author: YOUNG, Justice. . BOND, Chief Justice YOUNG, Justice. BOND, Chief Justice.

text:
    MARVIN DRUG CO. v. COUCH.
    No. 12763.
    Court of Civil Appeals of Texas. Dallas.
    Oct. 14, 1939.
    Rehearing Denied Nov. 11, 1939.
    Dissenting Opinion Nov. 25, 1939.
    Supplemental Opinion Nov. 29, 1939.
    Supplemental Dissenting Opinion Dec. 9, 1939.

      Angelo Piranio, Lee T. Johnson, Jr., and O. F. Wencker, all of Dallas, for plaintiff in error.
    Bowyer, Gray, Thomas & Jaffe, of Dallas, for defendant in error.
   YOUNG, Justice. .

Marvin Drug Company, plaintiff in error, was defendant in the trial court and A. B. Couch was plaintiff, and they will be so referred to here for greater clarity. Suit was for the alleged breach of an implied covenant relative to the operation of a drug store on Hillcrest Street, City of University Park, Dallas County, wherein plaintiff was lessor and defendant the lessee. Upon trial and answers of the jury to certain issues, plaintiff was given judgment for damages and attorney’s fee in the sum of $2,033.77, which was by defendant duly appealed.

Mr. Couch was owner of the premises in question and had operated a drug business therein for a number of years. On December 12, 1933, he entered into a five-year written lease with defendant for the continued occupancy of the premises as a drug store, the rental consideration being “Five Per Cent (5%) of the gross cash received from sales, and money collected on accounts on business done from the leased premises during the first year of the lease term and Six Per Cent of the said gross cash received for the last four years of said term.” Marvipi Drug Company began occupying the leased premises on or about the above date and continued therein until November 6, 1937, when the lease was terminated by mutual agreement. It was plaintiff’s contention, as evidenced by his pleading, that there was an implied covenant in the rental contract that defend-ánt would operate the, drug store in the usual and customafy manner as drug stores were operated in the town and vicinity of University Park; alleging that from the inception of defendant’s tenancy — December 12, 1933- — up to January 16, 1937, it operated the premises in such usual and customary manner, the average rental received by plaintiff for the first year being $209 per month. During the second year of the lease, the average monthly rental was $332.48, and during the third year, $340.64 monthly; that beginning January' 16, 1937, defendant ceased to operate the store in the usual and customary manner in which drug stores in that vicinity were operated, in that the store was not opened until eight o’clock in the morning and was closed at seven o’clock in the evening; further contending that for a period of time, curb service was not furnished to customers, the stock of merchandise was depleted, and that from January, 1937, up to the cancellation of the lease on November 6, 1937, plaintiff’s average monthly rental was $110. Plaintiff further charged that, if the defendant had continued to properly operate the store, he would have received an average monthly rental of $375 per month for the year 1937; and recovery was sought for the difference between the rent actually received and that which plaintiff claims should have been forthcoming had the store been properly operated. Attorney’s fee of $250 additional was claimed under the contract provision that' “If, on account of breach or default by lessee of any of lessee’s obligations hereunder, it shall become necessary for the lessor to employ an attorney to enforce or defend any of lessor’s rights or remedies hereunder, then in any such event any reasonable amount incurred by lessor as attorney’s fees shall be paid by lessee.”

Defenses interposed by lessee, Marvin Drug Company, were, in substance, (1) of no implied covenant in the lease such as was alleged by plaintiff; no knowledge of a custom whereby drug stores in neighborhood districts or in the vicinity of the premises in question were to be opened or closed at any special hour; and that defendant was not obligated under the lease to operate the store in any particular manner; and (2) that during the entire period up to January, 1937, on account of conditions and of the percentage provided for in the lease as rent, defendant could not operate the business at a profit and that it closed the store in the evening and opened it later in the morning to minimize its losses; “That this defendant operated the store from January 1937 until the lease was surrendered in a proper manner, with due regard for proper business conditions, and that although the rental paid to plaintiff was not as large as had been paid in previous years, nevertheless by reason of closing earlier at’ night and opening later in the morning the defendant’s losses were reduced and diminished.” Defendant also denied that under any construction of the contract could it be liable for attorney’s fees.

The issues submitted to the jury and their answers were:

“No. 1. Do you find from a preponderance of the evidence that during the year 1937 ’the Marvin Drug Company failed to operate' the drug store on Hillcrest and McFarland in the usual and customary manner in which drug stores in such a vicinity are operated? Answer “Yes” or “no”. Answer: Yes.
“No. 2. Do you find from a preponderance of the evidence that during the year 1937 the Marvin Drug Company failed to operate the drug store on Hillcrest and McFarland in a manner that would he reasonably expected of a person of ordinary prudence, having regard to the interest of the lessor A. B. Couch, and the lessee, Marvin Drug Company? Answer “yes” or “no”. Answer: Yes.
“No. 3. What.amount of money, if any, do you find from a preponderance of the evidence would reasonably have been received by A. B. Couch during the year 1937, up to the closing of the drug store in question under the lease from the operation of the drug store in question in a manner usual and customary for the operation of drug stores in such a vicinity? Answer in dollars, if any, and cents, if any. Answer 3,300.00 Three Thousand Three Hundred & No/100 Dollars.
“No. 4. What amount of money, if any, do you find from a preponderance of the evidence is a reasonable attorney’s fee incurred by A. B. Couch for services rendered by his attorney in connection with this suit? Answer in dollars, if any, and cents, if any. Answer $250.00 Two Hundred Fifty & no/100 Dollars.”

The amount of $1,516.23 actually ¡received by plaintiff as rent during 1937 being deducted from the above jury finding of $3,300, plus the $250 attorney’s fee, fixed the judgment of the trial court against defendant in the sum of $2,033.77 as heretofore stated.

Many of defendant’s 22 propositions under its assignments of error relate to the same matters of law. In effect, the general questions presented in the briefs for' our consideration are (1) whether plaintiff was entitled to maintain the suit on the theory of an implied covenant in the lease; (2) whether there whs error in continuing the proceedings with eleven jurors after a finding by the court that one juror had become disabled during the course of the trial; (3) consisting of detailed objections to the submission of jury issues; (4) alleged improper argument of defendant’s counsel to the jury.

Paragraph 9 of the lease provided that the stipulated percentage .rental should be paid to lessor on the 10th of each month for the preceding month upon the basis of cash register readings of gross cash receipts, and should the lessor at any time be not satisfied with such readings, that he, at his own expense, could audit and check the drug store’s books and reports. Plaintiff Couch testified that he had been operating the premises prior to the lease and occupancy by defendant, and that the time of opening was between six-thirty and seven o’clock in the morning, closing at twelve o’clock midnight; that defendant had employed plaintiff as manager of the store for six or seven months under the lease in question and the store continued to be opened and closed at approximately the same hours; that he was then transferred to defendant’s Santa Fe Drug Store (down town) where he remained about eighteen months, when his resignation was requested; that after leaving defendant’s employ, he observed the daily operation of the Hill-crest store and that same had been opened and closed about the same time as when he was manager thereof, i. e., from between six-thirty and seven A. M. and twelve o’clock midnight; that up to January, 1937, the stock was kept up, with good delivery and curb service, when a sign was put on the front door “We open at eight o’clock and close at seven”; that other changes occurred in a seeming indifference to business and customers, suspension of curb service and reduction of stock. Plaintiff further testified as to rentals and amount of gross cash received from business done at the store during 1936 and 1937, up to the time the lease was canceled. These comparative figures are:

Month 1936 1937 Reduction in Volume

January $6827 $5221 - $1600

February 5254 4168 1086

March 4890 3029 1861

April 5557 2632 2925

May 5197 2630 2567

June 5788 2352 3436

July 5447 2028 3419

August 5184 2045 3139

September 4905 1734 3171

October 4827 1965 2862

November 5265 2515 2750

It was the testimony in part of Alfred Beilharz, a realtor and witness for plaintiff, that he had originally negotiated the lease between defendant and plaintiff, taking the deal up first with Z. E. Marvin, Jr., the preliminaries covering a period of two and a half or three months; that he had received a letter from defendant, dated November 24, 1933, the portion admitted'in evidence being: “Lessee, under no conditions, will guarantee a minimum rent during the term of this lease. Lessor will be furnished a monthly statement of cash register readings of gross, receipts by lessee. If and when, at any time, lessor is not satisfied with readings he may, at his own expense, audit or check our books or reports. * * * I think I have told you before our stores are operated and owned by ourselves and our employees, some of whom have been in our employ for over .twenty-five years, which stands to reason that to have been associated with us this length of time honesty stands above all other things, also our record of filling over two millions of prescriptions during the past thirty years places us as to the leading druggist in Dallas. The name Marvin’s has always and will always stand for a Real Drug Store. We feel in asking the above that we are entitled to a lease of this nature. I am sure, beyond all doubt, that by putting our name at this corner we will have an excellent business, the fact that we will have to stock this store almost completely, which will take in the neighborhood of $7,000.00 to $8,000.00 of merchandise besides hundreds of dollars of publicity, will also have to be taken into consideration. Also a large part of the Highland Park business from Marvin’s will be relayed to and delivered from this store.”

