author: YOUNG, Justice.

text:
    GOLDSTEIN HAT MFG. CO. v. COWEN et al.
    No. 12802.
    Court of Civil Appeals of Texas. Dallas.
    Dec. 16, 1939.
    Rehearing Denied Feb. 10, 1940.

      Lightfoot, Robertson, Gano & Johnston, of Fort Worth, for plaintiff in error.
    Emil Corenbleth, Dallas C. Biggers, Chandler Lloyd, and Donald L. Case, all of Dallas, for defendants in error.
   YOUNG, Justice.

The suit below was for damages sustained by plaintiff, Charles Cowen,- as a result of falling into an elevator shaft located in a three-story building on Commerce Street, Dallas; defendants being Goldstein Hat Manufacturing Company, lessee of the third -floor, R. Tobolowsky, trading as True Fit Uniform Company, lessee of the second floor, and Royal Investment Association, Inc., owner of said building. Following the jury verdict, judg ment was rendered against the Goldstein Hat Manufacturing Company for $5,190, from which it alone has appealed; the trial court concluding in its final decree that plaintiff should take nothing as against the other defendants.

The accident occurred on the first floor of the premises, plaintiff stepping into the elevator shaft from said landing and falling to the bottom of the elevator pit, some eighteen feet below. The two tenants aforesaid were business concerns having daily shipments of express, which were picked up by plaintiff for transportation through his employer, the Railway Express Agency. Briefly, plaintiff’s petition discloses, that on the occasion in question, October 22, 1937, about 5:30 in the afternoon, he went to the building occupied by such tenants for the purpose of gathering shipments, making customary use of the •freight elevator that serviced the second and third floors; that as he went into the building, there was no light burning in the small lobby entrance leading to the elevator; that when he raised the slide gate and stepped onto the elevator, neither it nor the shaft was lighted. Plaintiff further alleged that he went up to the second floor to get a shipment from the True Fit Company, but without success, whereupon, employes of the third floor (Gold-stein Company) were called to turn on a light, which was done; that he was then requested to go to the third floor for some express and, finding same too large for one load, he took part thereof down the elevator to his truck, notifying Goldstein Company workmen that he would return for the balance; that when he came back, there was again no light; that he again raised the gate adjacent to the elevator and shaft, believing the machine was still at the first floor landing; alleging also that he believed said gate to the elevator would not raise unless the floor thereof was at such landing; and being further unaware that it was not equipped with a saftey device to prevent the gate from moving unless the elevator was in position for use. Plaintiff then averred that the elevator was not at the first floor when he attempted to step thereon, resulting in his fall and injuries. Defendants were charged generally with negligence, jointly and severally, in failing to have lights in the elevator shaft and entrance-way, also, in failing to have a proper locking device on the elevator gate; that the Goldstein Company was further at fault in moving the lift from the first floor when it knew plaintiff would be back for the rest of such Company’s express. Defendant tenants denied responsibility for ' plaintiff’s injuries, asserting that under their separate leases, each tenant had -no control or duty as to the elevator or its condition, except as to their respective floors; the occupant of the second floor, True Fit Company, pleading over against the Goldstein Company, claiming the sole cause of the accident was the moving of the elevator between plaintiff’s two trips to the building. Many acts of contributory negligence were alleged against plaintiff, which are best shown in the jury issues and verdict.’ The building owner, Royal Investment Association, Inc., denied all liability under the terms of its separate leases with the other defendants, praying for judgment over against said lessees in event of plaintiff's recovery. All defendants filed motions- for instructed-verdict at the close of the testimony, which were refused.

