text:
    ALLISON RANCH CO. v. ANGELO AUTO ELECTRIC, Inc.
    No. 8982.
    Court of Civil Appeals of Texas. Austin.
    Nov. 20, 1940.
    Rehearing Denied Dec. 11, 1940.

      Collins, Jackson & Snodgrass, of San Angelo, for appellant.
    Clyde Vinson, of San Angelo, for appel-lee.
   BLAIR, Justice.

Appellee, Angelo Auto Electric, Inc., sued appellant, Allison Ranch Company, a partnership composed of J. S. and Jack Allison, for $196, the price of a wind-charger sold to appellant by appellee. Appellant set up failure of consideration, alleging that the wind-charger was wholly unsuited and entirely worthless for the purpose for which it was sold and guaranteed or warranted. On motion of appellee, at the conclusion of the evidence, the court instructed a verdict and accordingly rendered judgment for ap-pellee for $196; hence this appeal.

Appellee sold and installed for appellant an electric light system, consisting of (a) Delco Light Plant; (b) Delco Batteries.; (c) High Power Wind-Charger; and (d) High Power Adapter, each being given a definite value in the sales contract, the wind-charger being valued at $196. Appel-lee furnished the labor and materials to install the plant, the agreed total price being $1,072.13. The plant was completed and began operating about February 17,. 1939. On February 23, 1939, J. S. Allison wrote appellee that “the charger you erected is a ‘joke/ — it takes a cyclone to run it — sounds like a worn out threshing machine * * *. It evidently needs some adjustments — you should send some one to make them.” The following day appellee’s general manager and electrician went to the appellant’s ranch and found the wind-charger to be operating at full capacity by an extremely high wind, and advised that it be stopped because of that fact. On February 27, 1939, J. S. Allison signed a “Statement of Final Completion,” which recited that each item composing the plant, including the wind-charger, “was properly and satisfactorily installed” on that date. A few days thereafter appellant paid ap-pellee $876.13 on the purchase price, leaving a balance unpaid of $196; and Allison testified that he told appellee’s general manager at the time that he would not pay for the wind-charger* until it was shown that it would work. Thereafter, on March 13, 1939, J. S. Allison wrote appellee as follows:

“I am almost convinced that the wind charger is a failure. Don’t think that time is going to improve it. It has had plenty of high winds to limber it up. Yesterday we had a good wind all day — all of our wind mills run at a good rate — Think I started the charger at least a dozen times after the wind got to be more of a gale than an average wind it got up enough speed to do some charging.
“You can do as you like — but I think you had better take it down, before it has any more ware. I am not going to be responsible for it — we had to tighten up the propeller blades — the bolts were all loose — balance of the system seems to be doing fine.”

Immediately upon receipt of this letter, appellee’s representatives again inspected the wind-charger and found, according to their testimony, that it was working as recommended by appellee; and that J. S. Allison seemed to be satisfied. About April 18, 1939, appellant had the wind-charger taken down and shipped it to appellee, who refused to receive it, and appellant placed it in storage, and on the trial tendered it to ap-pellee.

During the negotiations leading to the purchase of the light plant appellant first thought of purchasing only the wind-charger as generating power for electricity, but was dissuaded by appellee from doing so, because it would only generate electricity when the wind blew; and finally the parties agreed upon the plant installed, in which a gasoline operated motor was installed to be used at times when the wind would not be sufficient to operate the wind-charger, the parties knowing that the wind-charger would not be sufficient at all times to produce enough electricity for appellant’s use. There was no written warranty of the wind-charger, but as to breach of warranty and failure of consideration of the purchase price of the wind-charger appellant alleged that appellee sold, delivered and installed it as being suitable for the purpose for which it was sold, knowing the purpose, and knowing that appellant would not purchase it except for the warranty, expressed or implied, that it was suitable for the purpose for which it was sold; and that after it was installed and placed in operation it was discovered that it was wholly unfit and worthless to generate electricity because of the following alleged reason: “in that the usual and ordinary breeze and wind currents would not turn said wind-charger but it required practically a gale, a'wind much stronger than was contemplated by the parties to start said wind-charger and to keep it running, and as a fact because said wind-charger would not turn and would not generate electricity in the usual and customary breeze to be expected and in the breeze which was in the contemplation of the parties at the time of said sale and purchase, said wind-charger was wholly useless to these defendants for 'the purpose for which it was bought and for which plaintiff sold it, and plaintiff’s covenant and warranty that the same would generate electricity on defendants’ ranch in Pecos County, Texas was wholly breached.”

Appellant further alleged that after notice appellee had on two occasions attempted to adjust or cure the trouble with the wind-charger, and represented that it was Pew and stiff and would limber up with use; but that it had failed to do so; and that after trying it out for an additional length of time after the adjustments, it would not turn on the usual and ordinary wind as contemplated by the parties; and appellant returned it to appellee, who refused to accept it.

On this issue raised by the pleadings, ap-pellee’s witnesses testified that if the wind-charger did not begin charging the batteries at a 7%-mile wind, it would be worthless for the purpose for which it was sold; but that on the two occasions they were called to adjust the wind-charger it was working perfectly and as recommended by appellee; and that all it needed was more use to limber it up. J. S. and Jack Allison each testified that in their opinion it took a 10 or more mile wind before the charger would begin charging the batteries, but that they had nothing to measure the speed of the wind, and each of them admitted that he had seen the charger generating at full capacity on high winds. J. S. Allison who observed the operation of the wind-charger almost daily, testified as follows:

“Q, Did Mr. Prager or any other employee of the plaintiff represent to you at the time you bought the wind-charger, the whole plant in fact, that the wind-charger would furnish sufficient electricity for your needs? A. No, they did not.
“Q. You did not buy the charger for that purpose upon the representation of the plaintiff or agents — -that it would produce electricity for your ranch? A. I bought it from the plaintiff because they guaranteed it to give satisfaction.
“Q. Isn’t it a fact that the wind-charger during the months of February and March, while you had it up, did actually produce some electricity? A. Yes, sir.”
“Q. Now, what portion of the time during February, March and April, that you had the charger, that you actually had the charger, on and the Delco plant disconnected? A. Always except when we had to have the engine to produce the light — ■ about 10% of the time, I guess. .
“Q. In other words, you had it running about 90% of the time, is that correct? A. Yes, sir.
“Q. You had the charger on about 90% of the time? A. Yes.
“Q. During February, March and April you had juice for the batteries from the engine and wind-charger? A. Yes, sir.
“Q. You had lights for your use during February and March, didn’t you? A. Yes, sir.”

The trial court correctly instructed a verdict and rendered judgment for appel-lee, because the admission of J. S. Allison that the wind-charger supplied appellant’s ranch with sufficient electricity during 90 per cent of the time it was used showed as a matter of law that it was not wholly worthless for the purpose for which it was sold and warranted, and therefore no such failure of consideration as would totally defeat the right of appellee to recover the purchase price of the wind-charger was shown. The rule is settled that if machinery is sold for a particular purpose, and it will not perform any of its functions, the buyer may set up total failure of consideration as defense to the seller’s suit for the purchase price of the machinery; but if it only performs them badly the remedy is to recover for a partial failure of consideration, showing clearly the extent of same. Wright & Clark v. Davenport, 44 Tex. 164; Gutta-Percha & Rubber Mfg. Co. v. City of Cleburne, 102 Tex. 36, 112 S.W. 1047. When a buyer relies upon the defense of failure of consideration he must make out his defense in accordance with the usual rules. That is, if the buyer has made any use of the machinery, he may not contend that there is a total failure of consideration. J. B. Colt Co. v. Reeves, Tex.Civ.App., 266 S.W. 564; Swift v. Roach, Tex.Cr.App., 266 S.W. 846; Jameson v. Consolidated Oil Co., Tex.Civ.App., 284 S.W. 309. It is also uniformly held that the mere fact that goods or machinery do not come up to the seller’s warranty does not prove that they are worthless. Gutta-Percha & Rubber Mfg. Co. v. City of Cleburne, supra; Pope v. Clendennen, Tex.Civ.App., 257 S.W. 335; L. D. Powell Co. v. Sturgeon, Tex.Civ.App., 299 S.W. 274.

But appellant contends that under its plea of total consideration it was entitled to recover for a partial failure of consideration, in accordance with the rule announced in Gutta-Percha & Rubber Mfg. Company v. City of Cleburne, supra. It is true that a buyer of warranted goods or machinery may recover for a partial failure of consideration by reason of defects or deficiencies under a plea of total failure of consideration, provided the extent of the partial failure is clearly shown. However, appellant made no proof whatever of the extent of a partial failure of consideration. When a buyer resists a purchase money suit for warranted machinery by a plea of partial failure of consideration, he is entitled to have deducted from the amount agreed to be paid the difference between the value of the machinery as it is and the agreed price thereof as it was warranted to be. Merrill v. Taylor, 72 Tex. 293, 10 S.W. 532; Fetzer v. Haralson, Tex.Civ.App., 147 S.W. 290, error refused. No such proof was made in the instant case, and in consequence neither the court nor the jury could have determined the extent of the partial failure of consideration claimed. Since appellant neither proved a total failure of consideration for the wind-charger, nor the extent of a partial one, and since the pleadings do not claim any offset for damages, appellee is entitled to recover the entire purchase price of the wind-charger, because under the rules stated no defense was made out.

