author: JACKSON, Chief Justice.

text:
    BOYD v. CHICAGO, R. I. & P. RY. CO.
    No. 5284.
    Court of Civil Appeals of Texas. Amarillo.
    March 31, 1941.
    O. O. Franklin, of Coleman, for appellant.
    Stone & Stone, of Amarillo, for appellee.
   JACKSON, Chief Justice.

This suit was instituted by the appellant, Ed Boyd, in the Forty-seventh District Court of Potter County against appellee, the Chicago, Rock Island & Pacific Railway Company, hereinafter designated as the Rock Island, to recover the sum of $4,-720 for the death of Boyd’s son, Richard Murphy Boyd, hereinafter called Pete Boyd, alleged to have been occasioned by the negligence of the employees of the Rock Island.

The appellant alleges that on September 24, 1939, Pete Boyd, his son, was on the track of the railway company, when a Rock Island train coming into Amarillo from the west struck and killed Pete; that the employees in charge of the train failed to keep a proper lookout, failed to blow the whistle or ring the bell, operated the train at an excessive and dangerous rate of speed, each of which acts constituted negligence and a proximate cause of the death of Pete Boyd.

In the alternative appellant pleaded that the employees of the Rock Island discovered his son upon the track and could have, by the exercise of ordinary care with the means at hand, avoided striking and killing his son and such negligence was a proximate cause of his death.

The allegations as to relationship, age, earning capacity and contribution to the support of the father by the son are sufficient.

The appellee answered by general demurrer, special exceptions, general denial and pleaded the contributory negligence of Pete Boyd in sitting on the railroad track.

The case was tried to a jury and at the close of the evidence, in obedience to a peremptory instruction, the jury returned a verdict in favor of appellee and from the judgment rendered thereon this appeal is prosecuted.

The record discloses that the Rock Island tracks enter Amarillo from an easterly direction, continue through the city and on in a westerly direction; that a dump or fill twenty or more feet in height has been constructed on which the Rock Island tracks are laid within the city limits; that there is a gap or opening in this fill spanned by a steel bridge and this gap under the bridge forms an underpass through which the Fort Worth & Denver City Railway Company operates its trains; that the bridge and fill constitute an overpass along which the Rock Island operates its'trains. It is about 2,000 feet west of this bridge to what is known as a grade crossing, though there are two highway underpasses west thereof. Pete Boyd was sitting facing north on the north rail of the Rock Island tracks some 40 or SO feet west of the west end of this steel bridge humped over and appeared to be holding his head in his hands. According to the witnesses who testified on the subject, he was first seen on the track about 7 A. M. on the morning of the 24th prior to being struck by the train about 8:40 A. M. The train was running in an easterly direction at a speed estimated by the trainmen to be approximately 30 miles per hour and by Willie Parker, a witness for appellant, at 45 or 50 miles per hour. The conductor said the whistle blew and the bell rang before the train struck the deceased and estimated that the brakes were applied while the part of the train on which he was riding, the coach behind the baggage car, was approximately 500 feet west of the bridge. The switchman testified that in his opinion the engine was within 250 feet of the deceased when he first discovered him and the engineer stated that in his judgment the engine was about 200 feet from where Pete Boyd was sitting when he first saw him. The fireman and engineer each testified to keeping a careful lookout but that the deceased was dressed in dark clothes, sitting in a position on the track between him and the banisters of the steel bridge which to some extent interfered with their view; that when they saw him the whistle was blown immediately and the emergency brakes applied but with the equipment on the train it would require from 650 to 700 feet to bring the train to a stop. Two disinterested witnesses, Mrs. Myrtle Watson and Mrs. Dodson, testified that the whistle of the 'engine was blown some distance before the train struck Pete Boyd but stated they were unable to estimate the distance. The testimony shows that a negro man went on the track where Pete Boyd was sitting and talked to him some time before the train came but what he said or the purport thereof the witness was not near enough to ascertain. Willie Parker testified that he saw Pete Boyd early that morning going up the dump, calléd him back and asked him if he were drunk and offered to take him home, but that the deceased told him he was not drunk, was going home and went on up the fill to the track. The witness was on his way to what he called the North Heights and was gone some twenty or thirty minutes, he says, and as he returned, while crossing the Fort Worth & Denver City tracks northwest of where the collision occurred, he looked and saw Pete Boyd jump up and try to run across the track as the train struck him; that he did not hear the bell ring nor hear the whistle of the engine blow until just as it hit the deceased. He said he was some three blocks from the collision but the map of the city introduced by appellant shows that if Parker were where he says when he saw the collision he was nearly 1,500 feet away and it would have required one and one-third' seconds, at least, under the weather conditions, for the sound of the whistle to reach him and since the train was traveling, according to this witness, at a speed of 45 or 50 miles per hour the train would, in the time required for the Sound to reach the witness, have gone approximately 88 feet. If traveling at a speed of 30 miles per hour, as said by the trainmen, it would have gone approximately 58 feet before hitting the deceased. The testimony, therefore, is uncon-troverted that the whistle was blown by the trainmen before the deceased was struck. The only controversy is the distance the train was from the deceased when the whistle was first blown.

Pete Boyd, who was thirty-five years of age,‘was at midnight preceding his death ordered to leave a beer joint. He said he was not drunk but left and the next time he was seen he was going upon the fill to the railway track where he sat until he was struck and killed about 8:40 A. M.

The testimony shows without dispute that the deceased was dressed in dark clothes, was sitting on the north rail of the Rock Island track; that he was bowed over apparently with his head in his hands; that he had been there something like an hour and a half before he was killed. If there is any explanation for his sitting on the track it must be gleaned from the testimony above related.

There is some controversy about whether there was a trail or a path over the fill at the west end of the bridge and whether or not there was a trail that extended along the rails westerly but, in our opinion, it is immaterial whether the deceased was a trespasser or a licensee. The evidence shows no reason or excuse, much less justification, for the deceased to sit on the rail of the track. He was there voluntarily and whether drunk, asleep or unconscious from some other cause, or intentionally remained in that position, he was guilty of contributory negligence as a matter of law.

In Cobb et al. v. Texas & N. O. R. Co., Tex.Civ.App., 107 S.W.2d 670, 673, it is said:

“This court finds that the only reasonable conclusion to be deduced from the evidence is that deceased had voluntarily gone upon the track, sat down, and fallen asleep.
“Any acts of negligence that may have been committed by appellee’s train operatives, prior to the discovery of deceased on the track and -the realization of the fact that he was in a dangerous and perilous condition, from which he would not or could not escape by his own act, are rendered nugatory, for the reason that, as a matter of law, deceased was guilty of contributory negligence, barring recovery because of such antecedent acts of negligence. Appellants therefore are relegated entirely to their pleading of ‘discovered peril.’ San Antonio Traction Co. v. Kelleher, 48 Tex.Civ.App. 421, 107 S.W. 64; Dallas Ry. & Term. Co. v. Bankston (Tex.Com.App.) 51 S.W.(2d) 304, 308; Northern Texas Traction Co. v. Weed- (Tex.Com.App.) 300 S. W. 41; Northern Texas Traction Co. v. Singer (Tex.Civ.App.) 34 S.W.(2d) 920, 923.”

In Texas & N. O. R. Co. v. Daft, Tex.Civ.App., 120 S.W.2d 481, the court holds that a license to cross the tracks of a railroad does not include the privilege of sleeping upon the track and if used for that purpose the party is guilty of contributory negligence. This is equally true of one voluntarily sitting on the track. Roper v. Texas Central R. Co., 55 Tex.Civ.App. 620, 119 S.W. 696; Baker v. Loftin et al., Tex.Com.App., 222 S.W. 195.

The appellant contends that the court erred in directing a verdict in favor of ap-pellee because the pleadings and testimony presented the issue of discovered peril which should have been submitted to the jury for determination.

In Baker v. Shafter, Tex.Com.App., 231 S.W. 349, 350, the Commission of Appeals says: “The doctrine of discovered peril involves three elements, viz: (1) The exposed condition brought about by the negligence of the plaintiff; (2) the actual discovery by defendant’s agents of his perilous situation in time to have averted— by the use of all the means at their command, commensurate with their own safety — injury to him; and (3) the failure thereafter to use such means.”

In Galveston, H. & S. A. Ry. Co. v. Price, Tex.Com.App., 240 S.W. 524, 528, the Commission of the Supreme Court holds: “It is well settled in this state that the doctrine of discovered peril does not arise unless the perilous position of the party injured becomes actually known to the defendant’s agents in time to avoid injury by the exercise of ordinary care in the use of all means at hand. [Ft. Worth & D. C.] Railway v. Shelter, 94 Tex. 196, 59 S.W. 533; Baker v. Shafter, above. Mere duty to discover under the circumstances will not raise the issue. * * * The burden of proof is on the plaintiff in such cases to establish the facts warranting recovery upon this issue, including the fact of actual discovery of the peril. * * * In order to warrant a finding that the engineer, the only member of the crew who could have seen Mr. Price, discovered him in a perilous position just, before he was struck, we will .also have to assume that he deliberately permitted the train to run on some distance without any effort whatever to stop it — an act of inhumanity which we think should never be imputed to one in the absence of some proof that he was guilty of it. Certainly such an act could not be assumed merely from the fact that the engineer was in a position where he could have seen Mr. Price if he had been making the proper lookout ahead.”

See, also, Houston & T. C. Ry. Co. v. O’Donnell, 99. Tex. 636, 92 S.W. 409; San Antonio & A. P. Ry. Co. v. McMillan, 100 Tex. 562, 102 S.W. 103; Aranda et al. v. Texas & N. O. R. Co., Tex.Civ.App., 140 S.W.2d 236.

We do not believe that we could express more clearly the law which charges the deceased with contributory negligence or the law that acquits the appellee of liability under the rule of discovered peril than what is said in the opinions quoted and cited. We therefore refrain from any attempt to elaborate.

