text:
    Ex parte GRIFFIS.
    No. 21409.
    Court of Criminal Appeals of Texas.
    Dec. 4, 1940.
    Fred Harris and Gordon Hall, both of Dallas, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   HAWKINS, Presiding Judge.

Relator was held by the Sheriff of Collin County under a capias pro fine issued out of Justice Court Precinct No. 1 of said county. Upon petition of relator averring that he was being illegally held because of certain fees improperly charged against him in behalf of the constable of said justice precinct the Hon. Tom Suggs, Judge of the 59th District Court issued a writ of habeas corpus, and upon a hearing relieved relator of all the costs charged against him in favor of the constable save one dollar taxed for a “release”, and remanded relator to the custody of the sheriff until said sum was paid. This is an appeal from said order.

Relator was stopped on the highway by highway patrolmen and given a ticket for violating the “speed law.” The ticket directed relator to appear before the Justice of the Peace at McKinney, Collin County, Texas, on March 23, 1939, to answer to a charge of “speeding.” Relator signed the ticket and proceeded on his journey. Complaint was filed against relator on the “speeding” charge by one of the highway patrolmen. Two or three days before March 23, 1939, relator went before the Justice of the Peace and entered a plea of guilty and was fined one dollar and costs. Among the items of cost taxed was the one dollar for a “release” which item is here involved. The total fine and costs amounted to $13.30. Relator did not pay the fine and costs but made arrangements with someone to let him pay it by installments. It, is uncertain just who agreed to this arrangement. Upon that point relator testified as follows:

“ * * * I did not pay my fine in full. I came in with another fellow that had a ticket that he got the next day and we got in my car and came to McKinney here, -and asked them if we could pay it a little at a time instead of all at one time. We put the proposition up to them that we didn’t have it all at one time and asked a courtesy of them that we would like to have it made payable a little at a time. I was permitted to do that. Until this capias pro fine was issued, I thought I had paid my fine in full, but according to the papers up there, I haven’t. * * * ” We gather from the record that the payments made by relator were to the Justice of the Peace by money order.

There was a sharp issue drawn on the habeas corpus hearing as to whether the' constable was present with the patrolmen when relator was stopped and given the ticket. We regard that question as purely incidental here, as the trial judge struck out the arresting fee which had been taxed for the constable.

Article 792, P.C., as amended in 1923 (38th Leg.), provides that a person arrested for speeding shall he released from custody upon his promise in writing to appear before a designated court at a time specified. Relator when arrested signed such a written promise and was permitted to go on his way. The “release” here mentioned is not the one contemplated in Art.T065, C.C.P., which provides in Subdivision 5 of said article that there may be taxed as costs in favor of peace officers: “For each commitment or release, one dollar.”

The judgment entered by the justice of the peace against relator upon his plea of guilty is not before us. We will assume that it complied with Art. 917, C.C.P., which reads as follows: “The judgment, in case of conviction in a criminal action before a justice of the peace, shall be that the State of Texas recover of the defendant the fine and costs, and that the defendant remain in custody of the sheriff until the fine and costs are paid; and that execution issue to collect the same.”

As we understand the' statute the “release” for which the sheriff or constable may have the item of one dollar charged against an accused is the “release” from the judgment directing that he remain in the officer’s custody until the fine and costs are paid.

If relator had been placed in custody of the constable until the fine and costs were paid, and the constable had agreed that relator might go at large and pay same by installments, he could not defeat the charge of one dollar for “release” because the constable had favored him with the courtesy mentioned. (We are not discussing or considering the right of the officer to make such an agreement.)

The issue as to whether relator was properly chargeable with the one dollar for “release” turns upon the question of whether relator was ever in the constable’s custody under the judgment. Relator and his friend Mr. Gobler, who was also arrested for speeding and given a ticket at the same time as relator, both testified upon the habeas corpus hearing that the constable was not with the highway patrolmen when the detention occurred on March 18th. Neither of the patrolmen testified. Both relator and Mr. Gobler testified in substance that the constable was not pres'ent when the pleas of guilty were entered in the justice court. It will be remembered that the arrests occurred on March 18th; the pleas of guilty were entered in the justice court about March 20th or 21st. The habeas corpus hearing was on October 14th. The testimony of the constable on the habeas corpus hearing seems to make it clear that relator was never placed in his (the constable’s) custody to enforce the judgment. He testified:- “The only time I have ever seen him (the relator) since March 18, 1939, up to the present was on Saturday of this month, on the 12th I believe it was. I had not seen him over that period of time.” If the constable had not seen relator between March 18 and October 12 it seems certain that he did not take custody of relator at the time and by virtue of the judgment under the plea of guilty.

Article 1011, C.C.P., reads: “No item of costs shall be taxed for a purported service which was not performed, or for a service for which no fee is expressly provided by law.”

If the constable never had custody of relator under the judgment he could not release him from a custody which he never had. Therefore, we conclude that relator was improperly held for payment of the one dollar in question.

It appeared from the evidence that relator in addition to the one dollar in question owed a balance on the fine and costs of twenty cents, about which there was no controversy. Upon the habeas corpus hearing relator was remanded until he paid said twenty cents and the one dollar in question.

It is now directed by us that upon payment of the twenty cents relator be discharged.


source: Caselaw Access Project

author: BEAUCHAMP, Judge.

license: Public Domain

text:
    WOOD v. STATE.
    No. 21300.
    Court of Criminal Appeals of Texas.
    Dec. 4, 1940.
    B. L. Russell, of Baird, and Scarborough, Yates & Scarborough, of Abilene, for appellant.
    J. R. Black, Dist. Atty., of Abilene, and Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   BEAUCHAMP, Judge.

Appellant was assessed a penalty of two years in the penitentiary by a jury in Callahan County on a charge of cattle theft and he brings this appeal.

The only question presented for our consideration is whether or not the evidence is sufficient to warrant the verdict of the jury.

It is alleged that appellant did, on the 21st day of November, 1939, take from the possession of Fred Wylie one head pf cattle without his consent and with intent then and there to appropriate the same to his own use and benefit. Numerous witnesses testified, but the question in the case arises upon the testimony of W. C. Cravey, to whom the. state contends that appellant sold two stolen calves. The missing calves were found some months later on a ranch near Abilene and identified by the owner. Investigation showed with practical certainty the many transfers of these calves, tracing them back to a Mr. Morgan who purchased them with others in Cisco either at an auction sale or privately on the same day. The record of the auction shows that Morgan purchased five yearlings from W. C. Cravey at auction on that date, but the calves in question were not identified as having been purchased in this manner. Neither could Morgan say whether he purchased them from Cravey or from another at private sale.

Cravey testified on behalf of the state that the accused came to his house while he was eating breakfast on the early morning of November 22nd and proposed to sell him two calves, one a heifer and the other a steer. He first wanted $40, but finally let them go for $35. He then asked Cravey to pay him a part in cash as he needed to use the money. This he did, giving him a $20 bill and $15 by check which was introduced in evidence and dated November 22. This check was not cashed, but the accused returned to Cravey’s home some days later and asked for a duplicate check, stating that the first one had become soiled and he could not cash it. Mrs. Cravey, in the absence of her husband, gave him a duplicate check dated the same day and for the same amount and took up the original. The duplicate check was shown-to have been paid on November 27 and endorsed by appellant.

When the two calves were found near Abilene they were taken in possession by the sheriff and carried to Baird, the county seat of Callahan County. Cravey was called there and, after viewing the calves, testified with reference to their identity that the steer calf was not the one which he purchased from appellant, but that the heifer calf was, “to the best of my judgment.” The exact language as contained in the statement of facts was, in part, as follows:

“Q. Is that the heifer calf that you bought from Woods, over there that day? A. Well, to the best of my judgment — you see that was 4 or 5 months, to the best of my judgment that heifer calf looked very much like heifer calf I bought from Woods.
“Q. Well, was it the calf. You know. You looked at it. A. Well, yeah—
“The Court: He asked you if that was the calf you bought from the defendant. A. To the best of judgment it was. You have all handled cattle. It is hard to identify things 4 or 5 months afterwards. Just to get up and be positive about it.”
“A. This heifer calf was very much like the calf I bought from Wood.
“Q. What about the steer calf? A. No, I don’t think it was. To the best of my judgment, I don’t think it was, because—
“I bought two calves from Mr. Wood. That is right. The steer calf they showed me here, didn’t look at all like the steer calf that Wood sold me. The heifer calf, I think, did look something like it.
“Q. But you can’t positively say that it was the calf? A. Well, I just don’t— it just looked like it a whole lot. That’s all I could say. Was no mark or brand on it to where I could be positive about it, but it looked pretty much like the calf and it hadn’t grown much; it was pretty near the same size.”
“Q. You are sure the steer was not the steer? A. Well, I am just like it by the other one, I don’t think it was. I am as much saying it was not as I am the other one that it is. In other words I am just as positive that the steer I saw was not the steer that I bought from Wood as I am that the heifer was the one I bought from him.”

It will be noted that Mr. Cravey was not certain about the identity of the heifer calf and commented that it did not look large enough to be the one which he bought from Wood. Mr. Trigg, one of the parties who had purchased the two calves together and resold them, was called to identify it and he was not positive of the identity of the heifer calf because' he thought it looked too large. Both were state witnesses.

It is contended by the state that the fact appellant introduced no evidence explaining the possession of the calves which he sold to Cravey should be taken as a circumstance against him. Inasmuch as Cravey didn’t identify the calves which he purchased from Wood as being the ones now claimed by Wylie, *we see no reason why appellant should do so. The prosecution is based on the theft of a head of cattle in the possession of .Fred Wylie. Whether or not the calves properly belonged to Wood was not, in the state of the evidence, a matter of interest to this prosecution.