The issues and verdict of-the jury thereon were, in substance, that: Defendants, at said time and occasion, failed to have a locking device in operation for the elevator gate at the first floor landing, which was negligence and a proximate cause of plaintiff’s injuries; defendants failed to have the entrance to the elevator on the first floor landing lighted, which was negligence and a proximate cause of the injuries; plaintiff’s failure to press the elevator button at the time to find out the location of the elevator was not negligence; plaintiff’s failure to feel for said elevator before stepping out into the shaft was not negligence; the lifting of the elevator gate by plaintiff without first discovering whether the elevator was on the first floor was not negligence; the entrance-way on the first floor at the elevator was not pitch dark on said occasion; plaintiff’s failure to attempt to secure any light before attempting to enter the elevafor was not negligence; plaintiff was familiar with the conditions at said time and place by reason of prior visits, but did not thereby assume the risk incident to his entrance into said building; the light on the third floor of the building, in the elevator shaft, was not burning at the time of plaintiff’s fall; said third floor light, when burning, would shine down past the sides of the elevator and throw some light in the elevator shaft at the first floor ; the lights in the glass meters on the first floor of the building gave no light on said floor; the lights • from the building outside, and the street c'orner, gave some light into the entrance-way on the first floor; the moving of the elevator from the first floor after plaintiff’s first visit and prior to his second trip, was not a proximate cause of the accident; nor was it an intervening cause, or a new and independent cause, or the sole proximate cause thereof; that the failure to have the ceiling light on the first floor in condition to operate was negligence and a proximate cause of the accident, but not the sole proximate cause; the light on the second floor in the' elevator shaft was not burning, but was not negligence; that the elevator was properly constructed and in repair, but that the elevator gate on the first floor was not in proper repair. Plaintiff’s injuries were not the result of an unavoidable accident. There was no light switch on the first floor by which the elevator light on the second floor could be turned on; plaintiff’s going into the first floor lobby while same was dark, was not negligence; plaintiff’s stepping into the dark shaft without first knowing that the elevator was on the first floor, not being negligence; that the elevafor gate was not difficult to open, and that plaintiff’s opening said gate under the circumstances was not negligence. Plaintiff’s failure to ascertain whether said elevator had been, moved during his absence was not negligence ; that plaintiff’s failure to press the elevator button did not proximately cause, or contribute to his said’injuries; that he did not fail to keep a proper lookout; that the light in -the elevator shaft on the third floor was burning when plaintiff left to go to the express office, but was turned off during his absence by an employe of the Gold-stein Hat Manufacturing Company; that the turning off of said light was not the sole proximate cause of plaintiff’s injuries, but was a new and independent cause thereof ; the entrance lobby of the building was not sufficiently lighted for plaintiff to see that the elevator was not on said first floor; that plaintiff, by the exercise of ordinary care; could not have observed the danger of being injured by falling down the shaft, before he opened the gate; nor by the exercise of ordinary care after raising the gate, could plaintiff have observed the danger of being injured by falling down said shaft. Damages were found in the sum of $5,000, plus $190 of medical and hospital bills.

Defendant Goldstein Hat Manufacturing Company thereafter filed motion for mistrial, based on alleged conflicts in the jury answers; also motion for judgment non obstante veredicto. The other defendants filed separate motions for judgment, which were by the court sustained, those of the Goldstein Company were overruled, judgment being rendered against the latter, as already stated, from which it has prosecuted this appeal by petition for writ of error. Said plaintiff in error will be here termed appellant, and Charles Cowen, defendant in error, will be referred to as plaintiff, to avoid confusion. No exception or appeal was taken by plaintiff Cowen to the trial court’s finding against him and in favor of the building owner, Royal Investment Association, Inc., and the second floor tenant, True Fit Uniform Company, as to their liability; Goldstein Hat Manufacturing Company, appellant, taking due exceptions and making such action of the court, in part, the basis of its present complaints.

