Harbin’s safety. Authorities supra. Ap-pellee did not owe Harbin the duty, on the facts alleged by appellant, of closing the street against ordinary street traffic. Harbin’s employment contemplated that the street would be so used, and appellee’s duty was simply to exercise ordinary care to protect him from the dangers of the street traffic.

Appellant charged negligence against appellee in failing to erect a barricade, or some other kind of guard or warning, around the hole; the allegation that appellee was negligent in failing to furnish Harbin a “reasonably safe place to work” was simply a conclusion of law drawn by her from the special acts of negligence charged in her petition. On the facts alleged, appellee owed Harbin no other duty than to maintain a barricade, sign, or warning signal around the hole. These issues went to the jury and were found against appellant; by the answer to question No. 1, the jury acquitted appellee of every special act of negligence charged against it; not only that, but rebutting appellant’s acts of special negligence, the jury found that the dirt barricade erected by Harbin was a sufficient warning to motorists—a sufficient protection from motorists. It conclusively follows that the jury acquitted appellee of every special act of negligence charged by appellant as constituting a proximate cause of Harbin’s death, and found that ap-pellee, through Harbin himself, had discharged the duty imposed by law on ap-pellee of exercising ordinary care for his protection 'while working in the hole. Schawe v. Leyendecker, Tex.Civ.App., 269 S.W. 864, is directly in point, holding that a “sufficient” dirt barricade discharged appellee’s duty of warning a motorist that Harbin was working in the hole. This theory supports the judgment.

But appellant says that the jury found that appellee failed to furnish Harbin a reasonably safe place to work, and that this was the ultimate issue in the case. On appellant’s petition, having plead special facts invoking appellee’s duty to guard the hole, the additional allegation that appellee was guilty of negligence in failing to furnish Harbin a reasonably safe place to work was a mere legal conclusion, flowing from the special facts, and was not a plea of a special act of negligence. Having acquitted appellee of all special acts of negligence, the finding of the jury that ap-pellee was guilty of negligence in not furnishing Harbin a reasonably safe place to work was nothing more than the jury’s conclusion of law, which has no support in the facts found, and therefore cannot support a judgment. Brewster v. City of Forney, Tex.Com.App., 223 S.W. 175, 177; Texas & P.. Railway Co. v. Langebehn, 150 S.W. 1188; Kahn v. Cole, Tex.Civ.App., 227 S.W. 556, 557; Watson v. Patrick, Tex.Civ.App., 174 S.W. 632; Pickrell v. Imperial Pet. Co., Tex.Civ.App., 231 S.W. 412; Houston Oil Co. v. Howard, Tex.Civ.App., 256 S.W. 340, affirmed, Tex.Com.App., 294 S.W. 848. This theory supports the judgment.

If appellant’s theory of negligence that the special findings must yield to the general finding, and that the general finding must be construed as a finding on the ultimate issue, be conceded, yet judgment was properly rendered for ap-pellee on the issue of proximate cause. On the undisputed evidence the negligence of appellee in failing to furnish Harbin a reasonably safe place to work was not a proximate cause of his death. Mr. Lee’s eyesight was so defective that, on the undisputed evidence, he could not have seen any sort of barricade, sign, or warning signal that appellee, in the exercise of ordinary care for the safety of Harbin, should have erected around the hole. Had appellee exercised every care charged against it by appellant, by erecting the barricade, sign, or warning signal, yet, on the undisputed evidence, Lee would have driven over the hole just as he did. So, appellee’s negligence in failing to furnish Harbin a reasonably safe place to work was not, as a matter of law, a proximate cause of his death. Richardson v. Hills, Tex.Civ.App., 104 S.W.2d 151. This theory supports the judgment.

There is nothing in the record visiting appellee with notice to protect Mr. Harbin from the negligence of a blind man driving his car on the street; since on the undisputed evidence Mr. Lee could not see the hole and the dirt barricade, appellant failed to establish the essential element of foreseeableness. On that issue, as a matter of law, appellant failed to support her allegation of proximate cause. Texas & P. R. Co. v. Bigham, 90 Tex. 223, 38 S.W. 162. This theory supports the judgment.

Cuniff v. Bernard Corp., Tex.Civ. App., 94 S.W.2d 577, 580, answers appellant’s contention of conflict between the general and special findings. In that case Judge Combs, speaking for this court, said: “But, even if the special findings be treated as contradictory of the general issues submitting the 10-year statute of limitation, still the special findings of recognition must be given controlling effect. In such case the general finding is treated as a mere legal conclusion, the ■effect of which is destroyed by the adverse finding of a controlling fact upon which such conclusion rests.”

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

Affirmed.

O’QUINN, J., dissents.


text:
    BELL PUB. CO. et al. v. GARRETT ENGINEERING CO.
    No. 11146.
    Court of Civil Appeals of Texas. Galveston.
    Dec. 12, 1940.
    Rehearing Denied Jan. 9, 1941.

      Byron Skelton and Walker Saulsbury, both of Temple, and Clarence Lohman, of Houston, for appellants.
    Sam D. Snodgrass, of Temple, and Howard, Reinhard & Schwing, of Houston, for appellee.
   GRAVES, Justice.