We consider Scoggins v. State, 92 Tex.Cr.R. 424, 244 S.W. 535, in point. It was followed by Smith v. State, 113 Tex.Cr.R. 212, 18 S.W.2d 1068, and also by Hampton v. State, 138 Tex.Cr.R. 408, 136 S.W.2d 820. We consider it a sound proposition of law that where the witness not aided by description or circumstance testifies that he has doubts about the identity of the stolen article, the jury would not be justified in so concluding beyond a reasonable doubt. Had he been able to give marks, brands or other evidence as facts upon which the jury may have reached the conclusion that the heifer calf was the same one sold by appellant, the jury might have been able to so conclude even though the witness hesitated to do so. Here, however, the jury had to rely upon the witness’ identification and this he declined to do with certainty.

Under the authorities stated, and because of the insufficiency of the evidence to warrant the jury’s verdict, the judgment of the trial court is reversed and the case remanded.


author: KRUEGER, Judge. HAWKINS, Presiding Judge.

text:
    MULDROW v. STATE.
    No. 21275.
    Court of Criminal Appeals of Texas.
    Nov. 27, 1940.
    Rehearing Denied Dec. 18, 1940.
    A. A. Kern, of Dallas, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   KRUEGER, Judge.

The offense is rape. The punishment assessed is death.

The only question presented for review is the sufficiency of the evidence to sustain the conviction.

The State’s testimony, briefly stated, shows that in the early afternoon of April 23, 1940, three negroes appeared at the home of Sam D. Grogan during his absence and by force had sexual intercourse with Mrs. Grogan. While in the Grogan home and after the commission of the alleged offense they took a locket, a lavalier and a black alarm clock and then left. Soon after the three culprits had left Mr. Grogan returned to his home and found his wife crying, nervous and hysterical. She informed him of what had occurred and he immediately notified the officers. Appellant was arrested about 6:30 P.M. He made a voluntary confession which was reduced to writing. The clock was found between the bedding of his bed and the locket and lavalier were also recovered.

A doctor who examined Mrs. Grogan soon after the occurrence discovered evidence of the penetration of her female organ. A few days later he examined her again and found evidence characteristic of shankeroids, venereal in origin. One of the three defendants was afflicted witlr gonorrhea and shankeroids. The victim definitely identified appellant as one of the three negroes who had outraged her, as charged in the indictment.

Appellant did not testify. He filed a plea for a suspension of sentence in the event of his conviction and proved by his father that he had not been theretofore convicted of a felony in this or any other state. He did not offer any testimony exonerating him or tending to mitigate the offense. Consequently, the only question presented for review is the sufficiency of the evidence to sustain the conviction.

Upon a most careful review of the record we reached the conclusion that the evidence is sufficient.

The judgment is affirmed.

PER CURIAM.

The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.

On Motion for Rehearing.

HAWKINS, Presiding Judge.

In his motion for rehearing appellant urges again that the evidence is not sufficient to sustain the verdict. We have reexamined the facts. There seems to be not the slightest reason which could raise even the vaguest doubt about appellant’s guilt.

The motion for rehearing is overruled.


author: KRUEGER, Judge. GRAVES, Judge.

text:
    JENNINGS v. STATE.
    No. 21202.
    Court of Criminal Appeals of Texas.
    Nov. 6, 1940.
    Rehearing Denied Dec. 18, 1940.

      Bert G. Ashby, Preston P. Mangum, and Andrew Priest, all of Dallas, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   KRUEGER, Judge.

The offense is an assault with intent to commit murder. The punishment assessed is confinement in the state penitentiary for a term of four years.

The record shows that appellant, who was a married man, had been, for two years or more prior to the commission of the offense, keeping company with the assaulted party, who was a girl twenty years of age. It seems from the record that he forced his attention upon her; that she on several occasions sought to terminate his visits to her hut he declined to heed her request to do so. She finally had her father to meet her when she quit work for the day and accompany her home. On the day in question the appellant, with a shotgun in his car, followed her and her father from where she was employed to her home. Being in his car, he reached a point on the street opposite her home before she and her father did, and when they came down the sidewalk, he got out of his car with the gun. She immediately ran down the alley beside her home, and when she reached the corner and started to turn to enter the back of her home he shot her. The father, who was present, immediately interceded in behalf of. his daughter by striking appellant with something in a paper bag. Appellant then struck the father on the head with the shotgun, walked to his • car and shot himself in the chest.. Both the girl' and. appellant were taken to a hospital where. .they received medical treatment and both recovered.

Appelláht testified that a few days be*fore he made a date- with the' assaulted party and started going with her, he saw her at Ervay and, Grand Streets in. Dallas and recognized her as the girl whom he had theretofore seen at the. Presbyterián Orphans’ Home; 'that thenceforth he associated with her, became infatuated with her, and they ate dinner together two or three times each week; and they would go to picture shows .and- go riding, etc. He testified that' in December prior to the 25th of August, 1939 (the date of the commission of the alleged offense), his wife obtained a divorce from him; that he tried to see his victim and tell her that his wife had obtained a divorce but she would evade him and he could not get to talk to her; that on the day in question he saw her, in company with her father, leave the place where she was employed; that he . saw them board a bus and he followed them until they disembarked from the conveyance and started to walk home, whereupon he drove to a point hear their home and stopped on the opposite side of the street; that when they came along upon the sidewalk he-got out of his car with the shotgun in his hand, not with the purpose of shooting her but to prevent her father from interfering with him in seeking to engage her in conversation; that when she saw him with the shotgun she ran; that he started in the same direction but when he got on the terrace he stepped on a rock or bone, which caused him to slip and the gun was accidentally discharged,- striking her.

Appellant also proved a good reputation as a law-abiding citizen.

The foregoing are in substance the salient and material facts próved on the trial of the case.

By bill of exception No. 1, appellant contends that the District Attorney, in his closing argument to the jury, among other things, said: “Wilson, the girl's daddy, could have looked him up and killed him, and under the facts in this case, a jury in Dallas County would have acquitted him.”

Appellant objected thereto on the ground that the same was prejudicial. The court sustained the objection and told the jury not to consider it for any purpose. The court qualified the bill and in his qualification states that the District Attorney used the following language: “Wilson, the girl’s daddy, could have killed the defendant and under the facts in this case a jury would have acquitted him.”

The bill, as qualified, was accepted by the appellant and he is bound thereby. There was testimony to the effect that when appellant fired the gun the father of the girl was present and interceded in her behalf. If he had killed the defendant, it would have been in defense of his daughter. Such is the effect of the argument. We do not see how the argument could have been more prejudicial than the testimony which was a basis therefor.

The testimony complained of in bill of exception No. 2 was part of the res gestae and admissible on that theory.

Bill of exception No. 3 reflects the following occurrence: While the assaulted party was testifying she was asked when she met the defendant, to which she replied, “About twelve years ago while an inmate of the Reynolds Presbyterian Orphanage.” Appellant objected thereto on the ground that it was irrelevant, immaterial and too remote, and that it tended to prejudice the minds of the jury, etc. This bill is also qualified by the court, who states in his qualification that there was testimony from other sources that appellant met her the first time at the Presbyterian Orphanage, and this testimony went to the jury without objection. Appellant himself testified that when he met her on Ervay and Grand in the city of Dallas, he recognized her as the girl he saw in the orphans’ home. When evidence is admitted without objection which is similar to that objected to, no reversible error is shown. In support of what we have said, we refer to the following authorities: Enix v. State, 112 Tex.Cr.R. 376, 16 S.W.2d 818; McLaughlin v. State, 109 Tex.Cr.R. 307, 4 S.W.2d 54; Sparkman v. State, 128 Tex.Cr.R. 627, 82 S.W.2d 972. Moreover, the bill is qualified and as qualified, fails to reflect any reversible error.

No reversible error having been discovered in the record, the judgment of the trial court is affirmed.

PER CURIAM.

The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals, and approved by the Court.

On Motion for Rehearing.

GRAVES, Judge.

The motion herein is mainly concerned with our ruling in the original opinion on appellant’s bill of exceptions No. 1. We have again read the record relative to such bill and are of the opinion that same was properly disposed of in our original opinion. We see no reason to recede from any of the views expressed herein originally-

The motion is overruled.


text:
    VARNER v. STATE.
    No. 21284.
    Court of Criminal Appeals of Texas.
    Dec. 4, 1940.

      Dibrell, Mosheim & Campbell, of Seguin, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State."
   BEAUCHAMP, Judge.

A. J. Varner was convicted by a jury in the county court of Guadalupe County on a charge of obstructing a public road, and was assessed a fine of $25.

The appeal presents several questions, but our attention is attracted first to the condition of the record in that it fails to show that the road alleged was a public road. There is evidence that it had been used by some people a great many years ago, the time being indefinite, but there is also evidence without dispute in the record that the road described, or at least a part of it, was so obstructed by the growth of trees in it and the washing of ditches across it that it was not and could not be used as a public road and had not been for something like twenty years. There is evidence that a part of the road was traversed by individuals whose properties were made accessible by reason of it, but they did so only by crossing what appears to be a part of appellant’s land in order to go around a ditch in the roadway and then by winding among trees and brush the rest of the distance. 'These parties might have used this strip of land by right, or permissively. It is immaterial to the turning point in this case.