The judgment of the trial court is affirmed.


source: Caselaw Access Project

author: WALTHALL, Justice.

license: Public Domain

text:
    HERRMANN v. HENDRIX et al.
    No. 3986.
    Court of Civil Appeals of Texas. El Paso.
    Nov. 20, 1940.
    Rehearing Denied Dec. 12, 1940.
    R. G. Harris, of San Antonio, for appellant.
    Chas. W. Duke and William Alter, both-of San Antonio, for appellees.
   WALTHALL, Justice.

This suit was brought by appellees, A. A. Hendrix and Henry A. Robards, to recover of appellant, Albert Herrmann, the sum of $400, alleged to be due them as commissions for finding a purchaser of the land described in the petition. The record shows that appellees procured a purchaser in the person of I. Brenner, who agreed to purchase the land upon the terms and at the price agreed upon, and as provided and stated in the earnest money sale contract; part of the purchase price was to be paid in cash and part was to be evidenced by a note secured by vendor’s lien. The earnest money receipt states substantially the following : A deed of trust (using the Stewart Title Guaranty 'Company’s form), seller to furnish certificate of. Title Insurance Policy issued by the Stewart Guaranty Company ; general warranty deed and tax statements given showing no delinquent taxes; current taxes, insurance, rents and water rents, if any, to be prorated to date. Title to be good and marketable, or to be so'forthwith at expense of seller. If title insurance policy is furnished, same to be delivered as and when deal is closed; deal to be closed within fifteen days from date, unless attorneys of guaranty company discover objections to title, in which case deal to be closed when objections are' removed. By the delivery of a title insurance policy all duties and obligations of seller as to sufficiency of title required hereunder shall be deemed to be fully performed by him. “If title is objectionable and cannot be cleared within a reasonable time, buyer may demand back this earnest money, thereby releasing the seller from this earnest receipt.”

Appellees alleged that Brenner was ready, able and willing to comply with the sale on the terms as proposed, and tendered performance, but that defendant “was unable to comply with the same,” whereupon the sale was not made and appellees sue and ask judgment for the commissions with interest and costs.

Appellant, among other answers, directed a special exception to paragraph two of appellees’ petition, on the ground that “same is indefinite, uncertain, ambiguous, and does not apprise defendant of the facts intended to be proved.”

The court overruled the special exception. Appellant, without waiving the exception, further answered that A. A. Hendrix, before the signing by Brenner of the earnest money receipt, had notice and was informed that “the property described in plaintiffs’ petition was subject to restrictions contained in a certain deed in the chain of title.”

The record contains no statement of facts, and we are not advised as to what the “restrictions” in the deed in appellant’s chain of title consisted; nor are we advised as to what information or knowledge the brokers had of appellant’s title to the land involved in the suit, or any knowledge on the part of appellees, or either of them, of any objection that Brenner might make to the title, and which appellees failed to communicate to Brenner. The purchaser refused to accept the title, and we understand it was because of the restrictions.

The court rendered judgment that appel-lees recover against appellant the sum of $400 with interest and costs, from which this appeal is duly prosecuted.

In view of the whole record before us we think the court was not in error in overruling appellant’s special exception to appel-lees’ petition.

We have not found in appellees’ petition a statement of any knowledge on their part of any defect in the seller’s title to the land in controversy, as suggested by appellant.

We quite agree with appellant’s proposition of law to the effect that the broker, to authorize him to recover commissions, must communicate to the buyer any valid objection to the title to the land he is offering for sale of which the broker has knowledge. 7 Tex.Jur. page 491, par. 93, and cases referred to in the notes.

As a rule the seller is liable for commission if the sale has failed of consummation owing to defect in the title.

Nowhere in the record is it shown that “restrictions” were in the seller’s title except in the judgment, and it is not made to appear that the brokers had knowledge of such fact.

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


author: TIREY, Justice.

text:
    GRAY CO., Inc., v. WARD.
    No. 2326.
    Court of Civil Appeals of Texas. Waco.
    Dec. 12, 1940.
    Rehearing Denied Dec. 19, 1940.

      Scott & Wilson, of Waco, for appellant.
    Conway & Scharff, of Waco, for appel-lee.
   TIREY, Justice.

This is an appeal from three judgments in garnishment in favor of Joe L. Ward, appellee. These judgments are, respectively, Joe L. Ward against East Texas Auto Supply Company, Beard & Stone Electric' Company, Inc., and Archenhold Automobile Supply Company as garnishees, and by order of this court these three causes were consolidated under the above number, because the sole question involved is the validity of the judgment on which the writs of garnishment are predicated. The judgment in the main cause is in favor of Joe L. Ward against Gray Company, Inc., a corporation, organized under the laws of the state of South Dakota, with its office and principal place of business located at Minneapolis, Minnesota. Plaintiff alleged that Jim Sampson of Tarrant County was the agent of said defendant corporation and service was had upon him. Hon. Frank M. Wilson of the Waco Bar, in the capacity of amicus curiae, averred that the court did not have jurisdiction of the- defendant for substantially the following reasons: That the defendant was a foreign corporation engaged wholly in interstate commerce and was not doing business in Texas; that Jim Sampson was not an agent of defendant; that it did not have a permit to do business in Texas; and that it had neither employees nor property in Texas. The court heard evidence on the matters raised by amicus curiae, and, upon a motion of plaintiff to correct sheriff’s return, entered ah order overruling the contentions raised by amicus curiae and granted plaintiff’s motion to amend the return and found that the Gray Company, Inc., the defendant, was subject to the jurisdiction of the court and that Sampson was such agent of the defendant upon whom, service of citation could be had. Gray Company, Inc., entered no appearance in the main case, whereupon judgment was entered by default in favor of Joe L. Ward against defendant for the amount sued for (after hearing evidence -on plaintiff’s claim). Thereafter, Joe L. Ward instituted garnishment proceedings against the above named garnishees. Each garnishee answered and Gray Company, Inc., filed its plea of intervention in each of said garnishment proceedings, and in each plea raised the question that the judgment in the main cause was void for want of jurisdiction of the trial court to enter the same, because (a) defendant, a foreign corporation, was not doing business in-Texas; and (b) Sampson was not an agent (or proper agent) for service of process and that the service upon him was insufficient to confer jurisdiction. It has long been the rule in Texas that the defendant in the main suit has the right to appear in a garnishment suit and make his own defense. See Kelly v. Gibbs, 84 Tex. 143, 19 S.W. 380, 563; Hale County State Bank v. Bray, Tex.Civ.App., 97 S.W.2d 337, point page 339; 17 Tex.Jur. 206, par. 29; Missouri Pacific Ry. Co. v. Whipker, 77 Tex. 14, 13 S.W. 639, point page 640, 8 L. R.A. 321, 19 Am.St.Rep. 734; Revised Statutes of 1925, Art. 4094; Continental Supply Co. v. Carter, Tex.Civ.App., 13 S.W.2d 927.

Trial of the garnishment cases was without the intervention of a jury. The court found in favor of plaintiff, Joe L. Ward, against the respective garnishees and in each judgment made the finding that the judgment in the main case was valid and unsatisfied. The intervener has appealed and has assailed the judgment of the trial court on the grounds raised by it in its pleas of intervention, as hereinbefore stated.

The first question presented is: Was Gray Company, Inc., doing business in Texas? Joe L. Ward, plaintiff, testified, in substance, as follows: That he had been in the wholesale automotive accessory and equipment business in Waco, Texas, for approximately 22 years; that he had known Jim Sampson IS years as a salesman representing the Gray Company, Inc., of Minneapolis, Minnesota, defendant in the main .suit; that since 1930 down to the present time, said company had been maintaining service of the equipment it sold in Texas; that Jim Sampson carried with him equipment, replacement parts and tools for the purpose of servicing defective equipment sold by said company and that Jim Sampson did actually service defective equipment formerly owned by said company, and sold by it to jobbers and wholesalers and their trade; that he (Ward) would take the matter of servicing the defective equipment up with the Gray Company, Inc., and that it would send Sampson to service it; that Sampson made adjustments on accounts for merchandise sold; that Gray Company, Inc., had on two different occasions maintained exhibits in the state of Texas, one of which was at Houston (at a county fair) during the first part of the year 1939, at which time an executive officer of the company was present, and that it had a great amount of its merchandise and equipment on exhibit (covering its entire line), and that said company was soliciting business and taking orders in conjunction with the jobbers handling its merchandise, which merchandise was sold to service stations, car dealers and garagemen. It was at this exhibit that Ward made his agreement with an executive officer of the company and Jim Sampson to discontinue the sale of the line of products of Gray Company, Inc., and return such of its equipment as he had on hand, and out of this agreement the controversy in the main suit arose.

