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    TEXAS POWER & LIGHT CO. v. DOERING HOTEL CO.
    No. 8924.
    Court of Civil Appeals of Texas. Austin.
    Jan. 29, 1941.
    Rehearing Denied Feb. 19, 1941.

      Burford, Ryburn, Hincks & Charlton and Logan Ford, all of Dallas, and Cox & Brown, of Temple, for appellant.
    Lee Curtis, of Belton, and Stahl & Sohn, of San Antonio, for appellee.
   BAUGH, Justice.

Suit was by the Doering Hotel Company, a private corporation, against the Texas Power & Light Company, a public service corporation, to recover for over charges and discrimination on electric current furnished the former by the latter corporation at Temple, Texas, during the period from 1928 to 1938. Trial was to a jury on special -issues, all of which were answered in favor of appellée, plaintiff below, and judgment rendered against appellant for $14,467.50; hence this appeal.

Frank A. Doering built the Doering Hotel in Temple, Texas, in 1928, and owned and operated it in his individual capacity until 1935, when it was incorporated, and thereafter operated as a corporation. It will be hereinafter designated, for brevity, as the Doering. In 1928 he entered into a written contract with the Texas Power & Light Company (for brevity hereafter referred to as T P & L) to furnish current for power and lighting' in the operation of the hotel. Claims of overcharges and discrimination were made by Doering in 1931, and in June of that year an adjustment was made whereby T P & L allowed Doering a credit of $2,758 on his account. Again in May, 1932, upon similar complaints, T P & L again allowed Doering another credit of $1,876.90.

This suit was filed in May, 1938, and tried upon a first amended original petition filed in January, 1939, the claim of overcharge and discrimination covering the period from March 30, 1928, when the original contract was made, to May 20, 1938. The basis of the cause of action asserted involved two elements: The first predicated upon the method of metering the current for which the Doering was charged; and the second upon the ground that the Doering was charged a higher rate for current by T P & L than it charged other customers similarly situated, in that such other customers wer-e charged a flat rate of 2 cents per kilowatt hour (hereafter indicated as K W H) ; whereas, the Doering was charged on what was designated as an L P rate. The latter rate provided for a minimum fixed charge based upon horse power, a rate of 4 cents per KWH until a designated amount of current was used; and thereafter on a sliding scale graduated downward as the total current consumption increased. Under the latter method the charge for the quantity of electricity used by the Doering exceeded the 2 cents per KWH charged other consumers.

The allegations were, and undisputed proof showed,' that the transformer, through which the current from the “high line” or power transmission line was reduced or “stepped down” so that it could be used in the hotel, was placed in a vault in the basement of the hotel and no other customers were served through it; whereas, at the Kyle Hotel, also located in Temple and served by T P & L, the transformer was placed on poles outside of the hotel and numerous other customers served through it. In addition to this difference relating to the use of the transformers, the meter used for the Doering was placed outside of the vault, ahead of, or on the power side of the transformer. This resulted in metering the current before it reached, or passed through, the transformer. This method was termed primary metering, and the user thus paid the T P & L for the current lost in the transformer and not used by him. In the case of Kyle Hotel and some other large users of electricity furnished by appellant, the meter was placed behind the transformer, and this method was termed secondary metering, in which the T P & L absorbed the transformer loss, and the customer was charged only for the current actually used by him. This situation presented the basis for the Doering’s claim: first, an alleged discrimination by appellant between the Doering and other consumers similarly situated, or having similar “material billing factors” in rate charged for the current actually used; and, second, that the Doering was required to and did pay for the current lost in the transformers; whereas, other consumers similarly situated did not.

The appellant herein, in addition to general and special exceptions and general denial, defended on the grounds: (1) That when the Doering Hotel was built Doering had requested that the transformer for his current be placed in the vault of his hotel; that as- a result no other users of current could be served through it, thus requiring that an entire bank of transformers be set aside to his particular use; and that in such cases the uniform custom and practice of utility companies was to meter the customer primary instead of secondary; (2) that over such period of .ten years, Doering, with knowledge of all the facts, had paid his bills voluntarily, and therefore could not now recover; (3) that in the adjustments and credits allowed Doering in 1931 and 1932 for discriminations and overcharges, Doering had released all the claims he now asserts for discriminations and overcharges occurring prior to the last date of settlement in May, 1932; (4) that his asserted claims were barred by the two and four-year statutes of limitation.

By supplemental petition Doering alleged that the 1931 and 1932 settlements did not cover nor include discriminations against him resulting from the different methods of metering; and that subsequent to the May, 1932, settlement and contrary to appellant’s written contract with him, contrary to the law against discriminations between consumers of electric current, and contrary to the express assurances of appellant’s officers and agents then made that no further discriminations would occur, such discriminations were continued; and that appellant did not discover, and could not by the use of reasonable diligence have discovered, this fact until the year 1936. And. by trial amendment Doering further pleaded that during the period of time involved in this suit he paid the sums de-manejed of him by appellant for fear that appellant would cut off his current if he did not.

Due to the fact that the Doering Hotel was, for a part of the time involved, in the hands of a receiver, the special issues submitted applied in part to different periods of time between March 30, 1928, and May 20, 1938; but we do not deem it necessary to segregate these periods here. In so far as the issues presented are concerned the material findings of the jury may be summarized as follows: They found

1. That between 1932 (the year in which the last settlement between Doering and appellant was made) -and May 20, 1938, T P & L furnished to other consumers situated “in so far as their material billing factors are concerned” under the same or similar circumstances that Doering was, at a flat rate of not exceeding 2 cents per KWH.

2. That after the 1932 settlement and prior to May 7, 1936, Doering failed to discover that he was being so discriminated against.

3. That he could not, by the exercise of ordinary prudence during such period, have discovered such facts.

4. That the officers and agents of appellant had, at all times subsequent to the 1932 settlement, whenever the matter of rates was discussed, assured Doering that he was being given the best rate available to consumers of his class.

5. That Doering believed and relied upon such assurances.

6. That during said 10-year period T P & L furnished current to other customers similarly situated in so far as material' billing factors were concerned, which it metered secondary.

7. That Doering did not prior to May 7, 1936, come into possession of facts which would cause him to believe that he was being discriminated'against in this method of metering.

8. That at no time prior to May 7, 1936, did Doering discover that such other users were being metered secondary.

9. That he could not in the exercise of ordinary prudence have discovered such facts.

1Í). That appellant had furnished other’ consumers similarly situated to Doering, but metered secondary, a flat rate of not exceeding 2 cents per KWH.

11. That the transformer loss, as between primary and secondary metering, was 10.4%.

12. That such transformer losses were not considered in the 1931 and 1932 settlements between the parties hereto.

13. That Doering did not know when he paid his bills from May, 1932, to March, 1936, that Scott & White Hospital, Scott & White Dairy Farm, and King’s Daughters Hospital, all at Temple, were being billed on a flat 2-cent per KWH rate.

14. That Doering did not know prior to May 7, 1936, that the Kyle Hotel was being metered secondary.

15. That during said period Doering and his agents, etc., would not, in the exercise of ordinary prudence, have discovered that the Kyle Hotel was being metered secondary.

Based upon these findings and. upon the uncontroverted evidence as to the current consumed by Doering and the amount paid by him therefor, the court rendered 'judgment in favor of Doering for the amount above indicated, from which T P & L has appealed.

The record presented is voluminous and the manner in which the appeal is presented has made necessary an examination of the entire statement of facts. Except in one or two instances, hereinafter noted,- appellant has not by assignment nor proposition attacked specific findings of the jury, either as being unsupported by any evidence, or as being contrary to the overwhelming weight and preponderance of the evidence. Nor is any objection presented on this appeal as to the manner and form in which the fact issues were submitted to the jury. In the main, appellant’s primary contention is that there was no evidence to support any of the findings of the jury, and that it was entitled to a judgment in its behalf as a matter of law, non obstante veredicto. We shall not undertake to discuss in detail the numerous propositions presented in appellant’s brief; but have endeavored to give consideration to the material questions embodied in them.

