text:
    NEILL et al. v. WOOSTER.
    No. 3956.
    Court of Civil Appeals of Texas. El Paso.
    June 20, 1940.
    Rehearing Denied July 13, 1940.
    W. B. Stowe and T. D. Kimbrough, both of Midland, for appellants.
    Coffee & Coffee, of Big Spring, for ap-pellee.
   PRICE, Chief Justice.

This action was instituted in the District Court of Midland County by Anna Faye Neill, as plaintiff, joined by her husband, against W. J. Wooster, as defendant. Plaintiff sought an injunction against defendant restraining him from having sold under an execution issuing on a judgment in his favor against H. B. Dunagan certain lots in the City of Midland. Ground for the injunction was that the property belonged to plaintiff, and not to H. B. Duna-gan, and that same was not subject to the judgment against said Dunagan. Defendant answered by general denial, specially that the property was the property of H. B. Dunagan, being the community property of said Dunagan and wife; further, that he held a' judgment rendered in the District Court of Howard County against said Dunagan in the sum of $1,436.02; that said judgment was duly spread upon the records of the District Court of Howard County, and same had been abstracted in Midland County. Defendant Wooster, by way of cross action, pleads this same judgment, and it is alleged by reason of the abstracting thereof in Midland County to be a lien on the land in controversy. In this cross action H. B. Dunagan, H. B. Dunagan, Jr., and C. M. Dunagan were made defendants. Said new defendants and plaintiff all filed answer to this cross action.

The case was tried to a jury, special issues submitted, and on the findings judgment rendered that plaintiffs take nothing against defendant Wooster, and in favor of said named defendant on his cross action, adjudging as against plaintiffs and cross-defendants a foreclosure of the judgment lien against the property in the sum of $2,199.13 and costs of suit. From this judgment the plaintiffs and cross-defendants duly perfected this appeal.

Appellants have filed no brief herein, hence the case is before the Court without assignments of error. The extent of our power is to examine the record for fundamental error. This we have done, and in. our opinion such error does not appear therefrom.

It is ordered that the judgment be in all things affirmed.


source: Caselaw Access Project

author: BLAIR, Justice.

license: Public Domain

text:
    ENGLISH v. NICHOLS.
    No. 8937.
    Court of Civil Appeals of Texas. Austin.
    July 3, 1940.
    Rehearing Denied July 24, 1940.
    A. M. Felts, Wheeler & Wheeler, and F. A.-Tyler, all of Austin, for appellant.
    Looney & Clark, Everett L. Looney, and Chas. F. Herring, all of Austin, for appel-lee.
   BLAIR, Justice.

Appellee, F. E. Nichols, sued appellant, English Freight Company, for the conversion of his radio, alleging that its cash market value was $195, and in the alternative, that if it had no cash market value, its actual value was $195 at the time and place of its conversion in Austin, Texas. Appel-lee recovered judgment in the justice court for $193, and on the appeal to the county court recovered judgment for the same amount; hence this appeal.

Appellant contends:

First. That no conversion of the radio was established, because it was shown to have been taken with the consent of appel-lee; and there was no proof of demand for its return, nor of refusal of appellant to return it.

Second. That there was no proof of the value of the radio at the time and place of its conversion in Austin, Texas.

The first contention is not sustained, but the second contention is sustained.

Suffice it to say with respect to the first question, that the radio was delivered to appellant at Amarillo for shipment to Austin. It arrived in Austin and was delivered to appellee-October 3, 1938. On the same day appellee notified appellant of the damaged condition of the radio, which he claimed to have purchased new in Amarillo on September 27, 1938, and' demanded a new radio of the same make in its stead. According to appellee’s testimony, appellant took possession of the radio in Austin on October 11, 1938, with his consent, but “with the understanding that they would replace it with a new one.” On October 21, 1938, appellee wrote appellant a letter asking that “some action be taken to replace the radio.” November 1, 1938, appellant replied that an investigation was being made and that appellee would be advised in a few days of the results of the investigation. On November 7, 1938, appellee turned the matter over to his attorney, and thereafter until December 19, 1938, several letters passed between the parties, appellant insisting that it was investigating the matter, and on November 18, 1938, notified ap-pellee that the radio had been repaired and that he should be satisfied with it. Appellee insisted that appellant should replace the radio with a new one, and finally, on December 17, 1938, demanded the return of the radio so that he might determine his procedure in the matter; and the radio not having been returned, appellee filed this suit on January 4, 1939, for its conversion.

These facts bring the instant case within the rule that “conversion may consist in the wrongful detention of chattels under an assertion of right inconsistent with the owner’s general dominion, particularly when detention occurs after a demand for possession has been made.” 42 Tex.Jur. 512; Adams v. San Antonio Life Ins. Co., Tex.Civ.App., 185 S.W. 610, writ refused; Ellis Oil Co. v. Adams, Tex.Civ.App., 109 S.W.2d 1026, writ dismissed; American Surety Co. v. Hill County, Tex.Civ.App., 254 S.W. 241, approved by Commission of Appeals 267 S.W. 265.

The second contention that there was no proof of the value of the radio in Austin at the time of the conversion is sustained. Appellee alleged that its market value in Austin at the time of its conversion was $195, or in the alternative, that if it had no market value, its actual value was $195. Appellee testified that he purchased the radio new in Amarillo on September 27, 1938; that its purchase price there was $194.50; that he paid $100 on the purchase price; and that a friend or friends paid as a gift to him the remaining $94.50 of the purchase price. Appellant introduced proof that the radio had been repaired for $1.50, and-tendered it into both the justice and the county court on the respective trials. The court deducted the $1.50 repair bill from the $194.50. alleged purchase price, and accordingly rendered judgment for appellee for $193. There was no proof as to the value of the radio in Austin, where the alleged conversion took place. Its market value in Austin may not have been the same as in Amarillo. If appellee’s proof had shown that it had no market value in Austin, then under his alternative plea he could recover his actual loss in, money to replace a radio of the same make as his measure of damages. That is, what a new radio of the same make would cost in Austin, less what the wear and tear on the radio in suit would have been for the length of time it had been in use. 42 Tex. Jur. 574, § 59, and cases there cited.

The judgment of the trial court is reversed and the cause is remanded.

Reversed and remanded.


author: HALL, Justice.

text:
    NORTHCOTT et al. v. TEXARKANA NAT. BANK et al.
    No. 5631.
    Court of Civil Appeals of Texas. Texarkana.
    June 25, 1940.
    Rehearing Denied July 11, 1940.

      E. Newt Spivey and W. T. Williams, both of Texarkana, and Louis Josephs, of Texarkana, Ark., for appellants.
    Wm. V. Brown, Rodgers & Rodgers, and Wheeler, Atchley & Vance, all of Texarkana, Gabe P. Allen, of Dallas, Kemper, Hicks & Cramer and F. Warren Hicks, all of Houston, Leon Chapman, of Dallas, and Herbert Line, of Texarkana, for appellees.
   HALL, Justice.

The Texarkana National Bank as independent executor named in the last will and testament of Marshall Northcott, deceased, instituted this suit in the District Court of Bowie County in the nature of a bill of interpleader seeking a determination of who the heirs of Marshall North-cott were and the portion each was entitled to receive of the residue of his estate in its hands. The bank alleged that it had duly probated the last will of Marshall Northcott, deceased, had qualified as independent executor under the terms thereof; that all specific bequests had been paid to the parties named in said will and entitled thereto; that all claims against said estate had been satisfied; and that it still had on hand certain money and property belonging to said estate undisposed of by said will.

Mrs. Jodie N. Scott, sister of Marshall Northcott, deceased, and a beneficiary under the terms of the will, filed a plea in abatement charging that the suit as to her was prematurely brought for the reason that she was a beneficiary for life in a trust created by said will and that said trust had not been fully performed. Mrs. Scott has since died, and no further notice will be taken of this pleading.

Appellant Mary Rose Northcott answered that she was a grand-daughter of Marshall Northcott, deceased, and as such, was entitled to the whole of the residue of said estate. In the alternative, she alleged that she was entitled to receive 3/13 of said residue for the reason that by the terms of said last will it was the intention of Marshall Northcott to dispose of his whole estate and her pro rata part of said residue is 3/13 thereof. Appellants Toledo O. Newlin Chambers and Marshall Lewis adopted the answer of Mary Rose Northcott, except that they each made claim to 1/13 of said residue. These appellants were beneficiaries under North-cott’s will. Mary Rose Northcott received $15,000 and the other two appellants received $5,000 each.

Trial was to the court without a jury and resulted in a judgment determining who were the heirs of Marshall North-cott, deceased, and awarding to each the fractional interest in the residue of said estate to which he or she was entitled to inherit as an heir of said decedent. Judgment was against appellants Mary Rose Northcott, Toledo O. Newlin Chambers, and Marshall Lewis, both as to heirship and as participants in the residue of said estate. There is a stipulation in the record in which all parties agreed that the persons named in the court’s judgment, as entitled to inherit the residue of this estate, were the heirs of Marshall North-cott, deceased. The list of heirs does not contain the n^mes of appellants.

Appellants’ proposition 3 is: “Construing the will of Marshall Northcott as a whole the court should have held that the property involved was testate and passed by the terms of the will to the beneficiaries in the will and that Mary Rose Northcott, Toledo O. Newlin Chambers, and Marshall Lewis should have recovered with the other legatees named in said will."