We are cognizant of the rule that a jury may discard the testimony of interested witnesses but in this case the testimony of the train operatives is corroborated by other witnesses as well as the physical facts and circumstances. While a jury is permitted to disregard the evidence of interested witnesses it is not allowed after discarding such testimony to find a verdict contrary thereto without testimony from some source to warrant their finding.

The appellant in his original brief presented only the proposition of discovered peril. Lon'g after the time had elapsed for filing a brief he filed a motion requesting that he be allowed to file an amended brief which contains additional propositions, statements and authorities. In fact, he offers a complete brief. The only reason urged for failing to comply with the law and file his brief on time is that he was so occupied with his business that he was unable to properly brief the case within the period prescribed by statute. He did not comply with Rule 37 providing for the amendment of a brief. He presented no legal reason for filing his amended brief and his motion is overruled. Murphy et al. v. Moseley, Tex.Civ.App., 11 S.W.2d 234; Greene Gold-Silver Co. et al. v. Silbert, Tex.Civ.App., 158 S.W. 803; Glover v. Houston Belt & Terminal Ry. Co., Tex.Civ.App., 163 S.W. 1063.

The judgment of the trial court is affirmed.


source: Caselaw Access Project

author: CODY, Justice.

license: Public Domain

text:
    ARNOLD MOTOR CO. et al. v. C. I. T. CORPORATION.
    No. 11230.
    Court of Civil Appeals of Texas. Galveston.
    March 6, 1941.
    Rehearing Denied April 17, 1941.

      Adams & Morgan and Kennedy & Gran-berry, all of Crockett, for appellants.
    Fowler & Conn and Vinson, Elkins, Weems & Francis, all of Houston (Ralph L. Fowler and W. S. Elkins, both of Houston, of counsel), for appellee.
    Lester Settegast, of Houston, for receiver, Neal Polk.
   CODY, Justice.

On January 31, 1941, appellee, plaintiff below, filed this suit against appellants, defendants below. On the same day, without notice, the court upon the sworn allegations of the petition appointed Neal Polk as receiver to take possession of some certain eighty-five automobiles from defendants and to hold the same subject to the further orders of the court. On February S, 1941, the receiver reported to the .court the automobiles which he had taken into his possession under order of the court, and their condition and where he had stored them, and represented to the court that they were rapidly depreciating in value, and prayed for authority to sell the same which the court granted. On February 13, 1941, appellants gave notice of appeal under R.S. Article 2250; atid thereafter obtained a temporary restraining order from this court prohibiting the sale by the receiver of said automobiles until the appeal attacking the validity of appointment of the receiver could be determined.

Appellants, who will hereafter be referred to as defendants, are dealers in automobiles in Houston County, and' for years have used appellee’s, i. e., plaintiff’s, facilities in financing the sales of automobiles on credit by transferring to plaintiff the note and mortgage taken from a customer on the sale of an automobile to secure the unpaid portion of the purchase price. Since the court’s order was made upon the sworn allegations of the petition it is necessary to set forth the substance of such allegations.

In paragraphs 1, 2, 3 and 4 of plaintiff’s petition, various contracts under which plaintiff and defendants conducted their dealings with each other are pled. Paragraph 5 of the petition is not material on this appeal. In paragraph 6 it is alleged that in .accordance with the written contracts pled in paragraphs 1, 2, 3 and 4 plaintiff purchased from defendants the notes and mortgages of various persons securing the payment of the unpaid purchase price on various automobiles, and said mortgages and- notes are then listed and described in approximately fifty transactions.

In paragraph 7, plaintiff alleges that all of the automobiles described in paragraph 6 just referred to have been taken into their possession by defendants, and that defendants will not pay plaintiff the balance of the purchase price due on each automobile evidenced and secured by the said notes and mortgages, and likewise refuse to surrender said automobiles, but forcibly retain possession thereof. Plaintiff then alleges (in paragraph 8) that the separate and collective value of said cars are totally insufficient to pay off and discharge the money due thereon to plaintiff and that under R. S. Article 2293 the court has power to appoint a receiver because the security or property is in danger of being lost or removed, and further that the conditions of the various mortgages and notes aforesaid had not been performed.

In paragraph 9 plaintiff alleges a sale of an automobile on which there remained due $581.94, at the time defendants repossessed it, and that defendants then, contrary to their obligations, resold said automobile without paying plaintiff the unpaid part of the mortgage.

In paragraph 10, plaintiff alleges some thirty additional sales transactions on which it purchased from defendants .the notes and mortgages taken to secure the unpaid purchase price, and alleges (in paragraph 11) that the automobiles described in paragraph 10 had been completely or partially destroyed in three separate fires. The pleading does not say that said automobiles had been repossessed and were in possession of defendants at the time of the fires, but the defendants seem to raise no point on this, and no doubt the pleader intended this to be inferred. Plaintiff alleges said last mentioned automobiles were insufficient in value to secure the payment of the sums due plaintiff thereon.

In paragraph 11-A plaintiff alleges five wholesale chattel mortgages held by it from defendants; and in paragraphs 11-b and 12, plaintiff alleges that defendants sold two of said automobiles, describing them, on which it held defendants’ wholesale chattel mortgages, and further alleges the.right to accelerate the indebtedness due on the wholesale mortgages and alleges that $3,267 is due thereon.

In paragraph 15 plaintiff alleges that defendants owe $11,459.96 principal on account of the items alleged in paragraph 6. In paragraph 16 plaintiff alleges there is due on the automobiles alleged to have been injured by fire the sum of $8,434.94, less insurance which might be collected. Paragraph 17 sets forth that the plaintiff is entitled to the principal sum of $3,267 on the wholesale mortgages. (We have omitted paragraphs 14 and 18 as not being essential to an understanding of the issue here presented).

In paragraph 19 plaintiff alleges, that the security described in the petition is wholly inadequate to secure the indebtedness due plaintiff thereon, and that a receiver should be appointed by the court to take possession of the automobiles, and same should be sold by the receiver under orders of the court.

In paragraph 20 plaintiff alleges a right to judgment for. the various debts on the various contracts, mortgages and notes alleged in its petition.

The remaining two paragraphs, and the prayer of the petition will be here quoted:

“21. Plaintiff further alleges that the value of said automobiles- above alleged are not of a sufficient amount, or amounts, to pay off and discharge the balance due and owing the plaintiff herein on an item for item basis or in a collective manner, and that all of said automobiles are not in Houston County, Texas, but are located in other counties as well, and it is impossible for this plaintiff to state that any particular car is in any particular county and in order to protect this plaintiff’s right and -the security above alleged, such receiver should be appointed to take possession of such property above alleged and hold same subject to the orders of this court.
“22. Plaintiff further alleges that it is entitled to a judgment on the balance due on said contracts above alleged and for foreclosure of its various mortgage and contract liens, and inasmuch as the said defendants endorsed said contracts and notes with recourse, and further primarily obligated themselves on such wholesale items above alleged, and because of such it is entitled to a personal judgment for the full amount of the indebtedness due and owing to it, under the terms and conditions of the written contracts, notes, mortgages, etc., particularly plead herein; that further it is entitled to a foreclosure of its various mortgage liens and the proceeds of said insurance policies above referred to and further alleges that it is entitled to the actual possession of the various automobiles above described herein, as the said defendants were acting as agent for this plaintiff in taking possession of said property; that it has elected to mature all of said contracts in accordance with the various terms thereon; and that said mortgage liens above referred to are valid, subsisting and binding liens on the various automobiles described in each particular instance.
“Wherefore, premises considered, plaintiff prays the court that a receiver be appointed immediately to take actual charge of the above described property and hold same subject to the orders of this Court, and that said various liens be foreclosed, or in the alternative that it have possession of the above described automobiles, or in the alternative that said property be sold under the orders of this Court, and that said defendants be cited to appear and answer herein and on hearing that the judgment be rendered against the said defendants, and each of them for the amount due and owing by them under the terms of the various contracts and notes. above alleged to the said plaintiff, for costs of court, interest and attorney’s fees, and such other and further relief in law and in equity, special and general, that it may be justly entitled to.”

Appellee contends that, under the provisions of R. S. Article 2293, the allegations of its pleading sustain a - legal right to have a receiver appointed, under such authorities as Anderson & Kerr Drilling Co. v. Bruhlmeyer, 134 Tex. 574, 136 S.W.2d 800, 127 A.L.R. 1217 and Massey v. Greenwood, Tex.Civ.App., 56 S.W.2d 1103. Appellee contends also that its contracts with appellants give it the right to possession of all automobiles repossessed by appellants, and that when appellants refused to surrender possession to appellee this alone gives appellee the legal right to invoke the power of the court to appoint a receiver to take possession of same. Conceding this to be true, it is also true that whatever legal right appellee may have to the appointment of a receiver to take possession of automobiles which appellants have repossessed must be exercised in conformity with the principle underlying all administration of justice, which is that no proceeding shall take place in court affecting the rights of anyone without affording him an 'opportunity to be heard. And the owners of the repossessed automobiles, the ¡mortgagors, have not been made parties to this suit. It is not asserted in appellee’s petition that the mortgagors’ rights in the various automobiles which have been repossessed by appellants have been foreclosed, and it is clearly implied that these rights have not been foreclosed. Such mortgagors, such owners, are necessary párties to any suit to have their rights foreclosed, and of course are also necessary parties to a proceeding to have their property placed in the hands of a receiver. Failure to make necessary parties presents fundamental error which the parties litigant cannot waive, and of which the court must take cog-, nizance sua sponte at any stage of the proceedings, and correct, not for the benefit of the parties to the action, but for the benefit of the parties whose interest will be injuriously affected, and who are not before the court. The rights of such parties cannot be waived by the parties litigant, and should the attempt be made so to do, the court must not permit it by refusing to proceed to judgment. Needham v. Conney, Tex.Civ.App., 173 S.W. 979, writ refused. It was therefore fundamental error apparent upon the face of the record for the court to have appointed a receiver 'to take charge of automobiles belonging. to owners (whose rights remained unforeclosed), who were not parties to the action. And the order appointing a receiver to take possession of the automobiles which had been repossessed by appellants is erroneous, and to the extent said order appointed a receiver to take possession of the automobiles which had been repossessed by appellants (the owners of which were not made parties to the suit), such order should be vacated, set aside, and annulled; but without prejudice, should appellee amend its pleadings to 'bring the necessary parties in.