These two appeals, taken and considered together, are from a judgment of the 55th District Court of Harris County, overruling the several pleas of privilege of the Bell Publishing Company, a corporation, and of Dr. O. F. Gober, to be sued in Bell County, Texas, where each of them resided, rather than in Harris County, where the venue of this suit was laid against them jointly and severally, the appealed-from order containing this recitation: “The Court, upon consideration of the said Pleas of Privilege and the Controverting Plea and the evidence duly offered, and being advised in the’ premises, finds that the defendant, Bell Publishing Company, and the defendant, Dr. O. F. Gober, were, at the time of the institution of this suit, and the time of service of process on them, and at the time of the execution and filing of their Pleas of Privilege herein, residents of Bell County, Texas, and did not reside in Harris County, Texas; that plaintiff’s suit is one for damages arising from an alleged libel; that plaintiff has made out a prima facie case herein for a cause of action for libel accruing on May 21, 1939, when plaintiff then, ever since, and before, resided in Harris County, Texas, and by reason thereof Defendants’ Pleas of Privilege and each of them should be denied and overruled.”

There having been nothing else involved, the hearing was advanced by this court— upon motion therefor — pursuant to its Rule XI(a).

The appellee is also a corporation, resident in Harris County, Texas, and, as the basis for the suit thus designated in the quoted order, it, as plaintiff against the two> defendants in the suit so filed against them in Harris County, alleged:

“That appellant Bell Publishing Company was the publisher of a daily newspaper in Temple, Bell County, Texas, to-wit: Tem-pi e Daily Telegram, and on the 21st day of May, 1939, printed and published the following article (by its co-appellant, Dr. Gober), towit:
“Sunday May 21, 1939. Temple Daily Telegram, Temple, Texas, Page 3.
“To the Home Owners and Voters of Temple.
“The tax payers of Temple have heretofore been very liberal in voting bond issues to provide paved streets, fire stations and equipment, school buildings and gymnasiums and adequate water and sewer systems.
“Since the present Board of Commissioners were inducted into office about a year ago we have voted a bond issue of $275,000.00 and the government has made .a grant of $225,000.00 for repairs, renewals and extension of our water and sewer systems, and which work is now in progress.
“Not content with this expenditure of $500,000.00 during'their first year in office, they are now calling upon us to vote an additional bond issue of $850,000.00 to provide a municipally owned power distributing plant.
“When Is This Expenditure of Public Funds Going To Stop?
“We are living in one of the most distressful periods within my memory, and a large per cent of the people of this city, and of the whole United States, is doing without things they really need, because of lack of cash and the fear of going deeper in debt.
“We Can’t Spend Ourselves Out of Debt or Out of the Depression.
■ “Individually and collectively we ought not to incur a debt at this time for anything not absolutely necessary.
“The paved streets, school buildings, fire protection, and water and sewer system ■were absolutely necessary when the people voted the respective bond issues to provide such improvements.
“Is it absolutely necessary at this time that we provide a municipally owned power distributing plant for our City Commission to experiment with?
“It occurs to me that there has been enough experimenting with governmental affairs during the past six and one half years, and during which time our national debt has been increased more than twenty billion dollars.
“Is It Time That We Give Some Thought To Posterity?
“Should we continue to waste and squander public funds and pile up bonded indebtedness that will mean almost bondage to generations yet unborn?
“We have had throughout the nation sit down strikes of every kind and character, and it has occurred to me that it is about time the tax payers went on a sit down strike.
“I am unalterably opposed to a municipally owned power plant or distributing system, and for the following reasons:
“1. It will put too much government in business, and at a time when there is a crying need for more business in government.-
“2. I can not believe it will result in any real saving to the users of electric energy.
“3. I know, and every sane person knows, that to successfully operate a utility of the kind there must be sound fixed policies extending over a long period of years, and since the governing body of the city is constantly changing, a successful operation of the utility would be almost impossible.
“4. If an independent distributing system is put in by the city: it means an economic loss of more than One Million Dollars by reason of the dismanteling of the present plant. I am in favor of .strict regulations of all public'utilities, but I do not favor killing an enterprise, or the dis-manteling of our present plant in which so many widows, orphans and other innocent people have made investments.
“5. Because this bond election has been called by a vote of three out of five of the members constituting the Board of Commissioners of the City of Temple, and no member voting for the plan has ever had any experience whatever in the construction or operation of public utility.
“6. I have read the contract the Board of Commissioners has already entered into with Garrett Engineering Company, of Houston, and under the terms of which this company will be paid $39,525.00, whether it supervises the construction of the plant, or if the city should purchase the existing plant.
“7. The members constituting the Board of Commissioners of Temple are my warm personal friends, but I think they have made a most serious error in employing an engineering company to make the survey for, lay out, design and construct the distributing plant, when there is no person connected with the company who is a practical engineer, or who holds a degree of engineering. I am reliably informed that this company has never done any similar work, and by that I mean that it has never constructed such plant for any other city.
“8. I think our Board of Commissioners have made another great mistake in employing a firm of lawyers of San Antonio to handle the legal work and especially in view of the-fact that we have a most competent and well experienced City Attorney who is paid for that purpose.
“9. I am not in favor of giving this said Board of Commissioners, or any other Board of Commissioners, that power to spend one and one-third million dollars, because I do not think any commission should have that much power.
“Do you ?
“I am, therefore, calling a public mass meeting to be held at the Municipal Auditorium, 8 o’clock p. m., May 22nd (next Monday night), for the purpose of threshing the matter out and definitely determining whether or not Temple really needs this proposed Utility.
“Dr. O. F. Gober.
“(This is an advertisement, written and paid for personally by Dr. O. F. Gober).”
“Appellee further alleged that it was a corporation engaged in the work and profession of ‘consulting and supervising engineers’ on the date of the publication of said article and had been in such business for many years prior thereto; that on December 6, 1938, the City of Temple, Texas, a municipal corporation, contemplated the construction or purchase of an electric light and power distribution system for said city, and on that date entered into a written contract with appellee to do the engineering work for such enterprise, in consideration of a fee of 4.65% of the cost thereof, a copy of- such contract being attached to the petition as ‘Exhibit A’; that on May 15, 1939, the City of Temple, by resolution, ordered an election to be held for the purpose of voting bonds in the sum of $850,000.00 to provide funds for such electric light and power project, such election to be- held on June 2, 1939, and while said campaign was in progress, the above article complained of in this suit was so published; that said article tended to and did injure and damage appellee in its business and credit, and did expose it to public hatred, contempt, ridicule and financial injury, and impeached the honesty and integrity of the officers of ap-pellee ; that it was libelous of and intended to libel appellee, and that it had been damaged in its business and profession in the sum of $50,000.00 general damages, and the further sum of $20,000.00 as exemplary damages, and prayed judgment against appellant, Bell Publishing Company, and appellant, Dr. O. F. Gober, jointly and severally for said amounts.”