The gate to the elevator on the first floor was of wood, the machine moving by electricity, a button being within the cage for the operator, and at the several landings. When the elevator was not on the first floor, a constant pressure on the outside button would bring it down, at the same time, according to some, giving a red signal. There was no particular dispute in the fact situation surrounding the accident, save in whether the lights were burning in the shaft from the second and third floors; the lighting facilities on the first floor; and relative to the locking device on the ground floor gate being in repair; i. e., whether said gate could be raised with much difficulty, or at all, unless the elevator was at the same landing. A stairway ran to the upper floors from another part- of the building, but plaintiff’s regular -visits to appellant’s premises and those of the True Fit Company were made by way of said elevator, using it to carry down shipments that might be delivered to him for transportation by the Railway Express Agency. The elevator was for use of both defendant tenants, they having an arrangement as to paying costs of its operation. The lease of each tenant with the building owner provided, in part: “7th. That the lessor shall not be liable to lessee or to lessee’s employes, patrons, or visitors, for any damage to person or property, .caused by the act or negligence of any other tenant of said demised premises, or due to the building on said premises or any appurtenances thereof being improperly constructed, or being or becoming out of repair, nor for any damage from any defects or want - of repair of any part of the building of which the leased premises form a part, but the lessee accepts such premises as suitable for the purposes for which same are leased and accepts the building and each and every appurtenance thereof, and waives' defects therein and agrees to hold the lessor harmless from all claims for any such damage.” Under the terms of these agreements of lease, and the testimony,' it is clear that the lessor defendant retained no kind of control over said upper floors of the building, or the elevator and entrance-way on the first floor; the Goldstein Company and the True Fit Company being the only parties having any use for, or deriving any benefit from, said freight elevator. However, the condition of the elevator and the gates to the shaft on each floor appeared, ■ under the evidence, as being the same as when they were leased to such tenants some two years before. Plaintiff’s explana- • tion for walking through the dark first-floor lobby to the shaft, raising the gate and falling, is that, he believed that the elevator was on the ground floor where he had left it on his first trip; also, he thought the guard or gate would not raise unless the elevator was there.

It is the substance of appellant’s first fourteen propositions that plaintiff’s conduct constituted contributory negligence as a matter of law, the undisputed evidence showing that he, being thoroughly familiar with his surroundings, knowingly entered an unlighted elevator entrance, felt his way back to the elevator guard, raised the same and stepped off into space, without attempting to ascertain the location of the machine, or to secure a light for such purpose, taking no precautions whatever for his own safety and wilfully, placing himself in said position of danger; in other words, that plaintiff’s own statement disclosed a total absence of care, precluding a recovery, and the court should have so instructed the jury.

It is true that plaintiff passed through the darkened entrance lobby to the elevator shaft, there being no lights at said location within his knowledge (as he testified) that could be turned on. He was guilty of the acts of omission indicated in the jury answers, under the belief, as he said, that the gate would not raise “unless the elevator was there”; also believing that the machine was in the position he had left it on the occasion of his first visit. The accident occurred around. six-thirty in the evening. It was plaintiff’s own testimony that no light was on in the building when he came back. He said: “I figured that they turned the light out like it was when I first went there, that’s what I thought, leaving the elevator down where it was. * * * I wondered why they turned the elevator light out knowing I was coming back and knowing I had signed for the express, that which I couldn’t carry, he told me that I would also have more as soon as he could pack it.” Weighing all the evidence most favorably toward the one charged with the want of care, which we must do against a peremptory instruction, we cannot say that plaintiff’s conduct was negligent as a matter of law. Whether •plaintiff exercised ordinary care under all the circumstances was for the jury, unless it can be said that his particular acts and omissions were so opposed to the dictates of common prudence as that no reasonably careful man would have so acted. 30 Tex.Jur. Sec. 153, p. 832; Gulf, C. & S. F. Ry. v. Gascamp, 69 Tex. 545, 7 S.W. 227. Also, Jacobs v. Bailey, Tex.Civ.App., 118 S.W.2d 484, writ dismissed, is quite similar in fact and principle. Appellant’s Texas cases, in support of its propositions for peremptory instruction, generally involve injuries from dangers as obvious or as well known to the injured person as to the adverse party; and are, hence, distinguishable.