On October 3, 1935, L. L. Gray, general manager of Gray Company, Inc., wrote plaintiff as follows:

“Your letter of September 3rd, addressed to our accounting department, with reference to invoices covering replacement units for certain pieces of our equipment which did not work out so well, has been referred to my attention.
“Of course, it is true, we experienced some troubles with a few of the earlier pieces of our new type of equipment. To be frank about it, some of the troubles were our own manufacturing problems. These troubles, whatever they may have been, were exaggerated to some extent due to the fact that the equipment was new to our own selling organization and they lacked knowledge of, and, if you please, confidence in the units themselves because of this lack of knowledge.
“Mr. Jim Sampson spent about ten days here in Minneapolis about three weeks ago, at which time he was thoroughly schooled in these units. Jim quite frankly stated that much of the trouble he experienced could have been overcome had- he been as familiar with the units earlier as he was when he left our factory here.
“Again, honestly these troubles were trivial and I write to you now to assure you that our units as we have manufactured them for the last four or five months are all you could desire or wish for in a unit of this kind. Jim Sampson will bear me out in what I claim and I urge that you do not hesitate to place the efforts of your selling organization squarely behind these automatic units of ours, including particularly the new cheaper series units we are about to announce, and which Jim has knowledge of, at any time. In fact, Jim has sold a lot of these small units and is all ‘hopped’ up over the possibilities of same. Discuss this question with Jim upon the occasion of your next visit, and take my assurances given ■ in this letter for whatever they are worth as to the merit of these new units of Ours.”

Jim Sampson, who was served with citation, testified substantially that he called on some four jobbers in the state of Texas and solicited and took orders for Gray Company, Inc.; that if said orders were accepted by said company it would ship the merchandise direct to the wholesaler and that when the merchandise so ordered and shipped was paid for, that he would then receive a commission from Gray Company, Inc.; that he made recommendations for adjustments and replacement of parts on the merchandise so sold when there was trouble with reference to said equipment, and that he did this service work on his own volition in order that this equipment might “stick”; that “if I can’t make it ‘stick’, it is returned and I do not get any commission”; “there is other parties out of the factory that make periodical calls throughout the territory and call without my presence”; that when he called on a customer he would check his stock records with reference to the equipment the company had on hand manufactured by Gray Company, Inc., and he would suggest to the customer that he give an order for such equipment that he was short on; that he would write the order and the order would then be transmitted by mail to Gray Company, Inc.; that during the past year he had also called on jobbers for two other foreign corporations located in the state of Ohio, namely, Joyce Gibland Company and Modern Equipment Corporation, and that prior to that time he had accepted orders for numerous manufacturers. These orders were solicited and transmitted by Sampson in the same manner as were the orders taken for Gray Company, Inc., and he received a commission on the sale of such products; that Gray Company, Inc., handles commercial lubricating equipment, Joyce Gibland Company handles jacks and hydraulic lifts, and Modern Equipment Company manufactures -air compressors and equipment, and all of these products are used in connection with the automobile industry; that in calling upon the jobbers, he solicited the good will of each of the companies for whom he was soliciting business and was doing what he termed “missionary work” and that it was necessary for him to do such work in order to build up good will for the different products that he was selling; that he would go alone or with the wholesaler or his representative and call on the local trade for the purpose of soliciting their good will and aiding the wholesaler in the sale of the •merchandise sold by him; that he called on four jobbers in the state of Texas, but ■made dozens of calls doing “missionary work” with major oil companies or motor car executives; that Gray Company, Inc., did not have a warehouse or any stores in Texas; that it did not maintain any office in Texas and that he handled his business from his residence and his-hotel; that if he wanted any extra help, he employed them and paid for same out of his own •commissions; that he was in Waco on the day he was served; that he mailed the citation to the home office of Gray Company, Inc.; that he made inquiry as to the names of reputable law firms in Waco and forwarded such information to the- company; that he did this of his own volition and not upon the request of Gray Company, Inc.; that he did not employ (and did not know who employed) the amicus curiae .and he was not paying him; that Gray Company, Inc., sold lots of equipment in Texas and that during the year of 1938 it .sold approximately $75,000 worth. Samp- . son’s territory included Texas and Oklahoma and parts of Arkansas and Louisiana.

Gray Company, Inc., conducted its affairs in Texas in the manner as here-inbefore stated. The general rule is: “A foreign corporation is amenable to process to enforce a personal liability, in the absence of consent, only if it is doing business within the state in such manner and to such extent as to warrant the inference that it is present there. And even if it is doing business within the state, the process will be valid only if served upon some authorized agent.” Philadelphia & Reading Railway Company v. McKibbin, 243 U.S. 264, 37 S.Ct. 280, 61 L.Ed. 710; People’s Tobacco Co. v. American Tobacco Co., 246 U.S. 79, 38 S.Ct. 233, 62 L.Ed. 587, Ann. Cas.1918C, 537. Sampson devoted a part of his time to what he termed “missionary work”, with the idea of increasing the good will of the company whose products he was selling; and he also serviced the equipment and made such adjustments and repairs of the same as was necessary to make the machinery do and perform the work that it was built to do; and at the request of Gray Company, Inc., he made such inspections and recommendations to the company and to the users of said equipment as his judgment dictated. For example, in May 1936, intervener company wrote plaintiff, in part, as follows: “We regret very much hearing that this particular unit has been causing so much trouble and we hope that the parts we are supplying will solve the problem for you. Furthermore, we are asking our representative, Mr. J. B. Sampson, to inspect the unit at his earliest convenience, with the hope that he can offer some suggestions which will help insure the Waco Chevrolet Company more satisfactory service.” We think the evidence discloses that Gray Company, Inc., had been conducting a continuous course of business in the solicitation of orders for the machinery and equipment that it was manufacturing and selling to the wholesalers in Texas (as contra-distinguished from sporadic sales), and that under the plan of their sales organization it was carrying on an established course of businfess in Texas, doing acts local in nature that made it amenable to the jurisdiction of the courts of Texas, and that the evidence is ample to support the judgment of the trial court that the in-tervener was doing business in Texas. International Harvester Company of America v. Commonwealth of Kentucky, 234 U. S. 579, 34 S.Ct. 944, 58 L.Ed. 1479; Browning v. City of Waycross, 233 U.S. 16, 34 S.Ct. 578, 58 S.Ct. 828; Cone v. New Britain Machinery Co., 6 Cir., 20 F.2d 593, writ of certiorari denied, 275 U.S. 552, 48 S.Ct. 115, 72 L.Ed. 421. The intervener company, by its efforts as above outlined, had established a substantial business in Texas, it having during the year of 1938 sold $75,000 worth of equipment that had been shipped to Texas. It is true that there is “no precise test of the nature or extent of the business that must be done. All. that is requisite is that enough be done to enable us to say- that the corporation is here.” Tauza v. Susquehanna Coal Co., 220 N.Y. 259, 115 N.E. 915, 918; St. Louis Southwestern Ry. Co. of Texas v. Alexander, 227 U.S. 218, 33 S.Ct. 245, 57 L.Ed. 486, Ann.Cas.1915B, 77.

Was Sampson a proper agent for sen¿ ice? We think so. He had been soliciting orders for Gray Company, Inc., for 15 years and the wholesalers upon whom he called covered the entire state. The complaints that'the wholesalers referred to the company were in turn referred by said company to Sampson. Sampson serviced the equipment, made inspections, adjustments and repairs and recommendations as to the replacement of parts to the inter-vener company. In fact, Sampson had been schooled by intervener company for the purpose of familiarizing himself with said equipment so that he might better understand its mechanism and operations in order that he might be better able to eliminate and overcome the complaints and troubles given by the equipment manufactured and sold by defendant in Texas; and plaintiff was expressly directed to discuss the questions of defendant’s equipment with Jim Sampson. Moreover, on March 3, 1936, said Sampson wired defendant company “collect” as follows: “Having 'trouble with CJ Piston sticking in nozzle both sizes all Ward Floyd have sold have come back suggest you expréss six each new nozzles complete old ones will be returned this is first trouble I have run into stop I will be Roosevelt Hotel Waco until tomorrow.” „

On March 5, 1936, defendant company wrotp plaintiff, in part, as follows:

■ “Please be advised that we sent out to you today, on receipt of a wire from Mr. J; B. Sampson, three new CJ-421 sts of guns and we are requesting that you return to us immediately, marked to the attention of the writer. . * * *
“The unit being a new item in our line we naturally were very much concerned upon receipt of Jim’s wire and will appreciate all you can do to' expedite the return to us here in Minneapolis. ' Needless to say, the replacing sets have been tested in every conceivable manner so that I can assure you without fear of contradiction that the units will operate perfectly when placed in service.”