A different situation applies with reference to the “wholesale mortgages”. It was within the power, and the allegations of the petition make out a case within the discretion, of the trial court to appoint a receiver to take possession of the automobiles subject to the wholesale mortgages. Massey v.. Greenwood, supra, and cases there cited. Two of the automobiles subject to the “wholesale mortgages” appear, from the allegations in paragraph 11-B of the petition to have been wrongfully sold. The remainder of the said automobiles are described in paragraph 11-A. The order, insofar as it appointed a receiver to take possession from appellants of the automobiles subject to the “wholesale mortgages”, appears to be entirely within the power of the trial court, and appellants have advanced no proposition which touches on such action.

The court’s order appointing a receiver to take possession of the automobiles which had been repossessed by appellants; which are all the automobiles, except those which were covered by the “wholesale mortgages”, is vacated and annulled; but said order is affirmed as to the automobiles which were covered .by the “wholesale mortgages”, and which were unsold at the time the order was issued, being further identified as those listed in paragraph 11-A of appellee’s pleading, with the exception of the last two which are alleged to have been wrongfully sold.

The judgment here rendered makes the temporary restraining order heretofore issued by this court functus officio.

Reversed without prejudice in part and in part affirmed.


author: WALKER, Chief Justice.

text:
    TEXAS & N. O. R. CO. v. SKEEN.
    No. 3826.
    Court of Civil Appeals of Texas. Beaumont.
    March 26, 1941.
    Rehearing Denied April 9, 1941.
    Baker, Botts, Andrews & Wharton and Woodul, Arterbury & Folk, all of Houston, and M. M. Feagin, of Livingston, for appellant.
    Allen, Helm & Jacobs, of Houston, and Campbell & Foreman, of Livingston, for appellee.
   WALKER, Chief Justice.

On the 20th day of February, 1938, at the crossing of Central street and the railroad tracks of appellant, Texas and New Orleans Railroad Company, in Manchester addition of the City of Houston, appellee, L. E. Skeen, drove his automobile into the side of one of appellant’s freight cars as it moved over the crossing. This suit was filed by appellee against appellant in Polk county for damages for the personal injuries suffered by him in the collision. The case is on our docket on appellant’s appeal from the judgment rendered against it on the verdict of the jury, answering special issues assessing appellee’s damages at $13,000.

Appellant’s first point is that appel-lee, as a matter of law, on the undisputed evidence, was guilty of contributory negligence. All issues of contributory negligence plead against appellee and submitted by the court’s charge to the jury were found in appellee’s favor. The following facts, which have support in the evidence, deny appellant’s proposition. Central street was paved with tarvia. Beginning back about 35 feet, appellant’s track rose to an elevation at the crossing of more than 2 feet. The night was very foggy. Appellant makes the statement that appellee’s view ahead as he approached the crossing “was absolutely hidden by a wall of fog which the headlights of his car did not penetrate beyond a distance of 15 feet.” Appellee drove his automobile with due care, with his headlights on, his brakes in good working order, his windshield in operation, and he gave due attention to the street as he approached the crossing. He struck the twenty-first freight car, driving at a speed of about 15 miles an hour. At the rate of speed at which he was driving he could have stopped his automobile within the radius of his lights. He was driving with his lights “down,” which gave him a clearer vision of the road immediately in front of his car. With his lights “down,” because of the elevation of the track and the distance between the track and the bottom of the freight cars, the light on appellee’s automobile did not reveal the presence of the train on the crossing until appellee was in 5 or 6 feet of the train. About a thousand feet before reaching appellant’s track, appellee crossed a series of seven tracks belonging to another railroad company; as he approached these tracks, a man with a red lantern walked between his automobile and the tracks. There was much noise of switching operations, but because of the fog and other surroundings appellee thought these noises were to his right and behind him. This was his first drive over Central street, and he did not know that it was crossed by railroad tracks, until he crossed the tracks that night; he did not know that appellant’s railroad track crossed Central street, nor did he know, as he drove his automobile across and beyond the seven tracks, that he was about to approach another track, and there is no circumstance in the record visiting him, as a matter of law, with knowledge-of that fact. Appellee did not hear appellant’s train as he approached the crossing, and had no knowledge of its presence, until just immediately before he struck it. Appellant had no watchman or signal of any kind at this crossing to give warning to the travelling public that its train was occupying the crossing.

On the facts as we have summarized them, appellee was not guilty of contributory negligence as a matter of law, in driving his automobile into appellant’s train. As a fact issue, he was in the exercise of ordinary care in driving his automobile with his lights “down.” Missouri, K. & T. R. Co. v. Long, Tex.Civ.App., 23 S.W.2d 401. The fog, the noises, the switching tracks he had crossed, the watchman with the red lantern, the black surface of the street — all these constituted “distractions,” ’ tending to excuse appellee’s conduct in driving into appellant’s train. St. Louis, B. & M. Railway Co. v. Brack, Tex.Civ.App., 102 S.W.2d 261; Barron v. Houston E. & W. T. Railroad Co., Tex. Civ.App., 249 S.W. 825, and the many authorities cited therein. Again, appellee did not know, as he drove forward on Central street, that he was approaching a railroad crossing; this is a controlling circumstance in his favor. In Haney v. Texas & N. O. R. Co., 119 S.W.2d 714, 715, speaking for this court, Mr. Justice Combs said: “The jury’s finding that Conrad Haney was not guilty' of negligence in failing to keep a proper lookout for the crossing was very probably based on a belief that Haney did not know that the truck in which he was riding was approaching a railroad crossing. * * * The accident occurred in the night time and a heavy fog prevailed. * * * Now, if Haney was justifiably ignorant of the fact that the truck was approaching a railroad crossing, then he could not have been negligent in failing to discover the approach of the train. A traveler unfamiliar with a locality and excusably ignorant that he is approaching a crossing is under no duty of keeping a lookout for trains. 35 Texas Jur. Sec. 335a, page 508; Texas & P. Ry. Co. v. Chapman, 57 Tex. 75. One is under no duty of guarding against a dangerous situation the existence of which he is justifiably ignorant of. Texas-Louisiana Power Co. v. Webster, 127 Tex. 126, 91 S.W.2d 302, affirming the holding of the Dallas Court of Civil Appeal's reported in 59 S.W.2d 902.”

See also Texas & N. O. R. Co. v. Beard, Tex.Civ.App., 91 S.W.2d 1080. The fact that appellee did not know that he was approaching a railroad crossing distinguishes this case from the authorities cited by appellant: Texas & N. O. R. Co. v. Stratton, Tex.Civ.App., 74 S.W.2d 741; Texas & N. O. R. Co. v. Compton, 135 Tex. 7, 136 S.W.2d 1113; Texas-Mexican R. Co. v. Hoy, Tex.Com.App., 24 S.W.2d 18; Robinson v. Houston B. & T. Co., Tex.Civ.App., 23 S.W.2d 894; San Antonio & A. P. R. Co. v. Singletary, Tex.Civ.App., 251 S.W. 325, 328—in each of these cases the plaintiff was familiar with the crossing.

Appellee plead that appellant was guilty of negligence in failing to comply with the following ordinance of the city of Houston, which was received in evidence: “It shall be the duty of each railway company operating trains within the city of Houston over and across the streets in said city to illuminate each crossing, unless otherwise ordered by the City Council, with an electric arc lamp, not more than seventy-five feet distant from such crossing, and not less than twenty feet distant from the ground, and not less than candle power that is used in the case of general arc lights used by the City for lighting streets.”

On this ordinance, the court submitted to the jury the following issue:

“Special Issue No. F.
“Do you find from a preponderance of the evidence that the defendant, prior to the collision, failed to illuminate the Central street crossing with its railroad with an electric arc lamp not more than 75 feet distant from said crossing, and of not less than 20 feet distance from the ground, and of not less than candle power that is used in the case of general arc lights used by the City for lighting purposes ?”

The evidence was without dispute that appellant had not complied with this ordinance, and had made no effort to comply with it.

Appellant has advanced one proposition against special issue F, and has argued other exceptions, none of which have support in any exceptions timely reserved to the court’s charge; at least appellant has not brought forward any exceptions- reserved by it to the court’s charge.

The following statement which we take from appellee’s brief refutes appellant’s proposition that, as a matter of law, its failure to comply with the ordinance in issue was not a proximate cause of the collision: “The ordinance required the light to be fixed 20 feet above the ground, and no less. Plaintiff’s companion, Turner, testified the dense ground fog probably didn’t go over 20 ft. in the air from the way it varied in its ‘composure’, one could see lights higher from the ground because the dense fog of the bayou would be heavier on the ground than above. The box cars of defendant’s train were 12 ft. high above the 2-3 ft. elevated crossing. The witness, Middleton, testified that in such a fog as was present on this night you could see regular city electric arc street lights in Manchester Addition to the City of Houston, a block away. Plaintiff testified, without objection by defendant, if there had been such an overhanging ordinary arc lamp such as were in other portions of Manchester Addition used generally for lighting streets, he wouldn’t have hit the train. Defendant’s witness, El-lisor, admitted the street light at Central street and Manchester street, were quite noticeable that night. Defendant’s witness, LeVrier, admitted he could have seen any kind of light at the crossing in time to stop his car. Defendant’s witness, Gay, a trainman, admitted had there been arc lights hanging over the crossing a person approaching on Central street could have seen them.”