The challenged venue was laid in Harris County, pursuant to Subdivision 29 of R.S. Article 1995, providing in material substance that damage suits for libel may, at the election of the plaintiff, be maintained in the county in which plaintiff resided at the time of the accrual of the cause of action; by a stipulation between the parties, it was agreed that this plaintiff below, the appellee here, had been at all proper times a resident of Harris County; further, that the article sued upon had been written, published, circulated, and was of the precise-content, all as set forth in the allegations quoted supra. It is further undisputed that issue was properly joined between the parties by the privilege-pleas on the one side and the controverting affidavit on the other, the hearing upon which was before the court without a jury.

These two appeals are therefore reduced to and predicated solely upon one comprehensive contention, which may be thus, in substance, restated: The evidence adduced by the appellee, having attempted to show only a prima facie cause of action for libel, or that such a cause probably existed in its favor, and wholly failing to show by a preponderance of it'that a libel in all its parts, or a cause of action therefor, had been committed against it in Harris County, the court erred in overruling the pleas of privilege ; subsidiarily, it is added that the publication so declared upon was privileged in favor of both appellants under Vernon’s Texas Annotated Civil Statutes, Article 5432, absolutely as to the Bell Company, and qualifiedly as to Dr. Gober. In limine, the appellants further insist that this court is precluded from even inquiring into the thus-challenged sufficiency of the appel-lee’s evidence to make out a cause of action for libel, because the trial court, in the quoted excerpt from its judgment, held as a matter of law that only a prima facie case for libel had ever been made or tendered by the appellee; wherefore, the only function left this court is to determine whether or not that declaration of the law is correct; they cite Gulf, C. & S. F. Ry. Co. v. Harvey, Tex.Com.App., 276 S.W. 895, as settling that presentment in their favor.

After careful consideration of elaborate briefs, supplemented by oral arguments from both sides, this court sustains the trial court’s action in overruling the pleas, mainly upon these considerations:

(1) It is not precluded from appraising the legal effect of the evidence-heard by the trial court’s evidently inadvertent declaration “that plaintiff has made out a prima facie case herein for a cause of action for libel on May 21, 1939”; this, for the reason that the record otherwise conclusively shows the cause not to have been tried upon any such theory of law, the ap-pellee, on the contrary, having offered and the court having heard evidence tendered as being in compliance with the rule governing the quantum of evidence necessary on a plea-of-privilege hearing, as declared in Compton v. Elliott, 126 Tex. 232, 88 S.W.2d 91; which is, that the necessary venue facts in such hearing must be proven by a preponderance of the evidence, like any other facts; wherefore, the trial court’s statement may properly be classified as the giving of a wrong reason for a proper judgment. Vol. 4, Texas Digest, Appeal and Error, headed “Review of correct decision based on erroneous reason--ing in general”, and cited cases; Vol. 3, Tex.Jur., p. 1129, note 18.

(2) The necessary venue facts on this hearing, as declared in an analogous situation by the Supreme Court in A. H. Belo Corp. v. Blanton, 133 Tex. 391, 129 S.W.2d 619, as required by the provisions of applicable Subdivision 29 of R.S. Article 1995, were these: (a) That a cause of action for libel accrued; (b) that such a cause accrued on a certain date; and (c) that the plaintiff resided in the county where the suit was filed upon that date.

Since Nos. (b) and (c) of these require- ■ ments were eliminated by the stipulation here so made, only No. (a) was left as issuable, and for that reason the contest was so narrowed, as before indicated, both in the trial court and here;

(3) The trial court did not limit the evidence heard, nor deprive appellants of the privilege of presenting any, which they did not offer to do (except as to some exhibits), as a consequence of its quoted and apparent view that only a prima facie case had been made out; on the contrary, it heard full evidence, tendered at great length by the appellee, as reflected by a statement of facts, brought up with this record, of 130 pages; it showed the contract between the City of Temple and appel-lee, the Resolution and Order of the City’s Board of Commissioners authorizing such contract, and the sued-upon article by Dr. Gober in the Temple Daily Telegram of May 21, 1939; also the full testimony of witnesses, M. T. Garrett and J. Blair Stuart, of which this is a fair summary:

“M. T. Garrett testified that at the time the newspaper containing Dr. Gober’s sued-upon article reached his office in Houston, as a subscriber, his company had then and for several years prior thereto engaged itself principally with public utilities as consulting and supervising engineers for municipalities; at that time the company had connected with it several men in its employment other than its active officers; that he himself had had 20 years’ experience as an engineer in some fifty projects, including light and power systems; that J. Blair Stuart, his company’s vice-president, had had 10 or 12 years’ experience and was a graduate engineer from Rice Institute, since when his work had been mechanical and civil; that mechanical engineering work involved the designing, planning, and supervision of construction of power plants and the generators and machinery constituting same; that the company had had connected with it at various times approximately 20 other engineers, some of whom were electrical, mechanical, hydraulic, and civil, and between March and August of 1939, covering the date of Dr. Gober’s declared-upon article of .May 21, 1939, his company, other than its two main officers, Stuart and Garrett, had engineers Hoemeyer, McVey, and Thomas with it; that his company had handled some 33 projects, listing them; that the appellee company had supervised the construction (which is what Dr. Gober’s quoted article said the terms of the Temple contract required of this appellee) of nearly 50 projects then identified; that Garrett himself had once built a steam generating plant; that he was registered as a professional engineer with the State Board; that he was a professional- engineer, having had broad experience in electrical work.
“J. Blair Stuart testified he received a B. S. degree in M. E. from Rice in 1922, and that since then his work had been the general practice of engineering; that he had been connected with the Garrett Engineering Company for nearly 14 years, and held the title of vice-president; that mechanical engineering included the supervision and construction of machines, including electrical ones; that he was registered as a professional engineer; that the first 3 years in college in securing an engineering degree — on a four-year course — were the same, whether it be civil, mechanical, or any other branch of engineering, and that the branches were so closely interrelated that an engineer capable of practicing one branch had to have a substantial knowledge of the other branches; that in reviewing the engineers connected with appellee company on May 21, 1939, the date of the Dr. Gober article, he found that besides himself and Mr. Garrett that McVey was connected with them as -a registered professional engineer in electrical engineering, Hoemeyer registered as a civil engineer, Allen as a practical engineer with 15 years’ experience in electrical work, and two draftsmen; that on the date of the Dr. Gober article the appellee company had men connected with it who supervised the construction of light and power plants at Liberty, Robstown, Port Lavaca, Teague, and Smithville; that he did not know whether Engineer Allen was registered or not; and that building an electric plant and distribution system required considerable more civil and mechanical experience than electrical.”

(4) It is unnecessary to consider the many fine distinctions in our jurisprudence in the construction of our libel law with reference to like or similar situations to this one; for the reason that the matter here declared upon' as libelous is of a precise and definite character, was admittedly written and published as charged, hence need only be appraised from a legal standpoint as to whether it was libelous in such given circumstances; further, if, after giving due construction to the whole article under all the facts and circumstances, there was any such severable and distinct part of it as to have been libelous per se, if shown to have been false, the inquiry need proceed no further, since that alone — plus the other present facts — would support the venue as laid. 27 Tex.Jur. 602, 603, notes 17 and 18; 36 C.J. 1180; Scheidler v. Brochstein, Tex.Civ.App., 73 S.W.2d 907; Pennsylvania Iron Works Co. v. Vogt, 139 Ky. 497, 96 S.W. 551, 8 L.R.A.,N.S., 1023, 139 Am.St.Rep. 504; 36 C.J. 1186 and 1187; West Texas Co. v. Wills, Tex.Civ.App., 135 S.W.2d 138.

(5) Whatever may be said of its other recitations, this court is of opinion that, plainly upon its face, these unequivocal declarations in paragraph 7 of the admitted article were, under the inescapable imputations, libelous, unless shown to be true, under such well-settled holdings in Texas as Belo & Co. v. Looney, 112 Tex. 160, 246 S.W. 777, to-wit: “I think they have made a most seriotts error in employing an engineering company to make the survey for, lay out, design and construct the distributing plant, when there is no person connected with the company who is a practical engineer, or who holds a degree of engineering. I am reliably informed that this company has never done any similar work, and by that I mean that it has never constructed such plant for any other city.”

(6) The proof, as cited above, was ample not only to raise an issue over whether or not these last-quoted declarations were facts, as therein asserted, but to have sustained a finding of court or jury to the effect that they were not; and that is all that is necessary, as this court understands the rule laid down in Compton v. Elliott, supra; that is, after all the necessary venue issues upon a plea of privilege hearing like this have been isolated and j oined by. the designated pleadings, it will be sufficient if only these are proven by a preponderance of the evidence, like any other fact must be, and not prima facie only. 43 Tex.Jur., p. 857, and par. 114, note 14. Same volume, pp. 844, 845, par. 109, note 4; also notes 18 and 20, p. 844 of 1940 Supplement to 43 Tex.Jur.

(7) In this court’s view, the very specifications of Article 5432, supra, defining what matters shall be deemed privileged and shall not be actionable as libelous, repel the claims of appellants that these last-quoted declarations were not so potentially libelous, in that they were neither “fair, true and impartial account[s]” of the proceedings, meetings, and doings with which they had to do, nor “reasonable and fair comment[s] or criticism[s] of official acts of public officials, and of other matters of public concern published for general information”; but they were direct charges against private individuals, that is, the appellee company, its officers and functionaries, to the plain purport that it and its personnel were wholly unfit for the contractual and “engineering services” it had assumed to the City of Temple, in that it did not have connected with it any person who was a practical engineer, or who held a degree of engineering, and that it had never constructed such a plant for any other city as it had so contracted to do as “engineer” for the City of Temple. Vernon’s Texas Civil Statutes, Article 5432, sections 2, 3 and 4; Belo & Co. v. Looney, 112 Tex. 160, 246 S.W. page 784; Moore v. Leverett et al., Tex.Com.App.; 52 S.W.2d 252, notes 8 and 11, page 255; Ferguson v. Houston Press, Tex.Civ.App., 1 S.W.2d 387, at page 393; affirmed, Tex.Com.App., at 12 S.W.2d 125; Galveston Tribune v. Johnson, Tex.Civ.App., 141 S.W. 302; Houston Press Co. v. Smith, Tex.Civ.App., 3 S.W.2d 900, at page 906.