The introductory clause of the will is: “I, Marshall Northcott of Texarkana, do hereby revoke all other wills heretofore made by me and do now make and publish this as my last will and testament, disposing of all the property of every kind and character wherever situated which I may own at the time of my death, the disposition being as follows, that is, to say:" Then follows the bequests to the individuals named in the will with directions as to certain trust funds. Paragraph 9 of said will is: “I direct that the payment of debts and the gifts in trust of One thousand dollars ($1,000.00) and of Twenty thousand dollars ($20,000.00) to The Texarkana .National Bank as trustee shall have priority and preference over all other gifts herein made, and if there is any deficiency, also considering the expenses of administration, in paying said other gifts after taking care of each of said trusts, then that the deficiency shall be divided, that is, the remainder shall be pro-rated between the other beneficiaries according to the amount respectively given each of them.”

Paragraph 12 of said will appoints the Texarkana National Bank independent executor without bond. The will contains no residuary clause.

In appellants’ brief is the statement that “the wording of the will is clear and unambiguous.” This is also the contention of the appellees. After careful examination of said instrument we have arrived at the same conclusion. Therefore it is not necessary for us to resort to any of the rules of construction applicable to wills ambiguous in their terms in order to ascertain the intention of the testator, for no rule of construction is so elementary or compelling that it may be employed to add to or take from the terms of an unambiguous instrument in writing, whether it be a will or a contract. In effect appellants contend that the testator by the use of the expression “disposing of all the property of every kind and character wherever situated which I may own at the time of my death,” contained in the introductory clause of the will, taken in connection with the priority of certain trusts provided for in paragraph 9 of said will, copied above, manifests an intention on the part of testator to dispose of the whole of his estate, and that the residue should be divided among the beneficiaries named in the will in the proportion their bequests bear to said residue. To so construe this will, couched as it is in clear and unambiguous language, we must add to it terms which the testator saw fit to omit. In effect there must be added a residuary clause in which the beneficiaries of the will are named as residuary legatees. This would amount, in part at least, to writing a new will for the decedent. This we must refrain from doing. The bank alleged, and the court found, that every bequest of the will had been discharged according to the very terms of the will, which included the bequests to appellants. With this will before us in the clear and intelligent form in which it is written, we can not concern ourselves with whether Marshall Northcott deliberately, negligently, inadvertently, or by mistake left out of it the disposition of the property here in controversy, but only with the fact that it was omitted from said will. We think the above holding is supported by the pase of Philleo v. Holliday, 24 Tex. 38, wherein it is said: “We have no means of ascertaining what disposition the testator would have made of the slaves in controversy, after the determination of the life estate of Mrs. Hill, if he had known the bequest of freedom could not have effect, according to his wishes. There were other legatees, to whom he might have chosen to give them in remainder, or he might have chosen that they should go to the heirs, for whom he made provision in certain events; or he might have provided for their freedom, by their removal out of the state. It is left entirely to conjecture, and the courts never indulge conjecture, as to the possible or probable intention of the testator, for the purpose of helping out a bequest; for that, as has been said, would be assuming the power of making rather than construing the will. ‘Where the testator in the disposition of his property, overlooks a particular event; which had it occurred to him, he would in all probability have provided against, the courts will not rectify the omission, by implying or inserting the necessary clause; conceiving it would be too much like making a will for the testator, rather than construing that already made.’’ (Italics ours.)

Article 3314, R.C.S., provides for a contingency such as this will presents, and the court below properly disposed of the residue of this estate under the provisions of this statute. This proposition is respectfully overruled. Our holding with respect to this proposition, we think, makes it unnecessary to discuss the other propositions brought forward.

The judgment is in all things affirmed.


author: JOHNSON, Chief Justice.

text:
    SEABOARD FIRE & MARINE INS. CO. OF NEW YORK v. HINES et al.
    No. 5633.
    Court of Civil Appeals of Texas. Texarkana.
    July 5, 1940.
    Rehearing Denied July 18, 1940.
    Wilson & Reichman and E. M. Reich-man, all of Dallas, and J. K. Brim, of Sul-phur Springs, for appellant.
    T. J. Ramey, William J. Fanning, and Vern D. Adamson, all of Sulphur Springs, for appellees.
   JOHNSON, Chief Justice.

Thi« suit was filed by C. J. Hines and H. V. Robinson against Seaboard Fire & Marine Insurance Company of New York upon a Texas standard form fire insurance policy issued to them by said company in the amount of $1,000, effective at and from noon April 22, 1932, until noon April 22, 1933, covering certain personal property comprising a barber shop owned and operated by plaintiffs in the city of Sulphur Springs, Texas, alleged to 'have been damaged and destroyed by fire on December 1, 1932. Defendant’s answer contains a general denial and spe-dally alleges that on October 1, 1932, pri- or to the fire, defendant had cancelled the policy and given plaintiffs notice of such cancellation according to its terms. Plaintiffs replied to defendant’s answer and denied that the policy had been can-celled or that they had received any such notice; and specially alleged that the annual premium had actually been paid to and received by the company and that the company could not legally and effectively cancel the policy without complying with its terms requiring (1) that the insured be given five days’ written notice of such cancellation; and (2) returning to the insured the unearned portion of the premium. In a pleading termed “plaintiffs’ first trial amendment” plaintiffs also alleged that W. G. Smith as agent of the defendant company in consideration of plaintiffs insuring with defendant had agreed to accept barber work to be performed by plaintiffs for Smith in payment of the annual premium of $18.25. Upon trial to a jury four questions were submitted. Questions 3 and 4 related to the amount of damages sustained as ’the result of the fire, each of which questions were answered by the jury, showing the amount to be $700. Questions 1 and 2 were not answered by the jury. Question 1 inquired as to whether W. G. Smith had agreed with plaintiffs to accept payment of the premium in barber work. Question 2 inquired as to whether W. G. Smith notified plaintiffs prior to December 1, 1932, that the policy had been cancelled. Upon the uncontradicted evidence and the jury’s findings in answer to Questions 3 and 4 the court entered judgment for the plaintiffs. The defendant has appealed.

Appellant’s contention in substance is that the court was not authorized to enter the judgment in the absence of jury findings to Questions 1 and 2, that is to say, that it was essential to entry of a judgment for appellees' that the jury find in answer to Question 1 that Smith had agreed with plaintiffs to accept payment of the premiúm in barber work; and that the. jury find in answer to Question 2 that Smith had not notified plaintiffs prior to the fire that the policy had been cancelled. Appellees’ contention, in substance, is that findings of the jury in answer to Questions 1 and 2 were not essential to support a judgment for appellees, that is to say, that had the jury answered Questions 1 and 2 favorable to appellant, by finding that Smith had not agreed to accept payment of the premium in barber work and that he had notified plaintiffs of the cancellation of the policy prior to the fire, still plaintiffs were entitled to a judgment; because the undisputed evidence shows that appellant had actually been paid the full amount of the premium, had issued the policy and put same into full force and effect; and in its attempt to cancel the policy appellant had not paid or tendered to the insured the unearned portion of the premium or any part of it. We believe that appellant’s contention must be overruled and that the contention of appellees should be sustained.

The undisputed evidence shows that Smith solicited the insurance and extended credit to appellees as to payment of the premium; that he charged appellees with the full amount of the premium, $18.25, as an obligation due him; that he actually paid the company the full amount of the premium, less his regular commission of 20%; that the policy was issued and put in full force and effect, on April 22, 1932, for a period of one year. The policy provides: “This policy shall be cancelled at any time at the request of the insured; or by the company by giving five days notice of such cancellation. If this policy shall be cancelled as hereinbefore provided, or become void or cease, the premium having been actually paid, the unearned portion shall be returned on surrender of this policy or last renewal, this company retaining the customary short rate; except that when this policy is can-celled by this company by giving notice it shall retain only the pro rata premium.”

In its efforts to show that its policy had been effectively cancelled, appellant showed by its agent and witness Smith in whose safe appellees had left their policy, that on or about October 1, 1932, he took the policy out of the safe and mailed it to the company, instructing it to cancel the policy and return to him the unearned portion of the premium, which the company did; that when he received the unearned portion of the premium from the company he applied it on his account against appellees, wrote and mailed to them a letter containing a statement of what he had done and notifying them that the policy was cancelled. Appellees testified that Smith had agreed to let them pay the premium in barber work; that they had paid him some money and had credited him each month with his barber bill; they denied receiving the notice which Smith testified he mailed to them, or that they had any notice of an attempt to cancel the policy prior to the fire. Smith admitted that appellees had paid him some money on their account due him for the premium and that he had taken credit each month for his barber work, except the month of September in which he says he did not have any barber work done by appellees. He denied that he had agreed to accept barber work in payment of the premium. He testified that he paid the full amount of premium to the company on July 1, 1932, less his commission, and that he charged appellees’ account with him for the amount of the premium at the time the policy was issued. He testified that the reason he sent the policy to the company and had them to return to him the unearned portion of the premium was: “Because I had already remitted for the policy and they (appellees) wasn’t paying the premium fast enough and I needed the money in my business.”

Construing the cancellation provision of a fire insurance policy like that here under consideration, in the case of Phoenix Assurance Co. v. Munger Imp. Cotton-Mach. Mfg. Co., 92 Tex. 297, 49 S.W. 222, 225, the Supreme Court speaking through Judge Denman said: “* * * Upon the issue of cancellation, the evidence showed that the assured had paid a portion of the premium, and had given his notes to the agent for the balance, and the agent had paid the entire premium to the company, holding the notes of the assured as his individual property. When the notice of desire to cancel was given, just before the fire, there was no tender made to the assured of the 'unearned premiums, and we are therefore of the opinion that the cancellation was not effectual. It was of no concern to the company that the agent had seen fit, upon his own responsibility, to take the notes of the assured for the premiums, and advance the money to the company; and therefore the company could not cancel without returning or tendering the entire unearned premium to the assured, leaving him and the agent to settle the notes as between themselves.”