Mr. Beilharz further stated that several months after the lease was executed, he moved into an upper floor of the building in which the store was located and there maintained an office; that defendant, in the beginning, opened the store around six-thirty A. M., closing taround twelve at night until January, 1937, when it started opening about eight o’clock in the morning and closing at seven P. M.; and that-he had received the following written notice from defendant:

“January 16, 1937
“To Our Hillcrest Store Customers :
“A check up on our night sales at our Hillcrest store demonstrates the advisability of our closing this store evenings. Beginning today, therefore, our Hillcrest store will close daily at 7:00 o’clock P. M. I hope you will indulge us in this economy and continue to give us your business. Our other stores remain open evenings ’till 12:00 midnight, with the exception of our store in the Santa Fe Building, which store closes at 8:00 o’clock P. M. Appreciating your business and assuring you of our continued effort to merit your support, I am
“Very sincerely,
“Marvin Drug Company “ZEMSR:K” By: Z. E. Marvin, Sr.

This witness also stated that most suburban drug stores over Dallas opened anywhere from six to seven in the morning, closing around eleven to twelve at night; that the community of University Park had about doubled in population since 1933, but at the time of trial (May, 1938) there had been no increase in the number of drug stores within the corporate limits of said town. Other witnesses for plaintiff testified that similar stores in the vicinity opened around seven A. M. and closed around twelve o’clock at night, and that it was not customary for suburban drug stores to close at seven in the evening.

The writing under consideration carried the usual and customary covenants and matters incident to a five-year contract of lease, except as to payment of rents. As argued by defendant, the instrument is not ambiguous, containing a number of express covenants; for example, with reference to the rents and payment thereof, and plaintiff’s right of accounting at his own expense, but nothing explicit is stated regarding the manner of operation by defendant during the term. The implied covenant declared upon is that the lessee “would operate the drug store in the premises in the usual and customary manner in which drug stores in that vicinity were operated.” Defendant first contends that said implied obligation is inconsistent with the express provision for rent on a percentage basis, and that plaintiff’s trial pleading as to custom was insufficient in specific particulars. Undoubtedly defendant was under some sort of legal duty with respect to operation. Lessee recognized this in its defensive allegations that it performed its lease obligation “with due regard for proper business operations”. In ascertaining what the parties to the contract intended as a legal yardstick or standard of operation, we may look to the circumstances surrounding the inception of the lease, the situation of the parties and the subject matter involved, without regard to whether the terms of the instrument are ambiguous; Ryan v. Kent, Tex.Com.App., 36 S.W.2d 1007. Bearing in mind that the lease in suit is silent as to the , measure of the “proper” manner in which • defendant obligated itself to operate thereunder, it is apparent that an implied covenant existed as to operation; for certainly plaintiff's rental depended upon the amount of business done upon the premises. The law underlying implied covenants must, therefore be considered in fixing defendant’s duty in this respect. Quite applicable also are the principles announced in numerous cases concerning mineral or land leases where the land owner’s rental or royalty is dependent upon the output of the property, following occupancy and development. The rule, we think, appropriate to the instant case, is stated in Freeport Sul-phur Co. v. American Sulphur Royalty Co., 117 Tex. 439, 6 S.W.2d 1039, 1041, 60 A.L. R. 890: “The cottrt cannot make contracts for parties, and can declare implied covenants to exist only when there is a satisfactory basis in the express contracts of the parties which makes it necessary to imply certain duties and obligations in order to effect the purposes of the parties in the contracts made. Before a covenant will be implied in the express terms of a contract, and in some cases in view of the customs and practices of the business to which the contract relates, it must appear therefrom that it was so clearly in the contemplation of the parties as that they deemed it unnecessary to express it, and therefore omitted to. do so, or that it is necessary to imply such covenant in order to give effect to and effectuate the purpose of the contract as a whole.”

See also 13 C.J. p. 558; 15 C.J. p. 1214; 12 Amer.Jur. (Contracts), Sec. 239, pp. 765-769. Defendant’s legal duty incident to the implied covenant here involved is set forth in analogous cases found in an-nctations to Freeport Sulphur Co. v. American Sulphur Royalty Co., supra; 60 A.L.R., pages 903, 904; and the Austin Court, in Cammack v. Rogers, 32 Tex.Civ.App. 125, 74 S.W. 945, 948, upon construing an agricultural lease long ago, observed that: “* * * in a contract for rent, where the landlord is to receive a part of the crop, there is an implied covenant that ordinary care should be exercised by the tenant to cultivate the premises in a farmerlike manner.”

Therefore, considering the situation of the parties at the inception of the lease, plaintiff’s previous schedule of operation as to hours, the continuance thereof by' defendant during the greater part of the term, we conclude it naturally to have been within the contemplation of the parties that1 the store should be operated as was usual and customary of similar stores in the vicinity; and, as already pointed out, the instrument being silent on the subject, defendant’s obligation in this regard will be implied. In fact, defendant’s own practical interpretation of the contract through usual and customary operation up to January, 1937, clearly raises the issue as to the1 measure of its legal duty to operate, just discussed, and as embodied in the court’s charge.

Issue No. 2, inquiring if defendant had failed to operate the premises in á manner that would be reasonably expected of a person of ordinary prudence, having regard to the interest of lessor and lessee, was undoubtedly proper; the fact question following closely the correct rule announc-' ed by Judge Van Devanter (then Circuit Judge), in Brewster v. Lanyon Zinc Co., 8 Cir., 140 F. 801, quoted with approval by Judge Pierson in Freeport Sulphur Co. v. American Sulphur Royalty Co., supra, that “Whatever, in the circumstances, would be reasonably expected of operators of ordinary prudence, having regard to the interests of both lessor and lessee,' is what is required.”

But defendant contends that it rightfully operated as it did from January, 1937, to December, when the lease was' canceled, in order to minimize the losses which defendant had experienced almost-from the beginning. The 'contract contained no provisions permitting lessee to abridge its operations or its legal duty to lessor in event of losses; and performance cannot be excused by the fact that the contract was profitless and expensive; 10 Tex. Jur. (Contracts), Sec. 249; 12 Amer.Jur., Sec. 362, pp. 928-930. The principles and cases relied upon by defendant in sfipport of such contention, from 11 Tex.Law Re- ’ view, p. 439, are obviously not in point,, being altogether with reference to oil and gas leases where the lessee’s obligation is limited or discharged by failure of production “in paying quantities”.

Defendant next complains of alleged error in discharging a juror on the second day of the trial over its objection; and of continuing the proceedings to a verdict with a jury of eleven men, on the ground that the excused member of the panel was not disabled within the purview of the Constitution and statute. The language of our State Constitution, Art. 5, Sec. 13, Vernon’s Ann.St., is similar in tenor to Art. 2204, R.S., which provides that “Pending a trial of a civil case in the district court, where one or more jurors may die or be disabled from sitting, if there be as many as nine of the jurors remaining, those remaining may render and return a verdict; * * * The peculiar acts and conduct of the juror, indicating mental disability, were not brought to the attention of the court until after his voir dire examination and selection as one of the twelve. While no hearing was had touching the juror’s mental condition, after he was sworn in, yet the court made specific findings of fact based upon observation and knowledge, when qualifying defendant’s bill of exceptions, concluding therefrom that the juror was “mentally of unsound mind and is disabled from serving on the jury and is therefore excused.” The matter of determining whether a juryman in a district court is disabled from further sitting, under the above provisions of the Constitution and statute, is held to be within the sound discretion of the trial court. 41 Tex.Jur. (Trial Civ. Cases), Sec. 110, p. 865. It is immaterial that the juror appeared fully qualified at the time of his acceptance upon the panel. The law is expressly designed to cover any disability discovered or becoming evident “pending .the trial”. The court’s action, based upon the findings in the bill, were plainly within the principles of Houston & T. C. Railway Co. v. Waller, 56 Tex. 331; the facts disclosing a present mental disablement on the part of the juror, rather than a mere distress of mind. See also Sunset Wood Co. v. Broadnax, Tex.Civ.App., 136 S.W. 487, writ refused.