When the prosecuting witness interviewed the county commissioner in whose precinct the roadway is situated, he told the witness that he would have to secure a petition to have the road opened. Assuming that the commissioner was correct in his instruction, and the prosecution concurs, it was not a public road at that time. The witness then secured a petition signed by sixty-two people asking the commissioner’s court to open the road. Whether or not this petition meets the requirements of law as a petition to create a public road is also immaterial, because the record does not show that it was ever acted upon. It was filed by the clerk and the court thereupon directed a letter to be written to appellant telling him to remove the alleged obstruction. He did so at the time, but thereafter replaced it. There is no. evidence of any order of the court at. any time ‘which attempts to designate this; as a public road and there is nothing shown in the record whith would make it such.

It is immaterial to discuss the questions raised by the bills of exception.

Because the prosecution fails to show that the road alleged was a public road, the judgment of the trial court is reversed and the cause remanded.


author: MURRAY, Justice.

text:
    SEARS ROEBUCK & CO. v. WILLIAMS.
    No. 10772.
    Court of Civil Appeals of Texas. San Antonio.
    Nov. 27, 1940.

      Polk Hornaday, of Harlingen, for appellant.
    Crane & Glarner, of Raymondvillé, for appellee.
   MURRAY, Justice.

This suit was instituted in the Justice of the Peace Court of Willacy County, Precinct No. 4, by La Villa Hardware Company against Zack Williams and Sears Roebuck & Company seeking to recover the sum of $120.

La Villa Hardware Company stated its cause of action as follows:

“Plaintiff says that during the month of July, 1936, A. D., defendant Sears Roebuck & Company sold a refrigerator to Zack Williams, for a consideration of Two Hundred and Nine ($209.00) Dollars, and warranted such machine to give such satisfactory service as the owner had a right to expect, and in December, 1937, the defendant, Zack Williams, sold said machine to plaintiff guaranteeing the same under the same guarantee as the defendant, Sears Roebuck & Company, had given to the defendant, Zack Williams; and that said machine has failed to perform the service for which it was sold, and in fact has failed to give any service, and has become a total loss to the plaintiff; and that plaintiff paid for the same One Hundred Twenty ($120.00) Dollars, to the said Zack Williams, and for that reason both defendants became liable to plaintiff in the sum of $120.00, the value of said machine if it had performed the service for which it was sold, and if it had-performed the service that the customer had the right to expect of it.
“And that plaintiff has requested defendant Zack Williams and Defendant Sears Roebuck & Company, to fulfill the guarantee, and both of said defendants have failed and refused to do so, or to refund to plaintiff the value of said machine, which is One Hundred ($120.00) Dollars.
“Plaintiff prays the court that defendant Zack Williams, who lives in Willacy County, and Sears Roebuck and Company, who has an office in Harlingen, Cameron County, Texas, in which office there is an agent upon whom service may be had, or it has a place of business at which service may be left.
- “Wherefore, plaintiff prays the court that defendants be cited to appear at the next term of this court, and upon final hearing the plaintiff have judgment for $120.00 with 6% interest on same, from December IS, 1937, and for all costs of court, and such other relief as the court may find him entitled to receive.”

Williams did not appear in the Justice Court and judgment was rendered against him. Sears Roebuck & Company did appear and answer, but upon final hearing judgment was rendered in favof of the La Villa Hardware Company and against both Williams and Sears Roebuck & Company for the sum of $120, together with interest at the rate of 6% per annum from December IS, 1937, until paid.

An appeal was taken by the defendants to the County Court of Willacy County, where upon a trial de novo judgment was rendered in favor of La Villa Hardware Company against Zack Williams in the sum of $120 with interest, and also in favor of Zack Williams against Sears Roebuck & Company for a like sum.

From this last judgment Sears Roebuck & Company have prosecuted this appeal.

Williams did not appear in the Justice Court and ask for judgment over against Sears Roebuck & Company for any amount that he might be required to pay to La Villa Hardware Company, but, on the contrary, permitted judgment to go against him by default. Having filed no pleadings in the justice court he would be precluded from asking for affirmative relief for the first time on appeal in the County Court. Harrison v. Gulf, C. & S. F. Ry. Co., 4 Willson Civ.Cas. Ct.App. § 69, 15 S.W. 643; Ostrom v. Tarver, Tex.Civ.App., 29 S.W. 69; Texas & P. Ry. Co. v. Hood, 59 Tex.Civ.App. 363, 125 S.W. 982; Humble Oil Co. v. Telephone Co., Tex.Civ.App., 2 S.W.2d 488; Welsh v. Chapman, Tex.Civ.App., 87 S.W.2d 293; Herring-Turner Hardware Co. v. Park, Tex.Civ.App., 123 S.W.2d 983.

There being no proper pleadings to support the judgment in favor of Williams against Sears Roebuck & Company, such judgment cannot stand.

The judgment of the trial court will be reformed so as to eliminate that part of the judgment allowing a recovery by Williams against Sears Roebuck & Company, and the judgment as thus reformed will be affirmed, except that appellant, Sears Roebuck & Company, shall recover judgment for all costs in this behalf expended in this and the courts below.

Reformed and affirmed.


author: O’QUINN, Justice.

text:
    ENGLISH v. MURPHY et al.
    No. 3726.
    Court of Civil Appeals of Texas. Beaumont.
    Oct. 30, 1940.
    Rehearing Denied Nov. 13, 1940.
    Chas. S. Pipkin, of Beaumont, and Dar-den & Burleson, of Waco, for appellant.
    Shivers & Keith, of Port Arthur, for ap-pellees.
   O’QUINN, Justice.

This is an appeal from an ordér of the 58th district court of Jefferson County, Texas, overruling a plea of privilege.

J. H. Murphy was plaintiff in'the court below. He filed suit in the district court of Jefferson County against Guy Geardana, a resident of Jefferson County, Texas, and J. M. English, a resident of Harris County, Texas, doing business as J. M. English Truck Lines, to recover damages for injuries alleged to have been suffered by his wife, Modene Murphy, occasioned by a collision between the automobile in which he and his wife were riding, and an automobile driven by defendant below, Guy Geardana, in conjunction with the acts of the driver of a truck driven by an employe of defendant J. M. English, against each of the defendants and alleged that said negligent acts combined caused the injuries suffered by his wife Modene Murphy.

The defendant J. M. English duly filéd his plea of privilege to be sued in Harris County, the admitted county of his residence.

Plaintiff seasonably filed his controverting affidavit, and the cause was regularly heard, and judgment entered overruling the plea. No findings of fact or conclusions of law were filed by the court, but there is in the record a statement of facts duly certified by the- court stenographer and approved by the court. The facts are undisputed: On the day of the accident, ap-pellee, Murphy and his wife, were driving easterly on State Highway 90, and the English truck was approaching him from the opposite direction. Immediately behind the truck Geardana was driving in his car following the truck. There was a drag-line on and attached to the truck which extended more than twelve feet and a half into the air over the truck. There’ was a telephone wire stretched over and across the highway. This wire on one side was supported by a wooden 2" X 4" extension fastened to the top of a pole. This wire was approximately twelve feet and six inches above the surface of the highway. The truck passed under this wire, but the extension supporting the dragline on the truck caught the wire and pulled down the 2" X 4" wooden piece extending from the pole. The ’ defendant Geardana driving in his car immediately behind the truck observing the falling 2" X 4" and wire to avoid same suddenly pulled his' car to the left-hand side of -the highway, and ran his car into plaintiff’s car which at that moment was passing the truck, causing it to overturn and causing great damages thereto ;j.nd severe injuries to his. wife and himself. The dragline attached to the truck was thirteen feet and six inches high measured from the concrete top of the highway to the top of the drag-line. The telephone wire was twelve feet and six inches above the pavement of the highway. The accident occurred at Raywood, a small town in Liberty County, on State Highway 90.

Plaintiff alleged numerous acts of negligence against both the defendants, Gear-dana and English, and that said negligent acts concurred and operated together in bringing about the damages suffered by Mrs. Murphy; that the negligence of each' of the defendants, acting together, was the proximate cause of the collision, and without which the collision would not have occurred.

Murphy testified: “I was going into the edge of Raywood, proceeding east. I met a truck, dragline truck. Understand, I dont know what a dragline means, because I wasn’t raised in the east, and they don’t have them where I live. This truck had a high back to it, some kind of crane or something to it, and I noticed this crane hook and overhead wire, and I slowed down. I thought the man was working on the wire at first. And I could see the wire bobbing up and down, and pulling it, and I thought they were probably fixing to pass it over a car or something or another. So I slowed down, watching the wird. And just as I came along abreast of this truck the wire broke and the truck passed on by me, and this other car came out from behind it and hit me at a left angle and turned my car over.”

Geardana testified that he lived in Beaumont and waa going to Houston, and had been following the truck going about 35 miles an hour; that he was about 50 or 60 feet behind the truck, and that somebody hollered to him to look out for the wire, and he saw a piece of timber and wire come down toward his windshield and that was the last he remembered.

Appellee, Murphy, alleged various acts of negligence on the part of both English and Geardana, and that “The negligence of the defendants, as set out hereinabove, concurred and acted together in bringing about plaintiff’s damages; that the negligence of each of said defendants, acting together, was the proximate cause of said collision, and without which said collision would not have happened.”

Appellant insists that as the act of negligence alleged against him, and that alleged against his co-defendant Geardana, were separate and distinct acts, not done jointly, venue against him does not lie in Jefferson County, though plaintiff does have a cause of action against defendant Geardana in said county, and the court erred in not sustaining his plea of privilege to be sued in Harris County.