(8) If, therefore, the evidence appel-lee offered was sufficient for and would have sustained a finding that these declarations were false, as it is here held to have been, a sufficient predicate was thereby laid for actionable libel, hence the venue was adequately sustained.

These conclusions require an affirmance of the judgment; it will be so ordered.

Affirmed.


author: O’QUINN, Justice. WALKER, Chief Justice

text:
    GATHRIGHT v. CARL MARKLEY MOTOR CO.
    No. 3743.
    Court of Civil Appeals of Texas. Beaumont.
    Nov. 21, 1940.
    Thos. J. Hightower and Thos. A. Wheat, both of Liberty, for appellant.
    Horace Grogan, of Liberty, and Orgain, Carroll & Bell, of Beaumont, for appellee.
   O’QUINN, Justice.

This suit arose out of an automobile collision occurring near the town of Devers in Liberty County,. Texas, September 28, 1939. A 1939 V-8 Ford automobile owned by appellee, Carl Markley Motor Company, and driven by Willie Fowler, collided with an automobile driven by appellant, Gathright, resulting in serious bodily injuries to appellant. Among other things, appellant alleged that Willie Fowler, the driver of appellee’s car, was the agent, servant and employe of appel-lee, Carl Markley Motor Company, and was then and there acting within the scope of his employment, and that said driver of said car was guilty of negligence causing the collision resulting in the injuries to appellant, in that said driver was driving at an excessive rate of speed, forty-five miles per hour and on the left side of the highway, which negligence was a proximate cause of the collision, and of the injuries received by appellant. Appellee answered by general demurrer, general denial, plea of contributory negligence, and specially denied that the driver of the Ford V-8 car was either the agent or employe of appellee, or that he was in the course of any employment with appellee.

The trial was to a jury, but at the close of the evidence upon motion of appellee, the court instructed a verdict for appel-lee, which was duly returned and judgment entered that appellant take nothing by his suit, and that appellee go hence with its costs of suit. This appeal followed.

The facts are: On September 28, 1939, the Carl Markley Motor Company was a Texas corporation engaged in the business of selling Ford automobiles and in buying and selling used cars in the city of Beaumont. We shall refer to the Carl Markley Motor Company as “Markley.” On ■ said date, appellant, T. J. Fowler was a young single man engaged in barber work in said city. He had been residing in Beaumont and bartering for about one and one-half months at said date. His mother resided at Highlands in Harris County, Texas, where he had formerly resided with her. Fowler had met Carl Markley, but was not well acquainted with him. On that date, September 28, 1939, Fowler, accompanied by a young man friend left the barber shop where he worked and went to the Carl Markley Motor Company office intending, if he could make proper arrangements, to purchase a used car for his own use. He selected a car and was told by Carl Markley that the terms of payments were agreeable. Fowler had been using a 1936 Chevrolet car which belonged to his mother at Highlands, Texas. He desired to . trade the Chevrolet in on the car he wished to purchase, and Carl Markley valued it at $225 to which Fowler agreed, but informed Markley that the Chevrolet car belonged to his mother and that he would have to get her consent to trade it in as a payment on the car he desired to purchase. Mark-ley had one of his employes to bring out a new Ford V-8 car and fill it up with gasoline and oil, and told Fowler that he could drive it — the new Ford — -over to Highlands and see his mother and get her consent for him, Fowler, to trade in the old Chevrolet as a payment on the car that Fowler wished to purchase. Markley filled out a blank transfer of the old Chevrolet car for Fowler’s mother to sign transferring the Chevrolet car to him, Markley, to be used by Fowler as a payment on the car to be purchased, and told Fowler to get in the new Ford V-8 car and to go that day to see his mother and get her to sign the transfer of the Chevrolet, and to return to Beaumont with the new Ford that same day. Fowler took the transfer papers that Markley gave him, got in the new Ford car and started to see his mother at Highlands, as Markley told him to do. While enroute travelling on Highway No. 90, the collision occurred. Fowler testified that he was not to receive any commission for perfecting the transaction, if he should get his mother to sign the transfer of the Chevrolet car to Markley and he purchased the used car which he had selected, but that he had to have the consent of his mother to trade in her, old car as a payment on the car to be purchased by him from Markley, and that he desired to get for his mother the best amount possible for her car, and that he was to pay the remainder of the consideration for the car he purchased, if the deal was consummated, for his own use.

This appeal involves the sole point of the propriety of the instructed verdict. The court instructed the verdict for appel-lee on the theory that Fowler, to whom Markley had entrusted the car for him to go to see his mother, and, if he could get her to sign the papers transferring her old Chevrolet car to Markley the trade in value, $225, to be applied to a payment by her son on the car to be purchased by him from Markley, was not an agent for Markley in the contemplated transaction, but was a bailee in possession of the Markley car for Markley.

Appellant presents two assignments of error against the judgment. They both urge the same contention — that Fowler was acting as the agent of Markley, and for Marlcley’s benefit. He has presented an able and interesting brief supporting this contention.