There is no difference in legal effect where the agent has himself actually paid the premium to the company in consideration of the insured’s parol obligation to pay him than where he. has done so in consideration of the insured’s note for the amount. The agent has his right of action to collect his debt against the insured in either instance. But he has no right to cause their policy to be cancelled. It was no concern to the company that Smith has seen fit upon his own responsibility to extend the credit to the insured, pay the premium himself, and charge the insured with the amount as an account due him; and the company could not cancel without returning or tendering to the insured the unearned portion of the premium, leaving it to the insured and the agent to settle their private differences.

The judgment of the trial court will be affirmed.


author: PRICE,' Chief Justice.

text:
    BOWMAN v. PHILLIPS PETROLEUM CO.
    No. 4032, Motion No. 5710.
    Court of Civil Appeals of Texas. El Paso.
    June 27, 1940.
    J. B. Cotten and John J. Watts, both of Crane, for appellant.

      James C. Wilson and Cantey, Hanger, McMahon, McKnight & Johnson, all of Fort Worth, and E. D. Smith, of Crane, for appellee.
   PRICE,' Chief Justice.

On the 5th day of June, 1940, appellant filed herein a motion for extension of time to file the transcript. On the 6th day of June we entered an order granting this motion, and the transcript was filed by the Clerk on that day. This action was inadvertently taken before appellee had received notice of the filing of appellant’s motion. On the 7th day of June, 1940, appellee filed an answer to the motion of appellant, and in such answer sought to have the appeal dismissed.

As grounds for filing the transcript appellant’s motion is as follows:

“I. That the deputy district clerk, who is in charge of the preparation of this transcript, is now and has been for several days, on her vacation, and that the said transcript has been partially completed, and that said transcript 'will be completed within a period Of seventy-five days from the date of the final judgment herein, which said final judgment was rendered in this cause on or about the 23rd day of March, A. D. 1940. Plaintiff would further' show that there is no one who is experienced in the preparation óf tran-. scripts in the clerk’s office in Crane County, Texas, with the exception of said deputy district clerk.
“II. Appellant further alleges that this case is being appealed by agreement of the parties, the appellee in this case .having told the trial court, prior to the rendition of the peremptory instruction herein, that it would pay and furnish the costs of appeal and hence, appellant prays the Court that good cause exists herein and that said transcript be permitted by this Court to be filed, and that this Court consider this cause on its merits.”

This motion was filed within seventy-five days from the date of the entry of the judgment appealed from, but not within sixty days.

Under Article 1839, R.S.1925, as amended, Vernon’s Ann. Civ. St. art. 1839, if filed within seventy-five days of the date of the entry of the judgment the motion is timely. Another requirement is that the motion show good cause to have existed within the sixty-day period why said transcript could not be filed within that period. It is obvious the sixty-day period meant is the requirement of the previous provision that the transcript be filed within sixty days from final judgment.

The first paragraph of appellant’s motion does not relate to the condition within the sixty-day period. Final judgment was entered on the 23d day of March, 1940. This motion was filed June 5, 1940. An order for the transcript is not shown during the sixty-day period; that the deputy clerk in charge of the preparation of transcripts was on vacation during the sixty-day period does not appear. The transcript tendered consists of only forty pages. In our opinion the allegations as to facts in the first paragraph of the motion fail to show good cause. Further, the transcript we ordered filed is certified to as of the 18th day of April, 1940, although therein appears a bill of exception which was approved by the trial judge on May 10, 1940, and filed on that date. It does not appear when the judgment appealed from was recorded in the Minutes, but the transcript shows that the term ended March 23, 1940. In the absence of anything shown to the contrary, we must assume that same was entered on that date. That is the only date it could have been entered in the March Term. It recites its rendition on that date.

By the amendment of 1931 to Article 1839, it was provided, for good cause shown before the expiration of the sixty day filing period, the Court of Civil Appeals might permit the filing of the transcript. General Laws, 1931, c. 66, p. 100.

In 1933 Article 1839 was again amended, Vernon’s Ann. Civ. St. art. 1839, in substance providing that the motion for extension might be filed within a reasonable time after the expiration of the sixty days, and providing, further, that such time should not exceed fifteen days after the expiration of the sixty-day period. Also it was provided that good cause must be shown to exist during the sixty-day period.

Under the amendments of 1931 and 1933 it has been consistently held that the motion must be filed in the time provided by the law to give the Court of Civil Appeals the pow,er to order an extension of time for the filing of the transcript. Parks v. Purnell, Tex.Civ.App., 120 S.W.2d 895, writ granted, and authorities there cited.

The power to extend time for filing, by the very terms of the-law, is that a good cause exists or existed during the sixty-day period. We. t^ake it that this “good cause” must appear in the motion seeking the extension.' This condition, in our opinion, is of equal rank with the condition as to the time of' filing of the motion.

We hold that the first paragraph of the motion fails to show good cause as required by law. The second paragraph hears no relation to good cause. It relates to some sort of an agreement that appellee would pay the costs of appellant’s appeal. The two paragraphs contain each and every allegation of fact urged by appellant as showing good cause.

The previous order granting the extension of time is hereby set aside, and it is ordered that said transcript he stricken from the record and the appeal dismissed.


author: BAUGH, Justice.

text:
    RHONE v. FOX et al.
    No. 8963.
    Court of Civil Appeals of Texas. Austin.
    July 3, 1940.
    Rehearing Denied July 24, 1940.

      Baker & Baker, of Coleman, for appellant.
    Callaway & Callaway, of Brownwood, for appellee.
   BAUGH, Justice.

Appeal is from a judgment, based upon jury answers to special issues, in favor of Fox against appellant for damages for personal injuries to his wife and minor son, resulting from an automobile collision on a state highway a few miles west of Brown-wood, on June 23, 1938. The grounds of negligence alleged, in the main, were violation.of penal laws by 'appellant in operating his automobile upon a public highway proximately causing the injuries sustained. The appellant Rhone, among other things, pleaded as contributory negligence violation by Fox of the law of the road in that he did not have the lights on his own car burning at the time of the collision. The statute involved is Art. 801, Penal Code 1925.

Three cars were involved. They will be designated as the Rhone car, owned and driven by Rhone; the Fox car, owned and driven by plaintiff; and the Bowden car, owned and driven by Bowden.

The issues submitted and the jury’s answers thereto embodied the controlling facts. The first of these issues was: “Do you find and believe from a preponderance of the evidence that the defendant, George D. Rhone, attempted to pass the Bowden car-from its rear at a time when said Bow-den car and the plaintiff’s car were passing each other while traveling in opposite directions?” To this issue the jury answered, “Yes.”

In answer to the third special issue they found that Rhone turned to his left “and attempted to pass the Bowden car at a time when his left-hand side of the highway was not clear and unobstructed for a distance of at least fifty yards ahead.”

In answer to the fifth special issue they found that Rhone “failed to keep a proper lookout ahead as he approached and attempted to pass the Bowden car on the highway.”

These three issues presented the plaintiff’s grounds of recovery. ' The seventh and ninth special issues presented Rhone’s grounds of .defense. In answer to the seventh special issue the jury found that it was not more than thirty minutes after sundown when the collision occurred. It was admitted Fox did not have the head lights on his car burning. And in answer to the ninth special issue they found that the collision was not the result of an unavoidable accident.

A reference to the provisions of Art. 801, P.C., without setting them out here, will readily disclose the applicability of the statute to the facts related in the issues submitted.

Appellant’s first contention is that special issue No. 1, above quoted, was upon the weight of the evidence and assumes that the Bowden and Fox cars were passing each other when Rhone attempted to pass the Bowden car. This contention is obviously without merit. The uncontro-verted evidence showed that the collision actually occurred right opposite the front end of the Bowden car; and Rhone’s own testimony was that when he pulled out from behind the Bowden car and came even with it in passing, he first saw the Fox car only about fifteen or twenty feet away. The uncontroverted facts, we think, showed a violation of the statute. Manifestly the language of the statute, “two vehicles which are passing each other in opposite directions,” etc., art. 801, cannot be so strictly construed as to apply only at the very instant they are actually opposite each other. Manifestly it means, vehicles in the process of passing each other, immediately before and after their actual juxta position on the highway. This is clearly demonstrated by the provision immediately following in the same paragraph of the statute, forbidding one car to pass another from the rear, going in the same direction, unless the road on the left which must be used in such passing, is clear and unobstructed for a distance of at least fifty yards ahead.

The next contention made complains of the conditional submission of special issue No. 2 on the ground that it informed the jury of the effect of their answer to special issue No. 1.

Preceding issue No. 2, the court instructed the jury: “If you have answered Issue First ‘Yes’ and only in that event you will answer this,” followed by the question whether the facts so found were a proximate cause of the collision. To this the jury also answered in the affirmative. The same contention is made as to special issues 4 and 6, submitted in the same manner.

This exact question was presented to, considered, and overruled by, the Court of Civil Appeals in Gray v. Adolph, 117 S.W.2d 122, writ refused, and need not be further discussed here. See also 41 Tex. Jur., § 290, p. 1136, and cases cited in support of the text.