Negligence, as a matter of law, on appellant’s part in failing to comply with the city ordinance and the finding of the jury that this negligence was a proximate cause of appellee’s injuries, support the judgment against appellant on the issues of negligence plead; therefore, it would serve no useful purpose to review appellant’s assignments against the other issues of negligence.

The court did not err in advising the jury that in considering- the amount of damages it would award to the plaintiff that it could take into consideration “the present cash value of such sum or sums of money, if any, as L. E. Skeen will in reasonable probability lose in the future beyond the date of this trial because of his diminished capacity to work and earn money in the future, if any, as a direct result of the collision in question.” The fact that appellee had suffered prior and subsequent injuries to those suffered by him in issue in this case did not make this charge erroneous.

Appellant has no complaint that the verdict is excessive; in fact, on the undisputed evidence, the verdict was conservative.

Appellant complains of certain argument by appellee’s counsel; the very language made the basis of this assignment was put in evidence by appellant, and was subsequently referred to by appellant.

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

Affirmed.


author: FOLLEY, Justice.

text:
    WYATT v. SOUTHWESTERN LIFE INS. CO.
    No. 5281.
    Court of Civil Appeals of Texas. Amarillo.
    March 24, 1941.
    Rehearing Denied April 14, 1941.
    James O. Cade, of Amarillo, for appellant.
    Adkins, Pipkin, Madden &' Keffer, of Amarillo, and Hamilton, Lipscomb, Wood & Swift, of Dallas, for appellee.
   FOLLEY, Justice.

This is an action brought by the appellant, Edgar Donald Wyatt, against the ap-pellee, Southwestern Life Insurance Company, seeking judgment in the first count for service commissions alleged to have been due him under an agency contract after its termination and after he had entered the employment of the Great American Life Insurance Company, a competitor of the appellee, and, in the second count, for damages 'claimed to have resulted from an alleged wrongful anticipatory breach of the agency contract by the appellee.

The case was submitted to the trial court without a jury on an agreed statement of facts which included the agency contract, certain correspondence and communications between the parties and other stipulations. From an adverse judgment the appellant has prosecuted this appeal.

On June 15, 1937, the appellee and the appellant entered into an agency contract whereby the appellant agreed to canvass for applications for life insurance for the appellee company. The territory assigned to the appellant was “Amarillo and vicinity” but such district was not assigned' exclusively to him. For the applications accepted and policies issued thereon the ap-pellee agreed to pay appellant certain commissions from first year premiums, not here involved, and certain service commissions or “renewals”, subject to all other provisions of the contract, on new insurance secured and paid for during each contract year in consecutive yearly periods of twelve months from the date on which the contract took effect, in accordance with certain schedules therein contained. It was expressly stipulated that such service commissions should be allowed and paid only during the continuance of the agency contract and that the right thereto should cease immediately upon the termination of the contract. It was further provided that all commissions, both first year and service, should accrue only as premiums were paid in cash to the appellee at its home office and should cover payment in full for any and all services rendered to the appellee. The appellee might, at its option, extend the time for payment of any premium and no commission should be due tlie appellant thereon until such extended obligation was paid in cash to the appellee and then only provided the contract was in force at the time of the payment of such obligation. The appellant further obligated himself not to submit a proposal for life insurance to any other company unless it should first have been declined -by the appellee or was prohibited under, the appellee’s rules, and then only after obtaining the written consent of the appellee. The contract further provided that if the appellant should fail to comply with any of the conditions of the agreement the appeljee should have the right forthwith to terminate the contract without notice. It was also stipulated that in addition to the methods elsewhere provided the agreement might be terminated by either party by notice in writing given to the other party fifteen days before the date therein fixed for such termination.

After the making of this contract the appellant entered upon his duties as agent for the appellee in which capacity he continued until some time just prior to October 30, 1939, when he entered into a contract with the Great American Life Insurance Company whereby he agreed to become its district manager for its Northwest Texas Division with offices in the same building in Amarillo, Texas, where the offices of the Amarillo District of the Southwestern Life Insurance Company are located. In such contract with the Great American he agreed to supervise agents who were canvassing for life insurance for such company, which agents would canvass for such insurance in competition with the agents of the Southwestern Life. Thereupon, on October 31, 1939-, after prior correspondence and communications between the appellant and the appellee, hereinafter set out, Richard R. Lee, vice president of the appellee company, notified the appellant that the' company elected to terminate appellant’s agency contract as of that date.

It was agreed by the parties that all service commission's accruing on premiums paid by policy holders prior to October 31, 1939, had been fully paid by the appellee to the appellant. It was further agreed that if it be decided the appellant is entitled to additional service commissions, the sum of $2,-423.08, with interest at 6% per annum from May 3, 1940, is the correct amount due the appellant from the appellee for such renewals accruing subsequent to October 31, 1939.

The appellant presents only two propositions seeking to reverse the judgment in favor of the appellee. As we construe his brief, he does not contend that under the express terms of the original contract of June IS, 1937, he is entitled to service commissions accruing after October 31, 1939. It is by virtue of an alleged alteration of the contract and a wrongful breach thereof by the appellee that the appellant asserts guch claim. In his first proposition he claims that such contract was altered and modified by certain correspondence and communications between him and the appel-lee company and as a result thereof he asserts the restrictions imposed by the written contract were removed. In his second proposition he contends that if the contract was terminated it was done so by virtue of an anticipatory breach on the part of the appellee in which instance, he urges, he is entitled to his damages in the amount of the service commissions as aforesaid.

In order to fully understand the import of appellant’s contentions in this respect it will' be necessary to give a resume of the correspondence and interviews between the appellant and agents of the appellee just prior to the termination of the agency contract and recite other stipulations as reflected by the agreed statement of facts.

On September 23, 1939, the appellant wrote Richard R. Lee, vice president of the appellee company, that, as he had previously advised Mr. G. W. Mills, branch manager for the appellee at Amarillo, he, the appellant, had been offered what appeared to be a very attractive proposition by the Great American Life Insurance Company of San Antonio; that he planned to go to San Antonio the following week to discuss the matter with the Great American; and that he intended to explain the matter to Mr. Lee before making any definite arrangement or signing a contract.

On September 25, 1939, Mr. Lee replied by letter in which he advised the appellant that he doubted the wisdom of appellant’s making a change of that nature, however, he added that appellant was to be the “judge and jury”. Lee further stated that “we would not want you to stay with Southwestern Life if you were sure that you could do better for yourself elsewhere”.

On September 25, 1939, G. W. Mills, representative of the appellee, told the appellant the proposition offered appellant by the Great American was not as good a contract as the one he had with the appellee, and used arguments to support such statement, but did not succeed in convincing the appellant by his arguments.

On September 28, 1939, the appellant wrote Mr. Lee that he was leaving that morning for San Antonio and that if Mr. Lee so desired he would return by way of Dallas to see Lee.

On September 30, 1939, Lee wrote appellant át San Antonio that if he completely closed the deal with the Great American that he (Lee) saw no reason for either Lee or appellant to inconvenience himself to discuss the matter, otherwise he (Lee) would be happy to see the appellant upon his return to Amarillo.

On October 2, 1939, the appellant wrote Lee to the effect that his deal with Great American was still in such stage that he could not intelligently discuss it with Lee; that he was still working on the deal but did not expect to definitely enter into a contract until he had explained the matter to Lee; that he valued Lee’s counsel and assistance and earnestly solicited his continued friendship in the future regardless of whether “I continue with the Southwestern Life or someone else”; and that at ■ present, “in so far as the contemplated change in Companies is concerned I am still ‘on the fence’ but I recognize full well that my contract now is that of Southwestern Life and it is my intention to respect it literally while I am with you”.

On October 3, 1939, Lee replied by letter that there were many angles for appellant to consider “before making this change”; that “I would be the first man to advise you to make it if I am entirely convinced that it is to your best interests”; that in view of the fact that the matter was still pending he would like to see appellant to be certain that appellant was considering all angles to the situation from appellant’s standpoint; that for appellant to “leave us out of it altogether, because after all, every man has to assume the responsibility of making the decisions that affect his future prosperity and happiness”; and that he desired that appellant should not close the deal until they had a. chance to discuss the matter.

During the time of the above correspondence officers of the Great American Life Insurance Company came to Amarillo to negotiate a contract with the appellant. The appellant apprised G. W. Mills of this fact, who, in turn communicated the same to Mr. Lee.

On or about October 7, 1939, the appellant stated to Mills that he would not leave the appellee company if the appellee would give him a non-cancellable renewal contract whereby appellant would not forfeit service commissions in the event of its termination but Mills stated to the appellant the appellee would not enter into such a contract.

On or about October 13, 1939, the appellant discussed with Lee at' Dallas the matter of entering the service of the Great American in which conversation Lee stated to the appellant that it was his frank opinion the latter could not build a general agency for the Great American under ten years and that if he were in the appellant’s place he would not attempt to do so.

On or about October 16, 1939, the appellant stated to G. W. Mills that it was his intention to enter the service of the Great American on November 1, 1939.

On October 27, 1939, Lee wrote the appellant another letter again admonishing him that it would take him ten years to establish an agency and stated that unless “the company you are figuring witji is willing to spend its money to'do it, you are a first class chump to think about it”.

On October 29, 1939, there appeared in the Sunday edition of the Amarillo News-Globe, a daily newspaper published at Amarillo, in connection with a photographic likeness of the appellant, an extensive news story announcing the appointment of Don Wyatt as district manager for the Northwest Texas Division of the Great American Life Insurance Company with offices in Amarillo. This news item was immediately sent to Richard R. Lee by appellee’s agent, G. W. Mills.

On October 31, 1939, Lee wrote Wyatt acknowledging receipt of the newspaper clipping from Mills, expressing his wish for the success of the appellant in his new venture'and further stating: “Naturally under the circumstances we are terminating your contract”. A formal notice to such effect was enclosed in the letter.

