author: YOUNG, 'Justice.

text:
    DALLAS JOINT STOCK LAND BANK OF DALLAS v. SUPERIOR OIL CO.
    No. 12727.
    Court of Civil Appeals of Texas. Dallas.
    Jan. 20, 1940.
    Lawther, Cramer, Perry & Johnson, of Dallas, for appellant.
    Thompson, Knight, Baker, Harris & Wright and Sol Goodell, all of Dallas, for appellee.
   YOUNG, 'Justice.

Suit in the trial court was for return of earnest money, following rejection of title to land for alleged defects. On February 6, 1936, plaintiff, The Superior Oil Company, and defendant, The Dallas Joint Stock Land Bank of Dallas, entered into a written contract whereby the former agreed to purchase from the latter, two tracts of approximately 21,000 acres of land, the consideration being $141,942.50 in cash and certain overriding royalty interests reserved to defendant bank. Upon execution of the contract, plaintiff deposited $10,000 with defendant as earnest money, and, material to this suit, the sales instrument provided;

“This contract is entirely conditioned on title of Seller to the lands hereinabove described being of record made to appear good and marketable in- the opinion of attorneys for Buyer (subject to the exceptions hereinabove provided for) within sixty days from this date, or upon Buyer within such time in writing waiving defects therein. If within sixty days from the date hereof defects are not waived or title is not approved by said attorneys, all obligations created by this contract shall terminate, and each of the parties shall be relieved of all liability to the other upon Seller returning to Buyer the deposit of $10,000.00 hereinafter provided for.
“Simultaneously with the execution and delivery hereof, Buyer is making a deposit with Seller in the amount of $10,000.00. If the pending purchase is consummated, such deposit shall be applied on the purchase price hereinabove provided for. If the purchase is not consummated because of title defects, said deposit shall be returned by Seller to Buyer. If title to the above described tracts is good and marketable, subject to the exceptions hereinabove provided for, or is so made within sixty days from the date hereof, and proof of such fact is submitted to Buyer, and Buyer fails to consummate the pending purchase, the aforesaid deposit of $10,000.00 shall be retained by Seller as liquidated damages.”

The Superior Oil Company, through its attorneys, examined abstracts and duly furnished defendant with title opinion showing objections and requirements; 'and, at the end of the sixty-day period, rejected the title because of alleged defects, demanding a return of earnest money. Defendant bank refused to refund the $10,-000, claiming that it had tendered good -and merchantable title, considering the curative, matter furnished the plaintiff; and upon trial to the court, judgment was rendered for plaintiff, from which this appeal was taken. At the request of defendant, the trial court made and filed extensive findings of fact and conclusions of law, in substance, that title to the lands was not then good and marketable, and that plaintiff’s attorneys acted in good faith in rejecting the same. '

In fifteen propositions', followed by an exhaustive statement of the testimony, defendant has attempted to demonstrate that plaintiff’s attorneys erroneously disapproved title to the realty, with a result that the earnest money was properly for-ieited under the terms of the contract. On the other hand, appellee’s brief concisely presents the more -important title objections which it claims were not cured; viz.: (1) No final judgment of foreclosure; (2) concerning rights of. A. J. Kimball; (3) relating to Associated Oil Company’s lease; the Wyche and Clopton leases; and (4),' want of title to Wiley Martin Survey. Construing the contract of sale as a whole, it clearly required the seller to return the earnest money in suit if the property was not found of record to be good and marketable in the opinion of attorneys for the buyer. The good faith of buyer’s counsel, is not questioned in the testimony, and the trial court’s finding to such effect is not challenged. An affirmance of the cause might safely rest on such contract provision. Dixie Oil Co. v. McBurnett, Tex.Com.App., 6 S.W.2d 83; Davis v. Tate, Tex.Ciy.App.; 242 S.W. 761. But aside from, this, did defendant bank, within the sixty-day period from February 6, 1936, otherwise tender a good and marketable title? We think not, under the testimony and fact findings. generally of the. trial court,-which again are not challenged by. defendant.

.'Referring briefly to the primary objections urged, we find that defendant’s title to the land came through two deeds-of trust executed by the Sutherlands, which wereforeclosed in a Dallas county district court, by judgment rendered June 8, 1934. Many'defendants in this foreclosure' suit were cited by publication, and did not appear in said cause through attorneys of their own selection. Such judgment as to these particular parties was not final until two-years from the date thereof. Art. 2236, R.S. Neither was there made, approved, and signed' by the trial court in the foreclosure cause, a statement of the, evidence adduced upon the trial. . Plaintiff’s counsel simply required quitclaim deeds-. from these particular parties, the two-year. period, for the Sutherland judgment to become final, not expiring until June 8, 1936. It is evident that the land in question was purchased with a view to mineral development; its value being based principally upon oil and gas possibilities; and, in this connection, the record discloses that after the above foreclosure judgment became final, defendant bank disposed of the property through a mineral lease to one oil company for $40,000, and a conveyance to another for around $146,000, still reserving a royalty interest therein. Before the latter . transactions, however, certain defects which had caused plaintiff’s attorneys to reject the title had been cured, including the plugging of a gas well on a portion of the original Associated Oil Company lease by R. F. Duggan, assignee. Regarding the Associated Oil Company lease objections already mentioned, the trial court found and concluded:

“Many sub-assignments of such lease were made, and assignees of approximately 1300 acres under this original lease were not made parties to the foreclosure suit, either by personal service or by publication * * *.
“Several wells were drilled without success; but one paying gas well was brought in which was operated and continued to produce until about December of 1935
“I conclude that the outstanding interests of approximately 1300 acres of land, under the lease originally executed to the Associated Oil Company, constituted a cloud on the title and prevented same from being good and marketable. The holders of such interests, having in no manner been made parties to the foreclosure suit, were not bound by the same.
: “A gas well had produced - under' such-lease almost up to the time that the contract of sale was made. It had never been •permanently abandoned. It was, at the least, a question of fact as to whether there had -only been a temporary cessation of operations and activities; and the purchaser was not required to take, this chance on a matter this substantial, or to buy what might prove to be a lawsuit * * *.
“ * * * the defendant did not furnish plaintiff, or its attorneys, satisfactory evidence that" all of the Associated Oil Company’s oil and gas lease was terminated on > or before April 6, 1936.”- (Being the end of the sixty-day contract period.)