The other contentions, variously raised, attack the jury findings of appellant’s negligence as not being supported by the evidence; and, the findings against the defenses pleaded and submitted, as being contrary to the evidence. The evidence, without reviewing it here, was amply sufficient to sustain all of said findings. The most that can be said is that Rhone’s testimony, and that of the passenger in the car with him at the time, was in some respects, but not in all, in conflict with that of appellee, and of Bowden and other disinterested witnesses on the facts involved. The jury resolved the conflicts in favor of appellee, which concludes the matter here.

Finding no error in the record, the judgment of the trial court is affirmed.

Affirmed.


author: GRAVES, Justice.

text:
    MALDONADO v. LYKES BROS. S. S. CO., Inc.
    No. 11035.
    Court of Civil Appeals of Texas. Galveston.
    May 30, 1940.
    Rehearing Denied July 25, 1940.

      Armstrong, Cranford, Barker & Bedford, of Galveston, for appellant.
    Royston & Rayzor, of Galveston (M. L. Cook, of Galveston, of counsel), for appel-lee.
   GRAVES, Justice.

This appeal is from a judgment of the 56th District Court of Galveston County sustaining a general demurrer to the petition of appellant, and dismissing his suit for damages for personal injuries, as therein declared upon by him against the appel-lee; the material substance of the pleading was this:

“2. That on or about the 3rd day of September, 1939, plaintiff was employed as a seaman in the capacity o.f a mess-boy on board the Steamship ‘Cardonia’, which was a vessel registered under the laws of the United States, and which vessel was owned and operated by the defendant under the control and direction of superior officers employed by the defendant; that between four and five P. M. on the date aforesaid, while said vessel was being d.ocked in the Port of Houston, Texas, plaintiff received and suffered serious and permanent bodily injuries, and sustained damages as the proximate result of the negligent acts and omissions of the defendant, its officers and agents, as hereinafter more fully described.
“3. That at the- time and on the occasion described aforesaid, the plaintiff, while on duty and in the act of the performance of his duties as a messboy in the saloon of said vessel, was slicing and cutting bread with a large and heavy butcher-knife, weighing approximately twenty-one ounces, and being fifteen to eighteen inches in length, which he had been ordered to use for such purpose by an agent of the' defendant, to-wit, the steward on said vessel; that said butcher-knife was designed and customarily used and employed by the defendant, its agents and employees, in cutting meats, including meats containing bones, and was an improper tool for use in cutting bread; that at the time and on the occasion described above, the bread-knife with which said saloon was furnished had become misplaced and lost, and without supplying said saloon with another bread-knife for the use of plaintiff in cutting bread, the defendant’s agent and émployee, to-wit, the steward, ordered this plaintiff to cut and slice bread with said butcher-knife; that the plaintiff, in slicing said bread with said butcher-knife at the time and on the occasion described aforesaid, and in obedience to the orders of said steward, cut off a portion of the index finger on his left hand just below the first joint; that prior to said steward ordering plaintiff to use said butcher-knife in cutting bread, plaintiff had not had any previous experience in the use of that type of knife in cutting and slicing bread.
“4. That the injuries received and the damage sustained by plaintiff, as hereinafter stated, were directly and proximately caused by the negligence of the defendant, its officers and agents in charge of the operations of said vessel, in each of the following particulars:
“1. The defendant, its officers and agents in charge of said vessel, failed to furnish plaintiff with a' proper and suitable tool, to-wit, a bread-knife for use in cutting bread.
“2. The defendant, its officers and agents in control of the operation of said vessel, failed to supply said vessel with a sufficient number of bread-knives, so that, when one was misplaced and lost, it was not able to supply another to take its place.
“3. That said butcher-knife was an improper tool and dangerous for use as a bread-knife, and the defendant’s agent, the steward, was negligent in improperly ordering plaintiff to use the butcher-knife, instead of a bread-knife in cutting bread.
“5. That as a direct and proximate result of the defendant’s negligence aforesaid, plaintiff received . and suffered injury to the index finger on his left hand, to-wit, total loss of said index finger between the first and second joints thereof, and total and permanent loss of the use of said entire index finger; etc.
“6. Plaintiff alleges that his injuries, as aforesaid, occurred in the course of his employment as a seaman in the employ of the defendant on said S/S ‘Cardonia’, an American vessel, and that he is entitled to recover in the court in which this suit is filed his damages sustained as aforesaid, under the provisions of Title 46,' Section 688, of the U. S. Code (the Merchant Marine Act of 1920) commonly known as the ‘Jones Act’.”

In this court the parties agree that the action thus brought was one referable to, as well as within the purview of, the U. S. Merchant Marine Act of 1920, or the “Jones Act”, as so expressly prescribed under, in the quoted petition.

They further appear to mutually concede that the controlling question presented here is, whether or not that petition stated a good cause of action, under such Federal Statute, for damages for negligence of the appellee and its employees toward the appellant, and that the rules therein recognized and applied with respect to the duty of a master to its servant, in such circumstances as appellant so alleges, should govern.

This being, as indicated, not the usual and ordinary case of the servant against the master for the consequences of actionable negligence in the common employments of every-day life, to which no special rules apply, but one controlled by the special relation of seaman and steamship master, as governed by the Federal “Jones Act”, supra, it is obviously amenable to the rules inhering in and enjoined by that statute, rather than those appertaining to a master-and-servant relationship in general.

Under that statute, it seems settled that such a seaman as appellant was may recover for injuries received in the course of his employment resulting from the shipowner’s negligent failure to furnish reasonable, safe, suitable, or proper appliances, or equipment. Howarth v. United States Shipping Board Emergency Fleet Corp., 2 Cir., 24 F.2d 374; Coast S. S. Co. v. Brady, 5 Cir., 8 F.2d 16; Slaney v. Cromwell, D.C., 38 F.2d 304; Panama R. Co. v. Vasquez, 271 U.S. 557, 46 S.Ct. 596, 70 L.Ed. 1085; 56 C.J., “Seamen”, Section 653. And that is true, irrespective of the technical doctrine of seaworthiness; 56 C.J., “Seamen”, § 653.

Further, under the requirements of that Act, it being amendatory of the preexisting Federal Admiralty Law, the common law rules do not apply to such relationship of ship-owner and seaman, among other things, in that the seamen are bound to use the equipment or appliances which the owners furnish for them to do the particular work with, and, in turn, the owners are, for their part, bound to furnish and maintain equipment and appliances reasonably free from defects, as well as reasonably proper and suitable for the special kind of work being done; in this respect, such employers of seamen, while not insurers of the latter’s safety, are bound by the requirements of the Act to a much higher degree of care than is required of employers of mere shore-servants; Storgard v. France and Canada S. S. Corp., 2 Cir., 263 F. 545, certiorari denied 252 U.S. 585, 4Ü S.Ct. 394, 64 L.Ed. 729; 56 C.J., “Seamen”, §§ 682 and 686.

The two Howarth and Coast Steamship Company cases, just cited, are quite similar in ultimate purport and legal reaches to the cause a.t bar; there the brick in the former and the flat wrench in the latter, like the unusually large and heavy butcher-knife in this instance, were not defective implements of their kinds, and were in good repair, but neither one was suitable for the purpose for which it was furnished to and used by the seamen; in consequence, the courts in both instances held that the question whether such appliances were reasonably proper and suitable for the particular work they were furnished for were questions of fact to be determined by the jury. The rationale of the reasoning was that the tool furnished should be reasonably safe and suitable for the particular work the servant was required to do with it — not that it should be good only under ordinary .circumstances — and that .the servant had a right to assume, in the absence of knowledge on his part to the contrary, that when the master furnished him an implement, with directions to him to use it in doing a specific piece of work, that it was reasonably safe, suitable, and adapted to the doing of that particular work; and that if, in using such an appliance, by his master’s order, he was injured by reason of its not being safe and not being adapted to the accomplishment of the work for which it had been furnished him, the master was liable to him in damages for the consequences. That, indeed, is the rule applied quite generally to master-and-servant relationships. Smith v. Gulf, W. T. & P. Ry. Co., Tex.Civ.App., 65 S.W. 83; Missouri K. & T. Railway Co. v. Hannig, 91 Tex. 347, 43 S.W. 508; Shearman & Redfield, “Negligence”, § 194; Garnett v. Phœnix Bridge Co., C.C., 98 F. 192; Geloneck v. Dean Steam Pump Co., 165 Mass. 202, 43 N.E. 85; 29 Tex.Jur., “Master and Servant”, page 177, paragraph 98..

The appellant here, so grounding his cause upon the “Jones Act”, insists that when, under the general demurrer, all reasonable intendments are read into his petition, in consonance with the provisions and implications of that Federal Statute, it must be held that the pleadings did state a good cause of action,

This court is constrained to agree with him, upon these, among other, considerations :

(1) The implications in, along with all reasonable intendments in favor of, the quoted averments did not, as a matter of law, make of this declared-upon cause of action the usual instance of a master’s having furnished the servant a common-ordinary simple tool, with which to do a work that — by common knowledge — the heavy and overl,arge butcher-knife was appropriate for doing, such as was the scythe for cutting weeds in Post v. Chicago, etc., R. Co., 121 Mo.App. 562, 97 S.W. 233; this being the special relation arising out of U. S. Code Annotated, Title 46, Sec. 688, supra, and the knife being specifically declared to be unusual, unfit, inappropriate, and dangerous.