Appellee contends that as the acts of defendant English ^nd Geardana' were committed at the same time and place, and the collision was the result of the combined acts of both, and as it required the concurring negligent acts of both of said defendants to produce the collision, and that the collision would not have occurred but for the joint effect of each of their acts, and defendant Geardana residing in Jefferson County, the court did not err in overruling defendant English’s plea of privilege.

We think appellee’s contention is sound. That the facts as developed raised issues of actionable negligence against each of the defendants is without question. English was operating a truck on State Highway 90, and the undisputed evidence is that the truck with its load and drag chain extended above the pavement of the highway thirteen feet and -six inches. Article 827a, Section 3, subdivision '(b) of the Texas Penal Code, Vernon’s Annotated, provides: “No vehicle unladen or with load shall exceed a height of twelve feet six inches (12' 6"), including load.” The truck with its drag chain extended 13' and so the truck was being operated in violation of the Penal Code, and therefore was negligence as a matter of law. Geardana was running his car immediately behind the truck, at a rate, he said, of about 35 miles an hour. When he saw the falling timber and wire, which English’s truck had caught and pulled from its fastening, and that same was apparently going to strike his windshield, he suddenly swerved his car to the left across the highway and struck appellee’s car, turned it over, and Mrs. Murphy, who was riding in their car with her husband, was seriously injured. Murphy was on his proper side of the road travelling very slowly — Geardana suddenly ran from behind the truck over to the left side of the highway striking the car of Murphy. The acts of negligence of both defendants English and Geardana were contemporaneous in time, and the both of them, combined, produced the collision which caused the injury. Neither alone would have caused the collision, but concurring they jointly caused the collision, and so were the proximate cause of same.

The rule seems to be well settled that “if the concurrent negligence of two or more persons combined .together results in an injury to a third person he may recover from either or all.” West v. Bruns, Tex.Civ.App., 294 S.W. 235, 236, 45 C.J. 924. There need be no concert of action between the tort-feasors, it is sufficient if the cumulative effect of their acts is a single, indivisible -injury, which would not have happened but for the concurrence of their acts. Baylor University v. Bradshaw, Tex.Civ.App., 52 S.W.2d 1094, 1100, writ of error was granted but the judgment was affirmed, Tex.Com.App., 84 S.W.2d 703.

In the Baylor University case, cited above Judge. McClendon, quoting from I Cooley on Torts, 279, said: “Although it is not always definitely so stated the rule seems to ' have become generally éstablished that, although there is no concert of action between tort feasors, if the cumulative effect of their acts is a single,- indivisible injury, which it cannot certainly be said would have resulted but for the concurrence of such acts, the actors are to be held liable as joint tort feasors * *

The Supreme Court, in Markham v. Houston Direct Navigation Co., 73 Tex. 247, 11 S.W. 131, 132, said: “‘An act wrongfully done by the joint agency or co-operation of several persons will render them liable jointly or severally.’ ‘The injury done in this case * * * by' the contemporaneous act of two separate wrong-doers, who, though not acting in concert, yet by their simultaneous wrongful acts put in motion the agencies which together caused a single injury.’ ”

Chief Justice Stayton, speaking. for the Supreme Court, in Gulf, C. & S. F. Ry. Co. v. McWhirter, 77 Tex. 356, 14 S.W. 26, 27, 19 Am.St.Rep. 755, said: “If an accident occurs from two causes, both due to negligence of different persons, but together the efficient cause, then all the persons whose acts contribute to the accident are liable for an injury resulting, and the negligence of one furnishes no excuse for the negligence of the other.”

Texas Power & Light Co. v. Stone, Tex.Civ.App., 84 S.W.2d 738, was a case iii which the light company parked its work truck on the west side of the street in the town of Athens, Texas, with a ladder resting upon a structure built over the bed of the truck and protruding out into the street. Stone was upon the roof of the cáb of his truck parked near the light company truck, and while he was repairing the roof of his truck, a truck of the Mayfield Company which had a covering similar to that of a covered wagon, with metal bows supporting the covering, was driven down the street, and one of the metal bows of the Mayfield Company truck struck the protruding end of the ladder upon the light company truck, causing the opposite end of the ladder to swing around knocking Stone off of the top of his truck, causing him to suffer injuries. The jury found that both the light company and the Mayfield Company were guilty of negligence, and that, the acts of each was a proximate cause of the injuries, and that none of the acts of either of- the defendants was the sole proximate cause of said injuries. The Court of Civil Appeals reversed the case'because the question of' insurance was- injected ir\-to the case by the plaintiff, but wrote a very^ satisfactory opinion wherein it rejected the contention of the light company that there was no causal connection between its negligence and the happening in question, cited numerous authorities supporting its holding, and adopted the rule laid down in 22 R.C.L. Sec. 16, pp. 129, 130, “When an injury occurs through the concurrent negligence of two persons, and would not have happened in the absence of either, the negligence of both is the proximate, cause of the accident, and both are answerable.”

In the instant case there was only one injury. Certainly the prima facie case of negligence of the truck driver was shown by proof of the violation of the penal statute. Without the negligence of the truck driver in tearing down the telephone wire, the accident would not have happened. If the truck driver had not torn down the wire, Geardana would not have swerved to the left, and there would have been no accident. It took the concurring negligence of both defendants to produce the collision. The acts of neither was the sole proximate cause of the collision; therefore, the two defendants were properly sued together, and as Geardana resided in Jefferson County, the suit was properly brought against both defendants in said county.

Among the authorities cited by appellant as sustaining his contentions, is Houser v. Harris, Tex.Civ.App., 44 S.W.2d 784, 786, which he insists is on the facts practically identical with the instant case, and directly sustains his position. We think that case, upon the law as applied to the facts here shown, can easily be distinguished. To do so we have but to quote from that decision. The court said: “According to the special circumstances, as set out in the findings of the court, the injury to the plaintiff was not caused by nor did it result through any combined negligence of the two defendants. The special circumstances reflect acts and conduct entirely separate and independent and wholly without any concert of action on the part of the two wrongdoers.. John Houser .was either guilty of negligence directly and solely causing the injury of plaintiff . * * *. or he was not .guilty of any negligence. On the other hand, the driver of the truck owned, by Ed Sproles wa-s either guilty of negligence directly producing the injury to plaintiff * * * or the driver of the truck was not guilty of any negligence. The injury was not dependent for happening solely by the com-bmed negligence of the two.” (Italics ours.)

Here, as we have said, without the tearing down of the wire, the accident would not have happened. And if Geardana had not swerved his car to the left, the collision would not have happened. But the negligence in tearing down the wire by appellant and the negligence in the swerving of his car to the left side of the highzvay by Geardana combined did cause the collision, and so the contemporaneous acts of the defendants were the proximate cause and produced the collision and injury to Mrs. Murphy.

From what we have said, the judgment should be affirmed, and it is so ordered.

Affirmed.


author: SPEER, Justice.

text:
    NORRIS BROS., Inc., v. MATTINSON.
    No. 14054.
    Court of Civil Appeals of Texas. Fort Worth.
    March 22, 1940.
    Rehearing Denied Dec. 13, 1940.

      Fay W. Prescott, Cantey, Hanger, McMahon, McKnight & Johnson, and J. A. Gooch, all of Fort Worth, for appellant.
    Hamlin Smithdeal, of Dallas, and Clark & Stegall, of Fort Worth, for appellee.
   SPEER, Justice.

Plaintiff J. A. Mattinson sued defendant Norris Bros., Inc., for damages growing out of an automobile collision in which plaintiff claimed he was struck and injured by a car driven by the agent of defendant, while in the discharge of his employment.

The various, acts of negligence charged to the driver and those claimed by defendant to be contributory negligence by plaintiff proximately causing the injury are disclosed by the issues submitted'to the jury.;

> The trial court in his charge defined “ordinary care”,' “negligence”, “proximate-cause”,' “proper- lookout”, “unavoidable accident” and “preponderance of- the ■ evidence”. The jury found, (1) the collision was not an unavoidable accident, (2) immediately prior to the collision, Mackey (defendant’s alleged agent) was operating his car at a greater rate of speed than 20 miles per hour, and that this was a proximate cause of the collision, (3) Mackey did not sound his horn immediately prior to the collision, and this was negligence and a proximate cause, (5) Mackey did not keep a proper lookout, his failure was negligence and a proximate cause, (7) Mackey did not discover plaintiffs perilous position in time to have avoided the collision by the exercise of ordinary care, (9) plaintiff did not fail to keep a proper lookout, (11) plaintiff did not dash out into the street suddenly, (14) plaintiff did not attempt to cross the street at a place other ■than at the end of a block designated for pedestrian traffic, (16) damages were assessed in favor of plaintiff for $15,612. Upon motion of plaintiff offering to remit all amounts in excess of $15,000, judgment was entered in his favor for that amount. Motion by defendant for new trial was overruled and it has perfected this appeal.

Defendant’s first and second propositions are to the effect that the court should have instructed a 'verdict in its favor for the reason the evidence shows conclusively that plaintiff was guilty of negligence as a matter of law, which proximately caused his injury, in attempting to cross the street at a time when he had seen an automobile 400 feet away coming in his direction, and not having looked again in the direction of the on-coming car immediately prior to the time he was struck.

It is contended that in a former appeal of this case (Norris Bros., Inc. v. Mattinson, 118 S.W.2d 460) this court indicated that plaintiff was shown to have been guilty of negligence, as a matter of law, which proximately caused his injuries, in attempting to cross the street under the circumstances presented by the record of that trial.