Sufficient defects have been briefly presented whereby plaintiff’s counsel could have justifiably concluded that, within the life of the sixty-day contract of sale, title to the land under search was not good and marketable. Owens v. Jackson, Tex.Civ.App., 35 S.W.2d 186; Corbett v. McGregor, Tex.Civ.App., 84 S.W. 278; Adkins v. Gillespie, Tex.Civ.App., 189 S.W. 275; Texas Auto Co. v. Arbetter, Tex.Civ.App., 1 S.W.2d 334. We therefore .affirm the judgment under review.

Affirmed.


source: Caselaw Access Project

author: LOONEY, Justice.

license: Public Domain

text:
    MISSOURI-KANSAS-TEXAS R. CO. OF TEXAS v. ASHLOCK.
    No. 12830.
    Court of Civil Appeals of Texas. Dallas.
    Jan. 20, 1940.
    Rehearing Denied Feb. 24, 1940.

      C. C. Huff, .of Dallas, and Head, Dillard, Maxey-Freeman & McReynolds, of Sherman, for appellant.
    Johnson & Oliphant, of Dallas, for appel-lee.
   LOONEY, Justice.

Appellee, Jim Ashloclc, instituted'this suit against appellant, Missouri-Kansas-Texas Railroad ’Company of Texas, to recover damages for personal injuries alleged to have been sustained by him as the result of negligence of. appellant, its agents, servants, and employes.

The grounds of' negligence alleged and submitted to the jury as the proximate cause of appellee’s injuries, were: (1) The practice of mail clerks, in unloading mail at Whitewright, of throwing mail sacks from a moving train onto a street or sidewalk; (2) failure, of the defendant to protest to the .federal government against such practice; (3). operation of defendant’s train carrying the mail in excess of fifteen (15) miles per hour, in violation of an ordinance of the City of Whitewright; and (4), failure of defendant to.give, any warning that mail sacks wpuld be thrown into the street at the time or on the occasion in question. The court also submitted unavoidable accident. The jury.found all the issues in favor of ■appellee and assessed ,his damages at $5,700. JJpon such findings, judgment was entered against; appellant.

" ¡ We consider the case well tried; only one procedural assignment is directed to the action of the trial court in submission of issues to the jury, and that is: “The court érred:in submitting special issue No.. 1, without -explaining or defining the word ‘practice’, used therein”. There is-no merit in the assignment. All other assignments are directed to the insufficiency-of the evidence to-sustain the judgment; thus resulting in refusal ;of the-trial court to give an instructed verdict. ■'

The word “practice”, in the sense in which it was used by the trial court in sub¡mission-of the issue challenged by appellant, making inquiry whether or not it was the practice of the mail clerks, on or before the occasion of the injury, to throw mail sacks Onto the'street or sidewalk that ran by the 'sduth end of' defendant’s station, is not a technical legal word which courts; are re-'quifed'to define for the guidance of the jury, thus enabling it to properly pass upon' arid render a verdict 'on the .issues -submitted.

The word “practice” was intended in the sense of custom, and used in its popular sense, synonymous with “mode”, or “course of action”,- frequently exercised. The custom or practice of mail clerks in throwing off mail at street crossings (dangerous to the public), if known to the Railroad Company, or if of such frequency as to become general, common, and usual, and the employes, servants, and agents of the Railroad Company were in a position to know of such practice, the law would create a legal presumption of notice; thus, in the absence of proof to the contrary, the company would be liable for its failure, through its employes, to protest against such practice. The use of the term “practice” does riot necessarily imply that the course of action of the mail clerk, in throwing off mail bags at a place of danger, where pleadings and evidence established that the word was used in its popular sense and not in such general and usual' sense as to impart notice to the carrier, failure to define the word is not error. If the defendant, by its officers as its agents, had actual knowledge of the practice, whether sporadic or isolated, or customary and usual, suggesting danger to anyone who might be at the place of perforriiance, and failed to protest against such practice to federal authorities having mail distribution in charge, the carrier would be liable for resulting damages. However, this appeal, as we interpret the.record, does not involve actual knowledge of the Railroad Company, through its agents; thus, we must determine whether the practice was of such frer quency that the law would presume the defendant had notice, in the absence of proof to the contrary. It is in evidence that defendant did not protest against such practice.

Carriers of the mail are not responsible for the negligent acts of mail clerks. They are employes of the federal government and under its control, ’but, if it can be said that such employes indulged in the practice of throwing off the mail bags-at a place and in a manner whereby injury to persons might reasonably be foreseen, and the frequency of the practice is such that'notice to the carrier could reasonably be presumed, the failure of the carrier to take the necessary steps to stop the practice will render it liable. Lancaster v. Bradford, Tex.Civ.App., 279 S.W. 607; Sturgill v. Chesapeake & O. R. Co., 227 Ky. 44, 11 S.W.2d 983; Walker v. Hannibal & St. J. R. Co., 121 Mo. 575, 26 S.W. 360, 24 L.R.A. 363, 42 Am.St.Rep. 547; Hurricane Milling Co. v. Steel & Payne Co., 84 W.Va. 376, 99 S.E. 490, 6 A.L.R. 637; Columbia Life Ins. Co. v. Tousey, 152 Ky. 447, 153 S.W. 767.