(2) The appellant’s metho'd of handling the butcher-knife could not, as a matter of law, be said to have been the proximate cause of his injury; because there was no averment of just how the accident happened, nor what particular thing caused it, hence it must here be assumed that he used the instrument furnished him in the proper way. In this detail this cause differs from all those cited by appellee’s able counsel, in which the courts so held, either on the facts found from evidence, like in The Tawmie, 5 Cir., 80 F.2d 792, or from aver-ments to that plain effect, as in Post v. Chicago, etc., R. Co., supra.

(3) It is inept to say, as the appellee does, that the petition in suit “fails to allege that such injury was the natural and probable result of the negligent act of the defendant, or that defendant should have foreseen the injury”, because, by every reasonable intendment, it does so allege in essential purport and effect in its quoted paragraph (4), in charging that the injuries were directly and proximately caused by the negligence of the defendant in charge of the operation of the vessel, in each of the three specified particulars; these, together, reasonably comprehend the element of foreseeability upon the appel-lee’s part.

As presaged supra, this court is unable to see eye to eye with the appellee in concluding, as it earnestly and ably does, that the two cases already commented upon, that is, The Tawmie, 5 Cir., 80 F.2d 792, and Post v. Chicago, etc., R. Co. 121 Mo.App. 562, 97 S.W. 233, are the nearest ones extant to the cause at bar; for the reasons above suggested, it is not thought that either of these causes on its facts is analogous to this one; in the first place, The Tawmie was not only a trial on the evidence, wherein the court found both that the spray-gun was not defective and that the seaman’s act in pushing the plunger forward again, after the gun was obviously out of order, was the sole proximate cause of his injury; but further, that suit itself was not one under the “Jones Act” founded on negligence, as is this case, but was one in rem against the ship itself, based on unseaworthiness, consisting of an alleged defective spray-gun as a part of its equipment. In that situation, had unseaworthiness as so declared upon been found under the facts to have existed, liability for residting injuries to the seaman would have followed as a matter of law, without reference to negligence ; The H. A. Scandrett, 2 Cir., 87 F.2d 708, 710; and Carlisle Packing Co. v. Sandanger, 259 U.S. 255, 42 S.Ct. 475, 66 L.Ed. 927.

That presents a far cry from the controlling features here, although both sorts of remedies, that is, one based on unseaworthiness, or defective condition of the vessel or its equipment, as that in The Tawmie case, and one founded upon negligence, as in this instance, were equally permissible under the Federal Statutes.

The dissimilarity to the Post case also appears, it is thought, first, from the fact that it was not an action within the purview of this Federal Statute at all; second, while it was based on the sustaining of a general demurrer to the appellant’s pleadings, the court determined — -from a fair construction of the averments themselves — two specific inferences that are negatived here, to-wit: (l)That the scythe there furnished for the cutting of the weeds “on a slanting bank on said railroad and right-of-way” was the usual,habitual method employed and implement furnished for that specific purpose — that is, the mere cutting of weeds on a slanting bank on a railroad right-of-way; (2) that the circumstances, as alleged, under which the injury occurred were specifically such as to require this construction of the court thereof: “That plaintiff’s unfortunate injury obviously was not caused-by the insufficiency of the tool, but by his manner of delivering the stroke.”

Wherefore, upon the whole, if — -under the peculiar circumstances here obtaining, giving due effect to the applicable, provisions of the cited Federal Statute, and all reasonable intendments so both expressed in and fairly inferable from this appellant’s position — reasonable men could differ, (1) over whether or not the appel-lee was negligent toward appellant in so furnishing and requiring him to use the butcher-knife, instead of a bread-knife, at a time when it had neglected to supply him with the bread-knife it had theretofore habitually furnished him with which to do such work, and when, to its knowledge, appellant “had not had any previous experience in the use of that type of knife in cutting and slicing bread” — and (2) over whether or not such furnishing and requirement had been a proximate cause of appellant’s injury, the cause should have gone to the jury.

Under the holding that the situation presented was susceptible of both such differences, the judgment will be reversed and the cause remanded.

Reversed and remanded.


text:
    ZENITH CORPORATION v. COOK OPERATING CO.
    No. 5636.
    Court of Civil Appeals of Texas. Texarkana.
    June 27, 1940.
    Richard Nicolds, of Longview, for plaintiff in error.
    H. P. Smead and Earl Roberts, both of Longview, for defendant in error.
   HALL, Justice.

In the court below plaintiff in error was defendant, and defendant in error was plaintiff, and they will be so designated here. Plaintiff instituted this suit against defendant for $863.75 for labor performed by it and by Volunteer Development Company, whose assignment it held, as shown by sworn account attached to its petition. It was alleged that plaintiff and Volunteer Development Company had each fixed a mechanic’s and laborer’s lien on certain of defendant’s oil properties which it sought to foreclose. Defendant answered by general demurrer and plea of accord and satisfaction to the effect that it had transferred and assigned to plaintiff certain oil interests in full satisfaction of the indebtedness" owing by it to plaintiff. Defendant denied certain specific items in plaintiff's sworn account, and by way of cross-action alleged that plaintiff was indebted to it in the sum of $153.90 for which it sought judgment. Trial was to the court without a jury, which resulted in judgment for plaintiff.

Defendant’s only proposition asserts that the judgment of the court below is not sustained by the evidence for the reason that it established accord and satisfaction by clear proof. No findings of fact and conclusions of law were filed by the trial court, and there is no request therefor, so, if the judgment of the court below can be affirmed on any theory, it is our duty to do so. Texas Creosoting Co. v. Hartburg Lhr. Co., Tex.Com.App., 12 S.W.2d 169; Adcock v. Shell, 273 S.W. 900, writ refused; Boyd v. Keystone Driller Co., Tex.Civ.App., 6 S.W.2d 221, writ refused; Johnson v. Campbell, Tex.Civ.App., 107 S. W.2d 1111; Bolyard v. Toronto Pipe Line Co., Tex.Civ.App., 120 S.W.2d 960, writ dismissed.

We have carefully examined the testimony in the record and conclude that it amply supports the judgment of the trial court.

The judgment is therefore in all things affirmed.


author: PRICE, Chief Justice.

text:
    CHISOS MINING CO. v. CHICAGO PNEUMATIC TOOL CO.
    No. 3965.
    Court of Civil Appeals of Texas. El Paso.
    June 27, 1940.
    Rehearing Denied July 13, 1940.
    Mae M. Ament and Wigfall Van Sickle, both of Alpine, for appellant.
    Frank O. Ray, of Alpine, and Loomis & Kirkland, of El Paso, for appellee.
   PRICE, Chief Justice.

This suit was instituted in the District Court of Brewster County by Chicago Pneumatic Tool Company, as plaintiff, against Chisos Mining Company, as defendant.

The parties here will be designated as they were in the trial court.

Plaintiff sought to recover of defendant the averred reasonable price of personal property alleged to have been furnished to defendant at its special instance and request. The article in question was an engine-head, alleged to have been furnished by plaintiff to defendant on or about the 4th day of June, 1937, the price to be $626.-: 25. Attached to plaintiff's petition, and-referred to therein, is a verified account showing the value of the property to be $626.25, and also an enumeration of the component parts of the engine-head or front. The various component parts of the front are enumerated, but the price of each part is not given.

Defendant answered by general exception, special exceptions, general denial, and special plea in the nature of an accord and satisfaction of the account, and by way of cross action sought to recover of plaintiff about $5,000. The grounds of cross action, insofar as complaint- is made as to defects in a certain engine charged to have been manufactured by plaintiff and to have been defective, seem to sound in tort. It is not alleged that the engine in question was purchased by defendant from plaintiff, but that same was manufactured by plaintiff. All damages sought were un-liquidated.

Plaintiff filed a supplemental petition wherein it specially excepted to the special plea in bar pleaded by defendant, addressed other special exceptions to defendant’s counter claim and cross action on grounds same were unliquidated and uncertain damages growing out of an alleged tort, and could not he alleged or set-off as a counter claim against plaintiff’s claim.

The court overruled the special exceptions of defendant, and sustained the special exceptions of plaintiff to the matters pleaded in bar and by way of cross action and counter claim.

Defendant duly preserved in the order its exceptions to the court’s action.

Defendant did not ask leave to amend, and the only plea going to the facts was defendant’s general denial.

At the close of the evidence the court instructed the jury to return a verdict in favor of plaintiff in the sum of $626.25.

On the verdict the court entered judgment and it was further provided therein that defendant’s cross action and counter claim be dismissed. Defendant filed motion for a new trial, which was overruled, and then duly perfected this appeal.

Error is assigned as to the overruling of the special exceptions presented by defendant, and as to the sustaining of certain special exceptions presented by plaintiff to defendant’s answer. It is further urged that the judgment is not supported by the evidence. t

The special exceptions urged by defendant are in section 2 of its answer, subdivided into five parts.

Part 1 asserts that the affidavit to the account is not in due form, in that it does not state that “all offsets, payments and credits 'known to affiant” (have been allowed, we presume). The affidavit states that “all just and lawful offsets, payments and credits have been allowed.” In this respect we think the affidavit is sufficient, but we do not mean to hold that the affidavit to an account may be attacked in this way. This subject we will presently discuss.