Unless the above facts constitute an alteration of the agency contract or amounted to an anticipatory breach thereof by the ap-pellee, we think it is conceded, and indeed it must be, that the appellant is not entitled to recover for service or renewal premiums accruing after the termination of the contract. Locher v. New York Life Ins. Co., 200 Mo.App. 659, 208 S.W. 862, and authorities therein cited; American Nat. Ins. Co. v. Teague, Tex.Com.App., 237 S.W. 248; Id., Tex.Com.App., 239 S.W. 604; Armstrong v. National Life Ins. Co., Tex.Civ.App., 112 S.W. 327, writ refused; Thurman v. Rodman et al., 206 Ky. 180, 266 S.W. 1047; 29 Am.Jur. 137, para. 118; Masden v. Travelers’ Ins. Co., 8 Cir., 52 F.2d 75, 79 A.L.R. 475, et seq.; 14 R.C.L. 869, para. 42.

We are of the opinion the facts of this case not only failed, to show any alteration of the agency contract, but on the contrary established beyond controversy that there was no waiver of the provisions of the agreement with reference to the payment of service commissions accruing after the termination of the contract. From time to time during the communications between the appellant and the agents of the appel-lee, the appellant was importuned not to “make the change” and encouraged to remain in the service of the Southwestern Life. He was further admonished that the proposition offered by the Great American was not as good a contract as the one with the appellee. In none of the communications between the appellant and Lee was any mention made of service commissions, nor was there the least intimation that the provisions of the agency contract with reference thereto would be altered in any respect. Moreover, the fact that Mills, acting for the appellee, refused to make a new contract whereby the appellant would not forfeit service commissions in the event of its termination, we think precludes the idea it was intended that the terms of the original contract with reference thereto would be in any manner waived or altered by the appellee. Masden v. Travelers’ Ins. Co., 8 Cir., 52 F.2d 75, 79 A.L.R. 469; Chase v. New York Life Ins. Co., 188 Mass. 271, 74 N.E. 325.

We are further of the opinion the facts of this case fail to establish that there was any anticipatory breach on the part of the appellee for which it should respond in damages. On the contrary, the facts clearly reveal the termination of the contract was brought about exclusively by the conduct of the appellant. In making a contract with a competitor the appellant voluntarily placed himself in a position where it was impossible, or at least incompatible, for him to perform his contract with the Southwestern Life. Such conduct upon his part was not only a renunciation of his obligations to the appellee but was sufficient to entitle the appellee to treat the agency contract as terminated. Locher v. New York Life Ins. Co., supra; American Nat. Ins. Co. v. Van Dusen, Tex.Civ.App., 185 S.W. 634; Billington v. State Life Ins. Co., Tex.Civ.App., 88 S.W.2d 780. Furthermore, the contract provided that it' might be terminated by either party by notice to the other in writing or that it might be terminated without notice in the event the appellant should fail to comply with any of the conditions of the contract. Under such stipulations we deem it sufficient to state without further discussion that, regardless of whether or not the contract was breached by the appellant, under the facts of this case the appellee had the right to terminate the contract; and in doing so, if it did, its conduct was not wrongful and the agent cannot successfully maintain an action to recover commissions for renewal premiums paid after his agency has been rightfully terminated. 29 Am.Jur. 137, para¡ 118; Pierce v. Bringardner Lumber Co., Inc., 280 Ky. 205, 132 S.W.2d 932; Magnolia Petroleum Co. v. Dubois, Tex.Civ.App., 81 S.W.2d 157, writ refused; 29 Tex.Jur. 20; Billington v. State Life Ins. Co., supra, and authorities therein cited.

The judgment is affirmed.

JACKSON, C. J., not sitting.


text:
    SMITH v. ELLIOTT et al.
    No. 5261.
    Court of Civil Appeals of Texas. Amarillo.
    March 24, 1941.
    Rehearing Denied April 14, 1941.
    Robt. A. Sowder, Geo. W. McCleskey, and Nelson & Brown, all of Lubbock, for appellant.
    Allison & Gordon, of Levelland, for ap-pellees W. C. Elliott and Della Elliott.
    Weldon Johnson, of Levelland,- and Hefner & Hefner, of Oklahoma City, Old., for appellee R. A. Hefner.
    R. B. Violette and Eugene T. Adair, both of Fort Worth, for appellee Cascade Petroleum Co.
    J. A. Amis, Jr., of Emory, and Carl E. Ratliff, of Levelland, amici curiae.
   JACKSON, Chief Justice.

The record shows that the State of Texas granted four leagues of land, among which was League 42 situated in Hockley County, Texas, to Rains County for school purposes. The State issued a patent therefor to the grantee on May 26, 1885 which was filed for record in Hockley County on' February 3, 1920.

On October 22, 1927 the Commissioners Court of Rains County subdivided the leagues into labors and had a plat thereof made which appears in this record as the official plat of the Rains County School Land in Hockley County.

On May 8, 1928 the County of Rains, acting through its commissioners court, sold and conveyed by its county judge to Charles C. Crenshaw several of the labors into which the leagues had been subdivided, among which was Labor No. 10 in League No. 42 in Hockley County. The labor was conveyed in two deeds — the east half in one and the west half in another. Each recited as a consideration for the land therein conveyed $1,861.65, evidenced by a pote due on or before forty years after December 1, 1928 and each deed retained a vendor’s lien to secure the payment of the purchase price of the land described therein. The notes each drew 5% interest per annum payable annually and the deeds provided that failure to pay any annual installment of interest within 120 days after same became due should at the option of the commissioners court of Rains County mature all of said indebtedness remaining unpaid.

Charles C. Crenshaw, the grantee, executed a deed of trüst to John T. Rushing, Trustee, who was the county judge of said county, covering all of said Labor No. 10 to secure the payment of one note for the sum of $3,723.30, the combined amount of the two vendor’s lien notes, and made the deed of trust note due on or before December 1, 1968. The deed of trust expressly provides that there is to be no personal liability on Charles C. Crenshaw by virtue of 'the execution and delivery of the note therein described but that Rains County is to look to the land only for the payment of the purchase price. It also contains an accelerating clause which conforms to the provision in the deeds and vendor’s lien notes for declaring the indebtedness due on default in the payment of interest.

On June 25, 1928 Charles C. Crenshaw conveyed said Labor No. 10 to Oscar Kil-lian for a recited consideration of $886.50 cash and the assumption by Mr. Killian of the payment of the principal note of $3,-723.30 according to the terms and effect thereof. Mr. Killian and wife, Viola Kil-lian, by deed acknowledged January 12, 1929, conveyed the land to Ben F. Smith for a recited consideration of $1 cash, the execution of two notes, aggregating the sum of $3,368.70, and the further consideration that Mr. Smith “does hereby assume and agree to pay off and discharge according to the terms thereof” the vendor’s lien notes aggregating $3,723.30 with the deed of trust lien securing their payment, to the record of which reference is made for the terms and conditions thereof.

John T. Rushing, the original trustee in the deed of trust, died in 1931 and Mr. Smith defaulted in the payment of the interest on the indebtedness he assumed and agreed to pay. In fact, he never paid any installment of interest and permitted the taxes to beóome delinquent, hence, the land was unprotected by Mr. Smith for the delinquent taxes against it. E. M. Mason, who was county judge, was by order of the commissioners court appointed substitute trustee on January 11, 1933 and on August 31st thereafter he was again designated trustee and directed to sell the land in controversy under the deed of trust. On October 3, 1933 E. M. Mason as substitute trustee sold the land and executed a trustee’s deed to Rains County for a consideration of $350 cash.

On February 5, 1934 Rains County by warranty deed conveyed said Labor No. 10 to W. C. Elliott for the consideration of $3,102.75 evidenced by an installment note for the sum of $2,804.78, the last installment being due and payable February 5, 1966 and the balance of the consideration was stated to be the payment of certain delinquent taxes. A vendor’s lien was retained against the labor of land and the improvements to secure the payment of said indebtedness. On October 9, 1934 W. C. Elliott conveyed the land to his wife, Della. Thereafter in 1935 Elliott and his wife executed and delivered an oil and gas lease to H. A. Hedberg which was by him assigned to the Cascade Petroleum Company and on February 26, 1936 they conveyed the minerals under the south 100 acres of Tract No. 10 to Lewis Johnson, who in turn conveyed said minerals to R. A. Hefner.

On February 25, 1939 the appellant, Ben F. Smith, instituted this suit in the District Court of Hockley County as an action in trespass to try title to recover title and possession of said Labor No. 10, naming as defendants Della Elliott, W. C. Elliott, her husband, Cascade Petroleum Company and R. A. Hefner.

The defendants answered by general demurrer, general denial and a plea of not guilty.

In a supplemental petition appellant, Smith, by a plea oi tender offered to do equity by the defendants named in the suit.

In a trial before the court without the intervention of a jury judgment was rendered that the plaintiff, Ben F. Smith, take nothing by his suit against any of the defendants and that they go hence with their cost, from which judgment this appeal is prosecuted.

The appellees contend that if the sale by E. M. Mason as substitute was void the record discloses that the county had can-celled and rescinded the sale' of the land to Ben F. Smith and in the original opinion we reversed the judgment and remanded the cause for the reason that Rains County had not been made a party to this suit.

On further investigation we have decided this was error. Articles 7370 and 7372, Vernon’s Annotated Civil Statutes; Stanolind Oil & Gas Co. et al. v. State et al., Tex.Sup., 133 S.W.2d 767.

The appellant contends that the sale under the deed of trust which constitutes a link in appellees’ chain of title is void for the reason, first, that E. M. Mason, who acted as substitute trustee in the place of the original trustee, John T. Rushing, deceased, was not appointed in writing; second, the order which shows the written appointment of E. M. Mason as substitute trustee recites the prior appointment of J. H. Foster as substitute trustee and thereafter the appointment of T. R. Potts as substitute trustee, but the record fails to show that the holder of the indebtedness ever requested either of such prior substitute trustees to act or that either ever refused to execute the powers given in the deed of trust and, hence, the attempted appointment of E. M. Mason by the commissioners court as substitute trustee under the record was invalid and the sale by him as such did not divest title out of Ben F. Smith.