Appellant’s nine further propositions are, in substance, that certain answers of the jury to questions involving plaintiff’s negligence, were so contrary to the overwhelming weight and preponderance of the evidence as to show passion and prejudice. We have already concluded, in effect, that there was some evidence to support these findings, and the mere fact that same are against the preponderance of the' testimony does not authorize the Appellate Court to set them aside. 3 Tex.Jur. (Appeal and Error-Civil Cases) Sec. 769, pp. 1097, 1098. “The general rule announced by our Supreme Court is that, in order to justify such action, it must appear that such' finding is without any substantial sdpport in the evidence, or that it is against such an overwhelming preponderance of the evidence as to indicate that the jury were influenced by improper motives, or that manifest injustice has been done or that the same is clearly wrong”. Oden v. McAdams, Tex.Civ.App., 108 S.W.2d. 920, 922. These assignments must likewise be overruled.

Appellant’s twenty-fourth proposition urges that its motion for judgment non obstante should have been granted, because, neither under the evidence, nor jury verdict, was there any duty upon this defendant to maintain the elevator in question ; that the Goldstein lease covered only the third floor with no provisions in anywise giving him any separate possession or control; the landlord, Royal Investment Association, Inc., being responsible for the upkeep of that part of the building, as to which the tenants have only a common use. As we construe the separate leases between the building owner and these second and third floor tenants, the covenants of each lessee were to keep their said premises in good repair, providing against liability “due to the building * * * or any appurtenances thereof being improperly constructed, or being or becoming out of repair, nor for any damage from any defects or want of repair of any part of the building of which the leased premises form a part, but the lessee accepts such premises as suitable for the purposes for which same are leased and accepts the building and each and every appurtenance thereof, and waives defects therein and agrees to hold the lessor harmless from all claims for any such damage”. (Italics ours)

It appears, therefore, that the building owner, under these instruments, retained control over no part of the floors so leased, or appurtenances thereof, which would include the freight elevator; as the latter means of entry was obviously for the sole service andsuse of the tenants named. But, if we be mistaken in this, appellant’s proposition of non-liability for the maintenance of the elevator is not tenable, because of plaintiff’s status on the particular occasion, as an invitee. “It is the business of the tenant, in the first instance, to see that the building and its approaches are safe for those coming there by his invitation, express or implied, and if he negligently permits the building or the access to it to be in an unsafe condition, he is liable for an injury occasioned thereby to such persons”. 16 R.C.L. Landlord and Tenant, Sec. 614, p. 1096; Marshall v. Heard, 59 Tex. 266. “An invitee of a tenant enters the premises under the tenant’s title, and has no greater right against the landlord' than the tenant himself would have. The duty to repair and keep in repair, in the absence of a covenant to the contrary, rests upon him who has rightful possession” (citing authorities). Jackson v. Amador, Tex.Civ.App., 75 S.W.2d 892, 893.

Appellant’s propositions 25 to 30, inclusive, complain of the form of issues 2 and 5, which read: (2) “Do you find from a preponderance of the evidence that the defendants, at the time and on the occasion in question, failed to have a locking device, in operation for the elevator gate at the first floor landing?” (5) “Do you find from a preponderance of the evidence that at the time and on the occasion in question the defendants failed to have the entrance to the elevator on the first floor landing lighted?” ■ Contention is made of no pleading or evidence to warrant a finding of joint negligence, the subject of inquiry being the condition of the first floor as to light, and the locking device on the elevator gate; that the liability of each defendant was governed by different facts and rules of law; that Article 2189, R.S., required separate and distinct issues in determining the liability of parties situated as were the defendants, without intermingling; that, as framed, the issues were on the weight of the evidence, and assumed an equal liability on part of all defendants. Propositions 31 and 32 further point out that the failures of “defendants” in said issues (2 and 5) being found in subordinate issues to be negligence, proximately causing plaintiff’s injuries, and such verdict having been received and filed, the court, under Article 2211, "Vernon’s Ann.Civ.St. art. 2211, could not ignore the findings of liability against all defendants and render judgment against Goldstein Company alone, especially so, in the absence of motions non obstante vere-dicto ; being required by law either to render judgment on the verdict, or set same aside. Proposition 33 is with reference to issues 56 and 58, which are to the effect that the light on the third floor of the elevator' shaft, turned off during plaintiff’s absence, after his first trip to the building, by an employe of appellant, was- a new and independent cause of plaintiff’s injuries ; the contention being that, under no theory of law could such facts be a new and independent cause, in the light of the jury’s findings on issues 2 to 7, so as to excuse the other defendants from all responsibility. This immediate proposition (No. 33) should first be considered, as same is more or less determinative of the various propositions heretofore detailed, but not discussed.