Decisions are legion involving rate charges made by public service corporations of consumers of electric current. It is a universal rule that a public utility cannot discriminate in its rates or charges between consumers similarly situated. Art. 1438, R. C.S.1925, makes it unlawful for a public service corporation to do so. See, also, El Paso Electric Co. v. Raynolds Holding Co., 128 Tex. 495, 100 S.W.2d 97,108 A.L.R. 744; 34 Tex.Jar., § 17, p. 719; 51 C.J., §§ 16 and 61, pp. 7 and 29; 9 R.C.L., § 11, p, 1196. In view of the statute and of this universal rule, a written contract with a consumer requiring him to pay a higher rate or charge than the corporation collects from others similarly situated is of no avail to the corporation, if in fact and in law such contractual rate or charge is discriminatory. Texas Power & Light Co. v. Hilltop Baking Co., Tex.Civ.App., 78 S.W.2d 718; 20 C.J., § 30, p. 336.

It is likewise well settled that such a corporation may make a reasonable classification of consumers based upon a material difference in the type and quantity of service furnished, and charge a different rate as between such classes. But as between the same class of consumers, where it has a published rate applicable thereto, it is not authorized to differentiate between them in its charges. In the instant case the T P & L does not appear to have had published rates, • based upon separate classifications made by it of the various .industries and institutions situated in Temple or in that area, which placed the Doering Hotel for rate purposes, in a different classification from such other industries and institutions; and which Doering claimed were similarly situated but were charged less for the same or similar service to that furnished his hotel. There being no fixed classifications as between them, and no published rates made by appellant as applicable to differing classes, the question of whether or not the institutions and industries in Temple and in that area, served by T P & L, and charged for such electric current on a different basis from the charge made against Doering, were similarly situated to the Doering in so far as “material billing factors” were concerned, presented a fact question. Western Union Tel. Co. v. Call Publishing Co., 181 U.S. 92, 104, 21 S.Ct. 561, 45 L.Ed. 765, at page 771. The jury having found, in answer to the issues submitted, that other consumers in this area, of whom T P & L had collected a lesser rate for the current furnished them, than it had exacted of Doering,' were similarly situated to the Doering Hotel, discrimination necessarily resulted, if such findings find support in the evidence.

Since the appellant contends that there was no evidence to support such fact findings of the jury, we are to be guided by the oft-repeated rule that the appellate court will disregard evidence to the contrary and look only to that in support of such finding.

In the light of what has already been said, we now consider the contentions made by appellant. The first .eight propositions, though variously stated, present the. contention that because a transformer was allocated to the exclusive use of the Doer-ing, at extra expense to the T P & L in doing so, and gave him a better service than other consumers received where several were served through the same transformer, the company was entitled to charge him a higher rate; and that metering the Doering primary instead of secondary in effect merely accomplished that result. And further that it was the universal custom and practice of appellant, and of all other public utilities to meter the consumer primary where a transformer was allocated to his exclusive use.

It is well settled that where a particular consumer is furnished a type of service, requiring additionál expense to the utility company, superior to that furnished otjier consumers, the company may exact of such favored consumer a higher charge therefor than it collects from those less favored. The test, in determining whether the service is rendered “under similar or like circumstances” within the meaning of the statute, is to ascertain whether the “material billing factors” on which the rate is based are substantially the same. And in determining this question it is not essential that the consumers be competitors or that they be engaged in the same character of business. It is not uncommon in the classification of consumers and the publications of rates applicable thereto for utilities to include in the same class and under the same rate schedule, business enterprises and institutions engaged in wholly different undertakings, but having the same material billing factors. These factors were recognized by both parties hereto as controlling in fixing rates to be charged. They include similarity, from the standpoint of the utility, of the service rendered, such, for example, as the volume of the current required, the cost to the company in furnishing it, when the peak of the load occurs, the constancy and regularity 'of the use made by the .consumer, and other similar circumstances.

While the transformer through which current was furnished to the Doer-ing was installed in a vault in the basement of the hotel, and only the Doering served through it; in the case of the Kyle Hotel, also located in Temple, a transformer of similar capacity was suspended on poles outside of the hotel and other consumers than the Kyle served through it. But there was evidence from which the jury could have concluded that the Doering transformer was installed in the vault of the hotel at the request of and for the benefit of the T P & L; that it constituted a greater fire hazard to Doering there than if it had been placed outside as was done at the Kyle; that it was contemplated at the time of the installation that the Doering would require for its own use its full voltage capacity, and consequently that other consumers could not, as was true of the Kyle transformer, have been served through it had it been placed outside of the hotel; and that the Doering did not receive any special benefits from such installation. If the added cost of such installation was for the benefit of the company, and for the protection and preservation of its machinery against loss or injury from the elements and exposure, and resulted in no benefit to the consumer, the company could not properly use such added cost as a basis for a higher rate than if it had placed the transformer on poles outside of the hotel as it had a' right to do. While appellant, based upon the testimony of its witnesses, strongly insists that Doering did receive special benefits, since the only attack made on the findings of the jury is that there was “no evidence” to support them, we need look only to the evidence in support of such findings. Hall Music Co. v. Robinson, 117 Tex. 261, 1 S.W.2d 857.

On the issue of the uniform c-ustom to meter consumers, allocated the exclusive use of a transformer, on a primary basis, there was evidence to show that the appellant itself had other consumers in Temple and its immediate area to which it had allocated a transformer, but metered secondary; and which the jury could have found were similarly situated to the Doer-ing. Among these were the Scott & White Dairy, the Santa Fe Hospital at Temple; the Allen Ice Company near Belton; the Hilltop Baking Company and Amicable building in Waco; and the Peoples National Bank at Tyler. While one of appellant’s witnesses testified that if the transformer at the Doering had been placed outside the hotel, as was that at the Kyle Hotel, 34 other customers could have been served through it; it was shown that at the time the Doering transformer was installed appellant itself estimated that the Doering alone would consume all the voltage that the’ transformer could safely carry. There was also testimony to show that this transformer was under the complete control of appellant and that, if its capacity permitted serving other customers than the Doering through it, appellant could, without unreasonable expense, have done so by running a -conduit out of the vault for that purpose, just as was done in running one from the high line into the vault.

Appellant’s ninth proposition is that “There is no evidence of any probative force in the record that the transformer loss equals 10.4% of the current consumed at the Doering Hotel.”

While not so designated we take this as a direct attack on special issue No. 16 submitting such inquiry to the jury, in answer to which they found the transformer loss occasioned by primary metering to be 10.4%.

The proof on this issue consisted of the testimony of experts, the qualifications of none of whom are attacked, based upon tests made and highly technical methods of computation. One testified in behalf of Doering and three in behalf of appellant, one of whom was one of its employees. In the last analysis, appellant’s argument resolved itself down to the contention that the methods and tests made by its experts in computing such losses were correct; and those used by appellee’s witness were wrong. All agreed that the transformer loss consisted of two elements; one, a core or iron loss of current which was continuous and constant, — that is, the transformer consumed a continuous quantity of current whether the hotel was using any current or not. The other was designated as a copper loss which increased in a geometric ratio with the increase in the amount of current used by the hotel, but was nil when the hotel used no current. The test used by Doering’s witness in determining the irqn or core loss was made by appellant’s employees by cutting off the hotel current entirely for a given period, and reading the meter by which Doering paid his bills. This he found to be 6% of the average current used by the hotel. The tests on which appellant relies were made on instruments brought from A. & M. College by one of its professors; and his computations were based thereon. His losses were estimated to be much less than 6%. The same was true of estimates of the copper losses. Each witness based his calculations and estimates upon what he considered recognized and approved engineering methods and -standards of computation, with result that the estimated losses varied from 3.96% to 10.4%. Each witness was cross-examined in detail as to the methods used by him, and the factual bases on which he reached his conclusions. The jury consequently were entitled to take all these matters into consideration, the interest of the witness, the manner and circumstances under which he made his tests, and to draw their own conclusions as to amount of the current so lost in the transformer. That being true, and there being evidence to sustain such conclusion, it will not be disturbed on appeal.

Appellant’s next contention is that in computing transformer losses an improper measure of damages was allowed. The assertion is made, though the judgment itself does not disclose it, that appel-lee was awarded $4,665.36 for this item. The gist of the contention is that in such cases thére are two elements of damage; one for overcharge, where, for instance, a consumer is charged more than a fixed or applicable rate; and the other where, absent a fixed or published class rate, he is charged more for his service than the utility charges others similarly situated. And that in the latter case, the amount of his recovery is not fixed merely by the difference caused by the methods of metering, citing numerous cases from other jurisdictions. However that may be, the same issue, in substance, was presented in Texas Power & Light Co. v. Hilltop Baking Co., Tex.Civ.App., 78 S.W.2d 718, approved by the Supreme Court in El Paso Electric Co. v. Raynolds Holding Co., supra, where the measure of damages allowed was the difference between the rate charged and the one which should have been charged. Based upon these cases the contention is overruled without further discussion here.