We have concluded that, under the undisputed facts, the judgment must be upheld. Markley simply placed a car in the possession of Fowler to be used by Fowler in going to see his mother to obtain her permission for him to trade in her old car as a payment on the Markley car which he, Fowler, had selected to purchase — not the one he was allowed to drive, but a used car — and Markley had no right of control or actual control over Fowler in the trade which he might make with his mother in obtaining her permission to trade in the old car. In this Fowler had the untrammelled right to make any arrangement with his mother he could — -as to whether he would pay for the secondhand car, or whether the ownership of the secondhand car should be in him or his mother, and whether • his mother should have the right to use the secondhand car, and any other matters which might occur between him and his mother in arriving at their understanding in the matter. Fowler’s interest in the transaction was not in line with that of Markley. Fowler desired to obtain the utmost value possible for his mother’s old car, this to redound to both his and her benefit, not to Marldey’s — his and his mother’s interest was adverse to that of Markley, and so his attitude was not that of an agent who must act for the benefit of his master. Markley did not have one of his employes to accompany Fowler on the trip to see Fowler’s mother. Fowler had complete charge of and control of the Markley car. If any one should be considered as a prospective purchaser of the Markley car, it was Fowler. The buyer of a car can not be the agent of the seller. Markley was seeking to sell Fowler a used car. Fowler, in another car (new Ford V-8) of Markley’s, was going to see his mother to obtain her consent for him to trade in an old car owned by her as a payment on the used car he sought to purchase. It seems to be settled in this state that an automobile dealer is not liable to a third person for injuries negligently inflicted by a prospective buyer while testing the automobile unaccompanied by an employe of the dealer. Bertrand v. Mutual Motor Co., Tex.Civ.App., 38 S.W.2d 417, 418, writ refused. In the cited case, Mrs. Bertrand suffered personal injuries when she was struck by an automobile owned by the Mutual Motor Company, and sued for damages occasioned by her injuries. The car at the time was being driven by a prospective purchaser who (as here) was not accompanied by an employe or salesman of the Motor Company. The case was tried to a jury who found that the prospective purchaser (in the instant case Fowler) was the agent of the Motor Company which owned the car. The trial-court set aside the verdict and granted judgment for the Motor Company, and upon appeal to the Eastland Court of Civil Appeals, the judgment was affirmed, and writ was denied. In denying the proposition that the prospective purchaser was an agent of the owner of the car, the court said:

“We have been referred to no Texas case deciding the exact question here presented, although we think many could be cited deciding it in principle. There are, however, many well-considered opinions from other jurisdictions deciding the exact question. While, the reasoning is not the same in all of these opinions, the conclusions reached are in harmony. A prospective purchaser cannot be the agent of the seller to demonstrate a car to himself. ‘The relation of agency is the consensual relation existing between two persons, by virtue of which one of them is to act for and in behalf of the other and subject to his control.’ Restatement of the Law of Agency, by the Am.Law Inst., as quoted in 2 Tex.Jur. p. 384, § 5. In testing a car the prospective purchaser is not acting for the benefit, or in behalf of the seller, but is acting.⅛ behalf of himself. His own interests and those of the seller are antagonistic. That fact prevents the existence of the relation of principal and agent. False representations made by him to himself in connection with the demonstration would afford no basis for an action for cancellation. Knowledge acquired by him while making the demonstration would not be imputed to the seller. One essential element of agency, namely, one person acting for and in behalf of another, is wholly lacking. There is also lacking the essential element- of control by the- one of the actions of the other. As noted above, the prospective purchaser was alone in the car when the accident occurred. She was not acting under the direction of the seller, but chose her own place a.nd method for testing the car. An independent contractor may act for and in behalf of another, but,' since he is not under the other’s control, it is held that the relation of agency does not exist. A bailee may act for the benefit of the bailor, but that fact does not make him an agent. The same reason is applicable here. The contention of appellants would extend the scope of the liability of automobile dealers far beyond the limitations set by the adjudicated cases. We can see no reason for making this extension and can see impelling reasons for declining to do so. Marshall v. Fenton, 107 Conn. 728, 142 A. 403; Cruse-Crawford Mfg. Co. v. Rucker, 220 Ala. 101, 123 So. 897; Emery v. McCombs (Sup.) 167 N.Y.S. 474; Flaherty v. Helfont, 123 Me. 134, 122 A. 180; Goodrich v. Musgrave, etc., Co., 154 Iowa 637, 135 N.W. 58; Barton et al. v. Studebaker Corp., 46 Cal.App. 707, 189 P. 1025; Blashfield’s Cyclopedia of Automobile Law, Vol. 2, p. 1323,

It will be noted that in the Bertrand case, supra, the court cited with approval (and which was apparently approved" by the Supreme Court in refusing application for writ of error) the case of Cruse-Crawford Mfg.,Co. v. Rucker, 220 Ala. 101, 123 So. 897. In that case a car was delivered to a prospective purchaser so that he' might take it to show to his wife and secure her consent or agreement to purchase same. In a suit by a -third party for damages, it was held that in taking the car to show it to his wife with a view of purchasing same, he was not an agent of the owner of the car, and no liability existed against the owner for damages growing out of a tort occurring during the trip to display the car to the prospective purchaser’s wife.

In the case of Kantola v. Lovell Automobile Co., 157 Or. 534, 72 P.2d 61, 62, the defendant company delivered a car to a minor son of a lady so he could take it to show it to his mother that she might be persuaded to purchase it for the use of the minor son. Previous to that time a salesman of the company had called on the mother for the purpose of selling that particular car to her. A collision occurred between the car driven by the minor and a third party, and the suit was brought by the party, Kantola, against the company for damages growing out of the collision. In denying the right of the third party to recover, the Supreme Court of Oregon said:

“The plaintiff brought this action to recover damages for injuries received in a collision between an automobile in which she was riding, and one belonging to the defendant, which was then being driven by one John Kildall, a boy about 15½ years of age. It is alleged in the complaint, and for the purposes of this case we shall assume, that the boy’s negligence caused the accident. The case is here upon an appeal from a judgment in favor of the plaintiff.
“The defendant is a corporation engaged in the business of buying and selling new and used cars in Astoria, and the car in question was a used car. It appears from the evidence, and it is undisputed, that just prior to the accident the defendant, with the consent of the boy’s mother, delivered the car to the boy for the purpose of having him show it to his mother in order to induce her to purchase it for him so that he could use it in distributing a magazine, the agency of which he expected to secure. Once before the same car had been delivered to the boy for the samé purpose, and at that time he had driven his mother to church.
“The evidence further shows that one of defendant’s salesmen had on several occasions called on the mother for the purpose of selling this particular car to her.
“It is undisputed that the boy was not in the employ of the defendant company and that the car was delivered to him for the special purpose above stated.
“The plaintiff contends that the transaction of delivering the car to. the boy for that special purpose and the benefit which would have resulted to the defendant had the mother purchased the car were sufficient to constitute the boy as an agent of the defendant and to render the defendant liable for the boy’s negligence.
“We think the transaction created a bailment and not an agency, and that, if the boy was the agent of any one, he was the agent of his mother for whom he was acting.
“ ‘Agency,’ as defined by the American Law Institute, Restatement of Agency, § 1, ‘is the relationship which results from the mainifestation of consent by one person to another that the other shall act on his behalf and subject to his control, and! consent by the other so to act.’ ”

In Gulf Refining Co. v. Ray Motor Co., 129 Me. 499, 152 A. 226, one Wheldon was. considering buying a secondhand car and went to the Ray Motor Company, which dealt in secondhand cars. A salesman of the company took the car out to demonstrate it to Wheldon, and after driving a short distance, Wheldon apparently doing the driving, Wheldon stated that the car appeared to be alright, but that he wanted his wife to see it, and requested the salesman to drive the car to his home and show it to his (Wheldon’s) wife, but the salesman said he was unable to do so, and instructed Wheldon to drive the car himself and show it to his wife. Wheldon drove away with the car and had a collision causing the suit. There, as here, it was contended that Wheldon, the driver of the car, was the agent of the automobile company because he was going for the purpose of bringing about a sale of the company’s car which would have benefitted the company. In denying this contention, the court said: “To hold that he was acting as agent for the company in persuading his wife to buy the car, not only finds no support in the evidence, but contemplates a relationship of the parties which even to the casual observer seems absurd.”

In the Georgia case of Harris v Whitehall Chevrolet Company, 55 Ga.App. 130, 189 S.E. 392, the court said that the relation between a motor dealer and a prospective purchaser who is driving the car to test it, unaccompanied by an employe of the motor company, is not that of principal and agent, but is that of bailor and bailee; that it was well settled law that a bailor was not liable for the negligent acts of the bailee in driving the car.

In the Washington case of Hamp v. Universal Automobile Co., 173 Wash. 585, 24 P. 2d 77, 78, the automobile company directed a prospective purchaser, Mr. Allen, to drive the automobile he wished to purchase to test same, and further authorized him to drive the car to Lewiston, Idaho, which he undertook to do, and a collision occurred. In the suit the plaintiff alleged that the automobile company in directing the prospective purchaser, Allen, to take and drive the car, “thereby appointing the said Mr. Allen their agent and employee for the purpose of demonstrating said automobile.” In denying this contention, the court said: “The facts, as recited in the complaint, other than the statement quoted to the effect that Mr. Allen was the agent and employee of the auto company, show nothing more than the relation of bailor and bailee. The allegation that Mr. Allen was the agent and employee for the purpose of demonstrating the automobile was a mere conclusion of the pleader. A demurrer admits all facts which are well pleaded, and all intendments and inferences that may be fairly and reasonably drawn therefrom, but it does not admit recitals of conclusions either of fact or law.” And again: “The fact that the •owner of the automobile delivered it to Mr. Allen as a prospective purchaser does not justify the imputation to the owner of Allen’s negligence while driving it for demonstration purposes.”

The above cited cases, (and many others to the same effect and upon similar facts could be cited) show the rule well established that a prospective purchaser of a car driving same at the direction of the owner for the purpose' of determining whether he will buy same, or for the purpose of exhibiting same to some relative of the user for the same purpose, is a bailee in possession of the car for a specified purpose, and not an agent of the owner. The general rule is that a -bailor is not liable to third persons for their injuries resulting from the bailee’s negligent use of the thing hailed. 8 C.J.S., Bailments, p. 318, § 40; 6 Am.Jur., Bailments, § 313. In 2 C.J.S., Agency, p. 1027, § 2, it is said: “A bailee over whose actions the bailor has no control is not an agent, even though he acts for the benefit of the bailor; and a bailee acting on behalf of himself and whose interests are antagonistic to those of his bailor cannot be the agent of the bailor,” citing Bertrand v. Mutual Motor Co., Tex.Civ.App., 38 S.W.2d 417. This is well established law. Here Fowler was acting for his’ mother and himself in securing the greatest value possible for the old Chevrolet car of-his mother to be traded in by him to Markley as a payment on the car he was to purchase from Markley. He was not interested in boosting the price of the car he intended to purchase, or to aid in making a profit on it for the seller. His interest was antagonistic to that of the seller.

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

Affirmed.

WALKER, Chief Justice

(concurring).

I concur with Judge O’Quinn, who has written the opinion for the court, that the judgment of the lower court in favor of ap-pellee on an instructed verdict should be affirmed, but not on the theory of his opinion that the relation between appellee and Fowler was that of bailor and bailee.

The following statement is taken from appellee’s brief: “If the car was purchased, he was going to make all the payments on the car; was going to purchase a new Ford automobile; that the car that he was actually driving when the collision occurred was not the car he intended to trade for, but instead was a used car, though nevertheless a Ford.”