On January 11, 1933 the commissioners court, by order duly passed and recorded, found that John T. Rushing, trustee named in the deed of trust, had died; that on January 11, 1932 J. H. Foster, county judge, had been appointed substitute trustee with the same powers that had been originally delegated to J. T. Rushing, deceased; but that J. H. Foster had refused to act as substitute trustee and on November 23, 1932 T. R. Potts was duly appointed substitute trustee with all the powers theretofore delegated to J. H. Rushing or his substitute, J. H. Foster; that the said T. R. Potts refused to act as such substitute trustee and said: “It is therefore ordered, adjudged and decreed by the Court that E. M. Mason, County Judge of Rains County, Texas, be and is hereby appointed Substitute Trustee, with all the powers delegated to J. T. Rushing or his Substitutes, J. H. Foster and T. R. Potts.”

Then follows a description of certain lands directed by the commissioners court to be sold, none of which is involved 'in this litigation.

On August 31, 1933 the commissioners court at a regular session entered an order reciting in effect that upon consideration of the question of the condition of the Rains County school lands in Hockley County it appeared that interest payments on the purchase price thereof were delinquent and that it was necessary to do something to protect the county, and proceeded : “It is hereby ordered by the court that E. M. Mason, Trustee, be and he is hereby instructed to post and sell under deed of trust as provided in said deed of trust, the following tracts of land situated in Hockley County, Texas: * * * Labor 10, League 42”.

The deed of trust executed by Charles C. Crenshaw as security, for the payment of the purchase price provides:

“In case of death of the said John T. Rushing, Trustee, or his removal from the County of Rains, Texas, or his refusal, or failure or inability, for any reason, within IS days after such requests by the holder or holders of said note as above stipulated to make said sale or to perform said trusts, then the legal holder or holders, of said note or any of them may appoint, in writing, substitute trustee, who shall thereupon succeed to all the estate, rights, powers and trusts hereinbefore granted to and vested in said Trustee.
“And it is further specially agreed by the parties hereunto that in an.y deed or deeds given by any Trustee or substitute duly appointed hereunder, any and all statements of facts or other recitals therein made as to the non-payment of the money secured, or as to the request to sell, the time, place, terms of sale and property to be sold having been duly published, or as to any other act or thing having been duly done by any Trustee, or substitute, shall be taken by any and all courts of law and equity as prima facie evidence that the said statements or recitals do state facts, and are without further question to be accepted. And I the said grantor do hereby ratify and confirm any and all acts that the Trustee or substitute, or his 'successor in this trust may lawfully do in the premises by virtue hereof.”

The trustee’s deed executed to Rains County by E. M. Mason as substitute trustee, after reciting certain provisions of the deed of trust, continues: “Default having been made in the payment of said indebtedness the holder of said indebtedness having declared same due, I, the undersigned, as Substitute Trustee, having been requested by the holder of said indebtedness to proceed and enforce said trust, did on the 3rd day of October, 1933, (that being the first Tuesday in said month) offer said property for sale before the Court House door of Hockley County, Texas, in the city of Levelland, Texas, between the hours of 10:00 o’clock A. M. and 4:00 o’clock P. M. of that day, at public auction, to the highest bidder, for cash, after having given notice thereof at three public places in the County of Hock-ley, Texas, one of which was at the court house door of Hockley County, Texas, for more than twenty-one (21) days successive-' ly next before the day of said sale, and at such sale said property was struck off by me to Rains County, Texas, for the sum of $350.00, that being the highest and best bid obtained for the same.”

In addition to the recitation in the trust deed the testimony shows without controversy that the notices of the sale were posted.

In answer to appellant’s first contention that E. M. Mason was not appointed substitute trustee in writing we deem it sufficient to say that the commissioners court, although a court of limited jurisdiction, is nevertheless a court of record and speaks. through the minutes of the court and the recitation in the minutes that the original trustee, John T. Rushing, was dead and that E. M. Mason, County judge, “be and is hereby appointed substitute trustee with all the powers delegated to John T. Rushing or his substitutes” was a sufficient appointment in writing.

In Gano v. Palo Pinto County, 71 Tex. 99, 8 S.W. 634, 635, the Supreme Court, speaking through Judge Gaines, • says: “The commissioners’ court is a court of record, and speaks through its minutes, and not by the mouths of the members of the body. The proper method to amend the minutes, when they fail to speak the truth, is by a motion made in that court, and not by allegation and proof in another tribunal in which a litigation concerning its orders may arise.”

Whether or not the recitation in. the order of the court to the .effect that J. H. Foster and T. R. Potts had been previously appointed as substitute trustees with the powers delegated to J. T. Rushing were sufficient to show their appointment in writing we do not consider necessary to determine. If they were not appointed it does not affect the sufficiency of the appointment of E. M. Mason as substitute trustee and if they were appointed as recited in the order the statements therein show that both refused to act. If such order did not speak the truth a motion should have been made at the proper time to have the order amended in that court rather than to seek its correction in this-court. Gano v. Palo Pinto County, supra. These recitations are not controverted by any testimony in the record and the presumption is that the .request to the substitute trustees to sell the property preceded their refusal to perform the trust. Southland Lumber Co. et al. v. Boyd et al., Tex.Com.App., 244 S.W. 119; Wiener et al. v. Zweib, Tex.Civ.App., 128 S.W. 699; Id., 105 Tex. 262, 141 S.W. 771, 147 S.W. 867; Mitchell et al. v. McClung et al., Tex.Civ.App., 93 S.W.2d 458, writ refused. The deed of trust authorized the appointment of substitute trustees and stipulated that in any deed or deeds given by any trustee or substitute trustee duly appointed, any and all statements of fact made therein by-any trustee or substitute trustee as to nonpayment of money, the request'to sell, or-as to. time, place, terms of sale, property sold, or due notice thereof, or as to any-other act done, should be taken by any and. all courts of law and equity as prima facie evidence that such statements and recitals-state the facts and are to be accepted without question. These provisions of the deed of trust are substantially complied with in-the trust deed and since no testimony was-offered to controvert such recitations they,, in our opinion, constitute a prima facie case.

In Mortimer v. Williams, Tex.Civ.App., 262 S.W. 123, 125, the court says; “This recital being unrebutted was prima facie proof of default in payment of the indebtedness of the request of the holder to the trustee to sell, and that due notice of the time, place, and terms1 of such sale had been made as required by law and in accordance with said deed of trust. Adams v. Zellner, 107 Tex. 653, 183 S.W. 1143; Roe v. Davis, 106 Tex. 537, 172 S.W. 708; Southland Lbr. Co. et al. v. Boyd et al. (Tex.Com.App.) 244 S.W. 119; Swain v. Mitchell, 27 Tex.Civ.App. 62, 66 S.W. 61; McCreary v. Reliance Lbr. Co., 16 Tex.Civ.App. 45, 41 S.W. 485; Jesson v. Texas Land & Loan Co., 3 Tex.Civ.App. 25, 21 S.W. 624; Allen v. Courtney, 24 Tex. Civ.App. 86, 58 S.W. 200.”

The appellant also challenges the validity of the sale under the deed of trust and the trust deed executed to Rains County by E. M. Mason for the reason that he was the--duly elected, qualified and acting judge of said county and the presiding officer of the ■commissioners court at the time of the entry of the orders appointing him substitute trustee and directing him to sell the 'land in controversy under the powers conferred in the deed of trust executed by Charles C. Crenshaw.

The management and control of the business of Rains County and the disposition of the school lands thereof were by law vested in the commissioners court. The powers of E. M. Mason as substitute trustee were clearly defined and there is no claim that he exceeded his authority or violated his fiduciary relationship. While the deed of trust provided that the trustee should receive 5% commission, the uncontroverted evidence shows that he was paid no commission for his services as substitute trustee and since he received no remuneration we are of the opinion that his action as •substitute trustee was not void because he was at the same time county judge. In Gallup et al. v. Liberty County, 57 Tex.Civ.App. 175, 122 S.W. 291, writ of error denied, it is held that a .county judge is authorized to represent the county as an attorney provided he received no compensation for his services. It is apparently the •established law that a beneficiary under a deed of trust may act as trustee in such instrument. Mitchell et al. v. McClung et al., Tex.Civ.App., 93 S.W.2d 458; Thornton et ux. v. Goodman, Tex.Com.App., 216 S.W. 147; Howard v. Davis, 6 Tex. 174; Scott v. Mann et al., 33 Tex. 725, 726; Marsh v. Hubbard, 50 Tex. 203. If the beneficiary can act as his own trustee we conceive of no sound' reason in law or equity that would prohibit a county judge from acting as trustee in a deed of trust and exercising the powers therein granted, provided always that he acts in good faith.

• Finding no reversible error the motions for rehearing are granted, the former opinion withdrawn, the judgment of this court set aside, and the judgment of the trial court affirmed.


author: PRICE, Chief Justice.

text:
    ÆTNA LIFE INS. CO. v. LOVE et al.
    No. 4056.
    Court of Civil Appeals of Texas. El Paso.
    Feb. 27, 1941.
    Rehearing Denied April 10, 1941.

      Johnson & Rogers, of San Antonio, for appellant.
    Harry B. Berry, of San Antonio, for ap-pellees.
   PRICE, Chief Justice.

As plaintiffs, Tom Love, Victoria Houston and Cora Davis, recovered in one of the District Courts of Bexar County a judgment against Aetna Life Insurance Company, defendant, in the sum of $4,000. This appeal is perfected by the said defendant from that judgment.