Moreover, on March 26,. 1936, inter-vener company wrote Jim Sampson, in reply to his letter of March 23rd regarding equipment previously sold to plaintiff, in part, as follows: “Regarding the P-75 Alemite gun, I have discussed this with Harry, and he states that as long as it has been agreed to by you as our representative, he will take it back, but we presume that Ward Floyd will prepay it in to Minneapolis. You asked us to issue a credit, but it is not customary to do so until the merchandise g.ets in. Please advise us on this score by return mail.”

In August 1937 Gray Company, Inc., wrote plaintiff, in part, as follows: “This will acknowledge your wire of this morning with reference to the difficulty you are experiencing with Graco Pumping units. First of all, we wish to advise that immediately upon receipt of your wire we telegraphed our Mr. Jim Sampson asking that he get in to Waco promptly and assist you in this matter. Rest assured, Mr. Behringer, we are just as anxious as you are to get this matter cleaned up and we will await full details from Jim Sampson as to what is necessary to relieve this condition.”

It appears to us that the testimony in this case discloses that Sampson was a proper agent for service in this cause. Justice Cardozo, in the case of Tauza v. Susquehanna Coal Co., supra, said: “if the persons named are true agents, and if their positions are such as to lead to a just presumption that notice to them will be notice- to the principal, the corporation must submit.” It will be recalled that when Sampson was served with citation he immediately mailed said citation to the home office and did so voluntarily, and thereafter voluntarily submitted a list of names of reputable attorneys in Waco to the home office. Vilter Mfg. Co. v. Rolaff, 8 Cir., 110 F.2d 491. The fact that Sampson received his compensation in the form of commissions would not change his status as a traveling salesman, Hamberger v. Marcus 157 Pa. 133, 27 A. 681, 37 Am.St.Rep. 719; In re Dexter, 1 Cir., 158 F. 788; nor would the fact that Sampson represented other manufacturers and received his compensation for such service solely on a commission basis change his status as a traveling salesman. In re National Marble & Granite Co., D.C., 206 F. 185; In re Roebuck Weather Strip & Wire Screen Co., D.C., 180 F. 497. We are therefore of the opinion that under Article 2031 of our Revised Civil Statutes of 1925 that Jim Sampson was such traveling agent or traveling salesman of such intervener corporation within the contemplation of said statute.

The judgment of the trial court in each of the garnishment cases is in all things affirmed.


author: LOONEY, Justice.

text:
    DALLAS RY. & TERMINAL CO. v. HELTON.
    No. 12920.
    Court of Civil Appeals of Texas. Dallas.
    Nov. 2, 1940.
    Rehearing Denied Dec. 7, 1940.
    Burford, Ryburn, Hincks & Charlton and Logan Ford, all of Dallas, for appellant.
    Jack C. Burroughs, of Dallas, for ap-pellee.
   LOONEY, Justice.

The Dallas Railway & Terminal Company appealed from an adverse judgment in favor of F. L. Helton, who sought damages for personal injuries and injuries to his automobile, sustained in a collision between his automobile and one of the Company’s buses. At the time of the collision, about 8 P. M., the bus was in the act of making a left-hand turn off Lancaster Avenue onto Saner Street in the City of Dallas. The bus had been traveling north, on the right side of Lancaster Avenue, until reaching the point of intersection with Saner Street. Plaintiff also was traveling north on Lancaster, immediately behind the bus, and, in attempting to pass the bus at the intersection, the collision occurred.

The issues of negligence ánd contributory negligence, raised by pleading and proof, are revealed by the findings of the jury, in response to issues submitted, as follows: That the defendant was guilty of actionable negligence in that, its motorman failed to give any signal or warning that he intended to make a left-hand turn of thé bus at the time of, or just prior to, the collision; that he failed to use or apply the stop light that was on the bus, and that he failed to keep a proper lookout.

The jury acquitted plaintiff of contributory negligence in the respects following: That is, that he did not fail to keep a proper lookout just prior to the collision; was not driving his car in excess of 20 miles per hour; did not fail to slow down as he approached the intersection of Lancaster and Saner; did not fail to have his automobile under control; did not fail to drive to the left on the free or unoccupied portion of the highway; did not attempt to pass the bus as it started to make a left turn onto Saner; and that he did not fail to signal or warn the operator of the bus of his, plaintiff’s intention to pass. The jury also'found that the collision was not the result of an unavoidable accident; assessed plaintiff’s damages at $1,535.60, for which amount the court rendered judgment, from which, after its motion for new trial was overruled, the defendant appealed.

No question is raised as to the sufficiency of the pleadings,- or of the evidence to sustain the verdict of the jury, defendant’s insistence being that, the presence of- traffic, other than plaintiff’s automobile and defendant’s bus, at or near the intersection of Saner and Lancaster immediately prior to the collision, raised the issues of “new and independent cause”, of “sole proximate cause” and of “unavoidable accident” ; therefore, the court erred in refusing to define “new and independent cause”; erred in refusing to ' submit that issue; erred in refusing to submit the issue of “sole proximate cause”; erred in failing to correctly define “unavoidable accident”, and erred in incorrectly placing the burden of proof upon the defendant to show affirmatively the existence of an unavoidable accident.

The questions just mentioned, being propositions Nos. 1 to 8, inclusive, will be grouped and considered together, because it is our opinion that neither of the issues mentioned was raised by evidence.

The witnesses, whose testimony furnishes the factual basis for these contentions, are the motorman, the plaintiff and a Mr. Manchen. The motorman testified in substance that he had been traveling north on Lancaster Avenue, intending to turn left onto Saner Street, drove the bus to the right against the curb to await the passage of outbound traffic going south on Lancaster Avenue, and that, when the traffic passed, he held out his hand for a left turn and started up, but stopped for a car going north to pass around the bus, and, after the passage of this car, again started the bus, when plaintiff’s car came up from the rear and struck the bus about six feet from the front end, the right-hand fender of the car striking the bus. We do not think the testimony of this witness disclosed the existence of any traffic at the time he turned to enter Saner Street, nor do we think plaintiff’s testimony showed the existence of any traffic at the time he started to pass the bus. He stated that the bus slowed down and pulled to the right, that he (plaintiff) blew his horn, pulled to the left and started around the bus; thought he was going around all right when suddenly the light of the bus shone in his car, at which he quickly j erked his car to the left, but was hit on the side by the bus and knocked off the pavement. The only other witness was Mr. Manchen, who testified that he had been traveling north on- Lancaster Avenue just prior to the accident; that the bus was in the lead, plaintiff’s car was next, and the witness’ car was next to that of plaintiff; that just before the bus started to make the left-hand turn at Saner, it pulled to the right, and that plaintiff started around the bus, which ran into the side of plaintiff’s car, skidding and pushing the same to the edge of the driveway- — about 40 feet. The testimony, in our opinion, fails to disclose any complication in the traffic at the particular time and place of the accident. Plaintiff and the driver of the bus were the only actors; their conduct alone produced the events resulting in the accident. The jury having found all issues of negligence and contributory negligence raised by the pleadings and evidence in favor of the plaintiff, and the same not being challenged for the want of evidence to sustain the findings, we think the assignments and propositions under consideration should be overruled. Similar situations were presented in Magnolia, etc., Co. v. Owen, Tex.Civ.App., 101 S.W.2d 354, 355, and in Young v. Massey, 128 Tex. 638, 101 S.W.2d 809, with reference to which the court reached similar conclusions.

In its ninth proposition, the defendant insists that the court erred in not instructing the jury in writing not to consider, for any purpose, certain evidence in regard to injuries to plaintiff’s spine — on the ground that such evidence was not authorized by the pleadings. The court instructed the jury verbally not to consider the evidence, but failed to repeat the instruction in writing, and this is assigned as error.

The verbal instruction to the jury, in our opinion, was sufficient, even if the defendant were entitled to have the evidence excluded; however, in view of plaintiff’s allegations, we think he had the undoubted right to make proof of a spinal injury. As to the result of the injury received, the petition alleged that it caused “the plaintiff to suffer a severe blow and bruise to his chest and to his left and right arm, particularly in and about the shoulders of the left and right arms; that the plaintiff suffered a severe sprain to his left and right sides; that all of the muscles, tendons, leaders, ligaments, and muscular movements of the plaintiff’s left and right sides were torn, bruised and put out of place; that the plaintiff’s back in and about, below and above, the lumbar region of the back, was injured and all of the leaders, tendons, muscular movements, and ligaments leading to and from the spinal column were bruised, torn and pulled out of place; * * * Although the defendant excepted to these allegations, because too vague, general and indefinite, the record fails to disclose any action of the court on the exceptions; therefore, we must conclude that the exceptions were waived.

The back of a human is the hinder part of the body extending from the neck to the end of the spine; hence, the allegation that plaintiff’s back in and about, below and above the lumbar region was injured, etc., comprehended not only injuries to the spinal column proper, but all else that constituted the hinder part of his body. Hence we think the rejected evidence was admissible, and that its exclusion and the instruction to the jury not to consider same constituted error — not against the defendant, but against the plaintiff, therefore, overrule the assignment and proposition presenting this question.