Part 2 asserts that the petition and account show the suit to be for the value of certain equipment, parts, repairs, goods and merchandise, and is not such an action on open account as is contemplated by Article 3736, R.S.1925, Vernon’s Ann.Civ. St. art. 3736, and further that the part of the action for equipment, parts, repairs, etc., is not segregated from that part of the account which is stated as being for goods, wares and merchandise. Suffice it to say, the account and petition show the action to be for the reasonable price of personal property. The general allegation complained of is in the petition, but the specific allegations show with certainty the character of the action, and that same is an action on open account for the reasonable price of goods, wares and merchandise.

Part 3 is that the account is not properly verified. The affidavit in question contains this statement: “That same is founded on open account or other claim for goods, wares and merchandise, or liquidated money demands based on written contract, or on business dealings between the parties, or for professional services, as shown therein, on which systematic records have been kept by the claimant.”

Now it is clear that disjunctively it is sought to include all matters included in Article 3736, R.S.1925, as amended in 1931, Vernon’s Ann.Civ.St. art. 3736. This amendment enlarged the nature and character of claims to which same was applicable. This, however, is aside from the question presented here. Here we have the question sought to be presented as to the sufficiency of the affidavit where, dis-junctively or alternatively, all the situations to which the law is applicable are stated.

We are convinced that the better practice would be to make the affidavit more specific as to the nature and character of the transaction relied upon. However, in our opinion, the sufficiency of an affidavit to an account cannot be raised by special exceptions to the pleading. The mere attaching of such purported verified account to the petition does not constitute the same evidence. The account must be offered in evidence. When so offered, if objection is made thereto on account of the insufficiency of the affidavit, the question then arises. It does not arise on the demurrer. Peterson v. Graham-Brown Shoe Co., Tex.Civ.App., 200 S.W. 899; Maxwell v. Winner Gas Stove Co., Tex.Civ.App., 263 S.W. 944; 1 Corpus Juris, p. 664, sec. 193; p. 667, sec. 197.

Parts 4 and 5 of the special exception charge in substance the same as the preceding exception which we have discussed, that the petition fails to show what part of the account is for equipment, repairs, goods and merchandise. We think this is without merit. The petition shows that it seeks to recover for the price of a specific piece of tangible personal property, and further lists the component parts of such piece of property.

Error is assigned to the sustaining by the court of plaintiff’s special exception No. 3 to paragraphs 6, 7 and 8 of defendant’s answer. Special exception No. 3 contains three subdivisions designated a, b, and c. In substance the special exception challenges the right of defendant to maintain the counter claims and cross actions asserted in said paragraphs, for the reason that its suit was founded on a certain demand; the counter claims alleged uncertain and unliquidated damages, sounding in tort; that the counter claim was not founded on a cause of action arising out of or incident to or connected with plaintiff’s cause of action. The matter is governed by Article 2017, R.S.1925.

Paragraph 6 of defendant’s answer, to our mind, does not set up either a counter claim or cross action. We are further of the opinion that it does not set up any defense to the cause of action asserted by plaintiff. It seems, as we gather from paragraphs 5 and 6, that the head of an engine owned by defendant blew off; this engine was manufactured by plaintiff. But it is not charged plaintiff sold the engine to defendant. It is charged that the original casting of the head of the engine was defective, and parts of same had been welded, or blowholes were discernible; the engine fell to pieces and was unfit for. use; that thereby plaintiff was guilty of gross negligence and fraud on the defendant, which was the cause of the collapse of the engine and injury.

No. 7 refers to this same engine. By reason of a collapse of this engine defendant was compelled to order a new-head, and suffered ’a thirty-day loss of the use of said engine, which resulted in loss and injury to defendant, in not being able to operate its mine, to the extent of $1,500.

It is further averred that on another engine, denominated a Bene engine, there was a necessity for a new cylinder, but the plaintiff refused to furnish the cylinder for the Bene engine until the account upon which the suit in question was based was paid and settled; that on account of plaintiff’s refusal it became necessary to remove the engine in question from the Mariposa Mine to the Chisos Mine to take the place of the engine with the defective cylinder; that on account of this the operations to the Mariposa Mine were stopped, thereby defendant was damaged to the extent of $1,500. There is not a duty shown to furnish this cylinder. Plaintiff, as to this transaction, acted within its rights.

No. 8 is a plea for exemplary damages.

Now, we do not think any of the paragraphs state any cause of action in favor of the defendant against plaintiff nor any defense to plaintiff’s cause of action. This, however, was not the basis . of the trial court’s action. Hence we will consider as to whether, if a cause of action had been pleaded by defendant, same could, over the objection of the plaintiff, be urged as counter claims or setoffs.

The selling of an engine with concealed defects might, as to the original purchaser, be a breach of warranty — it might be fraud; it is possible, if the original purchaser sells to another, that such other might maintain an action for the fraud or misconduct of the manufacturer in the matter alleged. If such cause of action there be, it would certainly sound in tort; the damages would he unliquidated. The matters urged by the purported cross actions do not arise out of the action asserted by plaintiff. In fact it is shown they are in no way connected therewith.

In our opinion, under Article 2017, R. S., above cited, the claims asserted by defendant were not such as could be pleaded over the objection of the plaintiff as counter claims. One is on a contract, the other sounds in tort. Parker et al. v. Moore Grocery Co., Tex.Civ.App., 107 S.W.2d 1083.

There is no doubt but that in an action on a verified account, even though the account is not denied, anything permitted by law to be pleaded as an offset or counter claim may be so pleaded. McConnon & Co. v. Klenk, Tex.Civ.App., 11 S.W.2d 222, and authorities cited. But it is only such matters as are permitted by law to be so used as a counter claim that may be so 'set up. Likewise, there arc certain affirmative defenses, such as payment, that may be pleaded in defense to an action on a sworn account. By assignment there is not raised the question as to the court’s sustaining an exception to that part of defendant’s answer attempting to set up an accord and satisfaction.

Defendant did not, by sworn answer, put the account of plaintiff in issue. The record shows no objection was urged to the admission of the sworn account in evidence. See Peterson v. Graham-Brown Shoe Co., supra.

We find no reversible error in the case, and same is affirmed.


author: LOONEY, Justice.

text:
    FRANKFURT FINANCE CORPORATION v. COX.
    No. 12903.
    Court of Civil Appeals of Texas. Dallas.
    July 6, 1940.
    Henry Klepak, of Dallas, for appellant.
    Earl A. Forsythe and John L. Tinnerello, both of Dallas, for appellee.
   LOONEY, Justice.

Duncan W. Cox brought this suit against Frankfurt Finance Corporation to recover statutory penalty imposed for collecting usurious interest. The court below rendered judgment in favor of Cox, from which the Finance Corporation appealed. The case was tried without a jury and is before us on a statement of facts, without findings and conclusions by the trial judge. In this status, the judgment will be affirmed, if supported by any evidence.

In view of this situation, our conclusions, of course, will portray the case as made by evidence favoring the contention of appellee, that is, that he purchased from the Ford Motor Company an automobile, at the agreed price of $615 — paid $100, and borrowed from appellant $515 with which to pay the balance. It seems that, after appellee and a Mr. Williams, who represented Ford Motor Company, had agreed upon the price for the automobile, appellee paying $100, he, his father, and Mr. Williams went to the place of business, in the City of Dallas, of appellant, and there arranged with its representative for the loan. Appellant’s representative prepared the note and mortgage on its own forms; the note for $696.50 was made payable to the Ford Motor Company; also, the mortgage was in its favor, and these were transferred to appellant; after which, appellant drew its check for $515, payable to Ford Motor Company, which was delivered to appellee for delivery to the Ford Company. This closed the transaction. The note for $696.50, payable in two years, included, not only the $515 borrowed, but $31.95 for insurance on the automobile, also $151.55 which, obviously, was intended as compensation for the use or detention of the amount of money loaned; in other words, was interest, and, being in excess of the amount allowed by law, constituted usury. Appellee having paid the note according to its terms, brought this action, with the result heretofore stated.

The judgment, in our opinion, was authorized by evidence, and the conclusion of law, reached by the trial court, sustained by the following authorities: Temple Trust Co. v. Stobaugh, Tex.Civ.App., 59 S.W.2d 916; Mossier Acceptance Co. v. Alexander, Tex.Civ.App., 137 S.W.2d 815; Temple Trust Co. v. Haney, 133 Tex. 414, 107 S.W.2d 368, 126 S.W.2d 950; Temple Trust Co. v. Sewell, 133 Tex. 417, 126 S.W.2d 943; Keltner v. Glenn, Tex.Civ.App., 130 S.W.2d 452.

Appellant insists, however, that, because the note and mortgage were drawn in favor of the Ford Motor Company and assigned to appellant, the case should be ruled by the doctrine announced in the following cases: Burkitt v. McDonald, 26 Tex.Civ.App. 426, 64 S.W. 694; Graham v. Universal Credit Co., Tex.Civ.App., 63 S.W.2d 727; Baldwin v. Motor Inv. Co., Tex.Civ.App., 89 S.W.2d 1076, and Rattan v. Commercial Credit Co., Tex.Civ.App., 131 S.W.2d 399.

Two of the cases just mentioned, .Graham v. Universal Credit Co. and Rattan v. Commercial Credit Co., involved transactions where the seller demanded one price for cash and another and greater price upon credit — the latter, the credit price, having been accepted, gave rise to the contention that the contracts were usurious. ‘It was held in each case that the contract was not usurious; the courts stating, in effect, that a seller may demand one price for cash and another and a greater price for credit, without rendering the contract usurious by reason of that fact.