Obviously, issue No. 56 could nót be a basis for recovery by plaintiff, not being plead, nor followed by necessary findings of negligence and-proximate cause; and issue 58, that turning off the third floor light, by an employe of appellant, was a new and independent cause of plaintiff’s injuries, was manifestly given at the instance of codefendants in an effort to shift diability. Counsel for appellant Goldstein and plaintiff Cowen agree that the jury answer to said issue 58 furnished the basis of the court’s action in rendering judgment for the two other defendants and against appellant alone. That the court was not warranted in dismissing such other defendants perforce of this finding, is apparent from the definition of the term “new and independent cause”, as given in the court’s charge; also from a consideration of the pleading, the evidence and the jury verdict.Such cause contemplates that an independent force, instead of the alleged negligent acts of the parties, was responsible for the injuries complained of. Southland-Greyhound Lines, Inc. v. Cotten, 126 Tex. 596, 91 S.W.2d 326. The jury had already determined that “all defendants” failed to have the elevator entrance on the first floor lighted; or a locking device on the elevator gate at such landing; both constituting negligence and proximate cause. The rule is general that “The intervention of an unforeseen and unexpected cause is not sufficient to relieve a wrongdoer from consequences of negligence, if such negligence directly and proximately co-operates with the independent cause in the resulting injury”. Texas Power & Light Co. v. Culwell, Tex.Com.App., 34 S.W.2d 820, 821; Texas Public Service Co. v. Armstrong, Tex.Civ.App., 37 S.W.2d 294, writ refused. Viewing the jury answers as a whole, the court’s reason for dismissing the other defendants, on the basis of issue 58 alone, is not discernible. Issue 19 found that the third floor light, if burning, would throw some' light in the shaft on the first floor. Had there been lights on the latter floor (which the jury said there were not), any illumination on the third floor would have been unnecessary; and had the locking device been in operation, as contended by plaintiff, the accident would not have occurred, irrespective of lights. The facts embodied in issues 19, 56 and 58, on adequate submission and answer, could be regarded only as a concurring cause of plaintiff’s fall, and, as presented in the charge, must be considered immaterial.

Whether the elimination of co-defendants from liability has any other proper foundation under the facts of this record, is the next and natural inquiry. First, as to the Royal Investment Association, Inc., with its cross action over against appellant, and A. Tobolowsky (who had signed the True Fit Company lease, for and on behalf of that concern). Indisputably, this defendant, the building owner, was entitled to a peremptory instruction at the close of the testimony, which disclosed no retention of control over the premises leased, or the elevator servicing the building; the lessees covenanting in their separate contracts of tenancy, not only to keep their respective quarters in good repair, but also for indemnity to the landlord against personal damage sustained by lessees’ patrons, “from any defects or want of repair of any part of the building of which the leased premises form a part”. Said building owner was only a passive tort-feasor, from any construction of issues 2 to 7, assuming, if we may, that the upper floors were in the same condition on date of plaintiff’s injuries, as when leased. Even under the common law, the right of contribution is available to a wrongdoer who is merely passively guilty, as against one who is actively culpable. In such case, “* * * .the principal delinquent may be held responsible to his codelinquents for damages incurred by their joint offense.” 13 Am.Jur., p. 42, Sec. 46; 10 Tex.Jur. (Contribution) Sec. 15, p. 554; Oats v. Dublin Nat. Bank, 127 Tex. 2, 90 S.W.2d 824; City of San Antonio v. Smith, 94 Tex. 266, 59 S.W., 1109. Royal Investment Association, Inc., should have moved for judgment, notwithstanding the verdict, but its failure to do so, under the instant facts,' we regard as harmless error, as a judgment against it would have resulted' in the useless ceremony of a similar recovery in its behalf over and against all other parties defendant, shown to be active tort-feasors.