In the case at bar, the primary liability is directed to the negligent acts of the mail clerk alone, irt throwing the mail bag from the train into the street. The elements of liability leveled against the appellant were, that the mail bag was thrown from the train at a dangerous place; that it was the practice of the mail clerks to throw the mail bag into the street, and that defendant had knowledge of such practice and failed to protest against it. Appellee relies upon the rule of presumption to impute knowledge of such practice to the carrier. The question then is, does the evidence in the case raise the issues of a dangerous practice or custom of the postal clerks, and of presumptive knowledge by the railroad officials of such practice? It must be held that the wrongful acts of mail clerks must be shown to be of such a general and usual custom or practice that the law will impute notice to the carrier.

The undisputed evidence shows, and we think the case was fully developed, that appellant railroad extends north and south through the town of Whitewright, and its station, or depot, is on the west side of its track and a few feet north of a 60-foot public street (Main Street), which extends east and west and across the tracks. Under the requirements and regulations of the United States Interstate Commerce and Postal Department, appellant transported -on its train, mail and clerks, in special cars provided for that purpose, under the exclusive control of the United States Postal authorities. Appellant’s train, involved" in this suit, was scheduled to pass through Whitewright daily at 6:02 P. M., going north, and another, going south, at 7:50 A. M. Neither of these trains stopped at Whitewright, but both received and discharged mail while in motion. To receive the mail, appellant erected a crane, a mechanical device, which releases the mail bags to the postal clerks as the trains pass, and, at the same time, the clerks are required to discharge the mail bags from the mail car, just as the crane releases the mail to the clerks. The mail bags are supposed to fall to the ground on the right-of-way near the track, at or near the crane, and 'be picked up and taken to the post office by employes of the Government Postal Department. The crane was located about 234 feet south of the station, which is about 174 feet south of the street, and 50 feet south.of a large caution or danger sign, bearing the warning: “Caution. Look out for mail bag”. On November 11, 1937, ap-pellee was ón a walkway on the north side of Main Street, about 15 or 20 feet west of the crossing, waiting, for the north bound train to pass; and, while standing there, the train, moving about 50 miles per hour, passed, and a mail bag thrown therefrom by a postal clerk, struck him on the head. There is no testimony that mail bags had theretofore been seen to have been thrown from the mail car to the height of a man standing 15 or 20 feet away from the passing train. The only testimony that mail bags were discharged at the street crossing is related by the witnesses, Herman Riddle, James Clayborn, and Lee Norris. Riddle testified, in effect, that he had seen mail bags thrown off the north bound train ten or fifteen times a year, sometimes south of the street, sometimes in the road, and along the right-of-way south to the mail crane. The bags would fall to the ground right beside the tráin, bounce. and go off in the roadway from the train; sometimes they would fall in the street beside the depot. The mail bags were supposed to be thrown off between the crane and the caution sign, but they did not always throw them off there. Clayborn testified very much to the same effect as did Riddle, that he had observed the mail bags thrown off the train about a half dozen times. They would strike about the middle of the street and roll to the corner of the depot. Norris also gave similar testimony, that he was familiar with the location of the railroad, street, depot, crane, etc., and that he had, on numerous occasions, seen mail unloaded all along the right-of-way from the crane to the depot, and that, at times, the mail bags would fall in the street, south of the street, along the right-of-way, and up against the depot; and, in a few instances, several times, saw mail bags roll across the street. He testified further that, over a period of twenty years, he saw mail bags roll across the street, probably a dozen times, or more, and for the past two years, probably a half dozen times or more, but at no time had he ever seen mail bags thrown out high enough to hit a man passing the station.

It is evident, we think, that the proffer of evidence as to practice- or custom is too narrow to visit primary liability upon the Railroad -Company for negligent acts of the postal clerk. The clerk, Mr. Ray, who threw off the mail pouch in question, had been on the train involved in this controversy for only one and one-half months, and there is no incident specifically designated and chargeable to him, other than the one involved in this accident. The north bound train is shown to have run through White-wright 365 times a year, and such is also true of the south bound. Thus, assuming and reviewing the testimony in the light most favorable to appellee, it shows only a comparatively few isolated instances of irregularity in throwing off the mail bags, over a long period of time, and, we think, is wholly insufficient to establish a general or usual practice of the mail clerk in dispatching mail at the street crossing, and in a manner suggestive of danger. The mail bags were -thrown to the ground, near the tracks, and rolled across the street to the depot; evidently not a dangerous practice. These isolated instances are insufficient to raise a presumption of knowledge on the part of the Railroad Company.

Furthermore, we do not think the failure of defendant to introduce as witnesses, its local agents occupying positions in the depot, is of any probative force on the issue involved. The record shows that there were'only two local agents; the station agent and cashier; and neither were on duty at the time the north bound train passed through Whitewright. They went on duty at 8 o’clock, A. M. and off duty at 5 o’clock, P. M. The schedule of the mail trains was 7:50, A. M. and 6:02, P. M., respectively, and there is no evidence that either agent was in the depot, or in position to keep a check or observe the circumstances of irregularity of the postal clerks discharging the mail pouches. They were off duty at the hour the trains passed through White-wright; thus, the rule announced in Sullivan v. Fant, Tex.Civ.App., 160 S.W. 612, 616, quoting Justice Gill, in Pullman Palace Car v. Nelson, 22 Tex.Civ.App. 223, 54 S.W. 624, that, “When the proof tends to establish a fact and at the same time discloses that it is within the power and to the interest of the opposing party to disprove it, if false, the silence of the opposing party not only strengthens the probative force of the affirmative proof but of itself is clothed with a certain probative force,” has no application in this case. Certainly the rule does not assume that the defendant’s employes were present at the time of any of the irregularities suggested in the record, when their employment, according to schedule, ceased at 5 o’clock, P. M. and the train passed at 6:02 P. M.