Obviously this appeal will be determined by the evidence adduced upon the trial from which the appeal was prosecuted, .and will not be determined by the record of the former appeal. The evidence in the record before us is decidedly different in many respects from what it' was upon the former trial. A general summary of ’ the evidence referable to plaintiff’s acts immediately before he attempted to cross Hemphill Street to board a north bound bus, seems to be that he was standing on the curb at the junction of the west side of Hemphill and the south side of Fogg Streets, and saw the bus coming from the south; the bus was on the east side of Hemphill and he would have to cross that street to catch it; he signaled the driver and the bus stopped; he looked for the passing traffic; he. saw two cars, one going north and one going south, passing immediately in front of him, waited for them to pass and then saw another car 400 feet away, coming south on Hemphill Street; he then attempted to cross the street to the bus and had gone about five steps or 15 feet out into the street where he was struck by the car which he had seen 400 feet to the north before starting across. He did not look north or south after starting across the street, but looked ahead of him toward the bus; persons who saw the accident and observed the situation immediately thereafter said plaintiff was attempting to cross at the corner of the block customarily used by pedestrians; although that street is considered as one carrying heavy traffic, there is no evidence that there was any other car in motion in that vicinity, than the two previously mentioned, the bus and the car that struck plaintiff. He was struck by a car belonging to Mr. Mackey, the alleged agent of defendant; the automobile drug or carried him about ’50 feet before coming to a stop; the markings on the pavement made by the skidding tires began about 30 feet south of where plaintiff was struck and extended 20 or' 21 feet; no signal was given by the driver; he.said he did not see the plaintiff until too close to signal or ..miss him; other witnesses said the car did not slow down or change its course before the collision; that at the rate of speed plaintiff was walking, it was approximately four and a half seconds •from the time he left the curb until he was struck; expert testimony was offered, showing that from a test made by a stop watch, a car traveling 20 miles per hour would require thirteen and two-fifths seconds to cover the distance from where defendant’s car was when plaintiff started across the street to the point of the accident; that ten seconds would be required to cover the same distance while traveling 30 miles per hour; there was no evidence tending to show that plaintiff knew or believed that the car was traveling at a rate of speed in violation of l&w.

Assuredly the law requires of each and every person traveling upon or across public thoroughfares to keep a proper lookout for his own safety. That proper lookout is such one as a person of ordinary, care would keep under the same or similar circumstances. Stehling v. Johnston, Tex.Civ.App., 32 S.W.2d 696, writ refused. It is equally well settled that more care should be exercised under some conditions than others; to put it another way, what would be a proper lookout under one situation would not be under another. It does not present a fair test to say that if plaintiff had not attempted to cross the street when defendant’s car was in sight 400 feet away, he would not have been hit by it; that is, if he had not attempted to cross the street he would not have been injured by that car. Nor is the test of care to be determined by a mathematical calculation in distances and seconds or even split seconds, but rather by what an ordinarily prudent person would do under similar circumstances. This has been many times determined by our courts to be one of fact for the jury. These fact issues may arise when under the circumstances a party may reasonably believe that a car, when seen, is at such a distance that he may safely cross its path. American Grocery Co. v. Abraham, Tex.Civ.App., 94 S.W.2d 1231, writ dismissed. If a pedestrian looks in all directions from which he should anticipate an approaching danger and sees none which a reasonably prudent person would fear, he may proceed, even though he has seen a vehicle which he had reason to believe was traveling at a lawful rate of speed, and that it would not molest him. Southern Motor Lines v. Creamer, Tex.Civ.App., 113 S.W.2d 624, writ dismissed; Galveston, H. & S. A. Ry. Co. v. Mallott, Tex.Civ.App., 6 S.W.2d 432, writ dismissed; Dollar Dodge Rent Service, Inc. v. McEwen, Tex.Civ.App., 273 S.W. 889, writ dismissed.

It is true that one having what is commonly known as the right of way at a given point may not rely solely upon that fact to the exclusion of all other duties enjoined upon him to exercise ordinary care for his own safety; but one situated as was plaintiff in the instant case did have the right of way at that point as against defendant; plaintiff was going east and Mackey was driving south and approaching plaintiff’s left; plaintiff knew that it was the duty of defendant’s driver to concede him the right of way, and could' assume that the driver would slow down or pass behind him; the evidence shows that there was ample space for the defendant’s car to have passed behind plaintiff, if the driver had chosen to do so. Schuhmacher Co. v. Bahn, Tex.Civ.App., 78 S.W.2d 205, writ dismissed; Moss v. Koetter, Tex.Civ.App., 249 S.W. 259, writ refused. However, we do not mean to be understood as holding that because one has the right of way that he is thereby relieved of further responsibility to continue to exercise ordinary care to keep a lookout for danger; but we have mentioned the foregoing conditions simply to illustrate the degree of care that an ordinarily prudent person would exercise under the circumstances; this may further, be illustrated by two extremé conditions, one in crowded traffic and the other on a rural highway where one would travel perhaps for a mile or more and not see a vehicle. It has been held, and correctly so we think, that although a party had, in law, the right of way, yet he could utterly fail to keep a proper lookout and as a result be injured, and such a failure on his part would be negligence. Stehling v. Johnston, supra.

There was ample testimony offered upon the trial to raise the issue of whether or not plaintiff was guilty of negligence proximately causing the collision at the time he received his injuries. The jury resolved the issue in his favor. In such circumstances, it is the duty of this court to uphold the jury finding if to consider all testimony tending to support the verdict in its most favorable light, and to disregard all testimony to the contrary, reasonable minds may have reached the conclusion as did the jury. 17 Tex.Jur., sec. 410, p. 910. The refusal of the trial court to direct a verdict is in law presumed to be correct, until it is made to appear from the record that his ruling is wrong. American Grocery Co. v. Abraham, supra.

Defendant has cited several cases under these propositions in support of its contention that the court should have given a peremptory instruction in its favor. We have read them all and find most of them are cases in which a jury had found that a plaintiff was guilty of negligence and the opinions uphold the verdicts - because there was evidence in the record to support them. All that was said in those cases could be said in this one if the jury had resolved the facts against plaintiff, for the reason the evidence would have supported a verdict either way. Other cases cited are distinguishable from the one at bar, under the facts shown. No useful purpose could be attained by setting out these differences here. First and second propositions and the assignments of error to which they refer are ovefruled.

Third proposition challenges the court’s charge relating to the amount plaintiff should recover; the issue and explanation given in connection with it read:

“Special Issue No. 16. Question: What amount of money, if any, do you find from a preponderance of the evidence, if paid now in cash, would reasonably' compensate plaintiff for the injuries sustained-by him on the occasion in question?
“In connection with your answer to the foregoing question you are instructed that you may take into consideration the following items of damages only: such physical pain and suffering as you may believe from the evidence plaintiff has sustained, if any, and will sustain in the future if any, such loss of earnings, if any, as you may believe from the evidence plaintiff has sustained and will sustain in the future, if any, and such physical impairment, if any, as you may believe plaintiff has sustained.”

The objection made to the charge before it was given, and now brought forward by assignment of error, is that plaintiff is not confined by the charge to a recovery of such damages as were proximately caused by the negligence of defendant. We think the charge is wrong in the matters complained of and presents reversible error.

There were several acts of defendant’s alleged agent which were charged by plaintiff to be negligence proximately causing his injuries on the “occasion in question”. Some of them were found by the jury to be negligence proximately causing the collision. .One of the acts registered by plaintiff in his pleadings and attempted to be proved was found by the jury not to have occurred. It will be observed that the court did not require the jury to find what amount would compensate plaintiff for the injuries sustained, which were proximately caused by the negligent acts of the driver of defendant’s car. He could not recover for injuries resulting from anything on the “occasion in question” except for the negligent acts of the driver proximately resulting in the injury. The charge as framed left the jury to assess- damages for injuries sustained by .plaintiff growing out of any and everything that happened on the occasion in question. The parties to the suit could only assume that the jury did not consider any improper event that happened at about the time of the collision. If the charge had limited them to a consideration only of the negligent acts of defendant proximately resulting in the injury, then a presumption would have arisen that the jury had followed the instructions of the court. Our jury system is far from perfect, but it is the best we have. Jurors are chosen from all walks of life and present a splendid cross-section of our citizenship. When jurors are accepted, litigants believe they will do their duty, as they see it. They are not versed in the niceties of legal phraseology, but without a guide or yardstick, they. apply their own rugged honesty of purpose to do right. But the all-too-frequent occasions of “jury misconduct” is cropping out in an alarming number of cases appealed; this is apparent in both trials of the case at bar. In neither instance, however, can it be said that any juror did more than to consider matters not embraced within the court’s charge. Trial courts can do no more than confine their inquiries to the issues made by the pleadings and evidence, and if in spite of these efforts the jury goes beyond, a new trial should be granted.

So far as we have been able to ascertain, the direct question presented here has seldom been before bur appellate Courts. Similar charges have often been given and as against the objections urged, have been permitted to stand. Unless fundamental error is presented, courts will only pass upon the questions presented by the parties. The - charge in this case was not fundamentally erroneous. It did not specifically submit an improper ground of recovery, nor did it measure plaintiff’s rights by an improper rule. City of Wichita Falls v. Phillips, Tex.Civ.App., 87 S.W.2d 544, writ dismissed; City of Beaumont v. Dougherty, Tex.Com.App., 9 S.W.2d 1030. In the case last cited the issue submitted read: “What amount of money, if paid now; would reasonably compensate plaintiff for his injuries, by reason of said accident, if any injuries he received?” The objection urged was: “Because said issue does not limit the jury to such injuries as were reasonably and necessarily incurred by plaintiff in said accident, if any, as a proximate result thereof.” It was there held that the exception was too general and the court declined to reverse the judgment on the exception made. The plaintiff (appellee) cites a dozen or more similar cases but not one of them contained a similar objection and exception presented in the instant case.

