author: LOONEY, • Justice.

text:
    ROBINSON v. BRADLEY et al.
    No. 13050.
    Court of Civil Appeals of Texas. Dallas.
    May 18, 1940.

      Latimer'Murfee and W. B. Browder, Jr., both of Houston, and Malone, Lipscomb, White & Seay, of Dallas, for appellant.
    Hamilton, Lipscomb, Wood & Swift, of Dallas, for appellees.
   LOONEY, • Justice.

T. A. Robinson, Jr., appealed from an order denying temporary injunctive relief, sought against the Mortgage Investment Corporation, a Texas corporation, Wm. S. Bradley, stockholder, director and president of the Corporation, F. O. Long, stockholder and director, and the Glens Falls Insurance Company, a New York corporation doing business in Texas under a 'permit, F. O. Long being its agent and representative.

Appellant sued to recover $33,750 damages against appellees Bradley, Long, and Glens Falls Insurance Company, alleging the breach of a contract with Bradley for the purchase of 90 shares of the common stock of the Mortgage Investment Corporation, and, by suitable allegations, sought to hold Long and the Insurance Company liable ; and, as a stockholder in the Mortgage Investment Corporation (owning one per cent of its stock), sought on its behalf to compel appellees (other than the Mortgage Investment Corporation) to render an. accounting in regard to their dealings and transactions with the Corporation, and to compel payment to it of any sum or sums ascertained to be due as the result of the accounting; and further alleging that, ap-pellees were threatening to consummate a reorganization of the Mortgage Investment Company in a manner not authorized by law, in violation of the Anti-Trust and Insurance Statutes of the State, and damaging to appellant and other minority stockholders, prayed for both permanent and temporary injunctive relief, to prevent the contemplated reorganization.

Appellant alleged that, on the 5th day of June, 1937, appellees Bradley and Glens Falls Insurance Company entered into a written contract looking to the chartering of the Mortgage Investment Corporation, to serve as a loan agency qualified to act as an approved mortgagee under the Federal Housing Act, with a capital of $100,-600 and surplus of $25,000, which amount the Glens Falls Insurance Company agreed to pay for all the stock of the proposed corporation, Bradley agreeing to repurchase same, either for himself, or for others whom he might associate, at $125 per share; no stock to be transferred, however, until paid for.

As an outgrowth of the agreement between Bradley and Glens Falls Insurance Company, the Mortgage Investment Corporation, on June 9, 1937, was chartered under the laws of this State, with an authorized capital of $100,000, divided into 1,000 shares, of the par value of $100 each. Wm. S. Bradley, Frank O. Long (appellees), T. A. Robinson, Jr. (plaintiff), E. R. Haley, E. A. Bradley, A. I. Madden and L. K. Wadsworth subscribed for the stock, plaintiff subscribing for 10 shares, for which he paid $1,250.

Appellant alleged that, the capital structure of the Mortgage Investment Corporation becoming somewhat impaired, Glens Falls Insurance Company paid $50,000 additional into the surplus of the Corporation, which was to be added to the repurchase price of the stock when sold, thus increas--, ing the purchase price from $125 to $175 per share.

In the status substantially as just described, the Mortgage Investment Corporation amended its charter, increasing its capital and issuing preferred stock in the aggregate amount of $150,000. The preferred stock was -all subscribed and paid for by Glens Falls Insurance Company, but subsequently, was re-acquired by the Mortgage Investment Corporation, and, at the institution of the present proceedings, was held as treasury stock.

The recital just given brings us to the present controversy. Appellant alleged that, unless restrained, appellees will put through a scheme for the reorganization of the Mortgage Investment Corporation, damaging to appellant and other minority stockholders. The threatened reorganization involves: (1) The sale of the $150,-000 preferred stock re-acquifed by the Corporation ; (2) the distribution among stockholders of $75,000 of surplus;, (3) the decrease of the capital ($100,000) common stock by fifty per cent, and the distribution' among stockholders, of the amount of the reduction; (4) “fEe" declaration and payment of a $? per share dividend to the stockholders; (5) the borrowing, by S. Bradley, of between forty and fifty thousand dollars for the purpose of purchasing from the Glens Falls Insurance Company, the remainder of the stock hefd by it; and (6) the capitalization, for $50,000, of the existing service agency contracts of the Mortgage Investment Corporation, securing its approval by the Secretary of State (evidently for the purpose of amending the charter increasing the capital based upon the reasonable value of existing service agency contracts), and declaring a stock dividend, distributing the amount of the increase ratably among the stockholders.

As heretofore stated, the suit has a trinity of purposes: (1) Appellant seeks, individually, to recover from Bradley, Long, and Glens Falls Insurance Company, damages for the alleged breach of a contract, between him and Bradley, for the purchase of 90 shares of the stock of the Mortgage Investment Corporation; (2) as a stockholder in Mortgage Investment Corporation, he seeks an accounting by the ap-pellees named, as to their dealings with the Corporation, and to compel payment to it of any amount, or amounts, found to be due as the result of the accounting; and (3)also seeks injunctive relief to prevent appellees from consummating the contemplated reorganization of the Mortgage Investment Corporation.

The right of a minority stockholder to maintain a suit, in behalf of the corporation, against its officials, for wrongs committed ‘against the corporation, and to recover for losses resulting from fraud, mismanagement, or other breaches of trust, is undoubted; and he may also maintain an action in equity to restrain corporate officials from unlawful or ultra vires acts, and the right of a stockholder to bring such action does not depend upon the amount of his holdings, yet, where the great majority in interest (in the instant case, 99 per cent) is satisfied with the conduct of the affairs of the corporation, courts should closely scrutinize the facts before granting such relief sought by a minority stockholder.

Although appellant claims that, the arrangements between Bradley and Glens Falls Insurance Company exceeded its charter powers and violated the Anti-Trust and Insurance Laws of the State, we do not deem it necessary to pass judgment upon or discuss those matters, or to scrutinize deeply the contractual relations between Bradley and the Glens Falls Insurance Company, because we do not think the correctness, whether or not, of the action of the court in denying the temporary injunc-tive relief sought, is dependent upon the decision of those matters; nor do we deem it necessary to bring into the discussion the phases of the suit seeking recovery of damages and an accounting as against appellees, Bradley, Long, and Glens Falls Insurance Company; for, if appellant is entitled individually, or as a stockholder, to such relief, the right thereto is dependent upon facts now in existence that could not be affected either by the issuance, or refusal to issue, the temporary injunction.

As alleged, the first step in consummating the proposed reorganization of the Mortgage Investment Corporation involves the sale of the re-acquired $150,000 worth of preferred stock. Appellant concedes that, having participated in the original issue, he is precluded from questioning its legality; but, the stock having been re-ac'-quired by the Corporation, his contention is that, it cannot be legally reissued without the consent of all stockholders.

Preferred stock is not prohibited in this State; in fact, is recognized as a legitimate means of obtaining money to carry out the purposes for which the corporation is formed, and the contractual relation created is more akin to that of debtor and creditor, than it is to that of corporation and stockholder. 18 C.J.S., Corporations, § 222, page 653. This was the effect of our holding in Tweedie Footwear Corporation v. Fonville, Tex.Civ.App., 115 S.W.2d 421, writ refused; also see 10 T.J., sec. 65, pp. 672-675; 18 C.J.S., Corporations, § 222, pages 650-653.

The charter amendments authorizing the increases of capital and the issuance of $150,000 preferred stock presumably were had in accordance with the provisions of Art. 1330 R.C.S., Vernon’s Ann.Civ.St. art. 1330; and having been issued and thereafter reacquired, the stock has same status as any other asset belonging to the Corporation, hence, may be disposed of by the governing body, for any legitimate corporate purpose. See 18 C.J. S., Corporations, page 645, §§ 211, 212.

The second step in the proposed reorganization involves the distribution of the surplus of $75,000, of which appellant will receive $250. He contends that, the proposed distribution is unwise, and discriminatory in favor of Glens Falls Insurance Company. Under the distribution proposed, each common stockholder would receive $25 per share; the Glens Falls Insurance Company would receive, as stockholder, $23,250, and, in addition, the sum of $50,000, the amount advanced at the time the financial structure of the Mortgage Investment Corporation became somewhat impaired. So, it is obvious that, under the proposed distribution, each stockholder would receive precisely the .amount theretofore paid in^T'surplus. We do not think the distribution proposed discriminatory. Its accomplishment involves simply the exercise of judgment on the part of the managing officials of the Corporation, and, even if deemed by us unwise and improvident, we would not be authorized to substitute our judgment for theirs.

The third step in the proposed reorganization of the Corporation involves the decrease of its capital common stock from $100,000 to $50,000, and the distribution of the amount of the reduction ($50,000) among the stockholders ratably, of which appellant would receive $500. We cannot presume that the decrease of the, capital stock of the Corporation would be attempted, or could be accomplished in any manner other than as permitted by statute, Art. 1332, R.C.S. The wisdom or propriety of such a step in. the scheme of reorganization is a matter for the discretionary action of the governing body of the Corporation alone, with the exercise of which courts are not authorized to interfere.

The fourth step in the alleged reorganization contemplates the declaration and payment, ratably to the stockholders, of a $9 per share dividend from earnings, under which, appellant would receive $45. This, too, is a matter belonging exclusively to the management of the Corporation, in regard to which the courts could not, with propriety, interfere.