Propositions 11 to 16 variously present the contentions that the amount of the recovery, not set out in the judgment itself, but asserted by appellant to be $5,-649.25, based upon the difference between the L P rate (the rate charged Doering) and the flat 2-cent per KWH rate was error. This in large measure is based upon the contention, in addition to those already considered, that there were such substantial differences between the Doer-ing, charged on the L P rate, and the Scott & White Hospital, Scott & White Dairy, which was separately owned and operated by others than Scott & White, and thé King’s Daughters Hospital, as to authorize a differentiation of rates between them. These propositions but present different factual considerations and distinctions between the enterprises named which might have sustained different classifications for rate purposes, but which the T P & L itself had not made and published. They are, in effect, but attacks in general, without specific reference thereto, upon the findings .of the jury that such -institutions, in so far as their material billing factors were concerned, were similarly situated to the Doering, a fact issue determined against appellant by the jury upon sufficient evidence to sustain their findings. Even the assistant rate engineer for appellant, and one of t its witnesses, testified that between 1928 and 1938 appellant had no published schedule applicable to hospitals giving them a 2-cent per K W H rate; arid that “the larger hospitals were on hotel rates with the exception of this one here.” That there were no T P & L rates available to hospitals that were not also available to hotels.

Appellant’s seventeenth proposition urges in substance and effect that Doering knew from 1930 on that he was being discriminated against; and that notwithstanding this knowledge, he continued to voluntarily pay such excess charges, and is not therefore entitled to recover them. This contention is not sustained. In it the appellant in effect admits that beginning in 1928 it was charging Doering on L P rate metered primary; that up to September 1, 1930, it was charging the Kyle Hotel, the Scott & White Hospital and Scott & White Dairy on a flat 2-cent rate; metered secondary, a lower rate; that it was charging the King’s Daughters Hospital on a 2^cent per KWH rate. In brief, that it had in Temple no consumer classification covered by a published rate applicable thereto, but was fixing, rates, not uniformly, but by contract with the individual consumer. In 1930, because of Doering’s protests, it placed the Kyle, a competing hotel, on the L P rate, but metered secondary. In 1931 and again in 1932, it adjusted Doering’s accounts with it, on the basis of a flat 2-cent rate. A new manager took charge of the company’s office at Temple, and the president of T P & L came from Dallas to confer with Doering, and then assured him that thereafter he would receive the best rate available and, in effect, that no further discrimination would occur. Doering testified that the 1932 adjustment was made on the basis that he was entitled to the same rate applicable to hospitals; and that the Kyle, then owned by Scott & White, the Scott & White Hospital and the Dairy farm, then owned by Dr. Scott, were being serviced under one contract. Appellant’s rate engineer also testified that the same rate was available to hotels and hospitals alike. Doering consequently had a right to assume, after the 1932 settlement, that the hospitals were being billed on the same L P rate that he was. He testified that he did not know otherwise until 1936, when he was so advised by a rate investigator, and then began his efforts which resulted in this lawsuit. In answer to special issue 19, which is not specifically attacked by assignment, the jury found under these circumstances that from 1932 to 1936, Doering did not know that the hospitals and the dairy farm were still being billed at a 2-cent rate. In view of the foregoing, the fact that the company’s manager and other officers had continuously advised him that he was receiving the best rate available to him; that there was no published 2-cent rate applicable to hospitals as a class, but that same was “a secret unpublished rate,” it is manifest that there was evidence to sustain the finding of the jury on the issue submitted. And the contention made is in effect nothing more than that there was no evidence to sustain such finding.

The contention of voluntary payment with knowledge of all the facts must, under the jury finding, therefore fall.

It may be doubted whether the issue of duress is here involved. The payments made appear either to have been made under a mistake of fact rather than under mistake of law; or to have been induced under the representations of appellant’s officers and agents amounting in law to a fraud upon the consumer. But if duress be involved, it would appear that Doering paid under implied, if not express, duress. Generally one paying money where the payee would be compelled to resort to the courts to collect cannot defend on the ground of duress in such payment. 32 Tex. Jur., § 49, p. 729. But where the payee has the power to enforce such payment, or on failure to pay, to work great financial loss, business disadvantage, or irreparable injury to the payor, duress occurs, even though it be not actually attempted to be exercised. Appellant had the power, under its contract with Doering, to cut off his service for nonpayment of its demand, and thus paralyze his business. Nonpayment by him necessarily invoked that potential hazard. In such case, the Supreme Court has held in Austin National Bank v. Sheppard, 123 Tex. 272, 71 S.W.2d 242, and in National Biscuit Co. v. State, 134 Tex. 293, 135 S.W.2d 687, 692, that in the face of such existing power, payments so made are made under implied duress even though the payor did not make them under protest. See, also, Edwards v. Williams, Tex.Civ.App., 93 S.W.2d 452; Ward v. Scarbrough, Tex.Com.App., 236 S.W. 434. And this rule has been held to be applicable to public utility corporations in illegal exactions against their consumers. Manhattan Milling Co. v. Manhattan Gas & Electric Co., 115 Kan. 712, 225 P. 86, 34 A.L.R. 176, and annotation at page 185; 17 Am.Jur. § 8, p. 880.

Appellant next contends in propositions 18 to 22 that all items sought to be recovered by Doering, paid by him more than two and four years prior to filing of his suit, were shown, as a matter of law, to have been barred by limitation. Here again appellant undertakes to attack the several findings of the jury on special issues submitted without challenging by assignment any specific issue. Appellee based its cause of action not only upon the duty imposed upon appellant both by common law and statute not to discriminate as between consumers similarly situated; but also upon appellant’s written contract with it providing that the rates therein specified should be subject to change, but if so such new rate would be “in accordance with such rates as the company may in the future establish for others for service of a character similar to that which it herein agrees to furnish, etc;” Thus appellee had a written contract providing, in effect, against discrimination; and any breach thereof would, of course, be referable to the four-year statute of limitation. See Art. 5527, R.C.S.1925. The contract was cumulative of the statute. Kohfeldt v. City of Denison, Tex.Civ.App., 58 S.W.2d 549. Suit was filed in May, 19381, and the jury found that Doering did not discover, and in the exercise of ordinary prudence could not have discovered, prior to March, 1936, that he had, after the 1932 settlement, continued to be discriminated against. From what has already been said, and without summarizing further the testimony here, we think the evidence was clearly sufficient to sustain such findings. After the 1932 settlement at which time, and repeatedly thereafter, Doering was assured that he had and would have advantage of the best rate available, he had a right to rely on such assurances; and. was not required to make investigation to see whether appellant was by private contract charging other consumers similarly situated on a different “secret unpublished rate” a less amount. El Paso Electric Co. v. Raynolds Holding Co, 128 Tex. 495, 100 S.W.2d 97, 108 A.L.R. 744.

Appellant next contends that the judgment in allowing appellee recovery for transformer losses, and in addition the difference between what he paid' on the L P rate and what he would have paid on the flat 2-cent rate for his current, allowed him to make a profit, at appellant’s expense, of $2,909.30. We fail to see how this could be. Recovery for the transformer loss was but for the moneys paid for current metered to appellee which it did not receive; and recovery of the difference, the actual amount of current billed to appel-lee not being disputed, between what Doer-ing paid for the current he actually received and used, and' what he should have paid under a flat 2-cent rate, was merely a matter of calculation. And as we understand the record, this is what the court awarded in its judgment.

Nor does the judgment in allowing a recovery to Doering on a flat 2-cent rate, instead of on an L P rate, work a discrimination against others, if the method of metering be disregarded. The mere fact that the Kyle Hotel, metered secondary, was billed and paid on the L P rate, would not defeat Doering’s right to a 2-cent rate, if, as found by the jury, other consumers similarly situated were being given a flat 2-cent rate. If two consumers, similarly situated, are being charged a discriminatory rate as compared with other consumers also similarly situated, discrimination against one is no justification for a discrimination against the other.