The liability of the Railroad Company resting on the wrongful acts of a mail clerk, and the evidence being insufficient that it knowingly suffered such clerk to engage in practices dangerous to those in proximity to its track, to whom the Railroad Company, owed the duty of reasonable care to protect from injury by reason of the passage of its trains, we turn now to the contention that the company was liable to appellant because the train, from which the mail pouch was thrown, was violating the speed ordinance of the municipality of Whitewright, which fixes the maximum speed of trains at 15 miles per hour.

The causal connection urged between the speed of the train and the injury sustained by appellee is that, except for such speed, the mail bag would either have been thrown off elsewhere, or, if thrown off where it was, might not have struck appel-lee, who was standing clear of danger— 15 or 20 feet from the moving train. It may be conceded that appellee would not have been injured, except for the independent intervention of the wrongful act of the mail clerk; and it may also be conceded that the injury might not have occurred except for the unlawful speed of appellant’s train. It is evident that, if it had not been for the intervention of the responsible mail clerk, appellant’s negligence would have produced no damage to appellee. The causal connection between the negligence of the Railroad Company and the damages sustained by the injured party is broken by the interposition of the negligent acts of tire postal clerk. Clearly, the speed of the train had nothing whatever to do with the mail clerk’s throwing off the mail bag at the wrong place. The Supreme Court of Mississippi, in Louisville & N. R. Co. v. Daniels, 135 Miss. 33, 99 So. 434, 435, 34 A.L.R. 516, said:. “There was not an unbroken chain of sequence leading up to the last act by which the injury was inflicted. On the contrary, a free, independent agent, namely, the mail clerk, intervened, and the most that can be said is, used the speed of appellant’s train to cause the injury complained of. It was an act on the part of the mail clerk that appellant could not have reasonably foreseen would occur. It never had occurred before. If this were a case where there was any evidence whatever tending to show that the speed of the train had any causal connection with the throwing out of the mail bag at the wrong place, it might be a question for the jury. But there was no such evidence.” (Citing authorities supporting the doctrine of independent, intervening efficient cause).

On careful review of the record, we conclude that, appellant’s motion that the jury be directed to return a verdict for appellant should have been sustained, and the action of the court in overruling the motion (the basis of appellant’s contention that the evidence shows no liability), presents error. The judgment of the court below is reversed and judgment here rendered for appellant.

Reversed and rendered.


author: PRICE, Chief Justice.

text:
    DUNIGAN TOOL & SUPPLY CO. v. WHIPPLE.
    No. 3905.
    Court of Civil Appeals of Texas. El Paso.
    Jan. 25, 1940.
    Rehearing Denied Feb. 15, 1940.

      Paul Moss, of Odessa, for appellant.
    Todd, Crowley & Thompson, of Fort Worth, and Brooks & Little, of Big Spring, for appellee.
   PRICE, Chief Justice.

This suit originated in the District Court of Andrews County. O. C. Whipple, as plaintiff, sought to recover damages against Dunigan Tool and Supply Company, as defendant, for personal injuries alleged to have been inflicted on his wife by the negligent acts of said defendant.

The parties will be referred to throughout by the designation they bore in the trial court.

Plaintiff alleged that while his wife was driving an automobile in a southerly direction on a public road near the town of Andrews, Texas, and while defendant’s truck, driven by an employee, was proceeding northerly on the same road, in attempting to pass each other, there was a collision between the two vehicles. It is alleged that in the car in which Mrs. Whipple was riding were also Mr. and Mrs. Toms; that as a result of the collision his wife sustained serious personal injuries. Several grounds of negligence were alleged by plaintiff with reference to the manner of the driving of the truck and the conduct of the driver thereof just prior to and at the time of the collision. Failure to keep a proper lookout was charged, operation of the automobile on the wrong side of the road when the road was not clear and unobstructed in front for a distance of fifty yards, excessive speed, and several other grounds.

Defendant answered by general denial; further, that the injuries to plaintiff’s wife were the result of an unavoidable accident, and a very detailed plea of contributory negligence, specifying some fourteen acts or omissions on the part of plaintiff’s wife.

The trial was to a jury, submission was on twenty-four special issues, the findings were in favor of the plaintiff on the several grounds of negligence submitted, and on the issue of unavoidable accident. On the issues of contributory negligence submitted the finding was likewise in favor of the plaintiff, acquitting his wife of contributory negligence. Damages were assessed in the sum of $2,500. Judgment was rendered on the verdict against the defendant in that amount. Motion for a new trial was filed by the defendant and same was overruled. Appeal was perfected, and the case is here for review.

Defendant has made some twenty-three assignments of error followed by one statement. This method of briefing renders the consideration of the case rather difficult. However, the argument somewhat simplifies matters, and we shall endeavor to pass on what we consider the vital and controlling matters presented by the appeal.

Before the charge was submitted to the jury, defendant moved’ for a directed verdict in its favor. The court refused this motion, and this action is assigned as error.

The jury found that at the time of and just prior to the collision defendant’s truck was on the wrong side of the road. The witnesses to the collision, that is, the occupants of the car which plaintiff’s wife was driving, and the truck driver, all seemed agreed that the collision occurred on plaintiff’s wife’s side of the road, that is, west of the center line thereof. Plaintiff’s wife testified, and likewise Mr. Toms, as to this point. The evidence showed that the collision took place some one hundred and fifty yards from the crest of a rise over which defendant’s truck came just prior to the collision. The road was straight at the points in question. There appears to have been no obstruction to the view of either the driver of the truck or plaintiff’s wife. Defendant’s truck driver testified, in substance, he did not see the approaching car until at or about the time of the collision. Inferentially, he seeks to excuse his failure' to see the car by the fact that he was attacked by gnats and his attention was thus distracted. He further testified that at the speed he was proceeding he could have stopped the car in twenty-five or thirty feet. In our opinion the findings of the jury find ample support in the evidence.