Defendant’s assignments of alleged improper argument of plaintiff’s iounsel to the jury are considered to be without merit. Mr. Bowyer, in reading a letter, a portion of which was in evidence, •inadvertently read a sentence which had not been admitted. The error being immediately discovered, counsel asked .that it be withdrawn. Defendant made no objection at the time and did not request the court to instruct the jury concerning the item. The parts of the letter admitted contained statements similar in substance; thus it cannot be said that such incident was in anywise harmful or prejudicial. By bill of exception No. 4, complaint is made of other statements in argument by counsel for plaintiff, as being wholly without foundation in the record. We think the matters claimed to be erroneous are but inferences that could be properly drawn from portions of admitted testimony. As said by Judge Stokes, in Massie v. City of Floydada (Amarillo), Tex.Civ.App., 112 S.W.2d 243, 247, “* * * a rather wide range is always 'allowed counsel in their arguments before juries so long as they confine themselves to deductions, discussions, explanations, or interpretations of the testimony and the charge of the court”. Similarly, we conclude that no error is shown by the contents of bill of exception No. 5, the argument consisting of inferences and deductions that could fairly be drawn from the record. Moreover, it appeared that upon objection by defendant, the jury was instructed to disregard the particular remarks. The argument, even if deemed improper, was not of such prejudicial nature as that it could not have been cured by the given instruction.

All other assignments and, propositions not above singly discussed have been fully considered and are overruled. As a consequence, it is our judgment that this cause should be affirmed.

Affirmed.

BOND, Chief Justice

(dissenting).

The penalty of $2,033.77 damages and $250 attorney’s fee, visited upon plaintiff in error, Marvin Drug Company, for an alleged breach of a written contract, has no basis either in pleading or proof. The amount is grounded on losses calculated on far-fetched anticipation of sales in a retail drug store, which necessarily depended upon the number of customers, over whom plaintiff in error had no control, and the amount of their purchases for the period — necessarily pure conjecture.

Defendant in error was plaintiff in the court below and plaintiff in error was defendant ; they will be so designated here.

In 1933, plaintiff, A. B. Couch, owner of one of two drug stores, on Hillcrest Avenue, in the vicinity of Southern Methodist University, entered into negotiations with Z. E. Marvin, Sr., President of Marvin Drug Company, a corporation, for a lease of the building in which he was then conducting a retail drug store, resulting, finally, in the execution of a written contract, the alleged breach of which is ■involved in this suit. The contract is quite lengthy, expressing many conditions and covenants not material here, except to show the exactness of the contracting parties in making the agreement depicting their contractual relationship. The contract, as I interpret it, leaves nothing for implication, except, perhaps, an obligation that the lessee will fairly exercise its own known business methods, and principles in conducting a drug store in the leased premises.

At the expense of being prolix in this dissent, it is deemed advisable to quote the contract in full, as follows:

“This Agreement of Lease, Made this 12th day of December, A. D. 1933, by and between A. B. Couch, known herein as Lessor, and Marvin Drug Company, a corporation, known herein as Lessee, (The terms “Lessor” and “Lessee!' shall be construed in the singular or plural number according as they respectively represent one or more than one person.) Witnesseth, That the said Lessor does by these presents Lease and Demise unto the said Lessee the following described property, to-wit: Lying and being situated in the City and County of Dallas, State of Texas, and being premises known as 6401 Hillcrest Street in the City of University Park, Texas, and fronting approximately twenty-five (25) feet on Hillcrest Street and extending back approximately seventy-five (75) feet along McFarlin Blvd. and being the corner store space heretofore occupied by the University Pharmacy, together with furniture and fixtures described in exhibit “A” which is attached hereto and made a part thereof, for the term of five years, beginning the 12th day of December, 1938, to be occupied as a drug store and not otherwise, paying therefor the sum of Five Per Cent of the gross cash received from sales and money collected on accounts on business done from the leased premises during the first year of the lease term and six per cent of the said gross cash received for the last four years of the said term, as hereinafter set forth, upon the conditions and covenants following:

“1. That the Lessee shall take good care of the property and its fixtures, and suffer no waste; keep the plumbing work, closets, pipes, and fixtures belonging thereto in repair; and keep the water pipes and connections free from ice and other obstructions, to the satisfaction of the municipal and police authorities, during the term of this lease, and at the end or other expiration of the term shall deliver up the demised premises in good order and condition, natural deterioration and damage by fire and the elements only excepted, all alterations, additions, and improvements, except trade fixtures, put in at the expense of Lessee shall be the property of the Lessor and shall remain upon and be surrendered with the premises as a part thereof at the termination of this lease.

“That the Lessee shall pay the water tax imposed on the hereby leased premises as the same shall become due during the term of this lease.

“2. That the Lessee shall promptly execute and fulfill all the ordinances of the city corporation applicable to said premises and all orders and requirements imposed by the Board of Health, Sanitary and Police Departments, for the correction, prevention and abatement of nuisances in or upon or connected with said premises during the said term, at Lessee’s expense.

“3. That the Lessee shall not assign this agreement or underlet the premises, or any part thereof, (except as may be mentioned herein) or make any alteration in the building (except as may be mentioned herein), without the consent of the Lessor in writing ; or occupy or permit or suffer the same to be occupied for any business or purpose deemed extra hazardous on account of fire.

“4. In case of damage by fire or tornado, the Lessee shall give immediate notice to Lessor, who shall thereupon cause the damage to be repaired forthwith and allow the Lessee a fair abatement or diminution of rental in proportion to the extent to' which the premises are untenantable; but if the leased premises or the buildings of which the leased premises are a part, shall by the Lessor or Lessee be deemed so damaged as to be unfit for occupancy, or if the Lessor shall decide to rebuild, the lease shall cease and the rent he paid to the time of the fire or tornado.

“5. That in case of default in any of the covenants herein Lessor may enforce the performance of this lease in any modes provided by law, and this lease may be forfeited at Lessor’s discretion if such default continue for a period of. ten days after Lessor notifies said Lessee of such default and his intention to declare the lease forfeited, such notice to be sent by the Lessor by mail or otherwise to the demised premises; and thereupon (unless Lessee shall have completely removed or cured said default) this lease shall cease and come to an end as if that were the.day originally-fixed herein for the expiration of the term hereof, and Lessor’s agent or attorney shall have the right, without further notice or demand, to re-enter and remove all persons and Lessee’s property therefrom without being- deemed guilty of any manner of trespass. If, on account of breach or default by Lessee of any of Lessee’s obligations hereunder, it shall become necessary for the Lessor to employ an attorney to enforce or defend any of Lessor’s rights or remedies hereunder, then, in any such event, any reasonable amount incurred by Lessor as attorney’s fee shall be paid by Lessee.

“6. In the event that the Lessee shall become bankrupt or shall make a voluntary assignment for the benefit of creditors, or .in the event that a receiver of the Lessee shall be appointed, then, at the option of the Lessor and upon five (5) days’ notice to the Lessee of the exercise of such option, this lease shall cease and come to an-end.

“7. Lessor agreed to pay to the Realtor negotiating this lease the customary leasing fee in accordance with the commission schedule of the Dallas Real Estate Board, and the usual fee on any renewal of this lease.

“8. As part of the consideration hereof, it is agreed between the parties that the Lessee shall be and is hereby granted an option to renew this lease contract for an additional five years for a rental of six per cent of the said gross cash received.

“9. It is further agreed between the parties as a part of the consideration hereof that the rental shall be paid by the Lessee to the Lessor monthly on the 10th day of each calendar month for the preceding month; and that the Lessee shall furnish "to the Lessor a monthly statement of cash register readings of gross cash 'receipts by Lessee; and that should the Lessor at any time be not satisfied with the said readings, he may at his own expense audit and check Lessee’s books and reports.

“10. It is further understood and agreed .that A. B. Couch warrants and- represents the building to be in first class condition .and in.a, good’state of repair and the said Lessor hereby covenants and warrants to maintain the same at his expense in good state of repair and good condition during the term of this lease; and that there shall be no liabilities ■ on the Lessee for the upkeep and repair the need for which is caused by Lessee’s negligence; Lessor agrees to replace any broken plate-glass windows; Lessor agrees to paint said store both inside and outside at the beginning of this lease and thereafter as needed.

“In Testimony Whereof, The parties to this agreement have hereunto set their hands in duplicate, the day and year above written.”

It is observed that there is not a single expression in the contract which could possibly give rise to an implied agreement that Marvin Drug Company was to conduct and operate a drug store in the leased premises “in the usual and customary manner in which neighborhood drug stores are operated in the City of Dallas”; that is, open at 7 o’clock, a. m. and close at 12 o’clock in the evenings. Plaintiff’s petition shows that the contract lacks such express agreement, nevertheless it is alleged that, “there was an implied agreement and covenant that defendant would operate the drug store in the premises in the usual and customary manner in which drug stores in that vicinity were operated”. The verdict of the jury and judgment of the trial court, affirmed herein by the majority opinion, were based upon the assumption that there was such an implied agreement. Query: On what theory of law can it be said that the written contract implies an oral agreement as to when the drug store shall open and close? The contract is nowise alleged to be ambiguous; plaintiff does not seek to change or alter its terms, or to add conditions or covenants inadvertently left out through accident or mistake; and there are no allegations that defendant knew of any such custom in the conduct of drug stores in the vicinity of the University.