In Finck Cigar Co. v. Campbell, Tex.Civ.App., 114 S.W.2d 348, the charge contained the provision contended for by defendant in this case. The appellant in that case contended before this court that the expression in the charge which limited the jury to a finding of damages proximately resulting from its negligent acts, if any, tended to apprise the jury of the effect of its previous answers of negligence ajid proximate cause. We held against the contention and approved the charge as correct. A writ of error was granted. We have consulted the petition made for writ of error and find that the’ point was presented to the Supreme Court. But in affirming the opinion of this court (134 Tex. 250, 133 S.W.2d 759), the issue was quoted and it was held that it did not inform the jury of the effect of their answers.

In Anderson v. Reichart, Tex.Civ.App., 116 S.W.2d 772, writ dismissed, and Standard Paving Co. v. Pyle, Tex.Civ.App., 131 S.W.2d 200, this court held that it was necessary in such cases as this for the court to limit plaintiff’s recovery to damages which directly and proximately result from the negligent 'acts of defendant.

Dallas Railway & Terminal Co. v. Price, 131 Tex. 319, 114 S.W.2d 859, 860, by the .Supreme Court, involved a definition of unavoidable accident, which, of course, is referable to the negligence of both parties, and Judge Critz, speaking for that court, :said: “The definition in this instance should have, in effect, told the jury that by the .term ‘unavoidable accident,’ as used in the question submitting the issue, is meant an event which occurs without having been proximately caused by the negligence of the defendant naming it, or of the plaintiff.” We think that holding supports the view we took in the cases above cited, as well as the .conclusions here reached. If the evidence upon another trial is substantially the same .as at the last one, the court will limit the recovery to damages to those sustained directly and proximately resulting from the negligent acts of defendant, with proper saving clauses so as to not assume that they ,existed. We also suggest, for the guidance .of the court, that in the explanatory part .of the charge, the jury should be advised that their findings will be based upon a preponderance of the evidence, and guard against anything that could properly be termed a double recovery.

Defendant’s fourth proposition complains because of the submission of the first special issue inquiring if Mackey was driving his car at a greater rate of speed than 20 miles per hour immediately prior to the collision; it contends that there is no evidence to support such an inquiry. We have hereinabove referred to some of the evidence on that point. The time consumed by plaintiff to walk 15 feet to where he was struck was shown by demonstration to be approximately four seconds; a car driven 400 feet from where Mackey’s car was seen when plaintiff started across the street- to the place of the accident at 20 miles per hour would require thirteen seconds, and driving the same distance at 30 miles per hour requires ten seconds; the facts here indicate that the parties “tied”; i. e., they traveled the respective distances within the same time. Mackey’s car traveled 50 feet before it was brought to a stop after the collision; his tires marked the pavement as if they were skidding for about 20 feet. These are circumstances tending to show that the car was traveling at a speed in excess of the lawful rate, and the jury was entitled to consider that controverted issue. Shaver v. Mason, Tex.Civ.App., 13 S.W.2d 450; Stamper v. Scholtz, Tex.Civ.App., 29 S.W.2d 883, writ refused. We see no merit in the contention raised and the assignment is overruled.

Fifth proposition questions the sufficiency of the court’s definition of proximate cause upon the ground that it does not contain the definition of new and independent cause. It is argued by defendant under this assignment that because all of the evidence in the case indicates that plaintiff was guilty of negligence in failing to keep a proper lookout for his own safety, raised the issue of new and independent cause. It is frankly admitted, however, that the necessity for the definition of new and independent cause only arises in cases where that point is raised by the pleadings and evidence.

We are cited to no other part of the testimony, nor have we found such in the statement of facts, which raises the point under discussion. No acts of third persons, nor present existing conditions of objects not under the control and supervision of either of the parties were involved in the collision or entered into the accident. It occurred at about 2 o’clock P. M. on a broad paved street. It does not appear that the traffic was heavy at the time and place, nor that the pavement was wet or otherwise than perfectly natural, nor that any outside agency brought about the accident. We see no issue of new and independent cause in the case. See Butler v. Herring, Tex.Civ.App., 34 S.W.2d 307; Johnson v. Smither, Tex.Civ.App., 116 S.W.2d 812, writ dismissed. The assignment is overruled.

Sixth and seventh propositions by defendant are based upon the assertion that a verdict for it should have been instructed, upon the ground that plaintiff was struck 'by a car driven by Mackey and there was no evidence showing Mackey was the agent of defendant Norris Bros., Inc.

The testimony shows without dispute that Mackey was employed by defendant as a warehouseman; that it had only two employees, they being Mr. Carter and Mackey; Carter was away from the place of business about one week in each month and Mackey alone was left at the warehouse; defendant sold its goods only to jobbers; a steel mill in Fort Worth was one of defendant’s customers; the mill telephoned Mackey for a half dozen pump rings and asked him if he would deliver them; Mack-ey agreed to do so and while en route in his own car to make the delivery, the accident happened.

Defendant urges here that the evidence shows that under the terms of Mackey’s employment he was forbidden to make deliveries of goods; that while he had made other deliveries, Mr. Carter did not know it. Therefore, it is claimed Mackey was acting against his instructions and not within the scope or apparent scope of his authority when the collision occurred ; but upon examination of the statement of facts, we find that the testimony referred to was not admitted in evidence by the court before the jury, and it was placed in the statement of facts for the purpose of perfecting a bill of exception to its exclusion by the court. No assignment of error is made to the action of the court in its exclusion. Under the proposition and assignment here presented we cannot consider the testimony in support of the contention made.

The testimony properly before the jury was abundantly sufficient to raise the question of agency of Mackfey. But it will be observed that this is not a complaint that no question of agency was submitted to the jury, but that a peremptory instruction-should have been given.

Agency may be proved by circumstances. It cannot be established by the declarations of the alleged servant alone,, nor can it be defeated simply by his denial. Daugherty v. Wiles, Tex.Com.App., 207 S.W. 900. Where the master does not testify, or if being a corporation its officials or manager fail or refuse to testify as to the relationship with the alleged agent or servant, slight testimony will be accepted to raise the presumption of agency. 3 C.J.S.; Agency, § 315, p. 253. The silence of one in the best position to know the truth will add probative strength of the slight testimony offered by one whose duty it is to establish agency. Hill & Co. v. Fricke, Tex.Civ.App., 135 S.W.2d 582, writ dismissed, judgment correct; Farmers’ Guaranty State Bank v. Burrus Mill & Elevator Co., Tex.Civ.App., 207 S.W. 400; Pullman Palace-Car Co. v. Nelson, 22 Tex.Civ.App. 223, 54 S.W. 624; Bailey v. Hicks, 16 Tex. 222. Mr. Carter, who is apparently the-manager of defendant’s business in Fort Worth, did not testify in the instant case. The issue of whether or not Mackey was the agent of defendant was not submitted to the jury; there was no such request made. We overrule the assignment that an instructed verdict for defendant should have been returned.

Eighth and ninth propositions assert that the judgment of the trial court should be reversed because of misconduct of the jury. It is contended that the jurors improperly discussed and took into consideration, while deliberating upon their verdict, the matter of amount plaintiff would have to pay out as attorney’s fees, and that some insurance company would have to pay the judgment entered. We have hereinabove referred to this phase of the case.

The trial court heard the conflicting statements of the'jurors when they testified upon the motion for new trial. There was testimony both that ‘ the acts complained of happened and that they did not. The court who heard the testimony overruled the motion without comment or special findings of fact. This is tantamount to a finding that the alleged misconduct did not in fact happen. Texas Employers’ Ins. Ass’n v. Chocolate Shop, Tex.Com.App., 44 S.W.2d 989; St. Louis, B. & M. Ry. Co. v. Cole, Tex.Com.App., 14 S.W.2d 1024, and cases cited; Sproles Motor Freight Lines v. Juge, Tex.Civ.App., 123 S.W.2d 919, writ dismissed, judgment correct, and cases cited. No error is shown by these assignments.

The tenth proposition asserts tha't the judgment was excessive in /amount. We have studied the evidence which describes the nature and extent of plaintiff’s injuries. We see no evidence of prejudice or bias on the part of the jury prompting the return of an excessive verdict. It reflects the judgment of the jury reached from a consideration of the facts as they understood them. The amount is not such as would excite a suspicion that some improper motive prompted it; it is not so great as to shock the consciences of men; it appears to be the result of the combined efforts of twelve men chosen for that purpose. Some of the things we said in this connection in Finck Cigar Co. v. Campbell, 114 S.W.2d 348, are applicable here. Since the case must be tried again, our act in overruling the contention of defendant in this respect should not affect the result of another trial.

Eleventh proposition asserts that the court erred in permitting the witness Pope to testify as an expert over the objections of defendant, as to experiments made by him shortly prior to the date of trial, in regard to driving a car over the pavement on Hemphill Street between the point where Mackey’s car was shown to be when plaintiff saw it and where the accident happened, the time it took at given rates of speed and the distance the tires skidded when driven at rates mentioned. We think it was the subject of expert testimony that the witness qualified as such. Under the conditions detailed by him, the evidence was admissible and went to its weight rather than to its admissibility; the jury could take it and give it the weight and credibility it was entitled to receive. Montgomery Ward & Co. v. Levy, Tex.Civ.App., 136 S.W.2d 663, and cases cited.