Established by the verdict is that the truck was operated at an unlawful rate of speed; on the wrong side of the road; that defendant’s driver was guilty of negligence in the matter of keeping a lookout; that each of such negligent acts or omissions was a proximate cause of the collision and consequent injuries to plaintiff’s wife.

There is no question but at the time of the collision defendant’s driver was acting in the scope of his employment.

It is complained that the verdict for $2,500 is excessive. The evidence tended to show that at the time of the collision plaintiff’s wife was six weeks advanced in pregnancy; that a few days after the collision she miscarried. It is unnecessary to set forth the evidence of damages in detail. Suffice it to say that it tended to support the elements of damages pleaded by plaintiff. The amount of damages assessed finds, in our opinion, support in the evidence.

Many exceptions were reserved by the defendant to the court’s charge. Several of the definitions given were objected to, but these objections are not briefed. Exceptions were reserved to the failure of the court to submit certain defenses pleaded by defendant. These exceptions also purport to be a request for the court to formulate and submit issues on the several defensive matters. In several cases there was a suggested formulation of the issues. As to the suggested formulation of the various issues contained in the exceptions, defendant makes this reservation: “The foregoing .suggested questions are made for the sole purpose of calling to the court’s attention the necessity of submitting such issues and are not made for the purpose of binding the court or the defendant, but merely made for the purpose of suggesting the necessity of such issues.”

Let us first consider the issues the submission of which are requested in the exceptions without formulation. The law seems to be well settled that it is incumbent upon a party desiring the submission of an issue not covered by the court’s charge to prepare same and request the submission thereof. Further, that a mere objection to the court’s charge is not sufficient to constitute error in the failure to submit an issue. Gulf, C. & S. Ry. Co. v. Conley, 113 Tex. 472, 260 S.W. 561, 32 A.L.R. 1183; Harris v. Thornton’s Department Store, Tex.Civ.App., 94 S.W.2d 849; Harris v. Leslie, 128 Tex. 81, 96 S.W.2d 276; Texas & N. O. Ry. Co. v. Crow, 132 Tex. 465, 123 S.W.2d 649; Southern Underwriters v. Parker, Tex.Civ.App., 129 S.W.2d 738; Texas Law Review, Vol. 17, No. 4, p. 459.

In regard to the issues as to which the objection of defendant suggested their formulation, this suggested formulation was with the reservation that it was not to be binding on either the court or the defendant. With the attached reservation we do not consider the submission of the issues either requested or demanded within the meaning of Article 2186, R.S. 1925. Further, it nowhere appears that the suggested issues were submitted to opposing counsel as required by Article 2186, supra. Article 2188, R.S. 1925, provides for a bill of exceptions to the refusal of the trial judge to give a special instruction. Unless that provision is substantially followed, there is no presumption that the requirement of Article 2186 as to submission to opposing counsel has been made. Walker v. Jean Lafitte Hotel Co., Tex.Civ.App., 94 S.W.2d 504; Coxet ux. v. City of Fort Worth, Tex.Civ.App., 102 S.W.2d 504; Geistmann v. Schkade, Tex. Civ.App., 121 S.W.2d 494.

The right of opposing counsel to inspect a requested charge, even though it be refused, is a valuable right. Southern Motor Lines v. Creamer, Tex.Civ.App., 113 S.W.2d 624. In rare instances only would a trial judge refuse an issue where both parties agree that same should be submitted. If requested issues may be refused without being submitted to the opposing party, his rights may be affected by a proceeding of which he has no notice. We think the manner of the submission of the case under the theory of the applicable statutes is arrived at in a proceeding before the court in which each party has a right to be heard. It is true, the charge is submitted for the purpose of permitting the opposing counsel to except thereto. Implicit, however, in this provision is the idea that if he deems it a proper issue he may have the opportunity of so stating to the trial court.

We believe here that all of the defensive theories raised by the evidence were substantially submitted in the court’s charge. The form of the issues suggested in the exceptions has not been considered for the reason that it was deemed unnecessary to do so.

Special issue No. 23 was as follows: “Do you find from a preponderance of the evidence that Mrs. O. C. Whipple sustained any personal injuries as a proximate result of the collision in question? Answer ‘yes’ or ‘no.’ ”

Defendant assigns error in substance on the ground that the issue does not limit the jury to injuries alleged in the petition. Also error is assigned to special issue No. 24 on substantially the same ground. Special issue No. 24 was as follows: “What sum of money, if paid now in cash, do you find from a preponderance of the evidence, would reasonably compensate Mrs. O. C. Whipple for the injuries, if any, received by her, proximately resulting from the collision in question? Answer in dollars and cents, if any.”

In the defendant’s objection to the court’s charge neither of the issues was assailed on the grounds specified in the assignments. Under Article 2185, R.S. 1925, it is expressly provided that, “ * * all objections not so made and presented shall be considered as waived.” Section 3 of Article 2237 provides, “the ruling of the court in the giving, refusing or qualifying of instructions to the jury shall be regarded as approved unless excepted to.” Judge Speer, in his work on Special Issues, has the following to say: “A consideration of the purpose of the statute in requiring timely objections would show that it is contemplated that the objection shall be sufficiently informative to apprise the court of the error or vice complained of.” Special Issues, Speer, Section 270, and authorities there cited. The same rule is laid down in Texas Jurisprudence. 41 Tex.Jur. 1063, § 252, and cases cited.