In its tenth proposition, the defendant insists that, having verbally instructed the jury not to consider evidence relating to an effort or offer of settlement, the court erred in not reducing the instruction to writing, as a part of its charge.

The attorneys for the parties and the court are agreed that, ordinarily, proof of an offer of compromise or settlement is not admissible. In the instant case, however, plaintiff offered no evidence in regard to an attempted settlement — that matter -crept into the case during the cross-examination of plaintiff by defendant’s counsel. It seems that, plaintiff resided at McAllen, Hidalgo County, Texas, and, at the time of the accident, was en route to Kansas City. Three other persons were in the car with him at the time — a lady, a boy and a man. On cross-examination, defendant’s counsel was questioning the plaintiff in regard to certain trips made by him subsequent to the accident. Plaintiff stated, among other things, that: “I came back here and went to the claim adjuster. I told him about the accident and everything and he had it wrote down and he said, ‘What do you want out of this?’ and I said, T want my side and back to get well. I don’t want only my car straightened up,’ and he said, ‘Take your car up to the Franklin Body Company and have an adjustment made on it.’ ” Was then asked, “Q. Tell the jury about this trip. A. I am coming right to it. He said ‘Just get me a written statement from the people that was in your car, whether they are hurt or not and we will settle with you,’ and I drove a trip and got a statement from two of them which cost me a lot and’ when I got back with thpse two he said, ‘We have got to have the third one; we can’t settle without the third one.’ ”

At this point, counsel for defendant stated that the witness was talking about a settlement and that the evidence was not admissible and his answers were not responsive, self-serving, etc. The court sustained the contention of plaintiff’s counsél, stating that the testimony in regard to the trips, and why they were made, was admissible. Defendant’s counsel then proceeded : “I want him to tell the jury, if he can, about the trip that he made after the accident. He said some claim agent told him to make the trips. I want to find out what trips he told him to make.” Plaintiff answered: “I made them because he told me he wouldn’t settle until I got a written statement from the people in my car, whether they were hurt, and that is the reason I made the trips. Q. How many trips did you make ? A. I made two. * * * I mailed those statements to the bus claim agent and then he turned me down. He said, ‘We can’t do anything until you get a statement from the next person,’ and I go to Tulsa, Oklahoma, and stayed there a week and got a statement from him, and he wasn’t hurt in the wreck and I brought that back and he wouldn’t even read it.”

On re-direct examination, plaintiff’s counsel asked him if he had been requested to gét a doctor’s statement. At this point, a colloquy arose, in which defendant’s counsel said: “He testified and it is a fact there wasn’t anybody hurt going up there. Whether he gets a statement or not doesn’t have anything to do with the liability, whether we are responsible or somebody else is responsible for these alleged troubles he doesn’t have. We object to going in here and talking about some statement he got here and some statement he got there. I asked him about some trips he had to go on. That’s all I inquired about and all I asked him to go into. We offered him $35.00.” (The statement that plaintiff had been offered $35 was later denied by plaintiff.) The court then instructed the jury again that the “lawyers are not witnesses. What they say is not evidence in this case.”; that the only evidence the jury could consider is the testimony of the witnesses and the documentary evidence, and that they should not consider as evidence what the lawyers said. Defendant’s counsel then requested 'the court to instruct the jury that they would not consider for any purpose the question of offer of settlement. Plaintiff’s counsel replied : “There hasn’t been any but his statement. We’ll let him take it back if he wants to,” The court then concluded the episode-, as follows: “The court doesn’t recall any question asked by counsel as to whether the plaintiff was made any proposition of settlement. I do think there has been some testimony here that something like that occurred. It is excluded from you, because it is not responsive to the question asked and under the rules of evidence any testimony with reference to compromise is not admissible for any purpose and you cannot consider it for any purpose.”

We think it obvious from the record that, after the question was raised as to the inadmissibility of evidence tending to show an effort at settlement, all of which was developed by defendant on cross-examination of plaintiff, defendant’s counsel continued to cross-examine plaintiff in regard to why the trips were made, and elicited further answers to the effect that they were in response to the request of the adjuster, as basis for settlement, and counsel for defendant then stated in open court, in the presence of the jury, “We offered him $35.”

All of this evidence, in regard to the proposed settlement, having been brought into the record as the result of the defendant’s cross-examination of the plaintiff and the voluntary statement of defendant’s counsel in open court, and the jury having been fully and several times instructed not to consider the same, we do not think the court erred in refusing to reduce his instructions to writing.

A similar question arose in the case of Tolivar v. Howth, Tex.Civ.App., 100 S.W.2d 1090, where evidence went to the jury, as the result of appellant’s cross-examination of one of appellee’s witnesses, to the effect that Jannie Crawford was a prostitute. As in the instant case, the evidence was excluded and stricken from the record on appellant’s motion. The court held that, since* appellants themselves brought out this fact, it was not error for the court to refuse to give their requested instruction not to consider the same.

We have carefully considered all assignments and propositions urged by the defendant; finding same without merit, they are overruled, and the judgment below is affirmed.

Affirmed.


author: FOLLEY, Justice.

text:
    HUNT et al. v. TRIMBLE et al.
    No. 5295.
    Court of Civil Appeals of Texas. Amarillo.
    Nov. 4, 1940.
    Rehearing Denied Dec. 9, 1940.
    Willis & Via, of Pampa, for appellants.
    Sanders & Scott, of Amarillo (A. P. Smith, of Amarillo, of counsel), for appel-lees.
   FOLLEY, Justice.

This is an appeal from a judgment permanently enjoining the County Judge, County Attorney and County Commissioners of Wheeler County, Texas, from entering any orders consolidating two school districts and also declaring void two elections held in connection with the purported consolidation, one upon the issue of consolidation and the other upon the assumption of bonded indebtedness.

The two school districts involved are the Mobeetie Independent School District lying wholly within Wheeler County and the contiguous Mt. View Common County Line School District No. 36 lying partly within Wheeler and partly in Gray County. Since the creation of the county line district Wheeler County has had jurisdiction over it for administrative purposes. The-school house of such district has at all times been located in Wheeler County. The school authorities of Gray County have at all times since the organization of the county line district acquiesced in the management and control of such district by the school authorities of Wheeler County, the former having regularly collected and remitted school taxes due such district to the school authorities of Wheeler County for disbursement. There is a bonded indebtedness outstanding against the Mobeetie Independent School District in the sum of $59,800, but none against the Mt. View Common County Line District.

On March 25, 1940, apparently operating under articles 2742b, 2806 and 2807, Vernon’s Annotated Civil Statutes, twenty or more of the legally qualified voters of each of the respective districts above presented a petition to the County Judge of Wheeler County asking that an election be called in each of such districts for the purpose of consolidating the same and for a separate election to be held at the same time on the assumption of outstanding bonds of the proposed consolidated district. On the same date the County Judge of Wheeler County issued orders calling for both -elections to be held in the two districts on April 27, 1940. From the record it appears that no action was taken by the County Judge or Commissioners’ Court of Gray County nor by the County Board of School Trustees of either of the counties concerned, nor was it shown that their consent to the consolidation was in any manner obtained. After due notice the elections were held on the date scheduled and resulted in a majority vote being cast in each of the districts both in favor of the consolidation and the assumption by the proposed consolidated district of the bonded indebtedness against the Mobeetie Independent School District.

The County Commissioners’ Court of Wheeler County met on May 13, 1940, and issued its order declaring the results of the election. Theretofore, however, on May 10, 1940, this suit was filed by five taxpayers residing in the Mt. View district asking for a temporary order restraining the County Judge, County Attorney and County Commissioners of Wheeler County from issuing any orders consolidating the two school districts or any orders with reference to the assumption of the bonded indebtedness. In such petition the validity of the -elections was attacked because they were held without the consent and authority of the county judge and commissioners of Gray County and without the consent and authority of the county board of school trustees of either Gray or Wheeler Counties. A temporary restraining order was issued as prayed for on the same day the suit was filed. At a hearing on May 24, 1940, a temporary injunction was issued restraining the issuance of any orders in connection with the election. On May 29, 1940, the appellants filed a plea in abatement and an original answer wherein, among other things, the authority of the appellees to bring this suit was challenged upon the theory that such elections' could be attacked only by a quo warranto proceeding in behalf of the State of Texas. On July 10, 1940, upon amended pleadings, after a hearing on the merits and after the court had overruled appellants’ plea in abatement, the court rendered judgment decreeing the elections for the consolidation of the school districts and for the assumption of the bonded indebtedness invalid and void and decreed that the temporary injunction be made permanent. It is from such judgment that this appeal is prosecuted by the appellants, the above named county officials of Wheeler County.