The fifth step in the threatened reorganization contemplates the borrowing by Bradley individually, from someone, forty to fifty thousand dollars, to be used by him in the purchase fróm Glens Falls Insurance Company, of all stock owned and held by it in the Mortgage Investment Corporation. It is perfectly obvious that, these matters involve purely personal transactions between the two stockholders named, in which neither the Corporation, as such, nor appellant, its sponsor, is concerned.

The next step in the alleged reorganization contemplates the capitalization of the service and agency contracts held by the Mortgage Investment Corporation, for the sum of $50,000, securing the approval of the Secretary of State, and declaring a stock dividend, to be ratably distributed among the stockholders, of which, appellant would receive five shares of the par value of $100 each.

That the service contracts acquired by the Mortgage Investment Corporation are valuable revenue-producing assets, is conceded by the appellant. We cannot assume that the Secretary of State would approve an increase in the capital stock of the Corporation, unless the value of the assets justified the same. There being no statute in this State forbidding the declaration of a stock dividend based upon earnings, whether or not such a step should be taken, is a matter for the sound judgment of the governing officials of the Corporation. See 10 T.J., sec. 74, pp. 687, 688; 18 C.J.S., Corporations, § 466, pages 1106-1114.

We have not been convinced that, the . trial court abused its discretion in refusing the temporary writ of injunction sought, therefore affirm its judgment.

Affirmed.


source: Caselaw Access Project

author: SMITH, Chief Justice.

license: Public Domain

text:
    SUPERIOR OIL CO. et al. v. BLAIN.
    No. 10824.
    Court of Civil Appeals of Texas. San Antonio.
    May 29, 1940.

      Boone, Henderson, Boone & Davis, of Corpus Christi, for appellants.
    Kemp, Lewright, Dyer, Wilson, & Sor-rell, of Corpus Christi, for appellee.
   SMITH, Chief Justice.

The parties have filed their joint motion, reciting that all matters involved have been adjusted and the obligations of the parties discharged, and praying that in pursuance of that adjustment the judgment of the trial court be reversed and judgment here rendered in favor of appellants, but at their cost.

Accordingly, and only by reason of the recitations in said motion, it is ordered that the judgment of the trial court be reversed and that judgment be here rendered that appellee take nothing by reason of his suit, and that appellants go hence, at their cost.

Reversed and rendered.


author: LOONEY, Justice.

text:
    NOSKA v. MILLS.
    No. 12882.
    Court of Civil Appeals of Texas. Dallas.
    April 27, 1940.
    Rehearing Denied May 25, 1940.

      Edgar P. Haney and A. H. Dudek, both of Dallas, for appellant.
    Francis M. Chaney, of Dallas, for appel-lee.
   LOONEY, Justice.

Leo C. Mills sued Frank Noska, alleging that, on or about January 1, 1928, he rented to the defendant, for one year, fifty acres of land located about nine miles north of the City of Dallas, in Dallas County, Texas, agreeing to furnish everything except the labor, the defendant agreeing to furnish the labor; the parties to share equally the produce from the farm; also entered into a stock-raising agreement, to the effect that, plaintiff would furnish certain stock to be placed upon the farm and cared for by the defendant, the increase to be shared equally; that plaintiff furnished defendant one Jersey cow and several head of hogs (the number not mentioned); that,'from year to year, the oral contract was renewed and the stock of the preceding year were furnished the defendant for milk, butter, meat, as food, and use in making the crop; 'that no division of the stock raised on the farm was eve'r made, and that, at the end of the year 1938, defendant had on the farm — raised under the alleged agreement — five Jersey cows, of the value of $40 each; two sows, of the value of $20 each; seven pigs, of the value of $5 each, and two calves of the value of $20 each, aggregating a total value of $315; that at the end of the year 1938, plaintiff made demand upon the defendant for half of said stock, which was refused, and the defendant still refuses to deliver to plaintiff one-half of the stock, to his damage in the sum of $157.50. Plaintiff also alleged that, for the year 1937, the federal government, under the provisions of an Act of the Congress, commonly called the “AAA”, 7 U.S.C.A. § 601 et seq., paid to the defendant, as cotton subsidy, $81.11, of which plaintiff was entitled to one-half, but that the defendant appropriated the full amount of the money to his own use and benefit, to plaintiff’s damage in the further sum of $40.55; alleging further that, by virtue of the said rental contract, and under the provisions of Art. 5222, -R.C.S., Vernon’s Ann.Civ.St. art. 5222, plaintiff was entitled to a landlord’s lien, for the sum of $157.50, on the stock heretofore mentioned; concluding with a prayer for judgment against the defendant for $198.05, and a foreclosure of his landlord’s lien on the cattle and hogs, and, in the alternative, for. one-half the stock and judgment for $40.55, and for general relief.

The defendant’s answer contained a general denial, a denial of the existence of the lien; alleged that the cattle and hogs mentioned in plaintiff’s petition were not the increase of the cow and hogs originally furnished by the plaintiff, but belonged exclusively to the defendant, and. were exempt to defendant and his family; wherefore, he prayed that, the plaintiff take nothing (defendant also set up a cross-action against the plaintiff, but the issues arising in regard to same are not here involved).

The case was submitted on a general charge, and resulted in a verdict in favor of the plaintiff against the defendant for $150, for which amount the court rendered judgment in favor of plaintiff, reciting therein that, plaintiff had a landlord’s lien to secure his debt, against the five Jersey cows, two black sows, seven pigs and two calves, being the stock mentioned in plaintiff's petition, and decreed foreclosure of said lien upon the cattle' and hogs, ordering same sold as under execution, for the satisfaction of the judgment, cost, etc.; from which the defendant perfected this appeal.

By appropriate assignments and propositions, the defendant challenges the correctness of the judgment on the ground, generally, that the same is not supported by the evidence, and is contrary to the controlling rules of law.

Although the evidence on the issues of fact is in irreconcilable conflict, yet, the jury having found for the plaintiff, it becomes our duty to give due weight and credit to all evidence sustaining the verdict and judgment, and reject all in conflict therewith. However, after a careful examination of the record, we are driven to the conclusion that, the evidence supporting the judgment (the testimony of the plaintiff) is entirely too indefinite and inconclusive to form a basis for same. Without reviewing the evidence in detail, we simply state our conclusions to be, that the testimony of the plaintiff on certain material phases of the case leaves so much to presumption and conjecture, we do not think it can be said with reasonable certainty that he showed himself entitled to any interest in the cattle, except one cow, being the heifer calf received in exchange for the male calf dropped by the original cow plaintiff turned over to the defendant; nor do we think plaintiff showed, with reasonable certainty, any interest in the hogs. These conclusions are reached, after giving weight and credit to plaintiff’s testimony, without considering any conflicting evidence, and are based upon what we deem to be, the undisputed testimony of the defendant, his wife, and members of his family on phases of, the case, in regard to which the plaintiff did not testify specifically, but left to conjecture and presumption. What we have just stated is based upon the record now before us, and is without prejudice to the right of plaintiff, on anoth"er trial, to prove his case as alleged.

Dofes plaintiff have a landlord’s lien on the cattle and hogs involved, under the provisions of Art. 5222, R.C.S., for whatever amount he may recover? We do not think so. Obviously, the rental contract and the stock-raising adventure were separate and distinct undertakings. The landlord’s lien, created by statute, springs by operation of law from the relationship of landlord and tenant. Under the rental contract, the landlord was to furnish everything except the labor, the tenant agreeing to furnish that. In such a situation, the statute gives the landlord a preference lien on the crops grown on the premises for any rent that may become due, and for money, provisions, etc., furnished or caused to be furnished by the landlord to the tenant to make a crop on the premises and to gather and care for same; the money, provisions, etc., being necessary for that purpose. Plaintiff does not contend that he has not received his share of all crops grown on the premises, nor does he contend that the defendant is indebted to him for money, supplies, or.provisions furnished to make a crop. So, in view of these undisputed facts, we do not think plaintiff’s claim for damages, .for the alleged conversion of his interest in the stock raised on the premises, under the alleged agreement between the parties, is secured by the statutory landlord’s lien, as contended; nor do we think the amount, $81.11, paid the defendant by the federal government, as -subsidy or bonus for idle land, can be assimilated to, or given the classification of, a crop grown upon the premises, within the meaning of the statute. Obviously, the amount paid by the federal government should have been divided equally between the parties, but defendant’s alleged conversion of plaintiff’s half was just another instance of money had and received, for which plaintiff was entitled to judgment.

However, plaintiff insists that the court did not err in foreclosing the lien upon the stock, in view of an agreement between the parties, to the effect that, in the event the jury found any amount for plaintiff, the same shall be regarded as a lien upon one-half of the cattle and hogs.

The statement of facts contains an entry dictated by the court, reading: “It is agreed by and between the attorneys for the respective parties that in the event the jury finds for the plaintiff in .any amount, said amount shall be agreed as a lien upon one-half of the livestock that is now alive.” After reciting the agreement, the judgment proceeded to foreclose a landlord’s lien upon the stock — not limited to one-half, but upon all the stock described in the pleadings.