Appellant also contends that the court erred in allowing as damages 6% interest on each monthly overpayment computed from the date each payment was made over the ten-year period, because the measure of damages was “not fixed at any, particular time”; or that in any event the matter of recovery of interest should have been submitted to the jury. Neither contention is sustained. The cases primarily relied upon by appellant are Main Realty Co. v. Blackstone Valley Gas & Electric Co., 59 R.I. 29, 193 A. 879, 112 A.L.R. 744, and Watkins v. Junker, 90 Tex. 584, 40 S.W. 11, the former case being urged as directly applicable. In that case, however, the utility company refused to furnish the plaintiff power at wholesale rates to be resold by him to his own tenants at retail rates. His suit was for contemplated profits he alleged that he would have made in the resale by him of the current to his tenants had it been furnished; manifestly a question not presented here.

In its petition plaintiff prayed for interest on the overcharge. While there are cases in which it is left to the jury, under proper instructions to determine whether interest is to be recovered as a part of the damages (see 13 Tex.Jur. § 145, p. 257), it is now a settled rule in Texas that where damages are established as of a definite time arid the amount thereof definitely determinable, either by written instruments or by fixed rules of evidence and known standards of value, interest is recoverable as a matter, of right from the date of the injury, and it is not necessary to submit the question to the jury. The court may award such interest in its judgment. Texas & N. O. R. Co. v. Dingfelder & Balish, 134 Tex. 156, 133 S.W.2d 967; Ewing v. Wm. L. Foley, Inc., 115 Tex. 222, 280 S.W. 499, 44 A.L.R. 627; Joy v. Peacock, Tex.Civ.App., 131 S.W.2d 1012; El Paso Electric Co. v. Raynolds Holding Co., supra; 25 Tex.Jur. § 142, p. 253. The amount of the overpayment each month during the period of time involved was definitely ascertainable by mere mathematical calculation from the bills rendered to Doering and paid by him, thus coming clearly under the rules announced in the above-cited cases. The interest recovered was therefore properly allowed.

Appellant next contends that it was error for the court to fail to define the term “material billing factors” as used in the special issues submitted to the jury; and that the issues so submitted were duplicitous and multifarious in that such term or phrase included a number of different factors.

Under Art. 2189, R.C.S., and numerous decisions, it is now settled that the court should define or explain such legal terms as may be necessary to enable the jury to render a proper verdict. Ordinarily definition by the court of the phrase in question would, we think, have been appropriate. We have reached the conclusion, however, that, granting that' it should have been defined, no injury could have resulted to appellant in the instant case from the failure of the court to do so. The statute forbids discrimination between consumers “in the charge for such * * * electric current or power, or in the service rendered under similar and like circumstances.” The chief controversy presented in the instant case was whether the Doering was served under similar and like circumstances. That was the ultimate fact issue to be determined by the jury. The elements or factors applicable in determining this ultimate fact issue constituted the mayor portion of the inquiry involved in the 750 pages of the statement of facts and the four additional volumes of exhibits. In its determination it was recognized and admitted by both par-ties that the similarity, or common “material billing factors” applicable to the various consumers involved, was controlling. When a rate expert witness for appellee was testifying, he was asked “what billing factors” should be taken into consideration in determining the rate schedule applicable to consumers. Thereupon appellant’s counsel objected to this question on the ground it presented a question of law, and the trial court interposed the statement, “I don’t see how the jury can pass upon some issues without knowing what is billing factors.” Counsel then stated: “That will be a matter of instruction in your legal definition,” and the court replied: “I would like to know myself. Overrule the objection.” The witness thereupon outlined in detail the factors or elements to be considered in arriving at a proper rate, such, for example, as regularity and uniformity of usage; the power required to carry the needed current; the number of K W H used during the month; etc. The rate expert witness for appellant substantially confirmed these elements as going to make up the billing factors; and the similarity as between the Doering and other consumers involved, in respect to these particular elements, was the subject of the interrogation, both direct and cross, of the expert witnesses of'both parties. Counsel for both parties, in interrogating the witnesses, repeatedly referred to such matters, whether they be called elements, facts, circumstances, or factors, as constituting “billing factors” to be considered in determining whether the Doering and the other consumers under investigation were similarly situated for billing or rate purposes. Manifestly the jury were fully advised of the elements or facts involved in “billing factors” and any definition, if same were necessary, undertaken by the court would not have given them any additional understanding of the term used.

This same issue was involved and the same phrase used in Texas Power & Light Co. v. Hilltop Baking Co., Tex.Civ.App., 78 S.W.2d 718, writ dismissed, but the opinion of the Court of Civil Appeals does not discuss it. Statement is made, however,, in appellee’s brief that appellee has examined the application for writ of error in that case, and that in such application the same question here involved was presented both to the Court of Civil Appeals and to the Supreme Court, and though not discussed was necessarily overruled.

Nor did the use of this phrase in the issues submitted to the jury render such issues duplicitous. As stated, the ultimate fact issue was whether the Doering was in fact similarly situated to other consumers who were admittedly charged a different rate. This fact issue involved several factual elements necessary to be grouped together, or considered collectively, as composing the billing factors. That is, they were merely constituent elements of the ultimate fact to be found. It is now settled that such a submission does not render the issue duplicitous. Rotge v. Dunlap, Tex.Civ.App., 91 S.W.2d 905; Hunter v. B. E. Porter, Inc., Tex.Civ.App., 81 S.W.2d 774; Levy v. Rogers, Tex.Civ.App., 75 S.W.2d 304; Texas Employers’ Ins. Ass’n v. Rowell, Tex.Civ.App., 104 S.W.2d 613.

Appellant also complains that the argument of one of appellee’s counsel to the jury in discussing the L P rate charged Doering that: “Some of us think it is the long prod, and that is what Frank Doering got,” was prejudicial and should require a reversal. No objection was made to argument at the time and no request made that the jury be instructed not to consider it. Under the circumstances, even if deemed improper, it was manifestly harmless. The exhibits in evidence were placed upon an easel before the jury and a billiard cue used as a pointer to explain them to the jury. The court’s qualification shows that the remark was made facetiously, and could as well have conveyed the idea to the jury that Doering had been prodded into paying the higher rate from the Dallas office of appellant, /as that which the appellant now seeks to attribute to such remark. In any event, it was first raised in a motion for a new trial, and the trial court with knowledge of all the circumstafices under which it was made, and in his discretion, decided that no injury to appellant resulted. We find no abuse of his discretion in the matter.

The same may be said of the argument complained of in which said attorney stated that the power company could very well be called the high power company; that it had high powered engineers and lawyers and high voltage losses they had put to Frank Doering; and that they had plenty of ability across the table from appellee’s counsel. This argument, in the light of all the facts and circumstances, falls far short, we think, of being of such prejudicial nature, if conceded to be improper, as to require a reversal under the rules set forth in numerous decisions and summarized in 41 Tex. Jur., §§ 77 and 78, p. 801.

Finally, appellant complains of the failure of the trial court, as requested in objection No. 129 to the court’s charge, to instruct the jury in writing to disregard certain testimony which the court had excluded and had orally instructed the jury not to consider. A reference to the transcript shows that this objection No. 129 contains subdivisions a to v relating to numerous items of evidence, some of which had been admitted without objection, and some of which the trial court had orally instructed the jury not to consider, the exact testimony complained of not being set out. No special instructions were drawn by appellant and presented to the court to be given. All these requests were presented together under a single paragraph, and some of them appellant was not entitled to have given. On this appeal, only two of them are urged, the others having been abandoned. Under such circumstances, it was not incumbent upon the trial court to search through such list and ascertain which should and which should not have been given; and he properly refused them all. Travelers’ Ins. Co. v. Hunter, 30 Tex.Civ.App. 489, 70 S.W. 798, writ refused; Bewley Mills v. First Nat. Bank, Tex.Civ.App., 110 S.W.2d 201; Vernon’s Ann.Civ.Stats. Art. 2186, Note 31.

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

Affirmed.


source: Caselaw Access Project

author: O’QUINN, Justice.

license: Public Domain

text:
    TRADERS & GENERAL INS. CO. v. DAVIS et al.
    No. 3750.
    Court of Civil Appeals of Texas. Beaumont.
    Feb. 5, 1941.
    Rehearing Denied Feb. 12, 1941.
    Writ of Error Dismissed March 19, 1941.
    See 149 S.W.2d 88.

      A. L. Lowery, of Nacogdoches, Light-foot, Robertson & Gano, of Fort Worth, for appellant.
    Collins, Williams & Garrison and Sumner Williams, Jr., all of Lufkin, for ap-pellees.
   O’QUINN, Justice.