Unfortunately for the -remaining defendant, True Fit Company, we are forced to conclude that its status as an exculpated party is more vulnerable. Although no jury issue was made as to such fact, the record conclusively reflects that plaintiff was, at the time and on the occasion in question, at least impliedly, an invitee of this concern. Prior to October 22, 1937, and regularly, plaintiff or other employes of the Railway Express Agency had visited the True Fit Company for shipments, using the same freight entrance and elevator. As a rule, shipments from this company were called for earlier in the afternoon than from the Goldstein premises, but plaintiff testified there was no certain time to visit either place. On the day of plaintiff’s accident, as the testimony disclosed, the True Fit Company was not operating, but was taking inventory with only a small force; all packages being picked up by the Express Agency around noon, or not later than 4 P. M., the business closing around 4:30 P. M., all second floor doors locked, including the opening to the elevator. However, it was the testimony of plaintiff that his initial visit to the building around 5:30 P. M. was in response tó a call from the True Fit Company. When he arrived and tried to attract their attention from the elevator, the Goldstein em-poyes called to him from the third floor, with a considerable shipment, resulting in his second trip and fall. Referring to such last, or ill-fated, trip, plaintiff testified:

“Q. When you went back the second time you were going there to get some more packages from the Goldstein Hat Company? A. Yes.
“Q: That was your sole purpose? A. Yes, and I was supposed to see if anyone showed up at the True Fit Garment Company.
“Q. Did you see anybody there? A. I don’t know, I never got to the door to find out.”

We conclude that on the occasion of plaintiff’s injuries, he was an invitee of both above tenants, on whom rested the duty of exercising ordinary care to see that their respective premises were in a reasonably safe condition, so that persons, such as plaintiff, who were there on invitation, express or implied, might not be injured; the duty extending to reasonably safe means of ingress and egress. 45, C.J. (Negligence) Secs. 220, 237, 241, pp. 809, 827, 834; Morten Inv. Co. v. Trevey, Dallas, Tex.Civ.App., 8 S.W.2d 527; Foster Lumber Co. v. Rodgers, Beaumont, Tex.Civ.App., 184 S.W. 761; Aiken v. Sidney Steel Scraper Co., 197 Mo.App. 673, 198 S.W. 1139; Brody v. Cudahy Packing Co., Mo.App., 127 S.W.2d 7.

Both Goldstein Company and True Fit Company were found equally negligent, proximately resulting in plaintiff’s injuries, under primary facts both plead and relied upon by him for a recovery. See issues 2 to 7. But plaintiff does not appeal from the judgment below, appellant alone complaining that the True Fit Company should jointly bear the liability imposed by the jury verdict. Counsel for said defendant, True Fit Company (or R. Tobolowsky), vigorously asserts that appellant has no legal right to complain, the proposition being that, Goldstein Company, a defendant in the trial court, and properly liable under jury findings, asking for no relief over against its codefendant, is not entitled to assign error to a judgment in favor of the other defendants, or to seek reversal or modification of the trial court’s judgment as to them; citing, among other cases, Northern Texas Traction Co. v. Woodall, Tex.Civ.App., 294 S.W. 873, 877, reversed on other grounds, Tex.Com.App., 299 S.W. 220. In the case just cited, defendant Traction Company had plead over against Bonner in Woodall’s suit for damages. Under jury issues, both defendants were found to be equally guilty as tort-feasors, judgment rendered in favor of Bonner with no exception by the plaintiff. These were the facts from which the court held that: “ * * * we do not think that the appellant is in a position to complain of this action. The two defendants were alleged to be joint tort-feasors, and that their negligent acts, jointly and severally, or both, were the proximate cause of plaintiff’s injuries. It is a well-settled rule that one of two joint active tort-feasors cannot recover of another likewise guilty of wrong.”