The defendant made an effort, by motion, to have the entry in regard to the agreement expunged from the statement of facts, alleging that the same found its way into the statement of facts as the result of a mistake. However, as the court overruled the motion to expunge, the agreement will be considered for what it is worth.

As heretofore stated, we do not think plaintiff had a landlord’s lien, under the provisions of Art. 5222, as contended. This being true, we do not think such a lien was created by the purported agreement between the attorneys. In Gillett v. Talley, 60 S.W.2d 868, 870, Chief Justice McClendon, speaking for the Austin Court of Civil Appeals, said: “The parties could not, however, by agreement constitute that a landlord’s lien, which, but for the agreement to that effect, would not constitute such lien. A landlord’s lien arises by operation of law from facts which bring the transaction within the terms of the statute (R.S. art. 5222).”

It is generally recognized that an attorney of record is authorized to bind his client by agreements touching the remedy or management of the litigation; but, it is also well recognized that, it is beyond the province of an attorney to bind his client by an agreement that surrenders any substantial right. This doctrine was announced by Judge Speer, speaking for the Commission, approved by the Supreme Court, in Reynolds v. McMan Oil & Gas Co., 11 S.W.2d 778, 786: The opinion espoused and quoted with approval from 25 R.C.L., p. 1098, the following: “The implied authority of an attorney to make stipulations is ordinarily limited to matters of procedure in the management or prosecution of the action and in the absence of special authority, any stipulation which operates as a surrender of the substantial rights of the client will not be upheld by the courts.” To the same effect, see 5 Tex. Jur. (subject, Attorneys at Law) Sec. 47, pp. 452-454; also, 5 Am.Jur. (subject, Attorneys at Law) Sec. 85, pp. 311, 312.

It follows therefore, that, in our opinion, the attorney was without authority, as such, to bind his client to the purported agreement recognizing the existence of a landlord’s lien that, under the law, had no existence whatever; therefore, the foreclosure of a landlord’s lien was erroneous. Besides, even if, by virtue of the agreement, the lien had an existence, it was only upon one-half of the stock, whereas, the foreclosure was upon the whole; hence, for that reason, the judgment was erroneous. In view of another trial .of the case, will state that we think the stock-raising adventure of the parties, in legal effect, was simply a partnership, under which the parties were to share equally in the profits, and, on its dissolution and settlement, either party would be entitled to an equitable lien on any assets belonging to the partnership for whatever* amount found to be due him; but this equitable lien would not exist upon any property other than the assets belonging to the partnership. See 47 C.J., sec. 877, p. 1183; O’Neal v. Jones, Tex.Civ.App., 34 S.W.2d 689.

For the reasons hereinbefore indicated, the judgment of the court below will be reversed and the cause remanded for further proceedings, without prejudice to the right of the parties as to any future litigation that may properly ensue.

Reversed and remanded.


text:
    KORKMAS v. HAM.
    No. 12890.
    Court of Civil Appeals of Texas. Dallas.
    May 11, 1940.
    Rehearing Denied June 8, 1940.
    A. A. Dawson, of Canton, for appellant.
    Herbert Marshall, of Dallas, for appel-lee.
   LOONEY, Justice.

Guy Ham sued Pete Korkmas for damages occasioned by a highway collision in Van Zandt County, between a lVz-ton truck, driven by plaintiff, and a Buick sedan, driven by the defendant. The parties were going in opposite directions; plaintiff traveling east and the defendant west. One of the grounds of negligence alleged, in substance, was that, in attempting to pass each other, the defendant negligently failed to give plaintiff one-half the road, but drove onto the south side of the road, colliding with plaintiff’s car. Among other defenses, the defendant pleaded to the jurisdiction of the court; also alleged that, plaintiff was guilty of contributory negligence.

The case was submitted to the trial judge, who found for plaintiff, assessing his damages at $225, for which judgment was rendered, and from which, the defendant appealed. The case is before us on findings and conclusions filed by the trial court, without a statement of facts.

The defendant has assigned errors on the action of the court in overruling his plea to the jurisdiction, and in refusing to strike plaintiff’s trial amendment. These assignments, being related, will be considered together. In his original petition, plaintiff claimed that his truck was damaged $200, as the result of the collision, and that he also suffered $100 damage for the- loss of its use. Defendant’s plea was based upon the idea that, the amount claimed, $100 damages, for the loss of the use of the truck, was not a proper element of damages, hence not recoverable, and that, the amount claimed as damages to the truck was below the jurisdiction of the county court.

We are not prepared to agree that the loss of the use of the automobile, by reason of the collision, was not a recoverable damage. In a very similar case, Davis v. Mrs. Baird’s Bakery, 30 S.W.2d 809, the Fort Worth Court of Civil Appeals held that, the interruption of one’s business (loss of the use of an automobile), caused by the negligent acts of another, was a proper element of damages, if the interrupted use proximately resulted from such negligence.

But, aside from that question, the record discloses that, over the objection of the defendant, plaintiff was permitted to file a trial amendment, increasing the amount claimed as damages to the truck from $200 to $225, for which amount the court rendered judgment. We do, not think the court abused its discretion in permitting plaintiff to file the trial amendment, nor in refusing defendant’s motion to strike. Trial courts are vested with discretion in matters of this kind, and their action will not be disturbed, in the absence of a showing of its abuse. See Evans v. Galbraith, etc., Co., Tex.Civ.App., 51 S.W.2d 831, 833. And it is even held that, a mistake in stating the value of the claim, or the amount in controversy, may be corrected by a trial amendment. See McDannell & Co. v. Cherry, 64 Tex. 177; Howard v. Howard, Tex.Civ.App., 48 S.W.2d 489, 495.

The main contention of the defendant is that, the court erred in rendering judgment for plaintiff, because the same was not authorized by the findings of fact, and was contrary to the conclusions of law.

Among the findings of fact, the court said: “I find that a short time, and about 60 feet, before the collision the plaintiff was driving his truck on the wrong side, that is the left side, of the highway, and that the defendant was driving his automobile near the center of the highway, but that at the time of the collision in question plaintiff was on -his right side of the highway and the defendant was on his left side of the highway, and that the collision occurred on the left side of the highway, that is south of the center line and on the defendant’s left-hand side of the highway.” ; and in the conclusions of law, said: “I conclude that the collision in question was proximately caused by the negligence of both parties, and the defendant Pete Korlc-mas and his said negligence was the proximate cause of said collision.”

The judge found that, at the time of the collision, plaintiff was on his right side of the highway (where he should have been) and that, the defendant was improperly on his left side of the highway. As found by the court, the conduct of the defendant was negligence per se. Art. 801 Penal Code, subd. (B), reads: “Vehicles proceeding in opposite directions shall pass each other to the right, each giving to the other one-half of the road as nearly as possible”, and providing in subd. (N) that, any person violating any provision of the Article shall be fined not exceeding $100, etc. In view of the fact finding, convicting the defendant of negligence per se, we do not think the court erred in concluding, as a matter of law, that, he was guilty of negligence proximately causing the collision, and in rendering judgment for plaintiff, unless the court’s finding of fact also convicted the plaintiff of contributory negligence, proximately causing the collision. But we do not think so. -It is obvious, from the court’s fact finding heretofore set out, that plaintiff was acquitted of contributory negligence, in that, it was found that, at the time of the collision, he was on the right side of the highway where, under the law, he was required to be; hence, the statement in the court’s conclusions of law, “that the collision in question was proximately caused by the negligence of both parties”, in so far as it involved the plaintiff, was erroneous, because not based upon any fact, and, further, was in the face of the finding that, at the time of the collision, plaintiff was on his right side of the highway. The rule has been announced in several cases that, a conclusion of law nqt based upon a finding of fact is erroneous. See Edwards v. Chisholm, Tex.Sup., 6 S.W. 558; West End Town Co. v. Grigg, 93 Tex. 451, 56 S.W. 49; Zachariae v. Swanson, 34 Tex.Civ.App. 1, 77 S.W. 627; Howth v. French ind. School District, Tex.Civ.App., 115 S.W.2d 1036, 1039.

In view of what has been said, we overrule all assignments and propositions urged for reversal, and affirm the judgment of the trial court.

Affirmed.


text:
    NORTHERN ILLINOIS FINANCE CORPORATION v. SHERIDAN.
    No. 13018.
    Court of Civil Appeals of Texas. Dallas.
    May 4, 1940.
    Rehearing Denied June 1, 1940.

      Burt Barr, of Dallas, for appellant.
    Cunningham, Lipscomb & Cole, of Bon-ham, for appellee.
   LOONEY, Justice.

The Northern Illinois Finance Corporation sued W. R. Johnson on his promissory note for $348, payable to L. Tully, transferred to plaintiff, secured by a chattel mortgage on an automobile; also sued R. E. Sheridan, alleging that he “is claiming some right, title or interest in and to said automobile that is inferior to any right of the plaintiff herein.” The petition failed to allege the residence of either party, stating simply, “That plaintiff has its agent in Dallas County, Texas, that the residence of the defendant, Johnson, is unknown to the plaintiff”, it appearing inferentially that plaintiff is a foreign corporation. However, citation was issued and served upon the defendant Sheridan, who, in due time, filed a plea of privilege, asserting his right to be sued in Fannin County where he resided. The plea was contested, but the controverting plea failed to allege specifically any fact or facts relied upon to confer venue as to Sheridan, unless the allegation that plaintiff had an agent in Dallas County, to wit, its attorney, Burt Barr, may be considered a venue fact. The agency of the attorney was based upon his employment to collect the note in suit. The court below sustained Sheridan’s plea of privilege and changed the venue of the cause, as to him, to a court of proper jurisdiction in Fannin County, from which order the plaintiff appealed.