In the case of Pierson v. Canfield, Tex.Civ.App., 272 S.W. 231, 233, Justice Looney, speaking for this Court, said: “ * * * the instrument, or instruments, exchanged and forming a part of the transaction constitute the final and exclusive evidence of the intent of the parties and of the covenants entered into.”

The implied covenant, which has been ingrafted upon the written contract between the parties in the case at bar, i. e., to conduct and operate the drug store “in the usual and customary manner in which drug stores in that vicinity are conducted”, is tantamount to the court’s making a contract for the parties. No implied covenant can be read into an unambiguous written contract, which contains express covenants of its terms effectuating the intention of the parties. Plaintiff’s petition does not allege that the custom relied upon was a general custom, or one of which all parties to the lease had notice. Mere allegations that the leased premises were not used as a drug store “in the usual and customary manner in which neighborhood drug stores in that vicinity are operated, in that the store would be opened not later than seven o’clock A. M. in the morning and closed not eárlier than twelve o’clock in the evening”; and, further, “that it is usual and customary for neighborhood drug stores to be opened at a comparatively early hour in the morning and to remain open until late at night”, and. still further, that “by reason of defendant’s breach of the implied covenant and agreement in the lease to operate the drug store in the customary manner in which drug stores are operated in the City of Dallas and University Park”, go far afield in stating a cause of action against the lessee for failure to open and clqse the drug store to conform to an alleged' custom, in the face of an unambiguous, express written contract. Indeed, implication arises in all such contracts that the lessee will not suspend operation, but the manner of its operation, the hour of its opening and closing, are matters wholly within the judgment and sound business discretion of the operating party, provided he acts in good faith. The record shows, uncontradicted, that to keep the drug store open for eighteen hours each day, from seven a. m. to twelve p. m., was unsound business practice, resulting in loss. The rule is announced in Brewster v. Lanyon Zinc Co., 8 Cir., 140 F. 801, quoted with approval by our Supreme Court in Freeport Sulphur Co. v. American Sulphur Royalty Co., 117 Tex. 439, 6 S.W.2d 1039, 1044, 60 A.L.R. 890, wherein the court said: “Whatever, in the circumstances, would be reasonably expected of operators of ordinary prudence, having regard to the interests of both lessor and lessee, is what is required.”

So, in the case at bar, can it be said that it was within the contemplation of the parties that the lessee would open the drug store at seven o’clock a. m. and close at twelve o’clock p. m., when the sales during the early and late hours would not, in the exercise of sound business discretion, justify such operation. Courts cannot make contracts for parties, and can declare implied covenants to exist only when there is a satisfactory basis in the express contracts of the parties which makes it necessary to imply certain duties and obligations to effect the purposes of the parties in the contracts made. Our Supreme Court, in Freeport Sulphur Co. v. American, supra, said: “Before a covenant will be implied in the express terms of a contract, and in some cases in view of the customs and practices of the business to which the contract relates, it must appear therefrom that it was so clearly in the contemplation of the parties as that they deemed it unnecessary to express it, and therefore omitted to do so, or that it is necessary to imply such covenant in order to give effect to and effectuate the purpose of the contract as a whole”. Thus, the custom and practice of other operators of drug stores, of opening at an early morning hour and closing at midnight, cannot be said to be within the contemplation of the parties, as that they deemed it unnecessary to express it, or that it is necessary to imply such covenant in order to give effect to and effectuate the purpose of the contract as a whole. The only implication that could reasonably be expected by the contracting parties, is that, the lessee will conduct in good faith a drug store to the mutual interest of both the lessor and lessee, exercising the well-known business ability of the operators of Marvin Drug Company. The alleged custom or usage relied upon obviously finds no support in the contract. The length of time such custom or usage had prevailed in the vicinity is not shown, nor that the defendant had notice of such usage and custom, which are necessary elements in pleading custom and usage. 17 C.J. p. 450, Sec. 9, 10; i. d. p. 454, Sec. 15; Taylor v. Mueller, 30 Minn. 343, 15 N.W. 413, 44 Am.Rep. 199; Schumacher v. Trent, 18 Tex.Civ.App. 17, 44 S.W. 460. In the absence of pleadings that the lessee actually knew of such custom and usage, or the antiquity thereof in the vicinity, justifying an inference that the lessee knew of it, or that the parties to the lease had such action in view in making the contract, there are no legal grounds for the judgment rendered in this case.

It is further observed that the contract expressly provides: “(5) That in case of default in any qf the covenants herein-, lessor may enforce the performance of this lease in any modes provided by law, and this lease may be forfeited at lessor’s discretion, if such default continue for a period of ten days after lessor notifies said lessee of such default and his intention to declare the lease forfeited, * * *. If, on account of breach or default by lessee of any of lessor’s obligations hereunder, it shall become necessary for the lessor to em-. ploy an attorney to enforce or defend any of lessor’s rights or remedies hereunder, then, in any such event, any reasonable amount incurred by lessor as attorney’s fee shall be paid by lessee.” These provisions, obviously allow the lessor a remedy for any default in any of the covenants expressed therein, and on account thereof, obligate the lessee to pay the attorney’s fee. It is not contended, in pleadings or proof, that the lessee defaulted in any covenant expressed in the contract or that the lessor employed an attorney to enforce rights or remedies thereunder. The lessor, having an express remedy .for breach of any covenants in the contract, to the exclusion of all others, is limited to the remedy expressed. Where contracting parties have an express remedy, no implied covenant effecting the breach can be the basis of a suit. Furthermore, can it be said that it was the contemplation of the lessor and lessee to pay attorney fees for anything other than a breach of the express covenants? The terms of the contract, in my judgment, answer the question in the negative.

For the reasons above stated, the cause should have been reversed and here rendered for the defendant; at most, the cause should be reversed and remanded, for reasons herein mentioned.

This cause was submitted to a jury of twelve men. During the course of the trial, over the objections of the defendant, the trial judge dismissed one of the sworn jurors for reasons satisfactory only to himself, and too, according to the defendant, with the right to withdraw its announcement of ready. The Constitution of Texas, Art. 5, Sec. 13, Vernon’s Ann.St, provides: “When, pending the trial of any case, one or more jurors not exceeding three, may die, or be disabled from sitting, the remainder of the jury shall have the power to render the verdict.” Article' 2204, Revised Statutes of Texas, 1925, provides: “Pending a trial of a civil case in the district court, where one or more jurors may die or be disabled from sitting, if there be as many as nine of the jurors remaining, those remaining may render and return a verdict; but in such case the verdict must be signed by each juror rendering it.” In the case of Houston & T. C. R. Co. v. Waller, 56 Tex. 331, our Supreme Court had this to say, pertinent here, on the above constitutional provisions:

“It appears by bill of exceptions in this case, that pending the trial, and ‘after the depositions of several witnesses had been read, a communication in writing was handed to the judge presiding which purported to be from the wife of the juror Thomas H. Bradbury to the said Bradbury,, informing him that one of their children was sick, and requesting him to come home if he could. The judge presiding being of the opinion that this information disabled the said juror from sitting, and thereupon peremptorily discharged him, said Bradbury, from the jury, and ordered the trial' to proceed with the remaining eleven, over the objection of the defendant’s attorneys.’' This bill of exceptions is approved with the following explanation: ‘The court asked the juror if the intelligence in the written communication of his wife satisfied him that it was necessary for him to be at home to attend his sick child. The juror an-' 'swered it did, and manifested in his answer such distress as such intelligence would naturally create in a parent. And the court was satisfied, in his present state of mind, that said juror was disabled thereby from further acting as a juror.’

“Our opinion is that a juror is not ‘disabled from sitting’ within the meaning of the constitution by mere distress of mind. Such distress, caused by information of sickness in his family, calling for his presence at home, might be'a sufficient cause for suspending the progress of the trial, if in the judgment of the cottrt the emergency required such a course. But this is not the character of disability which the constitution classes side by side with death. If a juror becomes so sick as to be unable to sit longer, he is plainly disabled from sitting. Ray v. State, 4 Tex.App. [450] 454. If by reason of some casualty or otherwise he is physically prostrated, so. as to be wholly incapable of sitting as a ■ juror, or loses his mental powers, so as to become insane or idiotic, then too he would be disabled from acting as a juror. But, without deeming it proper to attempt to define fully the meaning of the expression used in the constitution, we are satisfied that the causes which disable the juror from sitting, and justify the extreme course of allowing, over a party’s objection, a verdict to be rendered by the remainder of the jury, must be of a nature more directly showing his physical or mental incapacity than mere mental distress occasioned by the sickness of others, and the feeling that duty to the sick demanded his presence elsewhere.- Extreme cases of the kind, however strongly they may appear to the court to release the juror, do not belong to the class provided for by the constitution or statute.