This is the second appeal of this case. On the first trial verdict was instructed in favor of defendant, and plaintiffs appealed from the judgment. That appeal by transfer came before the Beaumont Court of Civil Appeals, wheie the judgment of the trial court was reversed and the cause remanded to the trial court. Love v. Aetna Casualty & Surety Co., 99 S.W.2d 646. The Supreme Court granted writ of error, but on review the Commission of Appeals affirmed the judgment of the Court of Civil Appeals. 132 Tex. 280, 121 S.W.2d 986.

For convenience the respective parties will be designated here as they were in the trial court.

Basically, practically the same pleadings and the same evidence are here involved as were in the former appeal, save and except the alternative allegations quoted in Love v. Aetna Casualty & Surety Co., supra, do not appear in the amended trial petition here. In short, the trial petition here makes no mention of the Justice of the Peace having ordered the autopsy. A brief statement of the nature and result of the suit is deemed to be all that is necessary. #

Plaintiffs alleged that one was a brother of Orange Love, deceased, and the others were sisters. Damages were sought against the defendant on account of the alleged wrongful dissection and mutilation of the dead body of their brother, Orange Love, charging that the defendant unlawfully procured an autopsy on the dead body,- and same was dissected and mutilated in the conduct of the autopsy.

Defendant’s answer consisted of a general exception and general denial. The trial was before the court and a jury. The case was submitted upon special issues. Such special issues and the findings of the jury thereon were as follows:

No. 1: “Do you find from a preponderance of the evidence that C. E; Klein procured the performance of an autopsy on the dead body of Orange Love? Answer ‘yes’ or ‘no.’ ”
Answer: “Yes.”
No. 2: “Do you find from a preponderance of the evidence that C. E. Klein while procuring the autopsy, if you have so found in answer to Special Issue No. 1, was acting within the scope of his agency for the defendant, Aetna Life Insurance Company ? Answer 'yes’ or ‘no.’ ”
Answer: “Yes.”
No. 3: “Do you find from a preponderance of the' evidence that C. E. Klein in procuring the autopsy, was acting as in the corporate capacity of the Aetna Life Insurance Company? Answer ‘yes’ or ‘no.’ ”
Answer: “Yes.”
No. 4: “Do you find from a preponderance of the evidence that upon the procurement of the autopsy by C. E. Klein, if you have so found, the defendant ratified such act? Answer ‘yes’ or ‘no.’”
Answer: “Yes.”
No. 5: “Do you find from a preponderance of the evidence that the plaintiffs were the next of kin to Orange Love at the time of his death? Answer ‘yes’ or ‘no.’ ”
Answer: “Yes.”
No. 6: “Do you find from a preponderance of the evidence that John R. Shook, as Justice of the Peace, ordered Dr. T. N. Goodson to perform the autopsy on the body of Orange Love? Answer ‘yes’ or ‘no.’ ”
Answer: “No.”
No. 7: “Do you find from a preponderance of the evidence that the said John R. Shook, as Justice of the Peace, in ordering the autopsy, if he did so order the same, acted in good faith for the purpose of detecting crime ? Answer ‘yes’ or ‘no.’ ”
Not answered. (Answer to this question was conditioned on an affirmative answer to No. 6).
No. 8: “Do you find from a preponderance of the evidence that prior to the time John R. Shook made the order referred to in question No. 6, C. E. Klein made a full, fair and truthful statement to the said John R. Shook, of the facts in his (Klein’s) investigation had disclosed in reference to the case of Orange Love? Answer ‘yes’ or ‘no.’ ”
Not answered. (Answer to this question was conditioned on an affirmative answer to No. 6).
No. 9: “Do you find from a preponderance of the evidence that C. E. Klein acted in good faith in relating the facts to the Justice of the Peace and for the purpose of enabling the Justice of the Peace to determine for himself whether the facts justified the ordering of an autopsy upon the body of Orange Love? Answer ‘yes’ or ‘no.’” '
Answer: “No.’h
No. 10: “What amount, if. any, do you find from a preponderance of the evidence, if paid now, would fairly and reasonably compensate the plaintiffs for the procurement of the autopsy, if you have so found ? Answer, giving the amount, if any.”
Answer: “$2000.00.”
No. 11: “Do you find from a preponderance of the evidence that such autopsy was procured maliciously? Answer ‘yes’ or ‘no.’ ”
Answer: “Yes.”
No. 12: “What amount of money, if any, do you find from a preponderance of the evidence, should be paid plaintiffs as exemplary damages? Answer, giving the amount, if any.”
Answer: “$2000.00.”
Defendant briefs its assignments under twelve propositions. None of these assignments attack the manner of the submission of the case by the court, but each and all attack findings of the jury as either lacking support in the evidence or being against the undisputed evidence.

The decision on the former appeal establishes as the law of this case, first, that if the defendant procured the autopsy in question to be performed without warrant of law on the body of Orange Love, his brother and sisters, if next of kin, and suffering damage thereby, have a cause of action; further, if the Justice of the Peace made an order for the autopsy to enable defendant to ascertain whether or not Orange Love had received the injuries in respect to which he claimed compensation, and not to ascertain whether or not the criminal law had been violated, that such an order was not a lawful order, and defendant could not justify the autopsy thereunder; that the evidence was sufficient to raise the issue as to whether or not the order had been procured by the defendant for that purpose; that from the making of the order there arose a presumption of fact existing authorizing its issue; that such presumption was a re-buttable presumption.

Defendant vigorously attacks the finding of the jury on special issue No. 6, finding, in substance and effect, that John R. Shook, as Justice of the Peace, did not order the autopsy in question. First ground of attack is that the pleading and evidence, being practically the same on this trial as on the former, the decision on the former appeal conclusively settled the issue in its favor; (2) that the finding is against the undisputed evidence; (3) it is against the great preponderance of the evidence.

In the opinion of the Commission of Appeals [132 Tex. 280, 121 S.W.2d 987], this statement is made: “It appears in testimony * * * On June 22, 1933, the dead body of Orange Love still being at the said funeral parlor, Judge Shook, a justice of the peace at San Antonio, telephoned Dr. Goodson, the County Health Officer of Bexar County, and ordered him to make an autopsy of the-dead body. Dr. Goodson, in pursuance of said order, proceeded on the same day, with the assistance of Dr. Stout, to perform the autopsy.”

For the pleadings and evidence on the former trial we can rely only on the opinions of the Court of Civil Appeals and the Commission of Appeals. It appears ■ from these opinions that Mr. Klein and Dr. Goodson testified substantially as they testified in this trial. Klein, in substance, on the point at issue, that he first approached Dr. Goodson, the County Health Officer, as to an autopsy on the body of Orange Love. The doctor informed him that he could not make same unless he was ordered to do so by Judge Shook; that he then proceeded to the office of Judge Shook and laid the facts before him. Judge Shook ordered the autopsy. He then called Dr. Goodson on the phone and Judge Shook then took the phone and ordered Dr. Good-son to make the autopsy. Dr. Goodson testified that Mr. Klein called him on the phone, told him he was at the office of Judge Shook, and that Judge Shook had ordered the autopsy. He told him he didn’t doubt his word, but that he would have to have the order from Judge Shook-; that Judge Shook then took the telephone and made the order for the autopsy.

Dr. Goodson, we presume, was a witness for the plaintiffs, as he was on this trial.

Dr. Goodson testified that he did not present a bill to Bexar County for performing this autopsy; that he was paid $50 therefor by the defendant, and it seems, likewise, that Dr. Stout, the assisting physician, was paid for his services the sum of $50 by defendant.

On this trial Judge Shook testified. In substance and effect his testimony was that he had no personal recollection of the incident. He did not deny that he ordered the autopsy, but had no recollection of any conversation with Mr. Klein, the agent of defendant, prior to the holding of the autopsy; that if an inquest had been held a record thereof would have been made; that in some few cases .an autopsy had been ordered and after coming in of the report nothing further was done; that in such cases the report was put in an envelope and placed in a can with the inquest papers.

It was established on this trial, or at least the evidence was sufficient to raise the issue, that there was no record in the office of the Justice of the Peace of an inquest on the body of Orange Love; that a search had been made for a report on the autopsy, and that same had not been found. The evidence of this search showed that it was made in the place indicated by the testimony of Judge Shook that such reports should be found, and that no such report was there found.

Whether this testimony as to the lack of a report of any inquest was before the court on the former trial, we do not know.

As we have stated, Dr. Goodson was the witness of plaintiffs, but in our opinion this would not preclude the plaintiffs from contradicting his testimony as distinguished from attacking his credibility. Western Union Tel. Co. v. Vickery, Tex.Civ.App., 158 S.W. 792; Sparks v. Johnson, Tex.Civ.App., 235 S.W. 975, 976; Latham v. Jordan, Tex.Com.App., 17 S.W.2d 805; South Texas Coaches v. Eastland et al., Tex.Civ.App., 101 S.W.2d 878, 884.

One who calls a witness vouches for his credibility and cannot ordinarily impeach him to the extent of attacking his credibility. He does not vouch for his infallibility and constitute him one incapable of being mistaken.

Unquestionably, under the decision by which this trial was governed, and we are here governed, the establishment that the order was made created a presumption that same was lawfully and properly made, —a rebuttable presumption, of course. In order for this presumption to arise, however, it is necessary that it be established that the order was made.

If the order was made, it was made by parol, and there is no evidence that any record of same was ever made. We find in the law no requirement that any record should be so made. The only evidence that such order was made is the testimony of Mr. Klein and Dr. Goodson. We take it that the testimony of Mr. Kllein, standing alone, would still leave the matter an issue of fact. Dr. Goodson, however, was plaintiffs’ witness, and the law does not allow the same latitude for plaintiffs calling him as a witness as it did in the case of calling Mr. Klein. Dr. Goodson testified that Judge Shook transmitted the order to him over the telephone. If such be the case, it is fair to assume that it was only through the recognition of Judge Shook’s voice that he knew that the order came from that source. In appraising the value of the testimony of a witness it is fundamental, we think, that the trier of the facts has a right to take into consideration the opportunity the witness had to gain a true impression as to the facts to which he testifies.