Plaintiff’s contention is that, the suit is properly maintainable in Dallas County, under Subds. 3 and 29a of Art. 1995, R.C.S., Vernon’s Ann.Civ.St. art. 1995, Subds. 3, 29a, on the theory that, the residence of the defendant Johnson being unknown, the suit, as to him, was properly brought in Dallas County where plaintiff had acquired a residence, by virtue of the residence there of its attorney, Burt Barr, hence, being lawfully maintainable in Dallas County against Johnson, under Subd. 3, and Sheridan being a necessary party, the suit was also maintainable against him in Dallas County, under Subd. 29a.

We do not think a foreign corporation can establish a venue residence in any particular county, by simply employing an attorney, resident of the county where the litigation is instituted. The character of agency that establishes residence, within the meaning of the venue statute, is an agency for the prosecution of the charter purposes of the corporation. So, under the facts and circumstances of the instant case, we do not think it can be said that plaintiff acquired a venue residence in Dallas County, and the fact that Johnson’s residence was unknown would not authorize maintenance of the suit in Dallas County against Sheridan, in the face of his plea of privilege to be sued in the county of his residence. See Kennedy & Gafford v. Reppond, Tex.Civ.App., 226 S.W. 140; United States Gas & Oil Co. v. Duffy, Tex.Civ.App., 8 S.W.2d 278, 280; Thomason v. Sparkman, Tex.Civ.App., 55 S.W.2d 871; and Key v. Mineral Wells Inv. Co., Tex.Civ.App., 96 S.W.2d 804.

However, if it be conceded that plaintiff acquired a residence in Dallas County, under Subd. 3 of Art. 1995, by reason of the residence there of the attorney employed to collect the note, yet, we do not think Sheridan was suable in Dallas County, over his objection, in that he was not a necessary party, within the meaning of Subd. 29a of Art. 1995. Plaintiff alleged, “That the defendant, Sheridan, is claiming some right, title or interest in and to said automobile that is inferior to any right of the plaintiff herein”, but did not allege or prove that Sheridan was in possession of the automobile, or from whom he acquired the right, title or interest in the automobile allegedly claimed by him, or the nature of his claim.

It is well settled that one merely claiming some interest in mortgaged property, upon which foreclosure is sought, is not a necessary party. In Johnson v. First Nat. Bank, 42 S.W.2d 870, 871, 872, Judge Alexander, speaking for the Waco court, used the following language in point: “The plaintiff merely alleged that said two defendants (the Mill and the Bank) were claiming some interest in the mortgaged property, and that such interest was inferior to plaintiff’s claim. It was not alleged that they were the owners of the mortgaged property. The mere fact that such defendants were claiming some interest in the mortgaged property is not sufficient to make them necessary parties to the suit brought by the plaintiff against the mortgagors to foreclose the lien. Shipley v. Pershing (Tex.Civ.App.) 5 S.W.2d 799, par. 2; Richardson v. Kent (Tex.Civ.App.) 21 S.W.2d 72, par. 2; Gamble v. Martin (Tex.Civ.App.) 151 S.W. 327, par. 5." Also, see 43 Tex.Jur., pp. 767, 768, sec. 48, and the authorities cited.

It follows that, in our opinion, the judgment of the court below, sustaining Sheridan’s plea of privilege, was correct, hence should be and is affirmed.

Affirmed.


author: YOUNG, Justice.

text:
    O. K. BAKERY v. MORTEN MILLING CO.
    No. 12888.
    Court of Civil Appeals of Texas. Dallas.
    May 18, 1940.

      Alpha & Brunson, of Houston, for appellant.
    Bromberg, Leftwich, Carrington & Gowan, of Dallas, for appellee.
   YOUNG, Justice.

Morten Milling Company has sued appellant for an alleged breach of a written agreement to buy flour, and recovered judgment of $2,743.04, which has been duly appealed. Under such contract, dated June 18, 1937, O. K. Bakery, defendant below, agreed to purchase 2,000 barrels of “Drinkwater” flour, of the Milling Company, @ $4.95 per barrel, terms of payment to be “usual”, which was understood to mean thirty days after each delivery. Defendant alleged in defense that, after it had accepted and paid for more than one-half of the flour, the Milling Company, through its agents, South Texas Grain Company and W. R. Archer, refused to deliver any further flour, except for cash; and that such refusal constituted a breach of the contract by plaintiff, whereby defendant was justified in refusing to accept any further tenders of flour, so notifying plaintiff, etc. To such defense, by supplemental petition, plaintiff alleged that in consideration of its forbearance to sue defendant on certain other items of indebtedness, the contract of June 18, 1937, was changed to provide that defendant would pay cash for all flour subsequently shipped.

In a jury trial, defendant admitted liability of $950.37 on a prior debt, but strenuously resisted plaintiff’s claim that it was due any amount in liquidated damages for breach of contract, under the June, ’37, writing, wherein provision is made for such damages in case of default by the buyer. The seller’s remedy (and on which plaintiff bases its further recovery herein) is here quoted: To “Terminate the contract as to any unshipped balance, and, for each barrel of flour un-shipped, recover from Buyer as liquidated damages a sum to be computed by the following formula: (a) One-sixth (l/6c) cent per barrel per day for each day from date of contract to date of termination; plus (b) twenty (20c) cents per barrel, as to the cost of selling; plus (c) amount of decline, if any, per bushel in the average market price of cash wheat in carload lots at the mill, or basing point (at Seller’s option), between date of contract and date of termination, multiplied by four and six-tenths (4.6) times the • number of barrels of flour remaining un-shipped.”

The liquidated damages were thus computed to be $1,434.88, and, on close of testimony, the jury was instructed to return a verdict for plaintiff in said amount, plus the $950.37 admittedly due, together with 15 per cent, attorney’s fees, a total recovery of $2,743.03.

In'several propositions, appellant makes the contention, (1) that jury questions were raised as to whether the written contract was ever modified or breached by it; and (2), of insufficient evidence on which to compute any amount of contract or liquidated damages, if recoverable.

The original terms of payment of the contract in suit were thirty days after each delivery. The testimony of N. H. Nicholson, president of appellant concern, discloses that later, these terms were changed to C.O.D. payments for the balance of the flour, as and when delivered. This arrangement followed Mr. Nicholson’s inability to pay for shipments in 100-barrel lots, as well as to take care of the $950 prior debt; he stating, “Ship me 50 barrels and I am willing to pay C.O.D.” It appears that flour was delivered to appellant thereafter, which was paid for by check, but around April 1, 1938, the Bakery requested delivery of 35 barrels, tendering check in payment, which was refused by the Milling Company’s warehouse agent, South Texas Grain Company, cash being demanded for the purchase price of the particular flour. Thus arose the contention by each party to the written contract, modified as just mentioned, that the terms of same had been breached by the other — appellant claiming release from liability because of appellee’s refusal to accept payment by check, and the latter asserting a breach because of its failure to receive money under the C.O.D. agreement. Mr. Nicholson, of the Bakery, endeavored to testify that his tender of check was in compliance with his understanding of the C.O.D. payments, but the testimony was properly excluded by the court. The initials “C.O.D.” have a well-established commercial and legal significance, and indicate “Collect on Delivery”, or, more fully stated, a delivery of the particular commodity upon payment of the price due the seller. Craddock & Co. v. Wells-Fargo Company Express, 58 Tex.Civ.App., 125 S.W. 59; Acts 30th Leg., Ch. 4, H.B. 53; Hutchinson on “Carriers”, 3rd Ed., sec. 726. A purchaser does not meet the requirement of the term, “Collect on Delivery” by giving his check, as, thereunder, the seller has the right to insist upon a payment of the debt in legal tender, which is cash. State v. Tyler County State Bank, Tex.Com.App., 277 S.W. 625, 42 A.L.R. 1347; El Paso v. Two Republics Life Ins. Co., Tex.Civ.App., 278 S.W. 231, writ refused. A repudiation of the instant contract was, therefore, not justifiable, and appellee’s instructed verdict was proper, provided there be in the record, sufficient data on which to calculate the seller’s recoverable damages. In the June, ’37, agreement was the clause above quoted, stipulating for a computable sum as liquidated damages in case of the purchaser’s non-compliance; and it will be noted that appellant did not allege that such was not a just measure of damages; neither does the evidence, in any respect, show that the seller’s damages, as contracted for, were unreasonable. Collier v. Betterton, 87 Tex. 440, 29 S.W. 467, 468; American Nat. Bank v. Haggerton, Tex.Civ.App., 250 S.W. 279. Were they susceptible of definite ascertainment? We think so. It was testified by Mr. Meek, of appellee company, that on June 18, 1937, sufficient wheat had been purchased to fulfill all its contracts for flour. Appellant’s contract was terminated by the Morten Milling Company by letter of May 19, 1938. The average price of wheat was shown on said date to be 96½ cents per bushel, whereas, on date of the contract’s execution, it was $1.12¾ per bushel; an average decline in price per bushel, during said interval, of 16¼ cents. A barrel of flour was shown to contain 4.6 bushels of wheat; also, that there was a direct relationship between the price of the latter and that of flour. Undisputedly, 955 barrels of flour remained unshipped. The employe selling the flour was on straight salary. Appellant’s counsel objected to certain other evidence offered by appellee as a basis for the damages claimed, on the ground that the contract spoke for itself on the subject. The amount of liquidated damages in the court’s judgment was arrived at by applying the above table, viz: (a) 955 (barrels of flour remaining un-shipped on termination of contract) multiplied by 1/6⅞⅛ is $1,591, which, multiplied by 333 days (interval from June 18, 1937, to May 18, 1938) totals $530.02; (b) plus selling costs on the unshipped flour, $191 ; (c) 955 (the unshipped flour) multiplied by 4.6, the bushels of wheat in a barrel of flour, equals 4,393, which, multiplied by 16¼ (the difference in the average market price of cash wheat per bushel between date of contract and date of termination) is $721.02; or a sum total of $1,434.88, as liquidated damages. The 15% attorney’s fees allowed in the contract, together with appellant’s admitted debt of $950.37, constitutes the balance of the court’s rendition.. All these items, we think, are sustained by the record. Appellant’s assignments and propositions, therefore, must be overruled and the judgment of the trial court affirmed.