Defendant made very detailed objections to the explanation given the jury in connection with special issue No. 24, submitting the issue of damages. The explanation seems to be the ordinary charge in this respect. There was evidence sustaining the various elements submitted. 'Subdivision A of the assignment raising objections to this explanation complains that the explanation should not have authorized consideration of her inability to perform her household duties. This is a proper element of damage. She testified she was so disabled, and such disability continued to an extent. Dallas Railway & Terminal Co. v. Sutherland, Tex.Civ.App., 27 S.W.2d 830. Subdivisions B and C present no valid ground or objection to the explanation as such. In each it is asserted that plaintiff’s wife, or her physician, after the miscarriage was negligent. Subdivision D, that defendant could not reasonably foresee that Mrs. Whipple was pregnant and the injuries consequent to that condition should not be considered; subdivision E, that on account of her contributory negligence she was not entitled to recover any damages. We find no merit in this assignment.

It has been our endeavor to consider all of the assignments urged, and what we have herein said we consider as overruling all of same.

This case, as reflected by the record, was fairly tried; the issues raised by the pleadings and the evidence fairly and clearly submitted; the verdict sustained by the evidence. There is no reversible error shown.

Affirmed.


author: BROWN, Justice.

text:
    BIG SIX OIL CO., Inc., v. WEST et al.
    No. 14017.
    Court of Civil Appeals of Texas. Port Worth.
    Jan. 26, 1940.
    Rehearing Denied Feb. 23, 1940.

      Bowyer, Gray, Thomas & Jaffe, of Dallas, for appellant.
    H. C. McClure, of Jacksboro, Marshall •& King, of Graham, and Ritchie & Ritchie, •of Mineral Wells, for appellees.
   BROWN, Justice.

Appellant, Big Six Oil Company, Inc., made a contract with appellee, J. F. West, the pertinent portions being:

“Whereas, the Big Six Oil Company, Inc. is the owner of an oil and gas lease on land in Jack County, Texas, situated near the town of Bryson, and J. F. West is the owner of a spudder and equipment.
“And, Whereas, • Big Six Oil Company, Inc. desires to employ J. F.. West to clean out wells which it owns in the Bryson area. Now, therefore, it is agreed between the parties: 1. That J. F. West will move his rig from the Hawley Pool in Jones County, Texas, to the property of the Big Six Oil Company, Inc., near Bryson, in Jack County, Texas, and will clean such oil wells as the Big Six Oil Company, Inc. may designate in a good, workmanlike manner, and without unnecessary delay, for a consideration of Seventy ($70.00) Dollars for each sixteen hours of work, it being understood that all expenses in connection with such work shall be paid by J. F. West. 2. After J. F. West has cleaned out one or two such wells and such work is satisfactory to the Big Six Oil Company, Inc., it will designate other wells to be cleaned out on the same basis.”

West cleaned out one well on the lease known as L. W. Fields and one on the lease known as E. F. Smith.

The “Fields Lease” covers 30 acres and is a part of the J. P. Kittrell Survey, abstract 2205, and the “Smith Lease” covers 65 acres and is a part of the S. P. R. R. Co. Survey No. 1, abstract 552; all in Jack County, Texas. These leases were introduced in evidence. Big Six Oil Company, Inc., also owned a lease known as the “Clayton Lease”, which covers 76½ acres, a part of the Lewis Knight Survey, in said county.

After West did the work of cleaning the said two wells and was not paid for same, he made out an itemized statement, showing what was claimed to be due him from appellant, Big Six Oil Company, Inc., for the cleaning of each of said wells, and filed such accounts, properly verified, with the County Clerk of Jack County, under the authority and right given by the provisions of Article 5473, Vernon’s Anno.Texas Civil Statutes, and thereafter brought suit on his accounts and prayed for a foreclosure of the statutory lien thus given him, not only on the two above named leases, on each of which one well was located, but prayed for a foreclosure of his said lien on all leases in Jack County owned by said oil company.

The itemized accounts were prepared, showing exactly what was claimed to be owing for the services performed on each separate lease.

Said Oil Company filed a separate suit against Southwestern Glycerine Company, Inc., and J. F. West and J. H. West, in which cause it was alleged that the Oil Company had employed the said Wests to clean out the wells owned by it and that during the process of cleaning out one certain well on the Smith Lease (same being a different well from that designated in West’s suit against it), it became necessary to shoot the well with nitroglycerine, and that the Oil Company employed said Southwestern Glycerine Company to shoot the well. ■ It is alleged that the said “Gly-cerine Company” and the Wests were guilty of negligence in shooting the well and the well was destroyed. The Oil Company moved to consolidate the two causes and the motion having been granted, the Oil Company filed an answer and cross-action in which it was alleged that the three said defendants (in the cross-action) were guilty of a number of acts of negligence, which resulted in the destruction of the oil well. The Wests answered, denying that J. H. West had any connection with the subject matter; denying all allegations in the Oil Company’s cross-petition, and specifically charging the Oil Company with contributory negligence. They also pleaded that the accident which destroyed the well was unavoidable.