The Woodall case, however, in view of the jury findings, is authority for the denial by the lower court of the True Fit Company’s cross action for indemnity against appellant, both being equal tort-feasors under issues 2 to 7, already discussed. In this situation, therefore, and as Art. 2212 has been construed, appellant has been deprived of a valuable right in the release by the trial court of codefend-ant True Fit Company; for appellant was entitled to have such party retained in the cause as a basis for statutory contribution. Gattegno v. The Parisian, Tex.Com.App., 53 S.W.2d 1005.

Returning briefly to a consideration of propositions 25 to 30, arguing error in failing to submit, special issues 2 and 5 as related to each defendant, we conclude the effect of the court’s submission was to elicit single facts, without reference to any consequent responsibility. The inhibition of Art. 2189 against intermingling of issues is recognized, but all parties to this cause must agree that the record facts are somewhat unusual. More than one of the various defense witnesses admitted there was no light on the entrance floor, the testimony of others being negative. Similar negative testimony appears as to the locking device on the first floor elevator gate, and the fact that plaintiff raised it and fell demonstrates, at least, some defect in such device. The inclusion of “defendants” in the particular issues was but surplusage, we think, just as the same expression would be, in an issue involving the condition of a street car door, the vehicle shown conclusively to be under maintenance and control of two traction companies. These propositions are each overruled. Appellant’s propositions 34 to 40, inclusive, have already been discussed.

Propositions 41 through 44 complain of a statement by the court to the jury after their discharge, and before they had left the court room, as follows: “Now, gentlemen of the jury, you can discuss this case with anyone you like now, but if you don’t want to get a one dollar bill given to you and brought back here again, and if you don’t want to spend two or three days on this matter, you had better not talk and -you had better keep your mouths shut and not talk to anyone.” The bill of exceptions further disclosed that the jury, during the course of its deliberations, had written a note to the trial judge, asking, in substance, the effect of findings by them of negligence on the part of both plaintiff and defendants; the court advising them, in open court, that he could not answer their question, no exception being taken to this incident at the time. Also was set forth in the bill, testimony of A. O. Grissom, an investigator for defendants, to the effect that he had attempted to interview all jurors in the case, each of whom had refused to give any information as to their deliberations. It is argued that the court’s instructions tended to suppress facts of misconduct, which, if same existed, defendants had a right to develop. Art. 2234, R.S. No attempt was made to bring the jurors into court for interrogation in , support of the motion for new trial. The jury were told that they were free to talk as they pleased about the case, then being generally advised as to the result of ex parte statements. The- remarks of the court are disapproved, as having a tendency to conceal misconduct, whereas, the jury should be left free to make full disclosure of their deliberations touching possible irregularities. It is immaterial that the jury discussed the effect of their answers, if 'they, in fact, have answered all questions solely from the viewpoint of the evidence. 41 Tex.Jur. (Trial Civil Cases) Sec. 347, p. 1212. Whether or not the antecedent jury note evidenced misconduct, was properly determinable under the statute; and defendants were in nowise denied the right of such procedure.