Affirmed.


author: FUNDERBURK, Justice.

text:
    STATE ex rel. PHILLIPS et al. v. TRENT INDEPENDENT SCHOOL DIST. et al.
    No. 2092.
    Court of Civil Appeals of Texas. Eastland
    May 17, 1940.
    Rehearing Denied June 14, 1940.

      Gilbert Smith and Smith & Smith, all of Anson, for appellants.
    Scarborough & Ely, of Abilene, for ap-pellees.
   FUNDERBURK, Justice.

About January 27, Í939j W. L. Phillips, and other individuals designating themselves “taxpayers and citizens and/or patrons of the Goodman' Common School District No. 15 as it heretofore existed which is now the Goodman School District attached to the Trent Independent School District”, brought an action' naming as defendants Trent Independent School District and members of its Board of Trustees, by which," according to the prayer of the petition, it was sought to enjoin the defendants “from in any way attempting to interfere with the further teaching and carrying on of the school in the Goodman School District and Goodman School House and to enjoin and restrain the defendants from moving the school equipment and interfering with the progress of the grammar school at said place, with a mandatory injunction commanding and restraining the defendants to continue with the teaching of said grammar school at the Goodman School House, in Jones County, and foi such other and further relief, general and special, legal and equitable, as the plaintiffs may be entitled to in the premises.”

The court made an order, later referred to in a further order modifying it, as a “temporary restraining order.” In said modifying order it was decreed as to the former order that it “be and the same is hereby modified, authorizing and permitting the Trent Independent School Board to remove the furniture and fixtures from the Goodman School, with the distinct understanding and agreement that if this court should finally restrain the removal of said furniture and fixtures, that the same be returned to the Goodman Building and replaced as they now are at cost of Trent District. But at this time the order is modified, permitting the removal of said furniture and fixtures, but no fixtures shall be removed that would damage the building in which they are located.”

No appeal appears to have been attempted from either of these orders.

About September 26, 1939, the court, in the same numbered cause, made an order granting permission to the County Attorney of Jones County, in the name of the State, and on relation of said W. L. Phillips, and others, to file an information in the nature of quo warranto naming the same defendants as in said former proceedings. The relief prayed in this latter action was to have a former consolidation of the Goodman Common School District (itself a consolidated common county line district partly in Fisher and partly in Jones Counties) with Trent Independent School District, in Taylor County, decreed to be void. An alternative purpose was that a certain pre-election agreement be held binding, and the Trent Independent School District be directed to “maintain the elementary schools at the Goodman school house according to their pre-election agreement and that said elementary schools be continuously maintained at the Goodman school house and school plant and that the trustees of the Trent Independent School District be directed by the order of this court to properly equip and maintain said school plant and the elementary school at the Goodman school house * *

In a non-jury trial the court, basing its action upon the conclusion that it was without jurisdiction to administer, the internal affairs of independent school districts, and that such matters are within the exclusive jurisdiction of the trustees of said districts; gave judgment that plaintiffs take nothing by the suit. The plaintiffs have appealed.

The first purpose of the suit disclosed by the pleadings, as above stated, namely, to adjudicate the invalidity of the consolidation of the Trent Independent School District and the Goodman Common School District, was, insofar as any question is presented upon this appeal, abandoned. All of the assignments of error relate to the alternative purpose of the suit, which, as we construe the pleading, was to. procure something in the nature of a mandatory injunction requiring the trustees of the Trent Independent School District to permanently maintain an elementary school at the school house in the territory comprising the former Goodman Common School District, as it existed before the consolidation with the Trent Independent School District. It was, in substance, alleged that after maintaining such elementary school for a short while following the consolidation, it had been abandoned, contrary to an alleged pre-election agreement to so maintain it.

We think the judgment rendered by the court was the only proper judgment for, perhaps, a number of different reasons. It is deemed sufficient, however, to discuss but one.

The only purpose of the suit which required it to be an action in the nature of a quo warranto has, as said before, in effect been abandoned. The only other purpose of the suit was expressly in the alternative, and sought to control by judicial processes a matter affecting the official duty of the trustees. The law required of the trustees that they “recognize or establish elementary schools within the bounds of the district as the need for such elementary schools shall appear.” R.S.1925, Art. 2811. Presumably the abandonment of the elementary school at the Goodman school house was the result of an official determination by the trustees to the' effect-that the need of such elementary school at. that place no longer appeared.

Quo warranto (information in the nature of) is not an action available to. review or control such official decision. The right of an officer to exercise certain functions as a part of the duties of his. office will not be determined on a proceeding by quo warranto. State v. Smith, 55. Tex. 447. In the case cited, the Supreme-Court quoting from High on Ex. Rem., declared : “ ‘That the court will not permit its use [quo warranto] for the purpose of preventing a public officer from exercising-any right or privilege incident to his office,, and it cannot be used to restrain an officer from doing a particular act, the right to-perform which is claimed as a part of his. official functions.’ ” It has been said:: “The proceeding [quo warranto] against an officer * * may not be extended to-relief against official misconduct which, does not work a forfeiture.” 34 Tex.Jur. 846, sec. 4; Price v. County School Trustees, Tex.Civ.App., 192 S.W. 1140; State v. Rigsby, 17 Tex.Civ.App. 171, 43 S.W. 271. In brief, as applied to a school district it is only when official action is sought-to be challenged on the ground of some in-validity in the district that the action of quo warranto is available.

It is next in order to consider whether the individuals apart from their appearance in the capacity of relators in the action of quo warranto, but regarded as themselves plaintiffs in the suit, have shown any right to the judgment sought. In our opinion, under the facts of the case, there appears a lack of sufficient justiciable interest of such individuals in the subject-matter of the suit. The rights involved, if any, are political rights, rather than legal rights, being of the nature we had occasion to discuss, with citation of authorities, in Mickle v. Garrett, Tex.Civ.App., 110 S.W.2d 1235. If the trustees by abandoning further maintenance of the elementary school at the place in question violated their official duty, their act in doing so being within the scope of their powers affected said individuals, just as it did other citizens and patrons of the school residing in the same area. Their interest so far as the allegations of the pleadings show, was no different from that of the public generally.

The alleged pre-election agreement was not a contract to which the trustees of the Trent Independent School District and said individuals were respecting the parties. Persons acting upon such agreement were, as a matter of law, we think, charged with notice that the powers of the trustees were conferred by law for public purposes, and the exercise thereof, involving, as it does, a matter of future policy, properly subject to change to meet changing conditions, could not be restricted by an agreement of the nature of the one here involved.

The decisions relied upon by appellants are, we think, not at all applicable. In one of them (Black v. Strength, 112 Tex. 188, 246 S.W. 79, 80) is this significant statement: “The court was not binding itself to a certain course of action in the future.” The agreement here in question, if effective as contended, did bind the board of trustees to a certain course of action in the future, namely, the perpetual maintenance of an elementary school at a particular place, even if the need therefor in the judgment of the trustees may have ceased to exist.

It is our conclusion that the judgment of the court below should be affirmed, and it is accordingly so ordered.


text:
    MILLER et al. v. TEXAS GENERAL AGENCY CO.
    No. 10715.
    Court of Civil Appeals of Texas. San Antonio.
    March 27, 1940.
    Rehearing Denied June 12, 1940.
    Coleman Gay, of Austin, for plaintiffs in error.
    R. H. Mercer and House & Irvin, all of San Antonio, for defendant in error.
   SMITH, Chief Justice.

This is purely a fact case, tried to the court without a jury. The trial judge filed no written findings of fact, nor conclusions of law, and none was requested. In such case it will be presumed that the trial court found every fact necessary to sustain the judgment, and such facts will be given effect in determining the appeal, if supported by any evidence. We cannot say upon the record that there was no evidence to support the presumed findings, and the judgment must therefore be affirmed.


author: SPEER, Justice.

text:
    SOUTHERN UNDERWRITERS et al. v. BOSWELL.
    No. 14085.
    Court of Civil Appeals of Texas. Fort Worth.
    May 3, 1940.
    Rehearing Denied June 7, 1940.