The first contention of the appellants we wish to dispose of is that with reference to the capacity and authority of the appel-lees to prosecute this suit, the contention being that the attack upon the purported consolidation could only be maintained by the State in a quo warranto proceeding.

It will be noted above that the County Commissioners’ Court of Wheeler County declared the results of the election by its order of May 13, 1940. This was after the issuance of the temporary restraining order of May 10, 1940, prohibiting the commissioners’ court from issuing an order consolidating the two school districts. Section 5b of article 2742b provides that the commissioners’ court of the county under whose jurisdiction the school districts lie shall canvass the returns of the election and declare the results and “when the results are so declared the consolidation of the districts shall thereby become effective”. Under this provision, standing alone, the conclusion might follow that the proposed consolidated district would come into being by the declaration of the results of the election without the necessity of an additional order from such court declaring the districts consolidated. However, under article 2806, referred to in article 2742b for the manner to proceed in such elections as these, the provision is made that the commissioners’ court shall canvass the returns and “if the votes cast in each and all districts show a majority in each district voting’ separately in favor of such consolidation, the Court shall declare the school districts consolidated”. This portion of the statute indicates that an order of consolidation is necessary before the proposed new district would come into being. If it was meant by the provisions quoted from article 2742b that no order was necessary to declare the districts consolidated and that only an order declaring the results of the election would automatically bring into existence the proposed consolidated district, then such provision is apparently in conflict with the quoted provision from article 2806 providing for the commissioners’ court to declare the school districts consolidated. If, in this case, the new districts came into legal existence upon the declaration of the results of the election such district could not be collaterally attacked by a suit of this sort but might be attacked only by a quo warranto proceeding in behalf of the State. Lynn County School Board et al. v. Garlynn Common County Line School Dist. et al., Tex.Civ.App., 118 S.W.2d 1070, writ of error refused, and authorities therein cited. The ludicrous thing about the quoted provision above from section 5b is that the result of the voting at the election seems to be immaterial. Paraphrased, the provision is that after the votes are canvassed the commissioners’ court shall declare the results and, regardless of the outcome of the election, “when the results are so declared the consolidation of the districts shall thereby become effective”. Certainly the Legislature did not intend a literal construction to be placed upon this portion of the statute. Therefore, in view of the contrary provision set out in article 2806 requiring an order of consolidation we think the most reasonable construction of the provisions of both articles as construed together is that an order of consolidation was necessary after the declaration of the results of the election. This is especially true under the record before us because there is no intimation that the members of the commissioners’ court intended to disobey the temporary restraining order of the trial court, which would necessarily have resulted if the effect of their action in declaring the results of the election automatically brought into legal existence the proposed consolidated district. We are therefore of the opinion under the facts of this case the consolidation has not become complete so as to prohibit a collateral attack of this sort upon the validity of the election.

As we view the merits of this case there is only one issue presented as to the legality of the two elections and that is whether or not it was necessary for the consent of the Commissioners’ Court of Gray County to have been obtained in some manner before the districts herein involved might have been legally consolidated. The appellees assert that such consent was necessary because of the provisions of article 2744, R.C.S. of 1925, relative to county line school districts, wherein it is provided that such districts “shall not be changed or abolished except by the consent of the commissioners court of each county having territory contained therein, * * On the contrary the appellants contend that the provisions of section 5b of article 2742b control the situation here presented. In such article it is provided that “when the proposition is to consolidate districts having territory in two or more adjoining Counties, the petitions and election orders prescribed in Article 2806, Revised Statutes, 1925, shall be addressed to and issued by the County Judge of each County for and in behalf of each district wholly in his County or over which his County has jurisdiction for administrative purposes, and the County Commissioners’ Court of each County shall canvass the returns of the election in each district lying wholly within the County or under its jurisdiction for administrative purposes, and declare the results, as in the case of the consolidation of districts lying wholly within one County; * * Upon examination it will be noted that article 2744 was an Act of the Legislature in 1911 while article 2742b was an Act of the 40th Legislature in 1927. By section 13 of the latter Act, known as House Bill No. 99, General and Special Laws of the 40th Legislature, it was provided that all “laws and parts of laws, General and Special, in conflict with this Act are hereby repealed”. Therefore, if the above provisions of the two Acts are in conflict the 1927 Act must prevail as far as the procedure outlined for the consolidation is concerned. In the latter Act the sole requirement is that the qualified voters present their petition to the county judge in each county in behalf of each district wholly in his county or over which his county has jurisdiction whose sole duty it became to issue an order for the election as prescribed in article 2806, and that after such election was held the commissioners’ court of each county should canvass the returns of the election in each district lying wholly within such county or under its jurisdiction and declare the results. In this Act the consent of no one is required, not even the consent of the county judge issuing the election orders nor the commissioners’ court or any other officials of his or any other county. The natural import of this provision is that the only consent necessary to the consolidation is that of the voters expressed in an election called for such purpose. The will of the voters being the paramount concern of the Legislature the manner of obtaining such expression is of little importance. In this instance, as applied to the facts of this case, in order to ascertain the will of the voters, instead of providing that the county judge of both counties should order the election and that the commissioners’ courts of both counties should canvass the returns and declare the results, the Legislature saw fit to constitute the officials of the one county having jurisdiction of both school districts as those charged with this duty. Certainly such method was competent and effective to determine the will of the voters in the instant case and such will, we think, is the dominant factor in the matter of consolidation.

In support of our conclusion in this respect is the case of Woodson Independent School Dist. v. State ex rel. Cox et al., Tex.Civ.App., 130 S.W.2d 1038, writ of error dismissed,’correct judgment. The facts of that case are squarely in point with those of the instant case. Woodson Independent School District lay wholly within Throck-morton County, Texas, and the County Line School District No. 4 lay partially in Throckmorton and partly in Stephens County. The county judge of Throckmor-ton ordered the election and the commissioners’ court of such county canvassed and declared the results. The State of Texas, by a quo warranto proceeding, challenged the validity of the election asserting there existed no legal authority for the consolidation in the absence of some action by the county judge, commissioners and county board of school trustees of Stephens County, notice to none of which officials was given nor was their consent to such action in any way procured. The trial court rendered judgment declaring the attempted consolidation void. The Court of Civil Appeals at Eastland reversed the judgment of the trial court and rendered judgment for the respondents who appealed the cause, thus, in effect, declaring the consolidation valid. The holding of the Court of Civil Appeals was based solely upon the theory that the procedure outlined in section Sb of article 2742b controlled the situation presented in that case. Such issue being the only one upon the merits before the Court of Civil Appeals, the fact that the Supreme Court of Texas, in dismissing the application for a writ of error in that case, approved the judgment rendered by the intermediate court, is authority enough for the conclusion that the procedure followed in that case, and in the instant case, is all that is necessary to consolidate such school districts.

In thus disposing of the above issue we are not unmindful of the case of Newsome, County Judge, et al. v. Elliott et al., Tex.Civ.App., 139 S.W.2d 221, in which an application for a writ of error was also dismissed by the Supreme Court “correct judgment”. But unlike the Woodson Independent School District case, we think there was a theory in the Newsome case other than the one relied upon whereby the judgment of the Court of- Civil Appeals might have been a correct one. In the latter case the Kinney Point Common School District No. 31 was wholly within Franklin County and under the jurisdiction of the Franklin County officials. The Talco Independent School District was partly in Franklin and partly in Titus County with its jurisdiction for administrative purposes in Titus County. Therefore, no one of the counties involved possessed jurisdiction over both schools, which is contrary to the facts of the instant case and of the facts in the Woodson Independent School District case. The required number of qualified voters of each of the school districts involved, apparently attempting to follow the procedure outlined in section Sb of article 2742b, presented their petitions for elections respectively to the county judges of Franklin and Titus Counties. The County Judge of Titus County issued his order- calling an election but before the County Judge of Franklin County issued any order the County Board of School Trustees of Franklin County met and entered its order consolidating the Kinney Point District with Hagansport District No. 26, another common school district in Franklin County. Thereupon the County Judge of Franklin County refused to issue an election order. Suit was filed to compel him to issue the order and such relief was granted by the trial court, which court also declared void the consolidation of the Kinney Point and Hagansport districts. The Court of Civil Appeals for the Sixth District reversed such judgment and remanded the cause upon the theory that the appellees therein had not shown that the commissioners’ courts and county boards of school trustees of the respective counties had consented to the proposed consolidation of the Kinney Point and Talco districts. Such theory was predicated upon the above quoted provision from article 2744. However, if for any other reason not assigned the judgment of the Court of Civil Appeals was correct the Supreme Court was authorized to dismiss the application for the writ of error with the notation “correct judgment”. Without attempting to assume an intuitional role as to the reasons prompting the Supreme Court in approving the judgment of the intermediate court in such case, suffice it to say that it is entirely possible the Supreme Court was of the opinion the order of the county board of school trustees consolidating the Kinney Point and Hagansport districts was a valid order, which, if true, changed the original status of the Kinney Point district and thus deprived the County Judge of Franklin County of his authority to issue an election order to consolidate the Talco district with the Kinney Point district. State ex rel. George et al. v. Baker et al., 120 Tex. 307, 40 S.W.2d 41; Lynn County School Board et al. v. Garlynn Common County Line School Dist. et al., supra; articles 2922a and 2922c, Vernon’s Annotated Civil Statutes. At any rate, if the action of the Supreme Court in approving the judgment of intermediate court in the Woodson Independent School District case may not be harmonized with its similar approval in the Newsome case, we prefer to follow the decision in the former case because its facts are clearly in point with the facts of the instant case.