“We think that it appears from the bill of exceptions that the court, over the objections of the defendant, ordered the trial to proceed with eleven jurors, and that this error of the court is fatal to the judgment.”

So, in the case at bar, the trial court peremptorily discharged a juror, without questioning him as to his fitness, arid without the defendant having an opportunity to question him on his disqualification. After the trial, in a qualified bill of exception, the trial judge for the first time assigned his reasons for discharging the juror, and requiring the defendant to proceed with the trial before the eleven. The conclusion of the majority thát such action was proper, not presenting a reversible error, is a dangerous precedent for courts. I am not in accord with the holding. Litigants have a legal right to question jurors on their qualifications and fitness for jury service; it does not lie within the powers of a trial judge to peremptorily discharge a juror over the objection of the litigants, because, forsooth, the action of the juror indicates to the mind of the judge, that such juror was not qualified to sit in the case.

For the reasons above indicated, I am of the opinion the judgment should be reversed and here rendered for the defendant; accordingly, I register my dissent.

Supplemented Opinion.

YOUNG, Justice.

The above dissent of Chief Justice BOND seems to indicate that appellant was not allowed a bill of exceptions relative to excusing the juror until after the trial, when the court, for the first time, assigned its reasons therefor. In such connection, we deem it proper to quote the statement of Judge Hughes in signing the particular bill, as the facts there stated are all that the record shows regarding the incident:

“In approving the above bill of exception which was taken at the time of the occurrence and was then and there qualified by me in the following language, I now adopt as a qualification to this bill the following, to-wit: *
“ ‘After the juror was chosen, he had to be shown his place in the jury box. During the two recesses and the first afternoon he picked up a hat in one of the chairs and looked at it. When court adjourned' that afternoon he said that he was looking for his hat and had lost it. The bailiff took him into the jury room and not finding the hat, took him down to the Central Jury Room where he had left his hat.
“ ‘The following morning he stated to the bailiff that he had not been feeling well the day before, but that he had worked most of the day and had then gone home, and that he had decided to come back and work part of the day.
“ ‘At the noon recess he again stated he had lost his hat and tried to pick up the bailiff’s hat and walk off with it. His hat 'was finally found by the bailiff in the jury room. On return from the noon recess, the bailiff met him in the hall downstairs and he stated that he could not find those men he had been working with all morning.
“ ‘When court convened at 2:00 o’clock he was not in the jury box and could not be found by the bailiff, who went in all of the courts and also walked up the street as far as Sanger Bros. The court is of the opinion that he is mentally of unsound mind and is disabled from serving on the jury and is therefore excused.’ ”

It would appear then that the said juror was not available for the usual method of procedure under article 2204, i. e. a hearing touching disability; and, as already found in the majority opinion, the above conclusion was based on facts occurring either in the presence of the court or of which it could take judicial cognizance.

Supplemental Dissenting Opinion.

BOND, Chief Justice.

After the filing of the dissenting opinion' in this case, the majority deemed it advisable to relate the reasons assigned by the trial court in discharging the juror in question, by quoting verbatim the appended qualification to appellant’s bill of exception, made long after trial, concluding with the statement: “The court is of the opinion that he (the juror) is mentally of unsound mind and is disabled from serving on the jury and is therefore excused”. It is evident; the conclusion reached by the learned trial judge, a female of the species, is, in the main, based upon the fact that the juror “could not find his hat”, on adjournments of court; that he had to be shown bis place in the jury box, and that he had become separated from the jury panel. The reasons assigned, thus disqualifying the juror, should not, I think, be accorded judicial sanction by the opposite sex: Jocularly, it is the experience of all of the genus Homo that, at times, even in our homes, in moments of forgetfulness, or carelessness, or in the midst of excitement, we fail to remember “where we put our hats”, and are constantly reminded by the partner of the marital union that it is on the customary “hat rack”. Seriously, in my opinion, the arbitrary discharge of the juror in this case, for the reasons assigned, is a dangerous precedent in our jurisprudence. It is held generally that, the incapacity of a juror from further service, and the necessity for discharge, are matters requiring a judicial finding, to be heard and determined by judicial methods, and that it is prejudicial error for the court, of its own motion, on mere reports or personal observation, and over the objection of litigants, to determine that a necessity exists requiring the discharge of a juror. In Upchurch v. State, 36 Tex.Crim.R. 624, 38 S.W. 206, 44 L.R.A. 694, the Court of Criminal Appeals of this State, under a statute somewhat similar to our civil statute with reference to the discharge of a juror, in the course of the opinion, said: “ * * * conceding that the severe sickness of the wife of a juror is such a circumstance as would authorize the discharge of the jury,— propositions about which we express no opinion, because unnecessary,' — still, it was absolutely necessary to judicially ascertain the fact of sickness before the jury could be legally discharged. This apprehends a judicial finding. It is a step in the progress of his trial, and am. important one, so far as defendant’s rights are concerned. * * * Now, in the case at bar the action of the judge was not in open court at all. It was at night, some distance away from the court room, in the absence not only of the jury, but of the prisoner and his counsel. Not only so, but this action was taken on the ex parte statement of an officer of the court that some one had informed him that the wife of the juror Abbott was very sick. Could the court, under such circumstances, make a judicial finding of so important a fact in the progress of this trial, — one which involved the discharge of the jury? If so, the discharge of a juror in any case would appear to be a -matter entirely within the arbitrary discretion of the judge, — a power which he could exercise in the absence of the prisoner, and without any judicial procedure to ascertain the fact which would authorize his action. Such arbitrary power would place it entirely within the province of a judge to discharge a jury of his own motion, and without investigation. If, in any given case, he should desire the conviction of a defendant, and it should appear that the jury was not likely to convict, that the state had not entirely made out its case, by his arbitrary discretion he could discharge the jury, and upon a subsequent trial, the state being better prepared, secure a conviction. This was the practice of courts in the days of the Stuarts, but happily not so now. * * * If the court is to find and ascertain the fact which authorizes him to act in discharging a jury, this apprehends a trial, — a trial in open court, in the presence of the accused, and not an ex parte proceeding, at which he is neither present nor- consenting.” (Italics mine.) So, in the case at bar, the unsoundness of the juror’s mind before his discharge, was a necessary .judicial ascertainment, and such is not obtained when the trial judge, in a bill of exception, long after the trial of the cause and perfection of appeal, assigns reasons for the discharge of the juror. A trial by a jury of twelve men is a valuable right accorded, to litigants by the legislative branch of our Government; and, however laudable the act of the judge may be, in relieving a juror, worried, or sick in mind or body, it is not within the court’s power, over the objection of litigants, to discharge such juror, without a trial, reviewable on appeal, to determine the facts of his unfitness. The defendant objected to the discharge, and, in the alternative, asked to be accorded the right to withdraw his announcement of ready, on account of the action of the court. This, at least, I think, presents reversible error.


source: Caselaw Access Project

author: SLATTON, Justice.

license: Public Domain

text:
    FRELS v. CONSOLIDATED THEATRES, Inc., et al.
    No. 10770.
    Court of Civil Appeals of Texas. San Antonio.
    Nov. 15, 1939.
    Rehearing Denied Dec. 13, 1939.
    C. C. Carsner and Edw. C. Thomas, both of Victoria, for appellant.
    C. A. Erickson, of Bay City, and Crain, Vandenberge & Stofer, of Victoria, for appellees.
   SLATTON, Justice.

This is an appeal from an order denying a temporary injunction.

Rubin Freís sued’ Consolidated Theatres,. Inc., et al., in the District Court of Victoria County, for damages and for injunction, alleging that defendants had formed a trust in violation of the Anti-Trust Laws in the conduct of certain theatres conducted in the City of Victoria. That defendants were about to build in said city a theatre and through such monopoly destroy the theatre business of Freís. He prayed for damages and perpetual injunction, and temporary injunction to restrain the defendants from entering into a contract to build a theatre. Hearing on the application for temporary injunction was had and denied by the court, hence this appeal.

“The rule is also well established in this state that the granting or refusing of a temporary injunction is within the sound discretion of the district court, and that court’s action will not be disturbed on appeal, unless it clearly appears from -the-record that there has been an abuse of such discretion.” Harding v. W. L. Pearson & Co., Tex.Com.App., 48 S.W.2d 964, 966.

A consideration of the record convinces us that the trial court did not abuse its discretion in refusing the temporary injunction. If it is true, as alleged by appellant, that appellees have combined in violation of the Anti-Trust Laws of this State, for the purpose of destroying the appellant’s business, and in pursuance of such unlawful conspiracy commit acts which' cause damage to appellant, the ap-pellees would be liable to appellant for such damages. North Texas Gin Co. et al., v. Thomas, Tex.Civ.App., 277 S.W. 438, writ refused.