      Bullington, Humphrey & King, of Wichita Falls, and Will R. Saunders and Hen-rey D. Akin, both of Dallas, for plaintiffs in error.
    Gillen, Francis & Gallagher, of Dallas, for defendant in error.
   SPEER, Justice.

This is a workmen’s compensation case. Plaintiff, R. D. Boswell, instituted this suit against Southern Underwriters and United Employers Casualty Company, to which we shall hereinafter refer as defendants, to set aside an award of the Industrial Accident Board, and to recover compensation for injuries, alleged to have been sustained, while in the course of his employment for Jennings Drilling Company.

Plaintiff’s petition contains all necessary jurisdictional allegations; that on July 30th, 1938, the employer was engaged in operating oil well drilling equipment and was- a subscriber under the Workmen’s Compensation Act; that defendants were ‘ the carriers of insurance under which plaintiff was protected and that on the date mentioned he received an injury. The petition describes the nature of the work being done by plaintiff at the time of the injury and that while in a forward, stooping position, fixing equipment to break down a pipe that was being drawn from a well, another employee, who weighed 180 pounds, fell out of the derrick, a distance of about 80 or 85 feet, and struck plaintiff on his neck and back, crushing him to the floor, resulting in serious and permanent injuries to his head, neck, back and hips, in the region of the sacrum.

Allegations were made that plaintiff was 42 years of age, previous to his injuries was in good health, strong and able to and did perform hard labor. That subsequent to receiving the injuries he was unable to work or do any kind of hard labor; that his injuries were permanent and that he, was totally disabled to perform hard labor for the rest of his life.

The petition declares that plaintiff was earning $6.50 per day when injured and that his average weekly wage for a year next previous to receiving the injury was $37.50. He plead alternatively facts entitling him to recover compensation, under each subdivisions 1, 2 and 3 of Section 1, Article 8309, V.T.C.S. He alleged that since he was injured, his debts had accrued to the extent of $375; that he had a wife and two children to support; that the maximum compensation of $20 per week would not pay his debts and support his family. He plead facts entitling him to a lump sum settlement and that he had employed lawyers to assist him in collecting compensation. Prayer was that the award of the Board be set aside and that he be given judgment for the maximum sum of $20 per week for 400 weeks, and that payment be required in a lump sum.

Defendants answered by general denial and a special plea that if plaintiff was suffering from any disabilities, they were produced by causes other than injuries sustained on July 30th, 1938, and are not com-pensable under the Workmen’s Compensation Act.

Trial was had to a jury on special issues. The verdict was favorable to plaintiff. A motion was made by plaintiff for the court to disregard the jury’s answers to special issues 13 and 14, because there was no evidence to support either, and that having so disregarded said answers, to enter judgment for plaintiff non obstante veredicto upon the remainder of the verdict. The answers to special issues requested by plaintiff to be disregarded were referable to plaintiff's average weekly wage rate, based on subdivision 1 of Section 1, Article 8309, supra, and. the amount found by the jury as his average daily earnings during the preceding year. Plaintiff’s motion, the notice thereon and the hearing by the court, are in compliance with Article 2211, V.T.C.S., as construed by the Supreme Court in Myers et al. v. Crenshaw et al., 137 S.W.2d 7. The motion was sustained by the court (to which action no complaint is made by defendants) and judgment was entered, setting aside the award of the accident board, declaring this a special case, in which a lump sum payment should be made, and the amount so awarded divided, two-thirds to plaintiff and one-third to his attorneys. Motion for new trial by defendants was overruled -and appeal perfected to this court by writ of error and supersedeas bond.

Special issue No. 1 is the object of defendants’ first and second propositions relied upon for reversal. That issue reads: “Do you find from a preponderance of the evidence that on the 30th day of July, 1938, the plaintiff R. D. Boswell sustained an’ injury to his body when he was struck by a man falling out of the derrick, while working for Jennings Drilling Company?” The answer was: “Yes.” Following the inquiry we find in the charge a proper definition of the term “injury”.

The answer to special issue No. 2 found that Boswell was in the course of his employment with the drilling company when injured.

The two propositions urged by defendants are: (1) the first special issue is too general, speculative and is not confined to the pleadings and proof, and (2) because it is duplicitous and multifarious, and is upon the weight of the evidence, in that it assumes plaintiff did sustain an injury in the manner inquired about.

The issue standing alone is subject to some of the objections presented in the propositions. Defendants’ first proposition is based upon the rule announced by this court in Federal Underwriters Exchange v. Arnold, 127 S.W.2d 972, writ dismissed, correct judgment, and authorities there cited. It is too obvious to require citation of authorities that the issue, as framed, is multifarious, in that inquiry is made, (a) did plaintiff sustain an injury, (b) was the injury caused by being struck by a man falling out of the derrick, and (c) was he working for Jennings Drilling Company (his alleged employer) when he was thus injured.

The apparent vice in the issue, as framed, is immaterial and worked no harm to defendants’ rights, for the reason no fact contained in the inquiry is controverted in the testimony. We have carefully read all of the evidence, and it clearly appears that plaintiff did sustain a compensable injury on the date named, caused by a co-worker who weighed 180 pounds falling 80 or 85 feet from a derrick, striking plaintiff on the neck, shoulders and back, ’while he was in a stooping position, and that both men were in the course of their employment by Jennings Drilling Company. Several witnesses testified that they saw the accident; that plaintiff was knocked down on the floor, his head struck some hard object, he was unconscious for thirty minutes or more, they picked him up, bathed his face with ice water, put him in a car and took him to the hospital. He remained in the hospital about three weeks and received treatment for his injuries. It is unnecessary to speculate or theorize upon whether or not such a situation would probably produce an injury. The doctor who treated him at the hospital was introduced by defendants and he testified that plaintiff was brought to the hospital on the day the accident was supposed to have occurred; that plaintiff was suffering from the effects of the injury and that there was no question in the witness’ mind that plaintiff had suffered an injury on that day; that plaintiff improved during the time he was in the hospital, but was complaining of pain when he left.

It is well settled by the decisions of our courts that there is no necessity for the court to submit an issue to the jury for determination when the facts involved are undisputed. This is a sound doctrine because in such circumstances there is no controverted fact for the jury to determine. A fact or series of facts thus indisputably established become a question of law to be applied by the court in entering his judgment. It must necessarily follow that if a court submits as an issue such an established fact, irrespective of how he submits it or how it may be answered, the judgment to be entered cannot be affected by either. The issue complained of here should not have been submitted and its erroneous wording, or its incorporating more than one inquiry of facts, worked no harm to defendant. Fidelity & Casualty Co. v. Branton, Tex.Civ.App., 70 S.W.2d 780, writ dismissed; Fidelity & Casualty Co. v. Ener, Tex.Civ.App., 97 S.W.2d 267; Southern Underwriters v. Wheeler, 132 Tex. 350, 123 S.W.2d 340; Federal Underwriters Exchange v. Bullard, Tex.Civ.App., 128 S.W.2d 126, writ dismissed, correct judgment; Foster v. Woodward, Tex.Civ.App., 134 S.W.2d 417, writ refused; Federal Surety Co. v. Smith, Tex.Com.App., 41 S.W.2d 210; Traders & General Ins. Co. v. Mills, Tex.Civ.App., 108 S.W.2d 219, writ dismissed; Berryman v. Norfleet, Tex.Civ.App., 41 S.W.2d 722, writ refused; Royalty Indemnity Co. v. Madrigal, Tex.Civ.App., 14 S.W.2d 106; Texas Employers’ Ins. Ass’n v. Russell, Tex.Civ.App., 16 S.W.2d 321, writ dismissed; Security Union Ins. Co. v. Hall, Tex.Civ.App., 37 S.W.2d 811; Daniels v. Starnes, Tex.Civ.App., 61 S.W.2d 548, writ dismissed; Associated Indemnity Corp. v. Baker, Tex.Civ.App., 76 S.W.2d 153, writ dismissed. Propositions based upon the submission of the first special issue are overruled.

Third and fourth propositions complain of special issue No. 7, which reads: “Do you find from a preponderance of the evidence that plaintiff R. D. Boswell has or will suffer partial incapacity to labor as a result of the injuries, if any, sustained on July 30th, 1938?” The jury was requested to answer, “yes” or “no”. The answer was “No.”

One of the 36 pages of objections to the court’s charge is devoted to objections to the quoted issue. The propositions presented in the brief embrace (a) because said issue is duplicitous and multifarious, and (b) because it improperly places the burden of proof on the defendant. As bearing upon the objection that it was duplicitous and multifarious, we find by reference to the objections filed with the trial court, all that is said is included in our subdivision (a) above. This is not such an objection to a charge as is contemplated by Article 2185, R.C.S. It was intended by that statutory provision that an objection must clearly present the objectionable part of the charge in such way as will enable the court to correct it. Southwestern Bell Telephone Co. v. Ferris, Tex.Civ.App., 89 S.W.2d 229. That the objection must be constructive and helpful to the court and enable him to readily understand its nature, so that the charge may be modified if found necessary. Guillot v. Halman, Tex.Civ.App., 91 S.W.2d 402; Ohio Casualty Ins. Co. v. Stewart, Tex.Civ.App., 76 S.W.2d 873, writ dismissed; Fort Worth & D. C. Ry. Co. v. Rowe, Tex.Civ.App., 69 S.W.2d 169. To be available on appeal, the objection must point out the particular portion of the charge objected to and state in what respect it is erroneous. Norwich Union Indemnity Co. v. Wilson, Tex.Civ.App., 17 S.W.2d 68, writ dismissed; Powell et ux. v. Rockow et al., Tex.Civ.App. 58 S.W.2d 536, reversed by Supreme Court on other grounds, 127 Tex. 209, 92 S.W.2d 437. In Associated Indemnity Corporation v. Baker et al., Tex.Civ.App., 76 S.W.2d 153, writ dismissed, the identical objection made in this case was held insuf-cient to authorize the court to consider it. To the same effect is the holding in Panhandle & S. F. Ry. Co. v. Friend et ux., Tex.Civ.App., 91 S.W.2d 922.