Clearly, Judge Shook had not the power to order an autopsy unless it was in connection with an inquest. Articles 968, 970, 972, Vernon’s Annotated Code of Criminal Procedure. If Judge Shook held an inquest it was his duty under the law to make a written record thereof. Article 978, Vernon’s Annotated Code of Criminal Procedure. He testified that in the cases in which he held an inquest he did make a record thereof. No such record was found of an inquest over the body of Orange Love. In this connection it should be stated that in some rare cases, Judge Shook testified, that the inquest proceeded no further than the autopsy. In such a case no record was made, and no charge was made therefor; but that the report thereof was ordinarily filed or placed in the inquest can. No such report of an autopsy in this case was found in the inquest can for the year 1933. There was evidence of a reasonably diligent search therefor. If this autopsy was lawfully held, Dr. Good-son was entitled to compensation therefor as provided in the Code of Criminal Procedure. No such claim was filed. Had such a claim been filed, as to the legitimacy and the amount thereof, it would have come under the scrutiny of the County Auditor of Bexar County and the Commissioners’ Court. This circumstance, slight though it may be, possibly may not be considered, as it goes to Dr. Goodson’s credibility rather than in contradiction of this testimony. However, in calling in Dr. Stout, there is no evidence that Dr. Good-son complied with Art. 971 of the Code of Criminal Procedure. In fact the evidence would indicate he did not. From the testimony, we think it may be fairly inferred that under the authority of the defendant Dr. Goodson employed Dr. Stout for the defendant. In any event, it appears that Dr. Goodson requested Dr. Stout to assist in the autopsy, and defendant paid Dr. Stout therefor. There is no evidence that it became necessary to determine whether the death of Orange Love had been produced by poison and the justice called him, as is provided in the applicable .statute, Article 971, supra.

The facts appearing in evidence above narrated are negative in character, and the evidence as to the order was direct and positive. Even though this be true, in our opinion, they are sufficient to raise the issue.

If the issue was properly submitted under the pleading, the burden thereof was properly placed on the defendant. However, in our opinion the issue submitted in No. 6 was not an issue under the pleading on the trial. Plaintiffs’ pleading on this trial differs from the pleading on the former trial. A reference to the former pleading, as stated by the Court of Civil Appeals, Love v. Aetna Casualty & Surety Co., supra, demonstrates that plaintiffs there pleaded specifically, although alternatively, that the Justice of the Peace ordered the autopsy. Such allegation and proof were part of plaintiffs’ case. There, the burden was taken by plaintiffs of destroying the prima facie validity of the order. In such a case, if plaintiffs failed, it afforded justification for the defendant. In our opinion, in order to rely on the order as a justification, defendant should have pleaded the order in the state of the pleadings on this trial and not relied on a general denial as raising the issue.

Special issue No. 6 was, we think, intended to submit a defense rather than a part of plaintiffs? cause of action. The burden of establishing such defense was properly placed upon the defendant. If it properly arose under a general denial the burden thereof was not upon the defendant. It seems to us that, in substance, this is the theory of the issue: that even though the autopsy was held and defendant procured same to be held, if same was ordered by the Justice of the Peace, a justification therefor, or at least a prima facie justification, was established. But such proof is not a denial of the facts alleged by plaintiffs, but an avoidance of their legal consequences.

In the case alleged in plaintiffs’ former trial, it bore some remote analogy to the action Of malicious prosecution. Here, there is some remote analogy in the case alleged to the action for false imprisonment. In the action for malicious prosecution it is elementary that plaintiff must negative the existence of probable cause. Not so in the case of false imprisonment, unless justification therefor be shown in the plaintiff’s petition. ■ Defendant, in order to rely on justification, must not only prove same, but as a basis for the proof must plead same. Cameron Compress Co. v. Kubecka, Tex.Civ.App., 283 S.W. 285, writ refused, and authorities cited therein.

In this case exemplary damages were sought. As bearing on this issue the proof was perhaps proper proof without pleading. McGehee v. Shafer, 9 Tex. 20; Shook v. Peters, 59 Tex. 393; Norris v. Casel, 90 Ind. 143.

Article 2006, R.C.S., provides: “A general denial of matters pleaded by the adverse party * * * shall be sufficient to put the same in issue.”

Article 2189, R.C.S., that “ * * * the court * * * shall submit the cause upon special issues raised by the pleadings and the evidence in the case. * * *”

In the case of W. L. Moody & Co. v. Rowland, 100 Tex. 363, 99 S.W. 1112, 1115, it is stated: “[where it] does not tend to rebut the facts of the plaintiff’s case, but which show[s] an independent reason why the plaintiff should not recover upon the case stated and proved, then such defendant must plead the facts which will avoid the legal consequence of plaintiff’s case.”

If the issue submitted in No. 6 was not an issue under the pleadings, it is immaterial whether the finding was sustained by the proof or otherwise.

In the case of Aetna Casualty & Surety Co. v. Love, supra, the discussion is largely, if not entirely, confined to the alternative count of plaintiff. There, the order was averred in plaintiffs’ pleading and an avoidance thereof alleged. The case here has not these features.

The assignments discussed are overruled.

Defendant’s fifth proposition is in substance that there was no evidence that it ever ratified the act of Klein in procuring the autopsy. It was held in Aetna Casualty & Surety Co. v. Love, supra, that as to whether Klein was acting within the scope of his authority was a question of fact. This question was solved against the defendant. Probably the issue as to ratification, in view of the above finding, is immaterial save as to the bearing it may have on the issue as to the assessment of exemplary damages. However, we think the fact that defendant paid for the autopsy after same was made, used the report thereof in defense of a claimed liability against it, is ample to sustain the finding that it ratified Klein’s act in obtaining same. There is an utter lack of evidence as to any want of knowledge on the part of defendant.

The finding that Klein did not act in good faith in laying the facts before the Justice of the Peace is assailed as being without evidence to support same. That this issue, in substance, was raised by the evidence is, we think, foreclosed by the opinion on the former appeal. In any event, we hold that same has support in the evidence.

The finding as to the $2,000 actual damages is alleged as lacking support in the evidence. We deem this assignment without merit.

The award of $2,000 as to exemplary damages is attacked (1). on the ground that there was no basis in the evidence f'or such award; (2) that the award was grossly excessive.

Beyond any question, defendant was, under the sustained findings of the jury, responsible for the acts of Klein in the premises. Its proposition is as follows: “No testimony being produced to establish that Klein, a local claim adjuster for the defendant, was the alter ego of the defendant corporation, or a vice principal thereof, or that he was acting ‘as in the corporate capacity of this defendant,’ there is no evidence in this case to authorize a recovery as against this defendant of exemplary damages.”

In the statement Under the proposition no mention is made of the jury’s finding on special issue No. 3, under which it was found that in obtaining the autopsy Klein was acting in the corporate capacity of the Aetna Life Insurance Company. This issue, we presume, was propounded with the idea of ascertaining whether or not Klein was a mere servant or agent of the corporation, or had been entrusted by it with more extensive authority. The explanation given by the court in connection with the issue, we think, conveyed this idea. It may have been that the issue was to an extent based on question No. 4, certified by the Court of Appeals to the Supreme Court, and set forth in the case of Chronister Lbr. Co. v. Williams, 116 Tex. 207, 288 S.W. 402. The question there propounded in substance was, did Harris Anderson represent appellant in its corporate capacity, and did Littlejohn represent appellant in its corporate capacity. The jury .answered practically the same question here “Yes.” No complaint, we believe, is made as to the form of the submission. It may be fairly inferred that Klein was in charge of the Claim Department of the defendant in the City of San Antonio. Under him were some six or seven employees. Under his own testimony his powers were broad and general with reference to the investigation and settlement ■ of claims against the defendant. He .gave an order on the defendant to pay Dr. Goodson for the autopsy. This order was honored and paid. So, as to Dr. Stout, who apparently had been employed by Dr. ' Goodson on behalf of the defendant to assist in conducting the autopsy. The basis of this inference lies in the fact that Dr. Goodson called Dr. Stout to assist in the autopsy, there being an entire absence of evidence that he was ordered by the Justice of the Peace so to do, or that he had requested the Justice of the Peace to authorize assistance in the autopsy. The defendant, it seems, paid Dr. Stout for the services rendered to it by him. Defendant introduced no evidence as to any limitation on the authority of the agent Klein. There is an absence of evidence to indicate but that it had complete notice at the time it paid Drs. Goodson and Stout for the autopsy under what circumstances and for whom same was held.

We are of the opinion that the evidence is sufficient to show that Klein was authorized by defendant to act in such a manner that his malice would be attributable to the defendant. The assertion is made by appellant that a finding of malice on the part of Klein is not sustained by the evidence. He knew for what purpose he sought the autopsy. It was not for the enforcement of the penal laws, but to further the financial interest of defendant. No one better than he knew that there was not a shadow of a suspicion that a violation of the criminal law was involved in the death of Orange Love. In this connection a wrongful act done intentionally in violation of the rights of another is sufficient to constitute malice.

Furthermore, we think the evidence of ratification is sufficient to subject defendant to liability for exemplary damages.

Where the act is that of the corporation, or of “one representing it in a corporate capacity,” it may be held for exemplary damages. Chronister Lbr. Co. v. Williams, 116 Tex. 207, 212, 288 S.W. 402, 404.

We think there is no merit in the assignment that the $2,000 awarded as exemplary damages is excessive. Plaintiffs were forced to resort to witnesses whose every interest was to justify the autopsy. Under the holding on the former appeal as the law of this case, plaintiffs were entitled to have the facts found by the jury. The jury had now determined the facts in their favor. , The findings reflected a wanton disregard of the rights of plaintiffs. An unjustified successful attempt to make the provision of the laws for the detection of crime subserve its private interest is attested by the verdict, which is sustained by the evidence.

We find no reversible error in the case.

It is ordered that the case be affirmed.