The relief sought by the application for temporary injunction would, if granted, restrict the sacred right of the use and enjoyment of property belonging to appellees. The use and enjoyment of property should not be destroyed by a court of equity, except in extraordinary cases, and then, upon plain and explicit pleadings supported by clear and satisfactory evidence. Cain et al., v. Trueheart, Tex.Civ.App., 12 S.W.2d 239.

The appellant cannot possibly be injured by the erection of a theatre building, and has no right to complain until the building is being used in violation of the AntiTrust Laws to his damage. Hence, at the time of the hearing there was no clear necessity for injunctive relief.

In 24 Tex.Jur., § 87, p. 124, it is said: “There must be some emergency or necessity for the injunction. If there is a full, adequate and speedy legal or primary remedy and no need for an injunction a temporary writ is improper. The probable existence of a right and of danger thereto if an injunction be not granted is determinative of the need for a temporary writ. The court may balance the conveniences and hardships of parties. * * * ’’

Under the record presented on the preliminary hearing, it is our opinion that the district court did not abuse its discretion in denying the application for temporary injunction. It follows that the action of the court must be affirmed.


author: GEORGE, Justice.

text:
    WORKMEN’S LOAN & FINANCE CO. v. DUNN.
    No. 2157.
    Court of Civil Appeals of Texas. Waco.
    Oct. 26, 1939.
    Rehearing Denied Dec. 14, 1939.

      J. C. Jacobs and J. C. Roe, both of Cor-sicana, for appellant.
    Richard & A. P. Mays, of Corsicana, for appellee.
   GEORGE, Justice.

This is a suit on a verbal contract for the sum of $410.80, alleged to be the balance .due and unpaid for personal services. It was instituted in the county court of Navarro county by Sam Dunn against M. Evans individually and Workmen’s Loan & Finance Company, a corporation. Defendants plead general demurrer, special exceptions, general denial, plea of payment and estoppel. The case was tried before the court and a jury and judgment was rendered for San Dunn against Workmen’s. Loan & Finance Company for the sum of $190, together with interest and costs of suit; hence this appeal by Workmen’s Loan & Finance Company.

The court submitted to the jury only one issue, which reads as follows: “What sum of money, if any, do you find by a preponderance of the evidence that the defendant, Workmen’s Loan & Finance Company, owed to the plaintiff, Sam Dunn, for services, if any, performed by Sam Dunn for said defendant, from January 1, 1937, to and including May IS, 1938? Answer in dollars and cents,” and gave in connection therewith the following instruction: “You are instructed in connection with the above issue as follows: If yoq believe by a preponderance of the evidence that the defendant has paid the plaintiff, Sam Dunn, in full for said services performed during the period aforesaid, if they were performed, or if you believe that the said Sam Dunn accepted a sum of money less than the amount he claims due him, in full payment and satisfaction of said services, then in either event you will answer said question, ‘nothing.’ ”

The appellant, Workmen’s Loan & Finance Company, at the proper time, presented to the trial judge its requested special issue No. 1, reading as follows: “Do you find by a preponderance of the evidence that defendant, Workmen’s Loan & Finance Company, has paid Sam Dunn, plaintiff, in full for his services rendered from January 1, 1937 to May 6, 1938? Answer ‘Yes’ or ‘No,’ ” which is endorsed at the foot thereof as follows: “Refused — to which action of the court defendant then, and there in open court excepted. Paul H. Miller, County Judge.”

Appellant says the trial court committed reversible error in refusing to give its requested special issue No. 1. Appellee contends that (1) this court is not authorized to consider appellant’s assignment of error presenting the proposition that the trial court erred in refusing to submit its requested special issue No. 1, for the reason that the record does not affirmatively show that such special issue was submitted to opposing counsel; and (2) that the issue and instruction given in connection therewith by the trial court submitted the question of payment to the jury for determination.

Where the record shows that a special requested issue was presented to the trial judge in limine and that exception was taken to his refusal to submit same to the jury, it will be conclusively presumed, in the absence of a proper showing to the contrary, that the trial judge performed his duty by submitting such charge to opposing counsel. Shipley v. Missouri K. & T. Ry. Co., 110 Tex. 194, 217 S.W. 137, pars. 1 and 2; Hartford Fire Ins. Co. v. Clements, Tex.Civ.App., 34 S.W.2d 355, par. 5; Sanger v. First National Bank of Amarillo, Tex.Civ.App., 170 S.W. 1087, par. 1; Arts. 2186 and 2188, Revised Civil Statutes of Texas.

It is a well settled principle of practice that a litigant is not entitled to have two issues submitted which are opposites one to the other. That is to say, a litigant is not entitled to a complete duplication in the submission of the special issues which present solely a positive and negative phase of the same question. Wright v. Traders & General Ins. Co., 132 Tex. 172, 123 S.W.2d 314; Wichita Valley Ry. Co. v. Williams, Tex.Civ.App., 6 S.W.2d 439; Hutton v. Burkett, Tex.Civ.App., 18 S.W.2d 740, par. 10; Williams v. Rodocker, Tex.Civ.App., 84 S.W.2d 556, par. 5.

It is also a well established rule of practice that a defendant is entitled to an affii'mative submission of all defensive issues raised by his pleadings and evidence. Texas Indemnity Ins. Co. v. Thibodeaux, 129 Tex. 655, 106 S.W.2d 268; Colorado & S. Ry. Co. v. Rowe, Tex.Com.App., 238 S.W. 908; Greer v. Thaman, Tex.Com.App., 55 S.W.2d 519; Montrief & Montrief v. Bragg, Tex.Com.App., 2 S.W.2d 276; Northern Traction Co. v. Woodall, Tex.Com.App., 299 S.W. 220; Missouri K. & T. Ry. Co. v. McGlamory, 89 Tex. 635, 35 S.W. 1058; Gammage v. Gamer Co., Tex.Com.App., 213 S.W. 930; Campbell v. Johnson, Tex.Com.App., 290 S.W. 526; Fox v. Dallas Hotel Co., 111 Tex. 461, 240 S.W. 517.

It is likewise settled in cases involving converse issues that both should be submitted, though partial duplication may result. Wright v. Traders & General Ins. Co., 132 Tex. 172, 123 S.W.2d 314, par. 5; Greer v. Thaman, Tex.Com.App., 55 S.W.2d 519, par. 3.

Appellant’s pleadings and proof raise the issue of payment in full of all amounts due by it to appellee. On the other hand, appellee’s pleadings and proof raise the issue as to the amount due him by appellant. It is the duty of the court, in submitting a case upon special issues, to submit such special issues distinctly and separately, and the plaintiff and the defendant each have the right to have each group of facts which may constitute respectively a right or recovery or right of defense presented to the jury in a clear and untrammeled manner. The court is not authorized to embody in an instruction calling for a general verdict an issue in the case based on facts -presenting a defense. The fact or group of facts presenting the defense must be submitted separately and distinctly as an issue. This is the only way a defendant’s rights can be preserved in accordance with the law. The parties’ pleadings and proof presented two distinct theories and each was entitled to have his theory submitted to the jury for determination. It is no answer to say that the finding on plaintiff’s issue submitted to the jury amounted to a finding on defendant’s issue, which was not submitted. The cause must be considered from the viewpoint of the parties’ pleadings and proof before it is actually submitted to the jury and not after the jury has returned its verdict. For there is no way of ascertaining with certainty beforehand what the jury’s answers would be. If appellant’s defense of payment in full had been submitted separately and affirmatively, the jury could, and might have, rendered a finding thereon favorable to it. And the probability that the answers of the jury might be conflicting is not sufficient to authorize a trial court to deny to a party his right to have his theory of the case passed on by the jury. The finding that appellant owed appellee $190 conflicts with and excludes the idea of payment. So-does an affirmative finding of negligence as a ground of recovery conflict with and exclude the idea of unavoidable accident. And a finding of total disability in a workman’s compensation case also conflicts with and excludes the idea of partial disability. Does the fact that those issues call for findings that might conflict deprive a defendant of his right to have his defenses submitted to the jury? A full answer to this is that every complete defense conflicts with the cause of action as plead by a plaintiff. If this were not true, ' then a defendant whose defense contradicted a cause of action plead by a plaintiff would be deprived of the right to have his defense submitted to the, jury for determination. It would amount to the submission of the plaintiff’s theory of the case and a denial of a like right to the defendant. The probability of a conflict in the findings of a jury can be practically eliminated by the trial judge exercising the power vested in him. He is authorized, in the event of conflict in findings of the jury, to point out to the jury, in the manner provided by law, before receiving the verdict, the conflicting answers, and to retire the jury for further deliberations. Maryland Casualty Co. v. McGill, Tex.Civ.App., 69 S.W.2d 158, pars. 7-9; Kansas City M. & O. Ry. Co. v. Moore, Tex.Civ.App., 11 S.W.2d 335, pars. 3 and 4; Worden v. Kroeger, Tex.Com.App., 219 S.W. 1094; Thurman v. Chandler, 125 Tex. 34, 81 S.W.2d 489, par. 3; Wright v. McCoy, Tex.Civ.App., 131 S.W.2d 52, pars. 10 and 11.