If it could be said that the objections made and now relied upon to bring the question before us were sufficient for that purpose, we think the issue as presented is not in violation of Article 2189, R.C.S., which requires the court to submit separately and distinctly all issues raised by the pleadings and evidence. Insofar as the rights of the parties were concerned, the court was endeavoring to ascertain from the jury whether, under the evidence, the injuries of plaintiff would result in a partial disability to labor. The liability of defendants would not be affected by whether that degree of disability had already happened or would happen in the future. Defendants rely upon Traders & General Ins. Co. v. Shelton, Tex.Civ.App., 130 S.W.2d 903. The court in that case held that a similar issue was open to the objection of duplicity. The issue complained of in the Shelton case, supra, was followed by an explanation or instruction by the trial court, which the Court of Civil Appeals held distinguished it from many other cases holding to the contrary. Those' cited by that court which were said to hold to the contrary are, Traders & General Ins. Co. v. Patterson, Tex.Civ.App., 123 S.W.2d 766, writ dismissed; Fidelity & Casualty Co. of New York v. Branton, Tex.Civ.App., 70 S.W.2d 780, writ dismissed; Maryland Casualty Co. v. Brown, Tex.Civ.App., 110 S.W.2d 130; Traders & General Ins. Co. v. Baker, Tex.Civ.App., 111 S.W.2d 837, writ dismissed. We have read the cases cited and believe they pronounce a correct rule. The third proposition complaining of the issue because it was duplicitous and multifarious must be overruled.

Fourth proposition briefed by defendants with- their third, complains because the issue, as submitted, improperly placed the burden of proof upon them. We do not so construe the issue as above quoted. Plaintiff sued for total permanent disability. Defendants, by their general denial, put in issue every phase of plaintiff’s case upon which he could recover, thereby placing the burden of proof upon plaintiff. Defendants did not plead in defense that plaintiff’s disability was temporary or partial, nor was it necessary for them to so plead to require plaintiff to establish by a preponderance of the evidence that his disabilities were such. The evidence, as to whether plaintiff’s disabilities are total and permanent or whether they are partial, is conflicting. Defendants’ doctor witnesses believed plaintiff had practically, if not entirely, recovered at the date of trial, from the effects of the injuries sustained. This evidence was introduced by defendants to negative or to disprove plaintiff’s contention that his disability was total and permanent. The plaintiff having plead that he was entitled to recover for total and permanent disabilities, could under that plea recover for the lessor or a partial disability. Traders & General Ins. Co. v. Snow, Tex.Civ.App., 114 S.W.2d 682, writ dismissed; Commercial Casualty Ins. Co. v. Strawn, Tex.Civ.App., 44 S.W.2d 805, writ refused; Southern Underwriters v. Wolcott, Tex.Civ.App., 110 S.W.2d 251, writ dismissed/correct judgment; Traders & General Ins. Co. v. Milliken, Tex.Civ.App., 110 S.W.2d 108, writ dismissed; Traders & General Ins. Co. v. Offield, Tex.Civ.App., 105 S.W.2d 359, writ dismissed; Traders & General Ins. Co. v. Slusser, Tex.Civ.App., 110 S.W.2d 598, writ dismissed, and cases there cited.

Where, as in this case, plaintiff having sought a recovery for total and permanent disability, if he had failed to establish a right tq thus recover, he could, if the evidence justified it, recover for a partial disability. It was therefore incumbent upon him to have submitted the latter issue and the burden of proof was upon him to obtain a favorable answer. As we view this case, that is exactly what happened. The issue complained of. was plaintiff’s offensive issue and the burden was properly placed upon him by the court. Traders & General Ins. Co. v. Offield, supra, and cases there cited; Traders & General Ins. Co.v. Milliken, supra. We hold that the plaintiff was entitled to have submitted and that the court did submit special- issue No. 7 as an offensive issue in behalf of plaintiff’s case as plead; that the burden of proof was properly placed upon plaintiff and that the burden of proof was not placed on the defendants, as complained of. The proposition is overruled.

Defendants’ fifth proposition complains of an instruction given by the court at the conclusion of his main charge. It reads: “In answering all of the issues in this, charge with respect to incapacity or partial incapacity of the plaintiff, if any, you are instructed you may only take into consideration such incapacity, if any, that directly resulted from an injury, as that term has been defined, such diseases, if any, as naturally resulted from such injury, and the extent of -aggravation, if any, of any pre-existing diseases or bodily defects existing at the time of such injury, if any.. You are instructed that you must not take into consideration in determining the amount of incapacity, if any, any disability which was the natural and probable result of any pre-existing disease or bodily ailment of the plaintiff.”

In connection with the argument presented under the proposition, defendants refer to special issue No. 19, which reads: “Do you find from a preponderance of the evidence that the present incapacity to labor, if any, of plaintiff was not caused solely by arthritis?” Answered, “Not caused by arthritis.”

The objection urged to the trial court before the charge was given is in part as follows: “Defendants object and except to the last portion of the court’s charge beginning with the words ‘and answer all of the issues’ and ending with the words -; because the same does not correctly state the law applicable to the case, and for the further reason that the same is in the nature of a general charge * * *»

The first part of the objection is unintelligible to us, as it no doubt was to the trial court; the objection that the charge did not correctly state the law applicable to tlie case is likewise insufficient to require a review by us of the instruction. Texas & N. O. R. Co. v. Petersilka, Tex.Civ.App., 176 S.W. 70; Walker v. Haley, 110 Tex. 50, 214 S.W. 295; Norwich Union Indemnity Co. v. Wilson, Tex.Civ.App., 17 S.W.2d 68, writ dismissed; Abilene & S. Ry. Co. v. Herman, Tex.Civ.App., 47 S.W.2d 915, writ dismissed; Coffee v. Blair, Tex.Civ.App., 92 S.W.2d 496, writ dismissed.

The special defense plead by defendants was as shown in the beginning of this discussion, that if plaintiff was suffering from any disability it was from causes other than injuries received by him on July 30th, 1938, and were not compensable. Defendants offered testimony of doctors to the effect that X-ray pictures made on the day of the accident disclosed that plaintiff had arthritis at the time; that his present condition, in their opinion, was caused by arthritis; that in many instances arthritis would grow worse, independently of whether the person suffered an injury, accidental or otherwise. Upon this evidence the court submitted special issue No. 19, by the wording of which plaintiff was required to procure a jury finding which ueg-ativ'ed the special defense plead and upon which defendants offered testimony to support it. We see no injury to defendants’ rights in the question and its answer.

The instruction by the court set out above, of which complaint is made, presents substantially a correct statement of the law applicable to a recovery in a workmen’s compensation case; that or some similar instruction was necessary to enable the jury to properly pass upon and render a verdict on the issues. The provisions of Article 2189, R.C.S., which require the court to submit “Such explanations and definitions of legal terms as shall be necessary”, etc., mean that it is the duty of the court to give all explanations and definitions, in connection with his charge, that are material and reasonably necessary to enable the jury to properly understand • the language used in the issues propounded. Such explanations and definitions are not confined to strictly legal terms used in the charge. Reasonable necessity considering the language used in each case is the test. Robertson & Mueller v. Holden, Tex.Com.App., 1 S.W.2d 570; Lee v. Wilson, Tex.Civ.App., 91 S.W.2d 461, writ refused; Fort Worth Sand & Gravel Co. v. Peters, Tex.Civ.App., 103 S.W.2d 407, writ dismissed.

Nor do we think the portion of the charge complained of was in any sense a general one. It was in all respects a guide to the jury in arriving at proper answers to the issues therein referred to. It is fundamentally true that because an explanation, definition or instruction given in connection with special issues has not within its language an inquiry of some controverted issue, that it thereby becomes a general charge. Dallas Ry. & Terminal Co. v. Ector, 131 Tex. 505, 116 S.W.2d 683.

It will be observed that by the answer to special issue No. 19, the jury found from a preponderance of the evidence that plaintiff’s incapacity to labor was not caused solely by the disease of arthritis. This was the only disease or ailment attempted to be proved by defendants as against plaintiff’s contention of total and permanent disability. We think that under the conditions and circumstances of this case it was proper for the court to give the explanation complained of, to the end that the jury could answer the issues pertaining to the various grades of disability, and percentages thereof. It seems to be the settled law in this State that, “Where injury is sustained by an employee in the course of his employment which results in his disability within the meaning of our Compensation Law, compensation therefor will not be denied, notwithstanding said injury is aggravated or enhanced by the effect of diseases existing at the time, or afterwards occurring.” Commercial Standard Ins. Co. v. Noack, Tex.Com.App., 62 S.W.2d 72, 74, approved by Supreme Court. We see no merit in the proposition urged and it is overruled.