The case was tried to a jury and the following findings were made in answer to the many special issues submitted: (1) That J. F. West did the work of cleaning the two wells on the Smith and Fields leases under his said contract, (2) that West earned $2,978.50 (the exact amount he sued for) in doing the work, (3) that J. F. West was not the agent of his father, J. H. West, (4) that the Wests were not partners, (5) that the work of cleaning the wells was done in a workmanlike manner, (6) that on the morning that the Smith well (which was destroyed) was shot with nitroglycerine, it was clean and ready to shoot, (7) not answered, (8) that the act of Harold West in advising T. G. Patterson (employee of the Glycerine Company) that the well was clean and ready to shoot was not negligence, (9) and not a proximate cause of the damage done the well, (10) Harold West was not negligent in not swabbing the well, after it began to flow, (11) that such negligence was not a proximate cause of the damage done the well, (12) that J. F. West did not fail to provide sufficient tools with which to swab the well, (13) that such failure was not negligence, (14) that such negligence was not a proximate cause of the damage done the well, (15) that Chas. H. Kadane, a representative of the Big Six Oil Company, did not instruct the employees of J. F. West that no attempt should be made to shoot the well until he (Kadane) was present, (16) that West and his employees were not negligent in permitting the shooter, Patterson, to attempt to shoot the well, (17) that such negligence was not a proximate cause of the damage done to the well, (18) that Patterson was not negligent in attempting to shoot the well without having it swabbed, (19) that such negligence was not the proximate cause of the damage done the well, (20) that Patterson was not negligent in attempting to shoot the well after it began to-flow oil, (21) that such negligence was not a proximate cause of the damage done the well, (22) that Patterson was not negligent in attempting to shoot the well when a. representative of the Oil Company was not present, (23) that such negligence was not a proximate cause of the damage done the well, (24) that Patterson was not negligent in the manner in which he handled the line, in lowering the nitroglycerine into the well, (25) that such negligence was not a proximae cause of the damage done the well, (26) that Patterson was not guilty of negligence in not removing the nitroglycerine from the well after it began to flow, (27) that such negligence was not a proximate cause of the damage done the well, (28) the reasonable cash market value of the well immediately prior to the injury was $12,000, and (29) that immediately after the injury, was $1,-275, (30) the value of the salvage from the destroyed well was $1,275, (31) the reasonable cost of drilling and casing a well in the Bryson area, similar to the one destroyed, is $11,000, (32) that Charles H. Kadane, through his instructions and actions, prevented the well from being swabbed, (33) his act was contributory negligence, (34) and a proximate cause of the damage done, (35) that the Oil Company did not allow the shooter to use his own discretion as to the status of the well, (36) that same was an act of contributory negligence, and (37) was a proximate cause of the damage, (38) that the Oil Company, acting by and through Charles H. Kadane, required the well to be shot without swabbing with what is known as the Large Tool, (39) this act was negligence, and (40) a proximate cause of the damage done, (41) that Chas. H. Kadane directed the manner in which the well should be cleaned, in order to place explosives in it, (42) that his act was contributory negligence, and (43) a proximate cause of the damage done the well, (44) that said Kadane required the well in question to be shot in the same way and manner as was done in a previous well, (45) this act was contributory negligence, and (46) a proximate cause of the damage done the well. On another Special Issue No. 1, the jury found that the accident was unavoidable.

On this verdict, the trial court rendered judgment for West, in the sum of $2,978.-50, against Big Six Oil Company, Inc., and decreed a foreclosure of West’s statutory lien as against the Fields Lease, the Smith Lease and the Clayton Lease, being all of the oil leases owned by said Oil Company in Jack County, and ordered said leases sold through a proper writ to satisfy the judgment. The judgment also finds for the cross-defendants on the Oil Company’s cross-action. The Oil Company has appealed.

We find twenty-five assignments of error in the brief, and eight propositions. There is no notation made attempting to show what assignments of error are presented through the eight propositions, and we will discuss the propositions only.

The first proposition asserts that the written contract does not purport to give West a lien on any particular tract of land and that it was error for the trial court to attempt to fix a lien on the Clayton Lease.

We believe that the contention is well taken, and we go further and announce that our construction of Article 5473 (R.C.S.) is that the lien provided for therein attaches only to the particular lease on which the particular work was done and the material, etc., furnished, and that such lien attaches only to secure the value of such labor, materials, etc., done and furnished on that particular lease.

In this case the trial court finds the lump sum due West for the labor, materials, etc., used on both wells, located on two separate leases, and attempts to fix a lien on both leases to secure the lump sum and goes further and attempts to fix a lien on a lease on which no labor was done and no materials, etc., furnished. This the court could not do.

The Statute expressly gives the lien “on the whole of such land or leasehold interest therein, * * * and upon said oil well, gas well * * * for which the same are furnished or hauled, and upon all of the other oil wells, gas wells, buildings and appurtenances, including pipe line, leasehold interest, and land used in operating for oil, gas and other minerals, upon such leasehold or land * * * for which said material and supplies were furnished * * * or labor performed.”

We think the provisions of the Statute plain.

Fortunately, appellee West has itemized his account as it covers each one of the wells, and attached his accounts as an exhibit to his petition, and he testified to the amounts as shown being correct, and the jury found that the Oil Company owed him the exact amount shown by his itemized statements. This being true, we are able to reform and affirm the judgment on West’s cause of action against Big Six Oil Company, Inc.

■ The judgment of the trial court is here reformed so as to give appellee West a judgment against appellant, Big Six Oil Company, Inc., for $1,452.50, together with a foreclosure of West’s lien on the “Fields Lease”, and a judgment for $1,526, together with a foreclosure of West’s lien on the “Smith ■ Lease”, and that such judgment bear interest from March 27th, 1939, the date of entry of such judgment, at the rate of six per cent per annum.

We believe that the Supreme Court, in Guaranty Savings Loan & Investment Co. et al. v. Cash, 99 Tex. 555, 91 S.W. 781, supports our construction of the statute before us.

We now come to the propositions which have to do with the trial of the case on the cross-action filed by Big Six Oil Company, Inc., against the two Wests and the Southwestern Glycerine Company, because of the destruction of a certain well when it was “shot”.

Proposition No. 2 asserts that the findings by the jury that the acts of Charles H. Kadane constituted “contributory negligence” proximately causing the damage done to the well are in direct conflict with the further finding that the accident was unavoidable.

It appears that we have a case here which is wholly unlike any case cited by appellant to support his proposition.

In order for appellant to recover upon his cross-action, it must be made to appear that West and the Glycerine Company were guilty of some act of negligence, which proximately caused the damage done appellant’s well.

The jury acquitted these parties of all acts of negligence with which they were charged. This was a complete defense to appellant’s suit.