Be that as it may, the rule is not applicable here, because we have a different set of facts. The Ford Motor Company was not engaged in the retail business of selling automobiles; the car in question, having been exhibited at the Exposition, was offered for sale, for cash only. The parties having agreed upon the price, and appellee having made a partial payment, arranged-with appellant for a loan-to pay the balance. The note and mortgage were prepared in appellant’s office, by its representative, on its own forms, and were drawn in favor of the Ford Motor Company, as the method adopted by appellant of evidencing and consummating the loan.

Although not necessary to the decision of this case, the writer respectfully, yet earnestly, questions the soundness of the doctrine announced in the two cases mentioned. In neither case, nor in any of the cases referred to, was the statute defining “interest” construed, or the subject discussed at any length. In each instance, seemingly, the question was disposed of simply by saying that such an arrangement was not usurious.

“Interest”, as defined by the statute (Art. 5069 R.C.S.), “is the compensation allowed by law or fixed by the parties to a contract for the use or forbearance or detention of money”; and when such compensation exceeds the amount of interest allowed by law, the contract is denounced as usurious. Applying this definition of interest to such a transaction, I submit that, if the difference between the cash price and the credit price (excepting proper carrying charges, such as insurance) is not compensation demanded for the use or detention of the amount for which credit is extended, it would be difficult to determine just what it was intended to compensate.

The contrary doctrine, in my opinion, was announced in Fisher v. Hoover, 3 Tex.Civ.App. 81, 21 S.W. 930, by the Austin Court, in an opinion by Judge Key, to the effect that, if, to compensate a vendor of land for giving time on the purchase price, a sum is added to the agreed price, greater than the legal rate of interest, though such sum is incorporated as principal in the purchase money note, nevertheless the contract was usurious. And in Galveston & H. Inv. Co. v. Grymes, Tex.Civ.App., 50 S.W. 467, the Galveston Court held that, on a sale of property, the compensation charged for the detention of an unpaid portion of the price is interest, and if in excess of the legal rate, the contract is usurious.

In view of the provision of the statute (Art. 5071) that, “all written contracts whatsoever, which may in any way, directly or indirectly, provide for a greater rate of interest [10% per annum] shall be void and of no effect for the amount or value of the interest only”, I submit that it is incorrect to broadly say, as a matter of law, as was said in the two cases mentioned, that a seller may demand a cash price for a commodity, and another and greater price upon credit, without infringing the usury statute; rather, I think it more correct to say that, if the difference between the cash and credit price demanded, exceeds the legal rate of interest for the credit extended (except proper carrying charges), the contract, as a matter of law, is usurious, and that, if the evidence raises an issue on the point, the question becomes one of fact.

Courts uniformly hold that, all devices intended to cover usury will be disregarded. I submit that usury may be cloaked under the specious phrase “credit price”, same as under any other camouflage adopted to obscure the real intention.

However, as above stated, the point, upon which the writer expresses his individual views, is not involved in the instant case. For the reasons first stated, the judgment of the court below is affirmed.

Affirmed.


author: MURRAY, Justice.

text:
    FIRST NAT. BANK IN GEORGE WEST v. FROST NAT. BANK OF SAN ANTONIO et al.
    No. 10739.
    Court of Civil Appeals of Texas. San Antonio.
    June 26, 1940.
    Rehearing Denied Aug. 7, 1940.
    A. J. Lewis and Ralph G. Langley, both of San Antonio, and S. E. Dyer, of Corpus Christi, for appellant.
    Moursund, Ball, Moursund & Bergstrom, of San Antonio, T. H. Miller, of George West, and J. B. Lewright, of San Antonio, for appellees.
   MURRAY, Justice.

. The record in this case was filed in this Court on July 27, 1939. It was set for submission on April 10, 1940. On April 9, 1940, one day before the day of submission, appellee filed a motion to dismiss the cause because the district clerk’s certificate to the transcript was not in compliance with the requirements of the statutes. Art. 2282, R.C.S.1925.

This motion comes too late to receive favorable consideration. Rule 8 for the Courts of Civil Appeals (142 S.W. p. xi) provides: “All motions relating to in-formalities in the manner of bringing a case into court shall be filed and entered by the clerk on the motion docket within thirty days after the filing of the transcript in the Court of Civil Appeals, otherwise the objection shall be considered as waived, if it can be waived by the party.”

The defect in the clerk’s certificate is such a matter as can be waived. Freeman v. Collier Racket Co., 101 Tex. 60, 104 S.W. 1042; J. D. McCollom Lumber Co. v. Whitfield, Tex.Civ.App., 53 S.W.2d 77; Pittman v. City of Wichita Falls, Tex.Civ.App., 117 S.W.2d 491; Atascosa County v. Alderman, Tex.Civ.App., 91 S.W. 846; St. Louis I. M. & S. Railway Co. v. West Bros., Tex.Civ.App., 152 S.W. 181; Glaspy v. Grubbs, Tex.Civ.App., 110 S.W.2d 1188. The motion to dismiss will be overruled.

Appellees have not filed a brief herein and this cause is submitted upon appellant’s brief.

This is an appeal from a judgment in the District Court of Live Oak County quashing a writ of garnishment issued out of that court on the judgment in the case of First National Bank in George West v. Brownson et al. In that case the bank secured a judgment against one Frank Gib-bens, but was denied a recovery against T. J. Brownson. An appeal was taken and this Court reversed that part of the judgment denying a recovery against Brown-son and rendered judgment against him in the sum of $1,962.21, together with interest. First Nat. Bank v. Brownson, 106 S.W.2d 1076. On this judgment Brownson made two payments of $500 each, and the writ of garnishment involved herein was issued in an attempt to collect the balance alleged to be due on the judgment. The writ of garnishment was issued against the the Frost National Bank of San Antonio, which answered that it did have on hand funds belonging to Brownson.

Brownson intervened in the matter and filed his first motion to quash the writ, to which the trial court sustained a general demurrer. Whereupon Brownson filed his second petition of intervention and motion to quash. A hearing was had upon this petition which resulted in the quashing of the writ of garnishment, from which judgment the First National Bank in George West has prosecuted' this appeal.

The first ground upon which ap-pellee Brownson sought to quash the writ of garnishment was that the application for the writ contained the following untrue statement, to-wit: “That on June 9, 1937, the bank had secured a judgment in the Court of Civil Appeals for the Fourth Supreme Judicial District of Texas against Frank Gibbens and T. J. Brownson, jointly and severally, both of Live Oak County, Texas, in the principal sum of $1962.21, with interest thereon at the rate of ten (10%) per cent per annum from June 10, J.936, until paid, together with costs of court in the sum of $30,50. Thereafter on August 3, 1937, the mandate of the Court of Civil Appeals was duly issued and returned and filed in this Court on August 4, 1937.”

The untrue part of the statement is that appellant secured a judgment against Frank Gibbens in the Court of Civil Appeals; that part of the judgment was rendered in the district court and only the judgment against T. J. Brownson was rendered in the Court of Civil Appeals. We are of the opinion that the untrue part of the statement may be treated as surplus-age, being only descriptive matter.

The garnishment proceedings were purely ancillary to the -main action and the Court will take judicial knowledge of the original proceeding. Kelly v. Gibbs, 84 Tex. 143, 148, 19 S.W. 380, 563. The description of the judgment was sufficient under all the circumstances to enable the trial court and the clerk thereof to issue the writ properly.

Furthermore, the mere fact that the affidavit for the writ might contain untrue statements would not furnish grounds for quashing the same. First Nat. Bank v. Guinn, Tex.Civ.App., 57 S.W.2d 880.

Appellees’ next ground for quashing the writ was, that in allowing credits on the judgment there should have been allowed the sum of $42.94 more- than was allowed. This was immaterial. The statutes, Art. 4076, R.C.S.1925, do not require that the exact amount due on the judgment be stated in the affidavit for the writ. Margerum v. Sopher, Tex.Civ.App., 46 S.W.2d 457; Hawkins v. Culbertson, Tex.Civ.App., 48 S.W.2d 345; First National Bank v. McClellan, Tex.Civ.App., 211 S.W. 794; Equipment Company v. Bank, Tex.Civ.App., 283 S.W. 610.

The alleged discrepancy of $42.94 arises out of a contention that when payments were made on the judgment they should have been applied to a payment on the principal and not first to accrued interest. The payments were properly applied to the accrued interest, and there was in fact no discrepancy in the amount due on the judgment. Tooke v. Bonds, 29 Tex. 419; J. I. Case Co. v. Laubhan, Tex.Civ.App., 64 S.W.2d 1079; 25 Tex.Jur. p. 25, § 19.

Another ground on which appellees sought to quash the writ was, that the application did not show that the affiant, C. L. Tullos, was authorized to make the affidavit. C. L. Tullos is described in the affidavit as president of the Bank, this was sufficient to show his authority. First National Bank v. Graham, Tex.Cr.App., 22 S.W. 1102; 2 Tex.Jur. p. 339, § 5; Evans v. Lawson, Smith & Company, 64 Tex. 199.

Appellees’ second amended petition of intervention and motion to quash was subject to general demurrer and the trial court erred in not sustaining the general demurrer.

The judgment is reversed and the cause remanded.


text:
    WIESEHAN v. CHAPAPAS.
    No. 10737.
    Court of Civil Appeals of Texas. San Antonio.
    June 26, 1940.
    Rehearing Denied Aug. 7, 1940.
    Hill, Greer & Franki, of Mission, for appellant.
    Kirk R. Mallory, of McAllen, for ap-pellee.
   MURRAY, Justice.