This is an appeal from a judgment- of the district court of Nacogdoches County, Texas, in a compensation insurance suit. Fred Pellom was the employee, Garrison Lumber Company the employer, and appellant, Traders & General Insurance Company, the compensation ’insurance carrier.Fred Pellom, while in the course of his employment as an employee of the Garrispn Lumber Company, on October 31, 1938, received an injury for which he claimed compensation. Appellant admitted its liability and made several payments amounting to $35, and then made an agreement with Pellom for settlement of his claim, and paid him the sum of $125 additional in full settlement of his claim, which settlement was reduced to writing and approved by the Industrial Accident Board of Texas on December 24, 1938, and notice of its approving same went out January 6, 1939.

On May 24, 1939, Fred Pellom died. On November 27, 1939, his mother, Lillie Davis, appellee, filed her claim for ^compensation with the Industrial Accident Board, based upon the death of her son, Fred Pellom. The Board made its final ruling and award on said claim, denying compensation, on January 18, 1940. Claimant duly gave notice that she would not abide said ruling, and duly filed this suit to set same aside and to recover compensation, as under Section 16 of Article 8306, Revised Statutes of Texas, 1925.

Appellant answered by plea in abatement to the effect that the suit was an attempted appeal from an award of the Industrial Accident Board of Texas, and that the appeal was based upon a claim filed by ap-pellee, Lillie Davis for herself and Willie Mae Davis, Dennis Pellom, and Almos Willie Davis, alleged to be beneficiaries of deceased Fred Pellom, which claim was filed before said Board on November 27, 1939, and which claim for all of, said alleged beneficiaries was by the Board denied on January 18, 1940; that thereafter said Lillie Davis gave notice of appeal from said award, and then filed this suit for herself alone, joined by her husband; that the other alleged beneficiaries were not made parties to the suit, neither as plaintiffs nor as defendants; that in appeal from an award of the Board all parties thereto must be made parties to the suit, and this not having been done there was a nonjoinder of necessary parties wherefore the suit should be dismissed.

The court overruled the plea in abatement, against which ruling appellant assigns error. The assignment is overruled. The facts are: the beneficiaries named with Mrs. Davis in the claim before the Board were Willie Mae Davis, a daughter of Lillie Davis, grown and married, Dennis Pellom, son of Lillie Davis, grown and married, and Almos Willie Davis, small minor son of Lillie Davis. On the date that Lillie Davis filed her amended petition in the instant suit, March 4, 1940, Willie Mae Davis, joined by her husband, Sam Davis, and Dennis Pellom, by written instrument filed in the case, waived any claim they had or might have in or to any portion of the compensation that was subject to the claim for compensation because of the death of Fred Pellom, to Lillie Davis, the mother, and assigned all of their rights and claim to her. And on said date, March 4, 1940, Almos Willie Davis, the aforesaid minor, by his father, William Davis as next friend, by leave of the court intervened in the case and claimed compensation by reason of the death of Fred Pellom, alleging that he was a dependent of said Fred Pellom, his half brother. The hearing revealed that said minor, Almos Willie Davis, was not a dependent of deceased Fred Pellom, there being no evi-. dence raising such issue, but to the contrary all the evidence showed that he was not such dependent. The other alleged claimants, Willie Mae Davis and Dennis Pellom, having appeared in the cause and waived any claim to which they might be entitled by reason of the death of Fred Pellom, and having assigned such claim, if any, to appellee,-Lillie Davis, their mother, took them out of the case, and so the plea of abatement was without foundation, and hence properly overruled.

The case was tried to a jury upon special issues upon their answers to which judgment was rendered in favor of appellee, Lillie Davis, setting aside the award of the Industrial Accident Board, and for compensation at the rate of $7 per week for 330 weeks from and after May 24, 1939, for the death of her son, Fred Pellom; and judgment against the intervenor, Al-mos Willie Davis, because the undisputed evidence showed him not to be a dependent of the deceased Fred Pellom, to any extent ; and against Willie Mae Davis, sister of Fred Pellom, and against Dennis Pellom, brother of said Fred Pellom, deceased, the uncontradicted evidence showing them not to be dependents of said Fred Pellom (by their pleadings they had each waived any right they might have had to compensation, and had assigned same to their mother, Lillie Davis, and so were not entitled to recover). Motion for a new trial was overruled,' and we have the case for review.

The first assignment complains that the court erred in refusing appellant’s motion for an instructed verdict. The assignment is overruled. The contention is that no causal connection was shown between the injury received by deceased and his subsequent death. Special issue No. 1, submitted by the court, was: “Do you find' from a preponderance of the evidence that the injury sustained by Fred Pellom to his right leg as a result of having been struck by the falling lumber on October 31, 1938, was a producing cause of his death?” The jury answered “Yes.” We think the evidence abundantly supports this finding.

That deceased Fred Pellom was an employee of the Garrison Lumber Company on October 31, 1938, and that on said date, while in course of his employment, he received an injury, and that he was covered as an employee of said lumber company by compensation insurance carried by appellant, that he received $2 per day and worked 6 days per week, and that he died May 24, 1939, are undisputed facts. Claim for compensation was filed by Lillie Davis, his mother, before the Industrial Accident Board on November 27, 1939. This was only 3 days more than 6 months after the death of deceased. Section 4a of Article 8307, Revised Civil Statutes of Texas, provides that claims for compensation shall be filed with the Industrial Accident Board of Texas within six months after the happening of the event giving rise to the right to make claim, and further provides: “For good cause the board may, in meritorious cases, waive the strict compliance with the foregoing limitations as tg notice, and the filing the claim before the board.”

Appellee plead that she had a meritorious case, and had good cause for not filing her said claim sooner than it was actually filed, to wit: “Thereafter, as hereinabove alleged, the said Fred Pellom died on or about May 24, 1939, from and as a natural result of the said injuries so sustained by him, and his mother, Lillie Davis, plaintiff herein, made and filed a claim for compensation for the death of said Fred Pellom with the Industrial Accident Board of the State of Texas on or before November 27, 1939. Plaintiff has a meritorious case and also had good cause, for not filing said claim sooner than it was actually filed with the Industrial Accident Board, on or before November 27, 1939, in that within a few weeks after the death of the said Fred Pellom she requested her son-in-law, Sam Davis, to go to Nacogdoches and consult an attorney at law and ascertain whether or not she was entitled to any compensation for the death of her said son. Within a few days after she made such request, her son-in-law reported to her that he had consulted an attorney and had been advised by such attorney that no further compensation could be recovered for the death of the said Fred Pellom because of the fact that the deceased had settled and compromise (d) his claim for disability benefits under the compensation law during his lifetime. Plaintiff was wholly ignorant of the provisions of the Workmen’s Compensation Law and of her rights under such circumstances and relied implicitly upon such report and information and believed that it was a correct interpretation of the law; she did not learn that the information was inaccurate and incorrect and that she was nevertheless entitled to compensation for the death of her said son, regardless of any settlement for his own disability that may have been executed by the deceased before his death, until on or about November 25, 1939. Immediately after and on the same date she learned that she was nevertheless entitled to recover compensation for her son’s death, she executed a claim for compensation for such death and on that day mailed it to the Industrial Accident Board where it was received and filed on or before November 27, 1939. The failure of the plaintiff, Lillie Davis, to file her claim for compensation for the death of the said Fred Pellom sooner than it was filed was caused and brought about by her reliance on and her belief in the truth of the information and advice brought to her by her son-in-law that she had no right to compensation for the death of her son, as above shown.”

Appellant’s second and third propositions complain, in effect, that the court erred in permitting appellee, Lillie Davis, and her witness, Sam Davis (son-in-law), to testify to the matters by her plead as good cause for not filing her claim with the Industrial Accident Board within 6 months after the death of her son, Fred Pellom. They each testified fully sustaining her said allegations. The testimony was objected to because hearsay, secondary, out of the presence of defendant, and was proof only of “ignorance of law,” and that “there was no evidence, legal or illegal, to support the verdict and answers of the jury to those issues” (Nos. 2, 3, 4, 5, and 6) and the judgment entered on such verdict was not supported by any evidence.