If the jury had returned their verdict to the trial court with such findings and had advised the trial court that they were .un: able to answer any of the issues which inquired about appellant’s- contributory negligence, and that they were unable to answer the question touching an unavoidable accident, nevertheless; the trial court would have been compelled to give West and the Glycerine Company a judgment on such verdict.

That being true, what comfort can appellant get out of the fact that insofar as the issues touching upon its contributory negligence are concerned, the jury found it guilty of -contributory negligence and at the same time found that the accident was unavoidable ?

The conflict is merely one dealing with issues that are wholly immaterial to the plain and understandable findings which preclude appellant from recovering on its cross-action.

It is obvious that-the jury having absolved West and the Glycerine Company from all acts of negligence, on which appellant relied for a recovery, it matters -not how the jury may have answered the issues inquiring into the alleged acts of contributory negligence on the part of appellant, or the issue on the question of the accident being unavoidable.

Whatever conflict there is, is wholly immaterial in the light of the plain findings which required a judgment for appellees.

Mr. Chief Justice Hickman, speaking for the Eastland Court of Civil Appeals, in Lanius et al. v. Panhandle & S. F. Ry. Co., 7 S.W.2d 1099, 1100, discusses such a situation as is presented to us here, and he ■ cit-es a number of Texas authorities which support the opinion. He said: “It is our opinion that the finding by the jury that appellants’ employees were guilty of contributory negligence renders it immaterial that the findings were conflicting on the question of whether the negligence of ap-pellee’s servants was the proximate cause of the damages. Appellee was entitled to judgment on the answer to special issue No. 3, regardless of the answers to other issues, and even if no other issue had been answered by the jury. Yoes v. Texas & P. Ry. Co. (Tex.Civ.App.) 211 S.W. 311 (error refused); Sellers v. Galveston, H. & S. A. Ry. Co. (Tex.Civ.App.) 208 S.W. 397 (error refused); Lancaster & Wallace v. Gonzales (Tex.Com.App.) 287 S.W. 1094; Alexander v. Missouri, K. & T. Railway (Tex.Civ.App.) 287 S.W. 153 (writ dismissed); Miller v. Estep et al. [Tex.Civ.App.], 5 S.W.(2d) 876 (writ dismissed).”-

In the case under discussion, the jury had found the defendant’s employees guilty of negligence proximately causing ‘ the plaintiff’s damage, and- by issue No. 3 (re- • ferred to in the opinion), had found that plaintiff’s employees were guilty of contributory negligence.

We believe that a conflict which destroys the verdict must be one where one of the conflicting findings would warrant a judgment for one of the parties and the other conflicting finding would warrant a. judgment for the other party.

No such situation appears in the instant suit. The jury having found that the cross-defendants were not guilty of any act of negligence, they were entitled to judgment relieving them of all responsibility for the loss of the well, and no answer that the jury could return to. issues predicated upon cross-plaintiff’s contributory negligence or upon the issue of unavoidable accident could possibly conflict with the findings made in favor of cross-defendants. Allen v. Texas & N. O. R. Co., Tex.Civ.App., 70 S.W.2d 758, writ dismissed; Millers’ Ind. Underwriters v. Schrieber, Tex.Civ.App., 240 SW. 963, writ refused; Ford Rent Co. v. Hughes, Tex.Civ.App., 90 S.W.2d 290.

By proposition No. 3, appellant contends that the trial court having - instructed the jury that contributory negligence is such act or omission on the part of the complaining party amounting to a want of ordinary care, which concurring or cooperating with some negligent act or omission of the oth- , ■er party, is a proximate cause of the injury, and the jury having found in answer to issues Nos. 6 to 27 that appellees were not negligent in any particular, and then found in answer to issues Nos. 32 to 46, that appellant was guilty of contributory negligence, there is such a conflict in the findings as that they nullify one another, and cannot form the basis of a judgment.

Appellant cites Ripley v. Dozier Const. Co., Tex.Civ.App., 45 S.W.2d 661, 662, but we are of opinion that the decision cited is not helpful to appellant. The following language is found in the opinion: “Appellant presents five propositions, but they may all be reduced to one contention to the effect that contributory negligence cannot exist in the absence of primary negligence, and, since the jury failed to agree upon and left unanswered the issues submitting primary negligence, there was no basis for the finding of contributory negligence in the answers to special issues 4, 5 and 6. Technically speaking, this contention is correct. However, negligence on plaintiff’s part which was a proximate cause of the injury would constitute a complete bar to recovery, regardless of the existence vel non of primary actionable negligence. It would be immaterial which way the jury answered the issues submitting primary negligence. Had the answer been ‘No,’ plaintiff must necessarily fail, regardless of the finding on his own negligence. Had the answer been ‘Yes,’ he must likewise fail because of his own negligence. The jury having disagreed upon primary negligence, it follows that some must have held for an affirmative and others for a negative answer. If a unanimous answer either way could not, in view of other answers, have affected the result, then we are unable to see how the failure to answer could have any bearing on the case. [Italics ours], * * * We are not dealing with a necessarily joint act in which the part played by each is essential to the existence of a single whole, but with two separate and distinct acts the existence of one of which, with or without the concurrence of the other, establishes the existence of the whole. In such case, the only essential is a finding of the existence of the independent act. Its designation as concurrent or contributory is immaterial and may be disregarded as surplusage.” (Italics ours).

So, in the case at bar, the finding that cross-defendants were guilty of no act of negligence is a complete bar to cross-plaintiff’s recovery, regardless of the existence vel non of any act of contributory negligence on the part of cross-plaintiff, or of the finding that the accident was unavoidable. ■

We have considered the remaining propositions Nos. 4, 5, 6, 7 and 8, and the assignments of error on which they are bottomed, and find no reversible error presented.

■ All assignments of error presented in the brief are overruled, and the judgment is reformed and affirmed, as indicated supra.

The costs of appeal are taxed against appellee J. F. West.