Appellee, George Chapapas, instituted this suit in the 93rd District Court of Hidalgo County against John Wiesehan seeking rescission of a certain sales contract whereby Chapapas purchased from John Wiesehan one Model 30 Cletrac tractor for the sum of $1,900, to be paid as follows:

One Model E 38 tractor, agreed credit . $ 600.00
One Plymouth Sedan Automobile 300.00
Cash . 200.00
Note and chattel mortgage. 800.00
Total. $1,900.00

Appellee alleged that appellant had fraudulently represented to him that the Model 30 Cletrac tractor was suitable for the work he was doing in caring for and cultivating orchards and would do such work well, efficiently and satisfactorily, that it was in new, efficient and perfect mechanical condition, and would require only the customary minor -mechanical adjustments, that it had ample power and speed for such duties and would operate economically on tractor fuel oil, and that necessary minor adjustments would be made by appellant without cost to appellee.

Appellee further alleged that these representations were false and asked rescission of the contract, cancellation of the note and mortgage, and judgment for the value of the tractor, automobile and other payment made, and 'for special damages in that he had been required to rent another tractor at a cost of $110, and a loss of $350, in not. being able to do his work properly.in. caring for orchards.

The case was submitted to a jury on special issues, who made the following findings:

1. Before Chapapas signed the retail sales order dated February 16, 1938, Wiese-han represented to him that the tractor in .question would do Chapapas’ orchard work well and efficiently. That the tractor was in perfect mechanical condition, except for minor mechanical adjustments; that it had ample power and, speed for , his work; and that it would operate economically on tractor fuel.

2. Such representations were false. ' ‘

3. Chapapas did not continue to use and operate the tractor after he found such representations to be false.

4. The representations were not made by Wiesehan as his opinion regarding the tractor.

5. Chapapas did not know that the representations were false at the time he executed the chattel mortgage and note dated March 16, 1938.

6. Chapapas did not know that such representations were false at the time the retail sales order, dated February 16, 1938, was executed.

7. Chapapas would not have agreed to purchase said tractor if such representations had not been made.

8. The motor trouble that Chapapas had in operating the tractor was -not due to the obstruction' of the carbureter or fuel line, by an abnormal amount of dirt and foreign substances.

Upon this verdict the trial court entered judgment in favor of Chapapas against Wiesehan in the sum of $1',0Í0, from which' judgment Wiesehan has prosecuted this appeal.

■ We will discuss appellant’s eighth and ninth propositions first. By these propositions appellant complains of the measure of . damages applied by the trial court in determining the amount of the judgment. The amount of the judgment was .evidently arrived .at by allowing $600 for equity in 'Model E-38 tractor,' $300 for 1935 Model ^Plymouth automobile, and,'$110 , for rent of 'anothér tractor. The retail silles order 'contained the following: ‘ “Allowance for trade-in Cletrac E-38-2-H-688, Equity $600.00, Cash with order $300.00 Car, $200.00 Cash.”

There was no evidence as to the reasonable cash value of Chapapas’ equity in the Cletrac E-38 tractor, nor was there any pleading as to this matter. It is clear that the court permitted appellee to recover the trade-in value of the Cletrac E-38' tractor as set forth in the sales order. This was error. The proper measure of damage where a sales contract is rescinded is ordinarily the difference between the reasonable cash market value of the property traded in and that received at the time of the exchange of the properties. The trade-in value as stated in the order’ does not establish the cash market value of the tractor. The record here shows, that the large tractor had been returned to appellant and received by him. It follows that the most appellee could have recovered was the cash market value o'f the property traded in by him. The burden was upon appellee to offer evidence of this value and unless the evidence was conclusive as to this value the question should be submitted to the .jury for its finding on the matter.

It is clear from the wording of the sales order that there was no attempt to agree upon the market value of the small tractor, but, on the contrary, that a trade-in value- was agreed upon. If this sales order is tó be set aside for fraud then neither party has a' right to rely upon any of its provisions for any purpose. Appellee cannot repudiate the contract insofar as it places any obligation upon him, and at the same time treat it as a binding obligation as to, appellant. It occurs to ,us that, even if the sales order contained an agreement as to the market value of the small tractor, such agreement would not be binding on either party if such sales order is to be declared null and void as having, been induced by fraud.

The recent case of Morriss-Buick Co. v. Pondrom, 131 Tex. 98, 113 S.W.2d 889, is directly in point and disposes of the question here presented adversely to ap-pellee. Appellee contends- that that case is not in point because there the suit was fpr damages and here the suit is for rescission. We cannot agree with this contention. There would " be greater reason for not relying upon the trade-in value stated,in a contract where it is rescinded for fraud' in inducing its execution than where no cancellation of the contract sought, but only a suit for damages is brought. is

It was also error to allow the item of $110 for rent of another tractor by appellee. If appellee was entitled to set the sales contract aside as being induced by fraud, then and in that event appellant would not be under any obligation to furnish appellee a tractor and could not properly be required to pay rent upon another tractor for appellee’s use when the tractor sold to appellee failed to run. Appellee would have no right to continue to use the tractor he had received from appellant after he discovered it would not do his work satisfactorily and at the same time seek a rescission of the sales contract. If he was not entitled to use this tractor he will not be allowed, to recover what he has paid out as rent for another tractor to be used in the place of the tractor he had purchased. Webb v. Emerson-Brantingham Implement Co., Tex.Civ.App., 227 S.W. 499; Wimple v. Patterson, Tex.Civ.App., 117 S.W. 1034.

There are other propositions presented by appellant, but as they relate to matters which will probably not arise upon another trial we refrain from a discussion of them.

For the error pointed out the judgment will be reversed and the cause remanded.


author: WILLIAMS, Justice.

text:
    SHELL OIL CO., Inc., et al. v. TURNBOW et al.
    No. 5664.
    Court of Civil Appeals of Texas. Texarkana.
    July 5, 1940.
    Rehearing Denied July 18, 1940.
    Walace Hawkins, Roy C. Ledbetter, and J. W. Timmins, all of Dallas, Vinson, El-kins, Weems & Francis, Tarlton Morrow, Barksdale Stevens, R. H. Whilden, W. B. Wagner, J. P. Adoue, Nelson Jones, E. E. Townes, and R. E. Seagler, all of Houston, Florence & Florence and Russell Surles, all of Gilmer, and Bramlette, Levy & Dotson, of 'Longview, for appellants.
    Gerald C. Mann, Atty. Gen., James Noel, Asst. Atty. Gen., and Walter C. Linden, Jr., of Longview, for appellees.
   WILLIAMS, Justice.

W. C. Turnbow, claiming the leasehold estate in a strip of land 50x4821 varas, filed this suit on April 4, 1939, in trespass to try title. The State of Texas, the other appellee, claiming the fee title, filed its intervening petition on same date, adopted the allegations of Turnbow and joined him in an application for the appointment of a receiver of this strip.

Upon an ex parte hearing, without notice to any of some forty defendants, the court appointed a receiver of this strip of land with authority to enter upon, take charge of and develop same for oil, and in furtherance thereof restrained the numerous defendants from interfering with the receiver in his operations as such. The receiver forthwith qualified.

This is an appeal perfected by some of the defendants from above interlocutory order entered on April 4, 1939, in which they assert the appointment of the receiver, without notice, under this record, was unauthorized and an abuse of discretion. This is sustained. S3 Cor.Jur. p. 59, § 54. As appellees in their respective briefs make no contention to the contrary, no purpose will be served by detailing, appellees’ allegations or any of the evidence offered on the ex parte hearing.

It is appellees’ position that the questions here involved have become moot and this appeal should be dismissed. This record does not support such a position. In this connection, appellees assert that the respective pleas in abatement filed by J. F. Bland, J. W. Free, Mrs. S. E. Richardson, Mudge Oil Company, Humble Oil & Refining Company, Atlantic Refining Company, Earl P. Halliburton, Inc., and Shell Oil Company, have each been sustained since they perfected their appeal and the receivership and restraining order as to them has been vacated. Such facts have been made known to the court and agreed to by litigants. But it is to be noted that this order vacating the receivership as to above named litigants further reads, “but as to all other parties and property, the present status is preserved and continued in full force and effect.” This thus leaves the receivership in full force as to the other appellants, Howard Hampton, Sun Oil Company, the Superior Oil Company and the Magnolia Petroleum Company, and the properties claimed by each respectively.

Subsequent to the appointment of the receiver, various appellants appeared in court, excepted and gave notice of appeal. Various appeal bonds .were filed. Various pleas in abatement, pleas of privilege, and controverting pleas were filed. These bonds and pleas were filed on April 19 and 20, 1939. The transcript and statement of facts were filed in this court on April 24, 1929, and included all these appeal bonds and pleadings. Appellees assert certain pleadings (naming them) were not necessary to this appeal and seek to have the costs incident to their inclusion in the transcript taxed against appellants. This is overruled. We pretermit a discussion which of these, if any, were unnecessary to this appeal. Article 2278, R.C.S., provides that the transcript shall contain a full and correct copy of all the proceedings had in the cause except as provided in Article 2279, R.C.S., where “the parties may, by agreement in writing, with the approval of the judge, direct the clerk to omit from the transcript any designated portion of the proceedings * * See, also, District & County Court rule 85. No agreement had been made to omit any portion of the proceedings from the transcript.

From the conclusions herein reached, the judgment below is reversed and here rendered vacating the receivership; the restraining order incidental to the order appointing the receivership is dissolved; and all costs are taxed' against appellees.