On the question of good cause, the court submitted the following special issues, answered as indicated:

“Special Issue No. 2.
“Do you find from a preponderance of the evidence that the plaintiff, Lillie Davis, before the expiration of six months after the death of Fred Pellom, requested Sam Davis to inquire of an attorney at law whether she had a right to compensation insurance of the death of Fred Pellom?”
Answer: “Yes.”
“Special Issue No. 3.
“Do you find from a preponderance of the evidence that the said Sam Davis, after having been so requested by the plaintiff, Lillie Davis, reported to the plaintiff, within six months after the death of the said Fred Pellom, that he had been advised by an attorney that she had no right to compensation insurance for the death of the said Fred Pellom since he had settled and released his claim for compensation ? ”
Answer: “Yes.”
“Special Issue No. 4.
“Do you find from a preponderance of the evidence that the plaintiff, Lillie Davis, believed such information, until on or about November 25, 1939, that she did not possess any right to compensation insurance for the death of the said Fred Pellom?”
Answer: “Yes.”
“Special Issue No. 5.
“Do you find from a preponderance of the evidence that her belief in the truth of such information was the cause of Lillie Davis having delayed the filing of her claim for compensation for a period of three days beyond the expiration of six months after the death of the said Fred Pellom?”
Answer: “Yes.”
“Special Issue No. 6.
“Do you find from a preponderance of the evidence that the plaintiff, Lillie Davis, in delaying the filing of her claim for compensation until November 27, 1939, in reliance on this information and belief, acted with the same degree of diligence that would have been exercised by a person of ordinary prudence in the exercise of ordinary care, so situated ?”
Answer: “Yes.”

The evidence supported all these findings of fact.

We think that the record amply shows that appellee had a meritorious cause.- Now, was the evidence subject to the objection that it was hearsay. Under the general rule of hearsay, it probably was. However, we have concluded that this testimony was not inadmissible under the general hearsay rule. The evidence was not offered to prove that appellee was entitled to compensation, but was offered only to prove that she had good cause for not filing her claim for com-pensatión earlier than she did — to' prove good faith in her delay in not filing sooner. As in other cases where claim of good cause in delaying filing where the delay was because attending or examining doctors had told the injured party that the injury was not serious and would soon pass and the injured party would in a short time be able to resume his work, the injured employee is permitted to testify to what he had been told to show good faith and good cause for not filing his claim sooner. The hearsay rule does not exclude such evidence.

Furthermore, we think that appellant is not entitled to urge delay in filing the claim as a defense. Article 8307b, Vernon’s Ann.Civ.St. provides that “In the trial of any case appealed to the court from the board the following, if plead, shall be presumed to be true as plead arid have been done and filed in legal time and manner, unless' denied by verified pleadings: *' * (2) Claim for compensation * * This fact (claim for compensation) was alleged by appellee in her first amended original petition (on which the case was tried). The defendant’s answer containing the special denial of this averment was not verified as required by law. Counsel for appellant verified the special denial in his affidavit stating “that the matters set forth in paragraph 7 above are, to the best of his knowledge, information and belief, true.” The verification was not sufficient and left the plea without legal support, First National Bank v. Jaggers, Tex.Civ.App., 67 S.W.2d 924, and so was an unsworn plea. In the absence of a denial by properly verified pleading, under the circumstances, concludes the issue by a legal presumption that the allegation of such fact (filing claim for compensation as required by law) as made by appellee in her petition was true. Bedner v. Federal Underwriters Exchange, Tex.Civ. App., 133 S.W.2d 214, writ dismissed, correct judgment.

Appellant’s third proposition, in which it attacks appellee’s alleged good cause for not filing sooner her claim for compensation, and says: “the only good cause attempted to be alleged, or shown, was ignorance of the law, and this was shown by illegal and hearsay evidence, and even this hearsay and illegal evidence shows a total lack of diligence to ascertain the facts, and there was no good cause alleged or proven, and the court erred in refusing to instruct the jury to return a verdict for the defendant, and erred in submitting to the jury special issues Nos. 2, 3, 4, 5, and 6 on this illegal and hearsay evidence, and there was no evidence, legal or illegal, to support the verdict and answers of the jury to those issues, and the judgment entered on such verdict is not supported by any evidence, and the court erred in entering such judgment and in refusing to set said verdict and judgment aside and grant defendant a new trial on its motion therefor.”

This proposition does not refer to any assignment or assignments of error to which it relates or upon which it is based. It is just a combination of matters, and hence multifarious because it embraces various supposed errors — ignorance of the law, illegal evidence, lack of diligence, no good cause alleged-or proven, refusal to instruct a verdict, errors in submitting five different special issues, no evidence to support verdict of the jury, judgment without support in the evidence, error in refusing to set aside the verdict and judgment, and error in refusing a new trial. The second proposition, relating to hearsay testimony, is linked with this third proposition, the whole briefed together, on the theory, so stated in the brief, that they relate to the one subject, “good cause.” We think there is a complete igr nor'ing of the rule that an assignment must relate to a definite error, must not be argumentative, and must specifically point out the matter complained. 3 Tex.Jur. Sec. 597, page 855. The assignment should not be considered, but we shall briefly discuss same.

We think that appellant’s contention that “ignorance of the law” was the ground for “good cause” relied upon by ap-pellee, is not well taken. It was rather ignorance of what application of the law to the fact’s the court would make. She was seeking knowledge of what the court would probably do in applying the law to the facts. That question (what application of the law to the facts the court would make) seems to be the stumbling block in the path of lawyer and layman many times. We think that appellee was perturbed over the fact of the settlement of his claim for damages made by her son — would that bar a recovery by her for his death. That was the feature of the case passed upon by the lawyer at Nacogdoches to whom she sent her son-in-law for advice, and he sent her word that she could not recover because her son had settled his claim with .the insurance company. Her belief in the truth of this information caused her to delay filing her claim until she was advised differently by another lawyer, when she immediately filed her claim with the Industrial Accident Board. Even then she filed her claim only 3 days late of the 6 months. There being no doubt of her right to recover under the evidence, it must be said that her claim was meritorious. The Board did not refuse the claim because filed too late, but, as stated in its award, because it was thought that no causal connection was shown between the injury and the death of the deceased. So far as the time of filing was concerned, the Board waived strict compliance with the rule. Appellant insists that the delay was because of a mistake of law — ignorance of the law — and therefore could not support a plea (good cause) for equitable relief. But we think the mistake was more analogous to a mistake of fact than one of law. While the general rule is well settled that a court will not relieve against a mistake of law, it is also generally held that such rule is confined to mistake of the general rules of law, and has no application to the mistake of persons as to their own private legal rights and interests. The right of appellee, Mrs. Davis, to recover compensation for the death of her son, was, of course, her private right, and was a matter of fact, and was, too, the result of the law granting such right. That she had the right to recover, she believed, but as to whether, under the peculiar facts, she could successfully assert that right was a different question — one of at least mixed law and fact, and it was here that she halted and sought information. Columbian Nat. Fire Ins. Co. v. Dixie Co-Op. Mail Order House, Tex.Com.App., 276 S.W. 219; Cooper County Bank v. Bank of Bunceton, 221 Mo.App. 814, 288 S.W. 95, 99; McIntyre v. Casey, Mo.Sup., 182 S.W. 966. To permit appellant to defeat its liability under the facts of this case would be to confer upon it a benefit which in good conscience it cannot retain.

The fourth proposition urges that the court’s definition of “producing cause” was error. The definition given was: “By the term ‘Producing Cause’ as used in this charge is meant a cause which, in a natural and continuous sequence, by itself, or in connection with another cause or causes, produces a death, and but for which the death would not have occurred.” The proposition is overruled. Texas Employers Ins. Ass’n v. Watkins, Tex.Civ.App., 135 S.W.2d 296; Texas Indemnity Ins. Co. v. Staggs, 134 Tex. 318, 134 S.W.2d 1026.