The following statement is from Judge O’Quinn’s opinion, that Fowler “desired to trade the Chevrolet in on the car he wished to purchase, and Carl Markley valued it at $225 to which Fowler agreed, but informed Markley that the Chevrolet car belonged to his mother and that he would have to get her consent to trade it in as a payment on the car he desired to purchase.” It appears from these statements and the general statement made by Judge O’Quinn, that Markley and Fowler had agreed upon the terms of the car trade, and that nothing was left to be done to close the trade except the securing of the consent of Fowler’s mother. The facts on that issue are thus stated by Judge O’Quinn :

“Markley had one of his employes to bring out a new Ford V-8 car and fill it up with gasoline and oil, and told Fowler that he could drive it- — the new Ford — over to Highlands and see his mother and get her consent for him, Fowler, to trade in the old Chevrolet as a payment on the car that Fowler wished to purchase. Markley filled out a blank transfer of the old Chevrolet car for Fowler’s mother to sign transferring the Chevrolet car to him, Markley, to be used by Fowler as a payment on the car to be purchased, and told Fowler to get in the new Ford V-8 car and to go that clay to see his mother and get her to sign the transfer of the Chevrolet, and to return to Beaumont with the new Ford that same day. Fowler took the transfer papers that Markley gave him, got in the new Ford car and started to see his mother at Highlands, as Markley told him to do. While enroute travelling on Highway No. 90, the collision occurred. Fowler testified that he was not to receive any commission for perfecting the transaction, if he should get his mother to sign the transfer of the Chevrolet car to Markley and he purchased the used car which he had selected, but that he had to have the consent of his mother to trade in her old car as a payment on the car to be purchased by him from Markley, and that he desired to get for his mother the best amount possible for her car, and that he was to pay the remainder of the consideration for the car he purchased, if the deal was consummated, for his own use.”

On these facts it follows, in my judgment, that the business of Fowler’s trip to see his mother was a joint adventure for the mutual benefit of Fowler and appellee. The essential thing necessary to close the deal between appellee and Fowler was the mother’s consent. To secure her consent they planned a trip to her home — on the trip, appellee contributing its car and gas and Fowler contributing his time; Mark-ley prepared the papers, and Fowler was to secure her signature to these papers. The only purpose of the trip was the securing of the mother’s consent, and in this there was no conflict of interest between appellee and Fowler; there was no dealing at arm’s length. They were mutually interested in securing her consent, without which they could not make their trade. True, the trip had only one purpose, but as said in 15 R.C.L. 500, “A joint adventure generally relates to a single transaction.”

I do not agree with Judge O’Quinn in the following conclusions taken from his opinion: (a) “Markley had no right of control or actual control over Fowley in the trade which he might make with his mother in obtaining her permission to trade in the old car.”

Markley not only had the “right of control” but exercised it; he, quoting from Judge O’Quinn’s opinion, “told Fowler to get in the new Ford V-8 car and to go that day to see his mother and get her to sign the transfer of the Chevrolet, and to return to Beaumont with the new Ford that same day.” But this “right of control,” on the whole record, was not that of a master, but the limited control of a member of the joint adventure.

(b) “Fowler had the untrammeled right to make any arrangement with his mother he could — as to whether he would pay for the second hand car, or whether the ownership of the second hand car should be in him or his mother, and whether his mother should have the right to use the second hand car, and any other matters which might occur between him and his mother in arriving at their understanding in the matter. Fowler’s interest in the transaction was not in line with that of Markley.”

On the facts as I understand them, Fowler did not have “the untrammelled right” to make a deal with his mother. The terms of the deal had been agreed upon between him and Markley, the papers had been prepared, and in securing his mother’s consent, he could not make the trade with her in violation of the instructions Mark-ley had given him. It was immaterial on the issue before us whether Fowler would pay for the secondhand car, whether he would own the secondhand car, or whether his mother should have the right to use it.

(c) “Fowler desired to obtain the utmost value possible for his mother’s old car, this to redound to both his and her benefit, not to Markley’s — his and his mother’s interest' was adverse to that of Markley.”

As I understand the facts, Fowler had no authority, as between him and Markley, to offer his mother more than the agreed price of $225. In submitting to his mother the price to be paid by appellee for her old car, there was no conflict of interest between appellee and Fowler, because the price had already been agreed upon between them.

Appellant was not injured by a prospective purchaser of the car in the collision — by Fowler driving the car he proposed to buy, as in Bertrand v. Mutual Motor Co., Tex.Civ.App., 38 S.W.2d 417, nor by Fowler’s attempt to exhibit and demonstrate to his mother the car he proposed to buy as in Cruse-Crawford Mfg. Co. v. Rucker, 220 Ala. 101, 123 So. 897, and Kantola v. Lovell Automobile Co., 157 Or. 534, 72 P.2d 61. These, and the other authorities cited by Judge O’Quinn, am nounce the law of bailor and bailee, and simply hold that the facts therein discussed constituted a bailment. These authorities cited sustain the rule announced by Judge O’Quinn, “that a prospective purchaser of a car driving same at the direction of the owner for the.purpose of determining whether he will buy same, or for the purpose of exhibiting sáme to some relative of the user for the same purpose, is a bailee in possession of the car for a specified purpose, and not an agent of the owner.” Since Fowler was not driving appel-lee’s car for the purpose of determining whether he would buy it, or for the purpose of exhibiting it to some relative or other person, as an essential element of his buying the car, the authorities cited are not, in my judgment, in point.

Appellant plead his case and tried it, and judgment was rendered by the court and he perfected his appeal from the judgment, on the theory of master and servant. On no theory of his petition did he present for adjudication the issue of joint adventure. The case must be reviewed in this court on the theory on which it was tried in the lower court — that of master and servant; since the evidence did not present that issue, judgment was properly instructed in favor of appellee.