We are therefore of the opinion that the election for consolidation and the election for the bond assumption weyre valid elections and that the trial court erred in holding the same invalid and in issuing the injunction herein prohibiting the County Commissioners’ Court of Wheeler County from issuing orders with reference to the two elections. Stephens et al. v. Coffee, County Atty., et al., Tex.Civ.App., 133 S.W.2d 184.

The judgment of the trial court is reversed and judgment is here rendered dissolving the injunction and decreeing the elections valid.

Reversed and rendered.

On Motion for Rehearing.

In our original opinion upholding the validity of the two elections herein we impliedly overruled the contention of the appellees in their original brief in regard to the unconstitutionality of the law under which the consolidation of the two schools was effected. In a motion for rehearing the appellees vigorously attack the constitutionality of that portion of section Sb of article 2742b relative to the consolidation of a common county line school district with a contiguous independent school district, asserting that such provision involves a subject not expressed in the title to the 1927 Act of the 40th Legislature and is therefore within the prohibition of section 35 of article 3 of the Constitution of Texas, Vernon’s Ann. St.

The title of the 1927 Act (Acts 1927, 40th Leg., 1st C.S., p. 228, ch. 84) is in part as follows: “An Act to provide for increasing or diminishing the area of an Independent School District upon petition of qualified resident property taxpaying voters; * * * providing for increasing or diminishing the area of Common School Districts or abolishing Common School Districts by the County Board upon a vote of a majority of the qualified voters in the district affected; * * * providing for the establishment or consolidation of County Line School Districts”.

The appellees assert that the above title would not warrant the enactment of the provision relative to the consolidation of a common county line district with a contiguous independent district but would only warrant a provision consolidating one county line district with another county line district.

We are not in accord with the appellees’ contention in this respect. Under the liberal construction placed upon the above constitutional provision by our courts we are of the opinion the title of this Act was sufficient to support the enactment in the body of the bill relative to the consolidation of a county line district with a contiguous independent district. In speaking of the purposes of this constitutional provision the Commission of Appeals in Consolidated Underwriters v. Kirby Lumber Co., 267 S.W. 703, 705, said:

“It is well recognized that the' purposes of this provision ar-e to advise the Legislature and the people of the nature of each particular bill, so as to prevent the insertion of obnoxious clauses which otherwise might be ingrafted on it and become the law, and to obviate legislation through the combination, upon a composite bill, of the votes of the proponents of different measures included in it, some of which would not pass upon their merits if separately considered. Stone v. Brown, 54 Tex. [330] 342.”

In this connection it was held in the foregoing Kirby Lumber Company case that the title is sufficient if the general and ultimate subject of the particular act as a whole is found in the wording of the title, and the subject so expressed will support provisions in the body of the act that are component parts of the general subject, reasonably implied or auxiliary to it, relevant, germane, complementary, necessary or reasonably incidental.

In Doeppenschmidt v. International & G. N. R. Co., 100 Tex. 532, 101 S.W. 1080, 1081, the Supreme Court of Texas, speaking through Chief Justice Gaines, said: “It would be burdensome if not intolerable to require that the title should be as full as the act itself. The word ‘title’ implies that no such requirement exists. The purpose of the constitutional provision is merely to reasonably apprise the legislators of the contents of the bill, to the end that surprise and fraud in legislation may be prevented.”

It has also been held that it “is legitimate in the construction of a law ,to refer to the caption for explanation * * *, and it is equally permissible in the construction of the caption to refer to the body of the act * * *.” City of Austin et al. v. McCall, 95 Tex. 565, 68 S.W. 791, 793.

We therefore conclude that the title to this Act was sufficient to give “fair indication and reasonable notice” to the legislators that the body of the bill included the provision under attack and thus prevented “the mischiefs against which the Constitution seeks to guard”. 30 Tex.Jur. 92, § 43; Austin Independent School Dist. et al. v. Marrs, Superintendent, et al., 121 Tex. 72, 41 S.W.2d 9; City of Aransas Pass et al. v. Keeling, Atty. Gen., 112 Tex. 339, 247 S.W. 818; Breen v. Texas & P. R. Co., 44 Tex. 302; Pyote Independent School Dist. v. Dyer, Tax Collector, Tex.Com.App., 24 S.W.2d 37; Id., Tex.Com.App., 34 S.W.2d 578; Lowery, Tax Collector, v. Red Cab Co., Tex.Civ.App., 262 S.W. 147, writ of error refused; Pleasant Valley Common School Dist. No. 7 et al. v. Story, County Judge, et al., Tex.Civ.App., 142 S.W.2d 258, writ of error refused.

The motion for rehearing is overruled.


author: SMITH, Chief Justice.

text:
    CITY OF CORPUS CHRISTI v. McMURREY et ux.
    No. 10742.
    Court of Civil Appeals of Texas. San Antonio.
    Nov. 13, 1940.
    Rehearing Denied Dec. 11, 1940.

      Kleberg, Eckhardt & Lowe, R. B. King, and Dean B. Kirkham, all of Corpus Christi, and C. Burt Potter, of Sinton, for appellant.
    W. B. Moss, of Sinton, Minor W. Pitts, Jr., of Corpus Christi, and Lawther, Cram-er, Perry & Johnson, of Dallas, for appel-lees.
   SMITH, Chief Justice.

This is the third appeal in the case, the first upon a question of venue (Tex.Civ.App., 90 S.W.2d 868), and the second on the merits (Tex.Civ.App., 109 S.W.2d 366). Reference is here made to those reports for more detailed facts and issues of the controversy.

In the original disposition we held that although several irregularities as well as some positive errors occurred upon the trial, they, separately, did not require reversal, and upon that conclusion we ordered af-firmance. After an exhaustive re-examination of the record, we have become convinced that, after all, assigned errors are so many and of such nature that the judgment cannot properly be affirmed. We need point out only a few of those errors, the others being such as need not occur again.

The parties agree upon the facts that in 1928 the City of Corpus Christi built a dam across the Nueces River in San Patricio County in connection with its city water system; that on September 26, 1930, J. M. McMurrey bought a tract of 113 acres of land lying along the east bank of the river, a short distance below the dam; that the dam broke on November 23, 1930, and was rebuilt by the City in 1933 and 1934, forming a lake above the McMurrey land; that in working out its plans the City moved the channel of the river a distance of several hundred yards.

In 1936 McMurrey brought this suit against the City to recover damages for loss of crops and permanent injury to land alleged to have been sustained by him by reason of overflows occasioned by the acts of the City in diverting flood waters across his land as a result of the change in the river channel, and negligent construction and operation of the flood gates in the dam.

The case was tried and submitted to a jury upon special issues, on the answers to which judgment was rendered in favor of McMurrey for damages for loss of crops and permanent injury to land, as prayed for. The City has appealed.

The jury found, specifically in separate issues, that the defendant “diverted the natural flow of the waters of the” river “in such a manner as to” (1) destroy plaintiff’s crops on July 7, 1932, and (2) September 15, 1932, and (3) as to “permanently damage” plaintiff’s land in the year 1935. In submitting those ultimate issues the court did not inquire of the jury, by connected subsidiary questions, if the damages inquired about were proximately caused by the diversion, as is the more frequent and better practice. But the- court did submit the issue of proximate cause at another place in the charge, tying it by reference to the ultimate issues previously submitted. Defendant complains of this arrangement of the submission, whereby the subsidiary issue was separated, by intervening questions, from the ultimate issue. The law does not prescribe a rigid form of submission, but leaves that, as it should, to the sound discretion of the trial judge, to be exercised according to the requirements of each case, subject to revision in case of abuse of discretion. Hidalgo County Water Control & Imp. District v. Peter, Tex.Com.App., 37 S.W.2d 133. In this case, however, we suggest that upon another trial the several subsidiary issues of proximate cause be submitted in their appropriate positions with reference to the specific acts to which they relate respectively.

We overrule defendant’s second proposition in which it complaiiis of the refusal of the trial judge to submit an issue of unavoidable accident. This is not a case involving that issue, and in the statement under this proposition defendant does not attempt to present any evidence or circumstance authorizing its submission.

In its third proposition defendant asserts, and complains of the fact asserted, that the trial judge submitted the case on the assumption that defendant did in fact divert the waters of Nueces River onto plaintiff’s land, and refused to submit that issue separately. No doubt upon a resubmission this question will be eliminated from the case, and we refrain from deciding it here. The same may be said of defendant’s propositions five, nine and eleven.