Furthermore, the issue given and the one requested do not present solely á positive and negative phase of the same question. Nor do they seek to establish the same fact. Thus, it is obvious that the two issues submitting the two inquiries, — one, what sum of money was owing by appellant to appellee, and the other, has appellant paid appellee in full, — are the converse of •each other and not the opposite of each other.

The judgment of the trial court is reversed and the cause remanded for a new trial.


author: BAUGH, Justice.

text:
    SUNSET TRUCK LINES, Inc., v. RAILROAD COMMISSION et al.
    No. 8824.
    Court of Civil Appeals of Texas. Austin.
    Nov. 15, 1939.
    Robt. T. Neill, of San Angelo, for appellant.
    Gerald C. Mann, Atty. Gen., and George W. Barcus, Asst. Atty. Gen., for appellee Railroad Commission of Texas.
    Henry H. Brooks, of Austin, for ap-pellee, T. M. McCrary.
   BAUGH, Justice.

Sunset Truck Lines, Inc., hereafter referred to as the Sunset, brought this suit in the District Court of Travis County, to set aside a certificate of convenience and necessity issued by the Railroad Commission to T. M. McCrary on October S, 1937, authorizing him to operate trucks as a common carrier for hire over State Highway No. 17 from Marfa, Texas, to Pecos, Texas; thence over State Highway No. 1 to Odessa, Texas; and to serve all intermediate points on this route. Trial was to the court without a jury and at the close of plaintiff’s evidence judgment rendered that Sunset take nothing; hence this appeal.

A statement of the history of the con•troversy, and of the proceedings before the . Railroad Commission, will contribute to a better understanding of the issues presented on this appeal.

At the time McCrary made his first application to the Commission, Sunset held permits to operate trucks as common carriers from El Paso to Odessa over State Highway No. 1, except 15 miles between Pyote and Monahans. At Pyote its route left Highway No. 1 and went north via Wink and Kermit, returning to Highway No. 1 at Monahans. McCrary held permits to operate out of El Paso .over Highway No. 1 to Davis Mountain Filling Station; thence south via Balmorhea, Ft. Stockton, and McCamey over a different highway; and from McCamey back north to Highway No. 1 at Odessa, — a more circuitous route between El Paso and Odessa than the Sunset’s route; and east of Davis Mountain Filling Station serving a different territory from that served by the Sunset.

McCrary’s application was listed as an extension of his service as already authorized, so as to include Marfa, Ft. Davis, and Pecos, and from Pecos eastward over highway No. 1 to Odessa and intermediate points, covering the same route from Pecos to Odessa as that served by the Sunset. While listed as an extension of McCrary’s existing service, it was in reality, and so considered by the Commission, an application for a new permit to operate from Marfa to Pecos over State Highway No. 17, thence over Highway No. 1 to Odessa.’ Three hearings were had by- the Commission on McCrary’s application. On February IS, 1937, there was entered on the Commission’s docket the following notation: “Granted from Balinora to Pecos, Odessa & Intermediate points; Denied to Wink.” This notation was initialed “T” and “S”. These initials were shown to have been entered by Commissioners Thompson and Smith. Such docket entry made no mention of, nor reference to, the points Marfa and Ft. Havis, which were included in McCrary’s application.

On February 16, 1937, McCrary began operation of trucks via Pecos over Highway No. 1 to Odessa. After six or seven days of such operation he was notified by the Railroad Commission that he was operating in violation of law; whereupon he discontinued such operation. Notwithstanding the above quoted docket entry, no findings of fact were made by the Commission as required in Sec. 12 of Art. 9 lib, R.C.S.1925, Vernon’s Ann.Civ.St. art. 911b, § 12, and no certificate issued to McCrary. On the contrary, after notifying McCrary that his operations under such docket entry were in violation of law, and so far as the record discloses, the Commission, on its own motion, on March 27, 1937, set McCrary’s application down for further hearing at Odessa on April 9, 1937. On April 2, 1937, ■ the Commission postponed this hearing to April 12th. Meantime, on April 9th, Mc-Crary brought suit in the District Court of Travis County and was granted a temporary injunction against the Commission restraining it from interfering with his operations on the route from Marfa to Odessa via Pecos and. intermediate points. Because of this injunction, the hearing set for April 12, 1937, was never held. McCrary operated under this injunction until October 5, 1937, at which time Mc-Crary was, without further hearing or notice to Sunset, issued a certificate of convenience and necessity, and dismissed his injunction suit. Thereupon, Sunset, within 20 days thereafter, filed its motion for rehearing, which was by the Commission set down for hearing, and a hearing had at Pecos, on December IS, 1937, at which many witnesses testified on behalf of Sunset, as protestant, that the additional service granted to McCrary was not needed. After this hearing the Commission, on January 28, 1938, denied Sunset’s motion, declining to consider the testimony heard on December IS, 1937, on the ground that after it had issued to McCrary a certificate, it lost jurisdiction over its order of October S, 1937.

It is. manifest that the mere docket entry of February 15, 1937, did not constitute a final order of the Commission investing McCrary with any rights to operate his trucks over the highways. Art. 9lib, Sec. 12(a) clearly contemplates and requires that the Commission shall, before any such order becomes final and appealable, make its findings of fact. This the Commission not only failed to do, but within a week after said date notified McCrary, who had begun operations, that he was operating in violation of law; thus not only clearly indicating that it had made no final order, but putting McCrary on notice that it had made no such final order. In addition to this, on March 27, 1937, the Commission set the matter down for further hearing and so notified the Sunset.

It follows, therefore, that the Commission still had jurisdiction of Mc-Crary’s application when he filed his suit against it on April 9, 1937, and consequently the District Court of Travis County had no authority to issue the injunction in that case. Only final orders oí 'the Commission are, under the statutes, subject to review in the District Court. This was the exact question presented in Sproles Motor Freight Line v. Smith, Tex.Civ.App., 130 S.W.2d 1087, writ refused. Consequently the Commission had not lost jurisdiction of McCrary’s ■application, and did not do so by virtue of McCrary’s suit against it. Having asserted that jurisdiction after the docket notation of February 15th; and having set the matter down for further hearing at the instance of Sunset in April, 1937, which hearing was never had; the issuance by it on October S, 1937, of said certificate (obviously in settlement of Mc-Crary’s suit against it and on condition that that suit be dismissed) without any notice to the Sunset, or without giving Sunset any opportunity to be heard, as the Commission had on March 27th, and again on April 2, 1937, notified the Sunset it would do, amounted, we think, to arbitrary action on its part, .though doubtlessly done under a' misapprehension of the jurisdiction of the District Court over the subject matter. That being true, its certificate of October 5, 1937, cannot be sustained. Sunset was entitled to its day before the Commission on further hearing in the matter before a final order could properly be entered. This it was denied by the issuance on October Sth of said certificate without notice or opportunity to be so heard.

This conclusion renders it unnecessary for us to pass upon the other contentions made by appellant, or to determine whether under the facts of the instant case the Commission should have considered the evidence adduced on the December 15th hearing at Pecos. It did not do so and has made no findings based thereon. Consequently Sunset was not given the opportunity to be heard to which it was under the law entitled.

The judgment of the trial court is therefore reversed and judgment here rendered setting aside as invalid the certificate of convenience and necessity granted by the Railroad Commission to T. M. McCrary on October 5, 1937; without prejudice, however, to the rights of McCrary to again apply to the Railroad Commission for further hearing on his application in the manner prescribed by law and under the rules and regulations of the Railroad Commission.

Reversed and rendered.


author: ALEXANDER, Justice.

text:
    STEWART OIL CO. v. BROWN.
    No. 2141.
    Court of Civil Appeals of Texas. Waco.
    Dec. 7, 1939.
    McEntire, James & Shank and Clower & Bezoni, all of Tyler, and Davis, Jester & Tyson, of Corsicana, for appellant.
    Richard & A. P. Mays, of Corsicana, for appellees.
   ALEXANDER, Justice.

This suit was brought by Stewart Oil Company, a corporation, against C. L. Brown, Sr., and others, for damages for the alleged negligent shooting of an oil well at an improper depth. It was alleged that the plaintiff had employed the defendants to shoot the well with nitroglycerine at a depth of from 3555 to 3570 feet, for the purpose of increasing the oil flow, but that the defendants had negligently shot the well at a point approximately 100 feet higher than was contemplated and had thereby destroyed it. The jury returned a verdict in favor of the defendants and judgment was entered accordingly. Plaintiff has appealed.