We overrule the thirteenth proposition which claims that there was error in the definition given by the court of preponderance of the evidence. The explanation given reads: “Preponderance of the evidence, as that term is used herein, means the greater weight of the testimony.” It is contended that the definition should have stated that it meant the “greater weight of the credible testimony.” There is no material distinction to be drawn between these two expressions when used in the charge. In so far as the jury is concerned, all of the testimony admitted by the court is “credible”. The jury was told: “You are the exclusive judges of the credibility of the witnesses, of the weight to be given their testimony”, etc. Under this universally approved charge, the jury may pass upon the credibility of the witnesses and the weight of the testimony given. In short, all of the testimony permitted by the court must be received by the jury and considered under the liberal rule contained in the subsequent instruction in regard to it.

For the reasons pointed out, the judgment of the trial court is reversed and the cause remanded for another trial.

On Rehearing.

PER CURIAM.

This cause having heretofore been certified to the Supreme Court of Texas and all parties litigant having presented to this court and to the Supreme Court motions requesting that the certificate filed in the Supreme Court be withdrawn because the matters in litigation have been settled by them and all questions involved in the appeal have become moot, and this court having granted said motion heretofore and the Supreme Court, on December 7, 1940, having granted the motion filed in said court and having granted the request of this court to be permitted to withdraw said certificate, and the motion for a rehearing in the Court of Civil Appeals having been considered by such court, said motion for a rehearing is hereby overruled, and on motion and request of all parties litigant, this court having reversed and remanded said cause for a new trial, in the district court from whose judgment the appeal was taken, it is ordered that a mandate be issued instanter by the clerk of this court on said judgment reversing and remanding said-cause to the district court of Tarrant County, Texas, upon payment of costs.


author: DUNKLIN, Chief Justice.

text:
    PRICE v. DOUGHTY.
    No. 14137.
    Court of Civil Appeals of Texas. Fort Worth.
    Nov. 15, 1940.
    Tatum & Tatum, of Dalhart, and Vance Huff, of Amarillo, for appellant.
    Shropshire & Bankhead, of Weatherford, for appellee.
   DUNKLIN, Chief Justice.

This is an appeal by L. M. Price from an order of the County Court of Parker County overruling his plea of privilege in a suit instituted against him by Lloyd Doughty.

In plaintiffs petition it was alleged that plaintiff resides in Parker County and defendant resides in Sherman County. Plaintiff sought a recovery of damages for alleged breach of defendant’s contract in writing to lease to plaintiff a section of land situated in Hartley and Moore Counties, in failing to deliver possession of the leased land at the time possession was due plaintiff under terms of the contract.

The contract was evidenced by correspondence as follows:

“Weatherford, Texas
“November 5, 1937
“Mr. L. M. Price
“First State Bank of Stratford
“Stratford, Texas
“Dear Mr. Price:
“October 12, I wrote you a letter offering to rent your section of land No. 290 Block 44 H & TC Railway survey and located on the line and partly in Plartley County and partly in Moore County. On October 21, you answered my above mentioned letter that you would not rent to me for the offer made in my letter of October 12, thereby cancelling my offer in my said letter of October 12.
“In your said letter of October 21, you intimated that you would consider renting the section to me for $320.00 for the year of 1938 and for me to keep all the government money, if any.
“I cannot see my way clear to give this much rent in advance for the section of land due to the bad condition same is now in and due to the uncertainty of crops — uncertain as to weather elements and also uncertain as to possibility of next years grass-hopper infestation, which is a very serious matter, in my judgment; however, I have decided to and hereby do make you another offer. I will give you $300.00 cash in advance for the use of said section for the year 1938 for farming and grazing purposes and me to retain and collect all government money, if any.
“I inclose herein my M. & F. Check of even date herewith for $300.00, payable to your order and if you care to accept this last proposition, kindly sign one copy of the two inclosed copies of this letter and attach one copy to the check, thereby showing that you have accepted the $300.00 cash in advance lease on said section of land for the year 1938 for farming and grazing purposes and me to retain all government money, if any.
“You realize that I might plant all or part of this section in feed stuffs and that it might not be worth gathering, but I would want the privilege of grazing the land, hence I lease this section of land for farming and grazing purposes.
“If you do not care to accept this offer, kindly return my inclosed check and I will not feel at all disappointed as none of us know what next year will be.
“Very truly yours, Lloyd Doughty.
“I accept the above offer, L. M. Price.”

Then follow allegations of facts to show measure of damages claimed.

The check therein referred to was drawn on the Merchants’ & Farmers’ State Bank, doing business in Weatherford, where it was paid when presented by defendant with his endorsement thereon.

In due time defendant filed his plea of privilege to be sued in Sherman County. He alleged that he now resides in that county, which was the county of his residence at the time the suit was instituted and when citation was served upon him to answer it; and that no exception to the exclusive venue in the county of one’s residence provided by law exists in this suit against him. The plea was duly verified and- filed, all in accordance with statutory requirements.

Plaintiff filed his controverting affidavit, in reply to that plea of privilege, in which the contract made the basis of his suit and defendant’s breach thereof was alleged and the payment of the $300 stipulated therein through the bank in Weatherford, with these further allegations:

“* * * that said contract was executed at Weatherford, in Parker County, Texas, and all matters and rights arising thereunder are subject to the jurisdiction of the County Court of Parker County, Texas, where said contract was made; that said cash consideration of $300.00 was to be paid in Parker County, Texas, through The Merchants & Farmers State Bank of Weatherford, Texas, and said consideration was in fact paid through said bank in Parker County, at Weatherford, Texas, and by reason of such payment being so made in Parker County, Texas, through said bank, at Weatherford, Texas, this suit was properly brought in the County Court of Parker County, Texas. Plaintiff refers to his original petition for better statement of his cause of action.
“This honorable court has venue of this suit, because said consideration of $300.00 was paid to said defendant, L. M. Price, in Parker County, Texas, through The Merchants & Farmers State Bank of Weatherford, Texas.”
On the hearing of the plea of privilege and plaintiff’s controverting affidavit, plaintiff’s letter to the defendant, with the latter’s written acceptance of the offer therein contained, and plaintiff’s bank check in favor of defendant, duly paid, -were introduced in evidence; together with the following written agreement' of the parties, duly filed, to-wit:
“It is hereby agreed and stipulated between the plaintiff and defendant that the defendant, L. M. Price, was a resident of Sherman County, Texas, on the date of the filing of this suit, on the date of the issuance of citation herein, on the date of the service of said citation and on the date of the filing of his plea of privilege herein.
“It is further agreed that the defendant, L. M. Price, was a resident of Sherman County, Texas, on November 5, 1937, and up to the date that he received the two copies of the letter dated November 5, 1937, signed and mailed by plaintiff at Weatherford, Texas, to the defendant at Stratford, Texas, and continued such residence up to the date of the hearing on said plea of privilege. That the envelope contained the two copies of the letter and the check or draft for $300.00 signed by the plaintiff, drawn on the Merchants & Farmers State Bank of Weatherford, representing the consideration paid by plaintiff to the defendant for the use of the land described in plaintiff’s petition for the year 1938. That defendant signed one copy of the letter received by him. from plaintiff and endorsed the check or draft for $300.00 and returned the same for collection and payment through regular banking channels to Weatherford, Texas, and said check was paid by the bank on which it was so drawn, the defendant received the proceeds thereof through said banking channels.”

Article 1995, Vernon’s Texas Civil Statutes, reads:

“No person who is an inhabitant of this State shall be sued out of the county in which he has his domicile except in the following cases: * * *
“5. . Contract in writing. — If a person has contracted in writing to perform an obligation in a particular county, expressly naming such county, or a definite place therein, by such writing, suit upon or by reason of such obligation may be brought against him, either in such county or where the defendant has his domicile.”

The exception No. 5 of the article was enacted in 1935, as an amendment of the former exception No. 5. Section 3 of the Act is an emergency clause making the Act effective immediately after passage, because of “the unsettled state.of the law as to the contract clause of the Venue Statute”, Acts 1935, c. 213, which had reference to prior decisions of our appellate courts construing the exception.

Since that amendment was enacted, many decisions have been rendered in which it was held that the benefits of that exception cannot be claimed unless the contract sought to be enforced is within the strict letter of the exception; only a few of which will be cited: Hamilton v. Booher, Tex.Civ.App., 124 S.W.2d 184; Ferguson v. Sanders, Tex.Civ.App., 133 S.W.2d 806; Port Iron & Supply Co. v. Casualty Underwriters, Tex.Civ.App., 118 S.W.2d 627; Quinn v. Home Owners’ Loan Corporation, Tex.Civ.App., 125 S.W.2d 1063; Farmers Seed & Gin Co. v. Brooks, 125 Tex. 234, 81 S.W.2d 675; 43 Tex.Jur. para. 13, page 721, para. 15, page 726, para. 17, page 728, and decisions there cited.

The contract was consummated in Sherman County, when defendant accepted plaintiff’s offer embodied in his letter, and not in Parker County, where the offer originated. Mercantile Securities Co. v. Taylor, Tex.Civ.App., 60 S.W.2d 1059, and decisions there cited; 43 Tex.Jur. para. 14, page 723.