Defendants’ propositions 6, 7 and 8 relate to the admission in evidence offered by plaintiff affecting his right to have his wage rate fixed under subdivision 2 of Section 1, Article 8309. Proposition 9 challenges special issue No. 15 pertaining thereto.

It is unquestionably true that plaintiff was required to have his compensation fixed by one of the three subdivisions referred to; that is, the rate must be fixed, first under one, if it can be done; if not under that subdivision, then under two, and if it cannot be fixed under either, then under three.

In the interest of brevity, we shall only give the substance of subdivisions one and three, but will quote number two. Subdivision one provides that if the injured employee has worked at the same employment for substantially' a year immediately preceding the date of his injury, his average weekly wage rate shall be fixed at three hundred times his daily wage. Second, or number two, reads: “If the injured employé shall not have worked in such employment during substantially the whole of the year, his average annual wages shall consist of three hundred times the average daily wage or salary which an employé of the same class working substantially the whole of such immediately, preceding year in the same or in a similar employment in the same or a neighboring place, shall have earned in such employment during the days when so employed.” Number three provides that when the average wage rate cannot be fixed by either subdivision one or two, or if for other good and sufficient reasons it is impracticable to compute his average weekly wage rate from one or two, it shall be computed in any manner which may seem just and fair to both parties.

The question of whether plaintiff had worked at similar employment for substantially the whole of a year immediately preceding the date of injury was eliminated by the uncontradicted evidence that he had not done so.

It is contended by defendants that there was no proper evidence upon which to submit the inquiry embraced in special issue No, 15, quoted below, regarding second subdivision of Section 1, supra. On the point involved plaintiff testified substantially that he had been engaged in oil fields for about Í7 years working as a driller and as “roughneck” ; that the time so spent was about equally divided between the two classes of work; that he went to the “KMA” oil field in Wichita County, October '11th, preceding the date of his injury the following July; that during the ten months he was in that field he was either working or looking for work; that during the time he was looking for work he was in contact with employers who used roughneck labor; that during the twelve months before his injury he would say, there was no one in that vicinity who had worked 300 days as a roughneck. Witness Randle, an employee on the work with plaintiff when the accident happened, said he had been engaged in roughneck work for 19 years; that he lived in Wichita County during the year next preceding the date of the accident, and worked about half time and was looking for similar work the remainder of the time; that he did not know of any one in that vicinity who had performed similar labor for 300 days during the whole of the preceding year;, that to his knowledge no one had worked that much. Witness Hames testified to substantially the same thing as did plaintiff and Randle.

The testimony of each of the witnesses named was objected to by defendants upon the grounds that no proper predicate had been laid and because it was of necessity based upon hearsay, and amounted to conclusions upon the part of the witnesses. After the objections were overruled, defendants’ counsel ascertained from the witnesses that all they knew about whether or not any other employee had worked as much as 300 days during the preceding year before July 30th, 1938, was from what they had been told by such persons.

We are not unmindful of the general rule, applicable to hearsay evidence. Even that rule is not without many well established exceptions; they are based upon necessity, practical common sense, and upon the supposition that the circumstances surrounding each situation, the proposed evidence, affords a sufficient probability of its truth to enable a jury to weigh it as a circumstance tending to establish the fact sought to be proved.

The record in this case reveals that the KMA oil field in Wichita County is a large one and that there was much activity there at the time of and prior to the date involved here; even absent such evidence, those facts are common knowledge, as well also that Wichita County embraces a vast oil area where many workmen are employed; in such circumstances it would be all but a physical impossibility to prove that none of those engaged in employment like that of plaintiff had worked as much as 300 days during the year immediately preceding July 30th, 1938. The language used in the third subdivision of Section 1, supra, leads us to believe that no hard and fast rule of construction should be applied in a way that would .deprive an injured employee from proving his right to compensation under our Worlo-men’s Compensation Laws. It is provided by the Act in substance that. if .the average weekly wage .cannot be ascertained under subdivisions one or two or for “other good and sufficient reasons it is impracticable to compute the average weekly wages as above defined [under one and two], it shall be computed by the board [or court] in any manner which may seem just and fair to both parties.”

It will be observed that two of the witnesses who testified upon the point had worked part time at “roughnecking” in that oil field during the year immediately preceding the accident, and what time they were not working they were looking for work, and contacting other people engaged in the work, and that neither of them knew of any who had 'worked for 300 days of that year; the plaintiff had not been there the whole time, but a similar investigation prompted him to say that he knew of none who had so worked. It occurs to us that the witnesses were qualified to express their •opinion in the matter; as a circumstance for consideration by the jury. It is true they admitted upon cross examination that their testimony was based upon what they had been told, but it seems that it would have been impracticable to have' ascertained whether or not any out' of so many had so worked in any other manner.- Moreover, under a very strict construction of subdivision two, if any had been found who had worked for 300 days during the 'year, plaintiff’s compensation would have been fixed at three hundred times the average daily wage paid to such one; then the amount of that daily wage would have to be proved and again plaintiff would have been confronted with the impractical difficulty in ascertaining the amount of such daily wage in some manner other than by what the employee or his employer should say about it. In such a situation we think necessity would require a relaxation of the strict rule applicable to the admission of hearsay evidence.

It is now well settled by our courts that a' liberal construction of our compensation law should be applied to afford the relief to injured employees and not to defeat the purposes- for which the law was enacted. With this in view, our courts have held that in such cases as this, where there is no real effort made by the insurance carrier to disprove such 'facts as were established in the manner as was attempted in this case, a small amount of evidence was sufficient to discharge the burden cast upon the employee. Federal Underwriters Exchange v. Stewart, Tex.Civ.App., 109 S.W.2d 1031, writ dismissed; Traders & General Ins. Co. v. Crouch, Tex. Civ.App., 113 S.W.2d 650, writ dismissed; Traders & General Ins. Co. v. Huntsman, Tex.Civ.App., 125 S.W.2d 431, writ dismissed, correct judgment; Federal Underwriters Exchange v. Arnold, Tex.Civ.App., 127 S.W.2d 972, writ dismissed, correct judgment.

In support of their contention, defendants cite and rely upon Traders & General Ins. Co. v. Rhodabarger, Tex.Civ.App., 93 S.W.2d 1180, writ dismissed. There is language used by the court in that opinion which condemns the admission of such evidence as was .admitted in the instant case, but the court held that because there was other evidence to the same effect, to which no objection was made, reversal was not required. The authorities above cited by us are cases decided since the Rhoda-barger case, supra, and writs were dismissed by the Supreme Court in each of them, two bearing the additional notation, “correct judgment”. We feel that the cases cited by us are more nearly in accord with what is .“just and fair to both parties”; we therefore follow them. Propositions 6, 7 and 8 must be overruled.

Ninth proposition complains because special issue No: 15, based upon the evidence last discussed, erroneously placed the burden of proof on defendants. The issue is in these words: “Do you find from a preponderance of the evidence that any employee of plaintiff’s class worked substantially the whole of the year preceding July 30th, 1938, in Wichita County, Texas, or in a neighboring place in employment the same or similar to that which plaintiff was performing for Jennings Drilling Co.?” The answer was, “No.”

The burden of proof was on plaintiff to establish that he could not have his average wage rate fixed under subsection 2 of Section 1, before he could resort to number three. The manner in which the inquiry was made is susceptible to the construction given it by defendants, but we do not consider that it is necessarily so. The rate could not be fixed under subsection two if there were no persons who had worked at similar employment in that vicinity for 300 days during the preceding year. Perhaps the better way to word such an issue is to inquire of the jury if they find from a preponderance of the evidence that there were no other employees of that class in that vicinity who had worked for 300 days during the preceding year. Such an issue answered in the affirmative in this case would have carried the same meaning as did the one here complained of. In other words, the negative answer given by the jury, when read with the question, means that the jury found there was no other employee of plaintiff’s class who worked substantially the whole of the preceding year in that vicinity. If the inquiry had been framed in the manner first above suggested and the jury had answered other than in the affirmative, the verdict would have been without support in the evidence. The finding by the jury is the only one that could find support in the evidence. We fail to see how defendants have suffered any substantial wrong from the manner in which the issue was propounded.

Rule 62a for Courts of Civil Appeals provides, among other things, that judgments will not be reversed for an error of the trial court, “unless the appellate court shall be of the opinion that the error complained of amounted to such a denial of the rights of appellant as was reasonably calculated to cause and probably , did cause the rendition of an improper judgment in the case * * * ”. See also Silliman v. Gano, 90 Tex. 637, 39 S.W. 559, 40 S.W. 391, and Wright v. Traders & General Ins. Co., 132 Tex. 172, 123 S.W.2d 314, 318. We conclude that because of the manner in which special issue 15 was submitted and answered, with the undisputed evidence as we have indicated, defendants have been deprived of no right of which they could have availed themselves, under the record before us, if the issue had been otherwise framed.

For the reasons herein set out, we hold that no error is shown in this record which would require a reversal of the judgment entered. It is therefore affirmed.