Counsel for appellee, in his argument to the jury, made the following statements:

“They seek to have you, gentlemen, run-your hand down in the pocket of C. L. Brown, Sr., and take out of his pocket and pass over into the corporation, and treasury of this $500,000 corporation, money to the tune of approximately $20,000. Now I say the corporation, I don’t know whether it is the corporation seeking to do that, or whether it is this banker, and this financier, and this big oil man, Mr. Stewart; and they seek to do it gentlemen on the ground that we have definitely and positively violated the plain terms of our contract which resulted in their damage to the amount stated. ⅜ i}c * »
“You are being asked to send the defendant in this case, if need be, into bankruptcy to enrich this plaintiff; * * *

Issue No. 1 inquired whether the defendants had failed to shoot the well at a depth of from 3555 to 3570 feet, to which the jury answered “No.” In discussing this issue, counsel for appellee made the following statements:

“The court says if you answer No. 1 ‘No’ you need not consider No. 2 and I tell you if you answer No. 1 ‘No’ your labors are at an end; * * * ”
“Your answer to Special Issue No. 1 is decesive of this case—that is if you answered it in the negative. If you answer Special Issue No. 1 ‘No’ the whole lawsuit will be disposed of; * * * ”

We have reached the conclusion that the making of the above argument by counsel for appellee requires a reversal of the judgment of the lower court. This argument was very clearly an appeal to the jury to answer one of the decisive issues favorable to the defendant, not because the evidence warranted it but because the plaintiff was a wealthy corporation and the defendant was a poor man. 41 Tex.Jur. 809, 810; Houston, E. & W. T. R. Co. v. McCarty, 40 Tex.Civ.App. 364, 89 S.W. 805; Humphreys v. Roberson, 125 Tex. 558, 83 S.W.2d 311; Sanders v. Lowrimore, Tex.Civ.App., 73 S.W.2d 148, par. 11; Vaughan v. Kishineff, Tex.Civ.App., 63 S.W.2d 1081.

The suit was brought in the name of the Stewart Oil Company, a corporation, as the alleged owner of the well in question. During the trial it developed that the title to the lease on which the well was located was in the name of W. E. Stewart, who was the president of the corporation. Stewart testified that the lease belonged to the corporation and that he owned no interest therein, but merely held the title for the use and benefit of the corporation. There was no evidence of any attempt on the part of Stewart to defraud the creditors of the corporation. In this connection, counsel for appellee, in his argument to the jury, made the following statements:

“Now gentlemen of the jury, they make a fake, I am going to deliberately call it a fake effort to try to show that the real title to this property was not as the record said but was in this oil company, and that Stewart was holding it as trust estate for the corporation, and I say it is fake because if they don’t prove as a matter of fact that the corporation owned that property, under the rule I have attempted to state to you they go out of court, and ought to go out of court. A man has got no right, morally or legally, to try to come into court and try to recover on a case that he don’t own, and isn’t substantially his; * * *

“Why did the title to this property stand in the name of W. E. Stewart if it wasn’t for the purpose of defrauding the creditors of the Stewart Oil Company? I have got •a right to draw the conclusion that Stewart carried this property in his own name to defraud the creditors of Stewart Oil Company ; ’ * * * ”

The above argument was inflammatory and constituted an improper appeal to the prejudices of the jury. 41 Tex.Jur. 801; Woodard v. Texas & P. Ry. Co., 126 Tex. 30, 86 S.W.2d 38.

The appellant objected to all of the above argument at the time it was made but the court overruled the objection. Later, the court instructed the jury, in writing, not to consider the argument. We are of the opinion, however, that the argument was so inflammatory and prejudicial that its harmful effect could not be fully withdrawn by an instruction of the trial court.

The judgment of the trial court is reversed and the cause is remanded for a new trial.


author: COMBS, Justice.

text:
    STEELE v. WELLS.
    No. 3540.
    Court of Civil Appeals of Texas. Beaumont.
    Nov. 17, 1939.
    Rehearing Denied Nov. 29, 1939.
    C. W. Wiedemann and David E. O’Fiel, both of Beaumont, for appellant.
    McDougald & Beck, of Beaumont, for appellee.
   COMBS, Justice.

This is a suit for damages for personal injuries. Appellant, William Steele, was plaintiff and appellee, W. C. Wells, was defendant in the trial court and we will refer to these parties as plaintiff and defendant.

At the time of his injury plaintiff was a W. P. A. worker, employed on a project near the town of China, which project was sponsored by Jefferson County and the work was being done by the W. P. A. County commissioner, Ben Shipley, in whose precinct the work was being done, contracted with defendant W. C. Wells to furnish a truck and driver to transport the workers to and from the place of work and do such other hauling in connection^ with the project as those in charge of it might from time to time order the truck to do. In accordance with that contract, which was oral, defendant furnished the truck in question with J. L. Kight as driver. On February 2, 1936, while the truck with Kight as driver was hauling a load of W. P. A. workers, including plaintiff, from the place of work to the W. P. A. headquarters in Beaumont, the truck was overturned and plaintiff sustained serious personal injuries. The evidence raised certain issues of negligence against the driver of the truck. However, the trial court instructed a verdict in favor of the defendant on the theory that under the undisputed evidence Kight, driver of the truck, was not the employee of defendant Wells at the time of the accident. The sole question involved on this appeal is the correctness of that ruling. On that issue the evidence is without material conflict. The driver of the truck J. L. Kight was in the employ of the defendant W. C. Wells. He lived on defendant’s premises and defendant paid him his wages for driving the truck. The truck and driver were hired to Shipley for a consideration of ten dollars ($10) per day, the contract being that the truck and driver would be under the orders and subject to the control and direction of the W. P. A. authorities. The driver and truck reported at W. P. A. headquarters each morning. There the W. P, A. project superintendent or one of his assistants supervised the loading of the workers on the truck and gave the workers and the driver of the truck instructions with reference to the W. P. A. regulations; they were instructed how the workers were to board and leave the truck, the speed with which the truck was to be driven, the place the truck was to go, and the route to be traveled. After the men were loaded, the project superintendent would get in his car and drive ahead with instructions to the truck driver to follow after him. On the day of the accident the men quit work at about four o’clock. The workers were loaded on the truck under the supervision of A. H. Blaylock, assistant project superintendent, for their return to headquarters in Beaumont. After they were loaded Mr. Blaylock drove ahead and instructed the truck driver Kight to follow him. While the truck was rounding a curve near the town of China, it was overturned and the plaintiff was injured. It appears from the testimony of all of the witnesses, including the plaintiff, that the defendant never came out to where the work was being carried on, or gave any instructions on the job to the truck driver.

Opinion

Under the undisputed facts as we view them, the truck driver Kight was the servant of the W. P. A. authorities, and not the servant of defendant Wells with respect to the performance of the services in which plaintiff’s injury occurred. True, Kight was in the general employ of the defendant who hired him and paid his wages. But an automobile or truck and its driver may be loaned or hired to another for special services in the performance of which the driver will become the servant of the latter with the legal consequences of that relationship, even though he remain in the general employ of the owner of the vehicle. This principle is too universally accepted and too well recognized by the Texas Courts to require elaborate discussion. S Tex.Jur. 572 ; 39 C.J. 1461; Note: 42 A.L.R. 1416; Krausse v. Decker, Tex.Civ.App., 57 S.W.2d 1124; Maryland Cas. Co. v. Donnelly, Tex.Civ.App., 50 S.W.2d 388. In determining whether the general or the special employer is liable for damages caused by the negligent acts of the servant in cases such as this the right of control as fixed by the contract of employment is the criterion. 42 C.J. 1097; Baldridge v. Klein, Tex.Civ.App., 56 S.W.2d 897; City of Grandview v. Ingle, Tex.Civ.App., 90 S.W.2d 855. The principle is thus stated in 42 C.J. 1097;

“Where the owner of a motor vehicle transfers it with its driver to the service of a third person, liability as between him and the third person for the negligent acts of the driver in operating the vehicle depends upon which of them has at the time the right to control the driver in the performance of his duties not merely as to the result to be reached but as to the method of reaching the result.”

In view of these well recognized principles we think it cannot be questioned that the truck driver was the servant of the W. P. A. authorities. Under the contract W. P. A. had the exclusive right to control the manner in which he operated the truck in question while performing the duties-of the special employment. This included instructions and supervision as to the manner in which the workers were to be loaded on the truck, the place they were to be transported to, the route to be traveled, and the speed at which the truck was to be operated. The truck owner Wells had no right of control with respect to such matters. That all parties so construed the contract is shown by the fact that Wells did not attempt any control of the driver while on the job, while the W. P. A. authorities'did exercise strict supervision and' control of the truck driver and were doing so at the very time the plaintiff received his injury. It follows as a matter of law that the defendant was not liable for the negligent act of the truck driver, and the trial court properly instructed the verdict.

Judgment affirmed.