Appellant’s fifth, sixth, seventh, eighth, ninth, tenth, and eleventh propositions, in effect, complain that the court erred in rendering judgment in favor of Lillie Davis, mother of deceased Fred Pellom, for the whole of the compensation granted, because it insists the pleading and evidence showed that there were other beneficiaries, to wit, Willie Mae Davis, a sister of deceased, and Dennis Pellom, a brother of deceased, and Almos Willie Davis, a minor half brother of deceased, who were legal beneficiaries and as such entitled to a portion of the compensation claim on account of the death of Fred Pellom. The propositions are without merit. Willie Mae Davis, joined by her husband, William Davis, and Dennis Pellom, brother grown and married, duly entered their appearance in the trial, and in writing each waived any claim they respectively had in the claimed compensation, and assigned their right, if any they had, to their mother, Lillie Davis, to said compensation. Almos Willie Davis, the minor half bro'ther of Fred Pellom, deceased, intervened by his father and next friend, William Davis, and made claim as a beneficiary and dependent of deceased Fred Pellom, to a portion of the compensation claimed because of the death of said Fred Pellom. The undisputed evidence showed that neither Willie Mae Davis, nor Dennis Pellom, nor the minor, Almos Willie Davis, was ever at any time a dependent of Fred Pellom, deceased, or that he contributed to their maintenance, and this being true, the-said Willie Mae Davis and Dennis Pel-lom, having duly waived their claim, and duly assigned same to their mother, Lillie Davis (as they legally could do, Texas Employers Ins. Ass’n v. Sloan, Tex.Civ.App., 36 S.W.2d 319; Traders & General Ins. Co. v. Boysen, Tex.Civ.App., 123 S.W.2d 1016), there was no question of fact relative to their said claims to be submitted to the jury. Undisputed facts do not have to be submitted to a jury for its findings. Fidelity & Casualty Co. v. Branton, Tex.Civ.App., 70 S.W.2d 780.

In her motion for judgment, appel-lee, Lillie Davis, joined by her husband, William Davis, moved the court that she be permitted to reopen the case for further evidence, alleging that by inadvertence, in the main trial, she had failed to show that her former husband, Tom Pellom, the father of deceased Fred Pellom, was at the time of the death of Fred Pellom, dead, though same was duly alleged by her. The motion was granted and proof duly made that Tom Pel-lom, father of Fred Pellom, was dead — that he died on April 13, 1918. This was not denied. Appellant objected to the reopening of the case for further evidence on .the ground that the case was tried to a jury, that both parties had rested, the court had charged the jury, and the jury had returned its verdict and had been discharged, that the evidence could not be introduced after the trial before the jury had ended, and before the judge only. Appellant assigns error against the reopening of the case and the admission of the evidence. The assignment is overruled. In 41 Tex.Jur. Section 136, pp. 897, 898, it is said: “And on an issue tried by the court after a jury has disposed by verdict of all issues specifically submitted, the court may receive evidence to supply an omission.” No error is shown, but if so, it is immaterial. Tom Pellom, father of Fred Pellom, deceased, was shown to have died on April 13, 1918, more than twenty years be fore his son died. There was no effort to show that he had not died. The evidence of death was by noninterested witnesses as well as by a death certificate in all respects regular. The courts are not required to do a foolish thing. If it were to be held reversible error to have reopened the case for the reception of this evidence, the court on •another trial would not have to submit the issue of Tom Pellom’s death, for the evidence being undisputed a jury finding would not be required, so a reversal of the judgment because of the question here involved would be foolish resulting only in delay and additional costs — no injury was done appellant. The assignment is overruled.

We overrule appellant's assignments’that the court erred in overruling its general demurrer, and plea in abatement.

No reversible error appearing, the judgment is affirmed.


author: YOUNG, Justice.

text:
    SHULTZ et al. v. DALLAS POWER & LIGHT CO.
    No. 12934.
    Court of Civil Appeals of Texas. Dallas.
    Dec. 14, 1940.
    Rehearing Denied Feb. 8, 1941.

      James D. O’Connor, Robert A. Wilson, and Robert M. Vaughan, all of Dallas, for appellants.
    W. Autry Norton, Irion Worsham, and Worsham, Burrow & Worsham, all of Dallas, for appellee.
   YOUNG, Justice.

In brief, this record is the tragic story of two accidental deaths by electrocution. The second casualty only is dealt with in this action, suit being by the surviving widow and parents of Marvin Shultz, deceased, who, on June 29, 1938, had been employed by the Dallas Park Board, along with other laborers, on the Dallas State Fair.'grounds. Adjacent to the Chrysler building on these grounds was a concrete vault, some thirty feet long, thirteen feet in width and height, and uncovered. Therein was housed a transformer, electrical equipment, .cables and wires of appellee Power Company, carrying electricity of high voltage. A door at the end, always locked, led into the vault, and at various places, within and without, were signs indicating danger and nature of the contents. Around the wall outside was shrubbery, placed there and maintained by the Park Board; also, wooden boxes filled with earth were affixed some four feet up the wall and atop thereof, for shrubs and flowers. The two men, Albino Lazano and Marvin Shultz, whilst engaged in their duties for the Park Board, were at this particular place, cleaning out these plants and flower beds. Lazano went to the top of the vault wall for such purpose and, in some way, his hoe fell inside. Shultz, being apprised of his fellow-workman’s predicament, secured a long wire for use by Lazano in “fishing” for the hoe from his position on the wall. In some way, the wire connected with a 2,300 volt current from a cable leading into the transformer, Lazano being thereby fatally shocked. Shultz immediately attempted to free La-zano .from the charged wire, came in contact therewith, and was also killed.

Appellants’ trial petition alleged various acts and omissions of the Power Company, resulting in the death of Marvin Shultz; on the trial, relying principally upon their requested issue No. 7, reading: “Gentlemen of the Jury, do you find and believe from a preponderance of the evidence that the defendant was negligent in having its transformers connected with cables, charged with high voltage of electricity, located in an uncovered vault at the time and place where Marvin Shultz was electrocuted?” Issue No. 1 of the charge, concerning defendant’s negligence, is quoted: “Do you find and believe from a preponderance of the evidence that the failure of the defendant to cover the transformer vault in question in this case, was negligence as the term ‘negligence’ is herein defined?” The substance of other issues and jury answers thereto, upon which the court’s judgment was based, is: That the failure of defendant to place upon the north wall of said transformer vault visible signs indicating the presence of danger to one working around ' or on top of said vault, was not negligence; deceased, Marvin Shultz, caused a large wire to be carried up over the wall of the transformer vault and pushed into the enclosure, which was negligence proximately contributing to his death; Shultz, in attempting to rescue Albino Lazano from a position of peril, acted in a rash and reckless manner; the death of Shultz was not due to an unavoidable accident; neither the act of Lazano in bringing the wire into contact with the transformer cable, nor in lowering it into the vault, was the sole proximate cause of Shultz’s death.

The propositions of appellants under their various assignments of error urge, in effect, (1) that Issue No. 1 of the charge failed to include a material fact relative to the uncovered vault, with resultant error in the court’s refusal of plaintiff’s requested Issue No. 7 on the subject; also, that subsidiary Issue No. 10, on proximate cause, should have been given in connection with plaintiff's Issue 7, above quoted; (2) Issues 5, 6 and 7 of the charge were erroneously submitted, there being no evidence that Marvin Shultz “caused a large wire to be carried up over the wall of the transformer vault and pushed into the enclosure”; the words- just quoted at least constituting a comment upon the weight of the evidence; (3) fundamental error appeared from submission of Issue No 1, because defendant’s primary negligence was established as a matter of law.

Appellants first contend for reversible error in the court’s rejection of their requested Issue No. 7; the issue as given (No. 1) not including the element of the transformer being “connected with cables, charged with high voltage of electricity * * The contents of this cement vault were alike described in the pleadings of all parties to the suit, and that a high voltage of electricity was ever present in the equipment was potently demonstrated by the fatal consequences that followed a contact therewith. The existence of such high voltage current being self-evident, the only question for the jury’s determination was of negligence, or not, in the maintenance of such instrumentalities in an uncovered vault. This ultimate fact was presented in the given issue where the inquiry concerned • the vault in its then condition, and no prejudicial effect could have followed the court’s use of different words to express the same meaning. 41 T. J. (Trial-Civil Cases) sec. 266, p. 1087; Luling Oil & Gas Co. v. Edwards, Tex.Civ.App., 32 S.W.2d 921; Borden v. Pelipchyk, Tex.Civ.App., 243 S.W. 1109. It further appears that no objection was made in the trial court to Issue No. 1, as given. Even assuming that it imperfectly embodied the fact situation, the applicable rule is that, “Whenever the court submits an issue incorrectly, and same is not objected to, then there is no error in the refusal of the court to give in addition thereto a requested special issue on the same subject, although correct.” St. Louis Southwestern Ry. Co. of Texas v. Hill Bros., Tex.Civ.App., 80 S.W.2d 432, 434; Miller v. Fenner, Beane & Ungerleider, Tex.Civ.App., 89 S.W.2d 506; Pois v. Langford, Tex.Civ.App., 75 S.W.2d 971; Isbell v. Lennox, 116 Tex. 522, 295 S.W. 920.