Manifestly defendant’s contract to deliver to plaintiff possession of the land in question at the time alleged in plaintiff’s petition was performable in the counties where the land was situated, and not in Parker County, where plaintiff’s suit was instituted.

Accordingly, the judgment of the trial court overruling defendant’s plea of privilege is reversed, and judgment is here rendered sustaining the plea. The cause will be remanded, with instructions to the trial court to enter an order sustaining the plea of privilege and transferring the case to the County Court of Sherman County, and ordering the clerk of the court to make up the transcript and send samq, together with the original papers in the case, to the clerk of the County Court of Sherman County, in accordance with the provisions of Art. 2020, Vernon’s Texas Civil Statutes.


author: McClendon, chief justice.

text:
    KETCHUM et al. v. GILLESPIE.
    No. 9013.
    Court of Civil Appeals of Texas. Austin.
    Nov. 6, 1940.

      Horace H. Shelton, of Austin, for appellants.
    Looney & Clark, of Austin, for appellee.
   McClendon, chief justice.

Suit for damages caused by an automobile’ crashing into a private residence. The suit (filed in the justice court and appealed to the county court) was by Gillespie, owner of the house, against Mrs. Ketchum (owner of the automobile) and her husband.

Error is assigned upon two points:

1. In not directing a verdict for appellants because there was no evidence of negligence on Mrs. Ketchum’s part; and

2. In admitting the testimony of Grove to the reasonable value of repairs to the house, on the ground that his testimony was not rebuttal in character, and Grove was allowed to testify after the case was closed under an agreement that his testimony would be confined to rebuttal.

Mrs. Ketchum accompanied by a lady friend drove one afternoon to the residence of Sam Dickens at the top of a steep hill on Blanco Street in Austin. Mrs. Ketchum parked her car against the curbing at the top of the steep incline. She went into Dickens’s residence and shortly was followed by her lady friend. In a few minutes a crash was heard and it was discovered that the car had slid down the hill and crashed into Gillespie’s residence. Mrs. Ketchum (corroborated by her friend) testified that she securely set the brakes before leaving the car. She did not testify when she had last had the brakes tested, nor that she put the car in gear. She and Dickens testified that there were marks of rubber on the curbing where the car had been parked, indicating that it had slid down the incline. It is manifest that the incline was too great to park the car with safety at the angle it was parked against the curb; or there was some defect in the brakes or the manner in which they were set. There was no evidence that the car was set in motion by any external force. The doctrine of res ipsa loquitur clearly applies and the issue of Mrs. Ketchum’s negligence was properly submitted to the jury. Many analogous Texas cases might be cited. See 30 Tex.Jur. p. 802 et seq.; Gulf, C. & S. F. Ry. v. Dunman, Tex.Civ.App., 15 S.W.2d 1053, affirmed, Tex.Com.App., 27 S.W.2d 116, 72 A.L.R. 90. On all fours is the case of Glaser v. Shroeder, 269 Mass. 337, 168 N.E. 809, 810, holding that the unexplained starting of an automobile when parked and left alone is .evidence of negligence. Here, as there, “the grade of the street demanded caution”; ajid the unexplained moving of the car was evidence that requisite care had not been observed. “It is not usual for automobiles thus left to begin to move and to gain momentum.”

Upon the second point: Gillespie got bids on the job of repairing the damage to his house from several contractors. He let the contract to.Grove, whose bid of $120.-90 was lowest. Denmark, who also bid, testified for plaintiff that his bid ($148) was reasonable. He was plaintiff’s only witness in chief on reasonable value of repairing the house. Ketchum (an architect) and a contractor who frequently worked for him, but did not bid on the job, testified that $47 was reasonable for the repairs. This was the status of the evidence on this point when both sides rested with the above agreement as to Grove’s testimony, the substance of which was to the effect that his bid of $120.-90 was reasonable. The verdict and judgment were for this amount on this item.

The assignment directed to Grove’s testimony is overruled on two grounds.

1. It was clearly in rebuttal of that of Ketchum and his contractor witness. 17 Tex.Jur. p. 372.

2. Even if it were original testimony, it was discretionary with the court whether he would permit its introduction and his action in that regard is 'not reviewable except for abuse of his discretion, which is not shown. 17 Tex.Jur. p. 373.

The trial court’s judgment is affirmed.

Affirmed.


author: WALKER, Chief Justice.

text:
    BROWN v. KIRKSEY et al.
    No. 3734.
    Court of Civil Appeals of Texas. Beaumont.
    Nov. 14, 1940.
    Rehearing Denied Dec. 4, 1940.
    R. A. McAlister and S. M. Adams, both of Nacogdoches, and Sanders & McLeroy, of Center, for appellant.
    Vernis Fulmer, of Nacogdoches, for ap-pellees. '
   WALKER, Chief Justice.

On the 2nd day of December, 1938, about one mile east of the city of Nacogdoches, on highway No. 7, appellant, D. Brown, struck J. W. Kirksey with his automobile and killed him. This suit was filed by ap-pellees, Bertha Kirksey, for herself and as next friend of her minor brothers, James and Fritz Kirksey, children of the deceased, and the only surviving members of his family, for damages suffered by them by reason of the death of their father. Answering special issues, the jury found in favor of appellees on the acts of negligence and proximate cause plead by them against appellant, and assessed their damages at the sum of $1,000. Appellant has duly prosecuted his appeal from the judgment entered on the jury’s verdict.

Appellant’s first point is that the judgment is without support, for the failure of appellees to plead and prove their life expectancy. On this issue appellees pleaded: “* * * that Bertha Kirksey is a feme sole or unmarried lady more than 21 years of age; that James Kirksey is a minor boy age 15 and Fritz Kirksey is a minor age 18 * * * That all three plaintiffs are young and would be expected to live to receive the benefits of the expected compensation of this deceased had he lived.” Appellant’s proposition is conceded that “life expectancy is a question of fact.” McCormick & Ray’s Texas Law of Evidence, Sec. 109, Note 62; Sec. 115, Note 29. But appellees’ petition was not subject to appellant’s exceptions on this point. It was sufficient for them to plead that they “would be expected to live” long enough to receive from their father the contributions sued for. In Gulf States Utilities Co. v. Moore, Tex.Civ.App., 47 S.W.2d 488, clearly the appellee’s petition and her proof were defective on this very point, but even in that case the issue of “life expectancy” was urged by appellant in support of its proposition that the verdict was excessive; appellant does not have that proposition in this case. In Hemsell v. Summers, Tex.Civ.App., 138 S.W.2d 865, the proposition of “life expectancy” was before the court (a) on the weight of certain testimony, and (b) on the court’s charge. That case simply announced the proposition which we have conceded in appellant’s favor, that “life expectancy” is for the jury.

The second point is that recovery cannot be predicated “upon advice and counsel of father to son.” This contention is overruled. Appellees were entitled to recover, as charged by the court, * * the pecuniary value, if any, of the advice and counsel, * * * which the said J. W. Kirksey would have in reasonable expectation rendered and given to said minor plaintiffs, during their minority, had he lived.” St. Louis S. W. R. of Texas v. Anderson, Tex.Civ.App., 206 S.W. 696; Lancaster & Wight v. Allen, Tex.Civ.App., 207 S.W. 984; Pecos & N. T. R. R. Co. v. Suitor, Tex.Civ.App., 153 S.W. 185; Beaumont Traction Co. v. Dilworth, Tex.Civ.App., 94 S.W. 352; International & G. N. R. R. Co. v. McVey, 99 Tex. 28, 87 S.W. 328, 329.

At the time of his death, on the undisputed evidence, J. W. Kirksey was 77 years old. On this statement, the admission of the. following testimony of Mrs. Susie B. Holbrook was not error:

“Q. Susie B., do you or not have a record—your daddy had a record of his discharge from the army showing his age? A. Yes, sir; I have that.
“Q. What age did you understand from that and from him, that he was at the time of his death? I believe it was a little better than 77 years; is that correct? A. According to his discharge papers it 'was.
.“Q. State whether or not you understood from him all ‘along that was his age —77. A. Yes, sir.”

Appellees charged in their petition that appellant was “drinking and under the influence of liquor at the moment of the collision.” The court did not err in receiving evidence that, at a point near the point of accident, a small boy, shortly after the accident, picked up a beer can. The evidence on this point was as follows:

“Q. Did you pick up anything else, or see it picked up ? A. There was some small boy—I wouldn’t say who it was—’ picked up a beer can, that had something like a quarter of a can of beer—quarter full in the can—lying somewhere off to the right of this telephone pole and near this hat, not very far off, and the beer was running out of the can.”

Appellant complains of the refusal of the court to submit 16 specially requested issues. We have examined these charges. Some of them are on undisputed facts, and some of th'em are covered by the court’s main charge. As we understand the record, the court did not err in refusing to submit any of them to the jury.

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

Affirmed.


author: ALEXANDER, Justice.

text:
    DILBECK v. ESTEP et ux.
    No. 2333.
    Court of Civil Appeals of Texas. Waco.
    Dec. 12, 1940.
    Harry I. Freedman and Franklin E. Spafford, both of Dallas, for plaintiff i’n error.
    Tom D. Matthews, of Dallas, for defendants in error.
   ALEXANDER, Justice.

The parties herein have filed a sworn motion, alleging that the matters in controversy have been settled, and praying that the judgment of the trial court be reversed and the cause remanded to the trial court, with instructions to dismiss same at the cost of plaintiff in error.

Said motion is submitted and granted and the judgment of the trial court is reversed and the cause remanded with instructions to the trial court to dismiss the same at cost of plaintiff in error.