Defendant complains in its fourth proposition because the trial judge, after defining the term “reasonable market value”, instructed the jury that: “In connection with finding the reasonable market value, if any, of the crops, if any, mentioned in this charge, you will take into consideration the reasonable yield that such crops, if any, would have made had such crops been permitted to continue their growth, and the reasonable cost of additional labor and expense necessary in cultivation and harvesting of such crops for market.” Defendant’s objection is that by this instruction the trial judge directed, or authorized, the jury, in awarding damages, to add to the value of the crops destroyed the expense of producing and marketing, whereas, the jury should have been instructed to deduct that amount from the value of the destroyed crop. It is true, of course, that the expense of making and selling the crop should be deducted from the value of the crop in arriving at the amount of damages to be awarded in such cases, and the court in this case should have so instructed the jury. No doubt this will he done upon another trial.

In addition to damages for permanent injury to plaintiff’s land, the jury found damages for him on account of injury to his crops .from floods in the years intervening .between the erection of the dam in 1932 and the permanent injury to the land in 1935. Judgment was rendered for plaintiff for the damages for injury to his crops as well as to his land, and defendant complains of this on the ground that it amounts to double recovery. We overrule the contention as presented in defendant’s seventh proposition. Plaintiff was entitled to damages both for permanent injury to his land and for intervening injury to crops grown thereon, although he cannot recover for future crop damage. Austin & Northwestern Ry. v. Anderson, 79 Tex. 427, 15 S.W. 484, 23 Am.St.Rep. 350.

In connection with the several special issues of damage to crops the trial judge gave the jury a lengthy and involved instruction purely in the nature of a general charge. This was error. The rule is that the giving of such instruction constitutes error, and requires reversal unless, indeed, it affirmatively appears from the record to have been harmless. Texas & N. O. Ry. v. Crow, 132 Tex. 465, 123 S.W.2d 649; Guthrie v. Oil Co., 132 Tex. 180, 122 S.W.2d 1049; Stokes v. Snyder, Tex.Com.App., 55 S.W.2d 557; Humble Oil & Ref. Co. v. McLean, Tex.Com.App., 280 S.W. 557; Powell Salt Water Co. v. Bigham, Tex.Civ.App., 69 S.W.2d 788, 789; Quanah, etc., Ry. v. Eblen, Tex.Civ.App., 55 S.W.2d 1060; Saltmount Oil Corp. v. Imperial Corp., Tex.Civ.App., 98 S.W.2d 418.

In its tenth proposition defendant complains of the judgment wherein interest was allowed as damages on the amounts awarded plaintiff for damage to his crops from the dates of the injuries, in the absence of any pleading to support the award of interest. The proposition must be sustained. It is elemental that interest may not be recovered as damages except when pleaded. Here.there was no pleading or prayer for interest in addition to damages for injury to the crops, and the court erred in including such item in the judgment against defendant.

In the deed by which the land involved was conveyed to plaintiff, two years before the dam in question was constructed, the consideration was stated to be $65 per acre. This deed was placed in evidence, including the recitation of the consideration, and, besides, plaintiff was permitted to testify that he paid $65 per acre for the land. That recitation in the deed and the parol testimony were admitted over defendant’s objection, as stated in its twelfth proposition, “that it was calculated to cause the jury to believe that they could base their finding of market value on the recitation of purchase price contained therein, and could take into consideration the purchase price of the land in arriving at such market value.”

It appears from the record that the objectionable evidence was admitted with the reservation that it could not be considered by the jury in determining the market value of plaintiff’s land in finding the damage thereto. This reservation was in our opinion sufficient to meet the very objection made by defendant, and to neutralize whatever injurious effect defendant feared it might have upon its case. Moreover, in view of undisputed evidence in the case as to the nearness of time when plaintiff paid the stated price for the land, and that its market value was the same then as it was when the dam was built, we refrain from holding that the evidence of the price plaintiff paid for the land was inadmissible. For, while it is true that the price paid is by no means conclusive of market value, yet it has been held to be an element of value to be considered along with other competent evidence in arriving at true market value. 20 Am.Jur. p. 340, sec. 373; 10 R.C.L. p. 955, sec. 128; St. Louis, B. & M. Ry. v. Green, Tex.Civ.App., 183 S.W. 829; Id., Tex.Civ.App., 196 S.W. 555. It is loosely stated in some of the cases that “the price paid for land is not evidence of its market value," or words to that effect. 17 Tex.Jur. p. 442, sec. 164; Central State Bank v. Henderson, Tex.Civ.App., 286 S.W. 518; Wichita Falls & W. Ry. v. Wyrick, Tex.Civ.App., 147 S.W. 730; Texarkana & Ft. S. Ry. v. Neches Iron Works, 57 Tex.Civ.App. 249, 122 S.W. 64. But the situations evoking such expressions are so different from the case made here that the cited cases are of no value in deciding this case. This is true of all the cases cited to the point by defendant, whose twelfth proposition is accordingly overruled.

In its propositions 13, 14 and 15, defendant complains of side-bar remarks made by adverse counsel during the trial. It is not deemed necessary to pass upon the question, in view of another trial.

In its propositions 16, 17, 18 and 19, defendant complains of the admission of the testimony of one Algea, on cross-examination, that he sold the land in controversy in 1927 for $80 an acre, and of the conduct of plaintiff’s counsel in referring to that testimony in their argument to the jury. Without setting out these transactions at length, we express the conclusion that the testimony was properly adduced by way of impeachment of the witness, to which purpose the testimony, as well as the remarks of counsel thereon, was emphatically and repeatedly limited by the trial judge. We hold that the propositions do not present reversible error, and overrule them accordingly.

Defendant complains in its twentieth proposition of a leading question propounded to plaintiff by an intervener in the case. The question was leading in its nature, but as it elicited only a fact already established, and could not possibly have harmed defendant, the proposition will be overruled.

The jury found that plaintiff’s land was permanently damaged in July, 1935, by overflow of water diverted from its natural channel, the river, as a proximate result of the act of the City in obstructing the normal flow of the river in March, 1932. In other words, the act of the City in damming the river in 1932 was the proximate cause of the permanent injury to plaintiff’s land in 1935, entitling him to his damages. In submitting the case to the jury the court in effect fixed the measure of damages (for permanent injury) at the difference between the market value of the land immediately before the erection of the alleged obstruction in 1932 and its market value immediately after the injury occasioned by the overflow- in 1935. The City complains of this instruction, contending that the true measure is the difference between the market value immediately before the actual infliction of the injury in 1935, and the market value immediately thereafter. We overrule this contention, propounded in appellant’s twenty-first proposition. The true measure in cases of damages to land from overflow from diverted waters, stated generally, is the difference between the market value of the land immediately before and immediately after the injury, and this rule applies, specifically, to-cases where the injury is coincident in time with the act proximately causing it. 13 Tex.Jur. 160, sec. 73; Trinity & S. Ry. Co. v. Schofield, 72 Tex. 496, 10 S.W. 575; Ft. Worth & D. C. Ry. Co. v. Hogsett, 67 Tex. 685, 4 S.W. 365; Lone Star Gas Co. v. Hutton, Tex.Com.App., 58 S.W.2d 19; Hall’s Bayou Realty Corp. v. James, Tex.Civ.App., 107 S.W.2d 1113.

But in cases like this, where the actual injury does not concur in time with the commission of the act from which it flows, but occurs thereafter, the act not being a trespass upon the complainant’s premises, the true measure seems to be the “difference in value of the land at the erection of the” obstruction “and its present value,” or its value at the time of the actual injury, “in the absence of any evidence that the value of said land has been changed or diminished by other causes'.” Owens v. Missouri Pac. Ry. Co., 67 Tex. 679, 4 S.W. 593, 594; Houston Water-Works Co. v. Kennedy, 70 Tex. 233, 8 S.W. 36; Hall’s Bayou Realty Corp. v. James, supra; Nuckolls v. Powell, Tex.Civ.App., 90 S.W. 933; Houston & T. C. Ry. v. Lensing, Tex.Civ.App., 75 S.W. 826; Southwestern Portland Cement Co. v. Kezer, Tex.Civ.App., 174 S.W. 661.

In view of another trial, we suggest that it has not been made clear in the presentation just what act or acts caused the alleged permanent injury to plaintiff’s land, or just when those acts occurred. The original dam was built in 1928; it broke, was rebuilt; defendant cut a new channel for the river; floods are alleged to have occurred at various times; the value of the land may or may not have been affected by .general or other conditions. The relation of these several events and facts to the several alleged elements of damage should be more clearly disclosed in the presentation in this Court upon another appeal, if any, if not upon another trial de novo, and upon that trial the measure of damages should be submitted upon the record then made.

The judgment is reversed and the cause will be remanded at the cost of appellee. This opinion will be substituted in lieu of the original, which will be withdrawn.