Likewise, , appellants’ proposition suggesting fundamental error, i. e., negligence of defendant as a matter of law, cannot be considered under both pleadings and evidence. No breach of statutory duty was shown; the consistent position of appellants throughout this litigation having been that the uncovered condition of the vault presented a jury question.

Submission of various issues on contributory negligence is complained of, as assuming facts not in evidence; but, even if such be error and the Power Company concededly negligent, which is all that appellants could contend, yet the finding that deceased acted in a rash and reckless manner on the occasion in question is alone sufficient to support the court’s judgment. This jury answer is nowise challenged in the record. It is well settled that a plaintiff undertaking to rescue one from a perilous situation created by another can recover despite his own contributory negligence ; but not so, if his actions be rash or reckless. International & G. N. R. Co. v. McVey, Tex.Civ.App., 81 S.W. 991; Gulf, C. & S. F. Ry. Co. v. Brooks, 63 Tex.Civ.App. 231, 132 S.W. 95; Texas & N. O. R. v. Scarborough, Tex.Civ.App., 104 S.W. 408; Wichita Falls Traction Co. v. Hibbs, Tex.Civ.App., 211 S.W. 287; Panhandle & S. F. Ry. Co. v. Haywood, Tex.Civ.App., 227 S.W. 347.

No reversible error is disclosed by appellants’ assignments and propositions, wherefore this cause must be affirmed.

Affirmed.


author: WALTHALL, Justice.

text:
    CLARK v. PECOS COUNTY STATE BANK.
    No. 4021.
    Court of Civil Appeals of Texas. El Paso.
    Jan. 30, 1941.

      Roy A. Downey, of Royalty, for plaintiff in error.
    Blaydes, Kelly & Winkler, of Fort Stockton, for defendant in error.
   WALTHALL, Justice.

Defendant in error has filed' in this court a motion to strike plaintiff in error’s brief, and assigns as a reason therefor specific objections to plaintiff in error’s statement of the nature and result of the suit as appears in his brief.

There is no statement of facts brought up in the record, and while some of plaintiff in error’s statements are made as facts as appearing on the trial may not be considered, in the absence of a statement of facts, the court having instructed a verdict, and by eliminating from the proposition facts stated thereon that may not be considered, the question remaining in the proposition is purely one of law. We overrule defendant in error’s motion to strike the brief of plaintiff in error and shall consider same.

The material facts we will consider are the execution of the note sued on, its nonpayment by the makers, the admission in evidence, over objection, of the several notes in extension of the original note, and the question of error in instructing the verdict on the facts considered.

The undisputed facts show that on July 8, 1933, J. A. Frederick and plaintiff in error, B. D. Clark, executed and delivered to the defendant in error Bank the promissory note, the subject matter, of this suit, which we copy in full:

“$475.00 Fort Stockton, Texas
“July 8, 1933.
“On Demand after date, for value received, I, we, or either of us promise to pay to the order of The Pecos County State Bank of Fort Stockton, Texas, the sum of Four Hundred Seventy Five Dollars in lawful money of the United States, with exchange, at the office of The Pecos County Bank, of Fort Stockton, Texas, with interest at the rate of ten per cent per annum from Date until paid. And in the event default is made in the payment of this note at maturity or any installment of interest thereon, when due, then this note and instrument shall become due and payable at the option of the legal holder thereof. And it is further agreed that if this note is placed in the hands of an attorney for collection, or suit is brought on same, or if collected through the Probate or Bankruptcy Court, then an additional amount of ten (10) per cent on the principal and interest of this note shall be added to the same as collection fees. The makers and endorsees of this note waive demand of payment; and agree that the date of maturity may be extended from time to time at the option of the legal holders hereof, upon thd request of anyone of the makers hereof, and said action shall be as binding on each and every signer and endorser hereof as if said extension had been made at his, her or their own request.
“(Signed) J. A. Frederick
“B. D. Clarke.
“The payment of this note is secured by No. Í6294
When due. .D.”

The note, as executed, was for the sum of $475,: payable on demand. The note provides: “The makers and endorsers of this note waive demand of payment, and agree that the date of maturity may be extended from time to time at the option of the legal holders hereof, upon the request of anyone of the makers hereof, and said action shall be as binding on each and every signer and endorser hereof as if said extension had been made at his, her or their own request.”

Defendant in error filed this suit on April 26, 1939, to the May term of the Court and alleged its ownership of the note, and pleaded that the indebtedness as evidenced by the note had been extended and renewed from time to time. Defendant in error’s petition does not state how the several renewals and extensions were made, but does allege that the last renewal was by note, and, with the other renewal notes, sets out the note in full. The renewal note referred to is dated September 15, 1936, is made payable to defendant in error on November 15, 1936, in the sum of $375, defendant in error having alleged that a payment of one hundred dollars and all interest to date of renewal had been made on demand, and the renewal note was for the unpaid balance of the original note.

By plaintiff in error’s bill of exceptions it is made to appear that on the trial defendant in error offered in evidence a series of promissory notes, each of the notes signed only by J. A. Frederick, the notes made payable to the order of defendant in error, the Pecos County State Bank. To the introduction of the extension notes in evidence plaintiff in error objected on the ground that defendant in error had not sufficiently pleaded the renewal notes tendered in evidence. The court overruled the objection and the notes were admitted in evidence, to which plaintiff in error excepted. The court noted a qualification to the bill of exceptions to the effect that plaintiff in error had made no exception to defendant in error’s pleading “with regard to such renewal notes,” and that the renewal notes were permitted in evidence “to connect the indebtedness evidenced by the note sued on with the original indebtedness, which plaintiff pleaded.”

The notes admitted in evidence are set out in the bill of exceptions. They appear in the bill of exceptions to be copies of the note sued on, except that in the body of some of the notes admitted in evidence the sum promised to be paid is not stated, but at the head or beginning of each note the amount for which the note is given is stated to be $475, and except as above stated, one of the notes admitted in evidence, both at the beginning and in the body of the note, the amount of the note is stated to be $375. The notes admitted in evidence are lengthy, and we omit copying them here.

The notes admitted over objection of plaintiff in error were not the note sued on, were not a part of defendant in error’s cause of action, but they were admitted as evidence of the extension of the note sued on. Whether they had the legal effect to extend the time of payment of the note signed by plaintiff in error Clark is a question of law and not of fact. Certainly defendant in error was not required to plead the extension notes, they were offered as evidence to show the extension of the note sued on. The note, the basis of the suit, was signed by plaintiff in error. He may have signed as surety — the note itself does not state in what capacity, and in the absence of a statement of facts we may not presume that he signed in any capacity other than as a maker of the note, certainly not as an' “accommodation maker,” as stated in his proposition.

We have stated the note in full. The note does not state how the extension of the date of its payment may be made, or that the extension must be made with the knowledge or consent of Clark, nor that the extension be signed by Clark or other makers of the note, as suggested in the proposition.

It is said in 6 Texas Jurisprudence, at page 810, par.’173: “It is a well established rule that the giving of a new note for a debt evidenced by a former note does not extinguish the old note unless such was the intention of the parties.” And in the note thereunder refers to Bell v. Boyd & Boyd, 76 Tex. 133, 13 S.W. 232, on former appeal, 69 Tex. 735, 7 S.W. 657, and other cases to which we refer without stating them here.

As said in 6 Texas Jurisprudence, supra, if it was the intention of the parties to take up and pay off and extinguish the original instrument, the new note will be, given that effect. Such intention is a question of fact for the jury whether the new note was given and accepted in payment of the original.

Every reasonable presumption must be indulged in favor of the judgment, and in the absence of a statement of facts it must be presumed on appeal that there was sufficient evidence to sustain the judgment.

The notes objected to, standing alone, might be subject to the objection made. Other evidence might ‘make them admissible. Likewise, in the absence of a statement of facts, it must here be presumed the court had sufficient proof before it to render them admissible. The plaintiff in error complained there was no pleading sufficient to render the notes admissible. The defendant in error (plaintiff below) alleged in its petition that the note had been renewed and extended from time to time. There was no special exception directed at this allegation, and as the record stands here the assignment must be overruled.

The above is all we think necessary to say. In the absence of a statement of facts, we cannot say the court was in error.

The case is affirmed.