Appellant's propositions 45 and 46 show that a certain city ordinance and rules, previously admitted at the instance’ of plaintiff, defendants objecting, were láter withdrawn from the consideration of -the jury on plaintiff’s request; the court instructing the jury to disregard the same, but indicating a belief that the instruments were admissible. Appellant’s objection then made was: “* * * that the evidence has already been placed before the jury and is of such nature that, in our opinion,it1 cannot be erased from their minds by thus being instructed not to consider it”; whereupon, the court unqualifiedly instructed the jury not to consider such evidence. Appellant’s brief enlarges upon the grounds stated in the exception regarding the above matters (no former bill of exceptions having been preserved), so review will be limited to the objection as shown in the statement of facts. There is nothing to indicate injury to defendants from such withdrawal of the evidence, Freeman v. Cleary, Tex.Civ.App., 136 S.W. 521, writ denied; the jury issues bearing only on common law liability. Appellant’s 47th proposition of law is grounded upon the refusal to submit issues 7 and 8, inquiring if the admitted failure of plaintiff to call up the elevator shaft to those above, to find out the location of the elevator, was negligence and a proximate cause of the accident. No error is shown in such action of the court. The issue is indefinite in form, and, if referring to the second trip, assumed a knowledge by plaintiff that employes of the defendants were on the upper floors, a fact not conclusively reflected by the testimony. Besides, the court’s charge sufficiently comprehended the gist of such defensive issue. Propositions 48, 49 and 50 can be properly overruled without comment, because the particular definition and issues have already been discussed.

It is our conclusion that the judgment of the trial court, in favor of Charles Cow-en against Goldstein Hat Manufacturing Company, should be affirmed; also reformed in the respect herein stated. Plaintiff having sued the defendants, Goldstein Hat Manufacturing Company and R. Tobolow-sky (trading as the True Fit Uniform Company), seeking to establish a joint and several liability, and the jury having found facts making it simply a ministerial duty of the court to render judgment against both defendants, jointly and severally; but the court, under a mistaken view of its duty in the premises, having rendered judgment alone against appellant, discharging defendant Tobolowsky from all liability, that fact should not, in our opinion, affect or defeat appellant’s right to contribution against Tobolowsky. Appellant having complained of the action of the court in the respect'just mentioned, praying for relief, we think the judgment should be reformed by recognizing and establishing appellant’s right to contribution against R. Tobolowsky (trading as True Fit Uniform Co.), as authorized by-Article 2212, R.C.S., to the extent of one-half of any amount appellant is compelled to pay on said judgment, and it is so ordered; and that, to avoid a multiplicity of actions, appellant is entitled to execution against R. Tobo-lowsky, to compel contribution to the extent authorized, as just mentioned.

Reformed and affirmed.


source: Caselaw Access Project

author: MURRAY, Justice.

license: Public Domain

text:
    JOHNSON v. WILLACY COUNTY WATER CONTROL & IMPROVEMENT DIST. NO. 1.
    No. 10797.
    Court of Civil Appeals of Texas. San Antonio.
    Jan. 31, 1940.
    • P. G. Greenwood and Myrick & Johnson, all of Harlingen, for appellant.
    Smith & Hall, of Edinburg, for appel-lee.
   MURRAY, Justice.

This is a condemnation proceeding in which the appellee, Willacy County Water Control & Improvement District No. One, filed a petition for .condemnation, on September 27, 1938, against the then owner of the land in question, Herman Schieffer, to condemn a right-of-way described in the petition over which to build a canal embankment for the purpose of irrigating lands within the water district. Intervener below and appellant herein, Myrlin O. Johnson, purchased the property from the original owner, Herman Schieffer, and in said purchase received an assignment of the cause of action for damages in this cause.

Hearing was had on the 28th day of September, 1939, and judgment was rendered on October 9, 1939, by Honorable James R. Norvell, as special judge of the County Court of Hidalgo County. The trial was to the court, without the intervention of a jury, and resulted in a judgment affirming the award made by the commissioners, allowing $25 per acre for the 7.4 acres of land condemned, and denying any further relief for damages in behalf of the inter-vener, from which judgment Myrlin O. Johnson has appealed.

While appellant did not question the authority of the special county judge in the court below and although no -assignment of error is presented on this appeal raising such question, nevertheless, counsel for appellant did suggest during oral agreement that this Court is without jurisdiction to hear this cause because the special judge was not properly selected, and was therefore without authority to act. Appellant has filed a memorandum of authorities in support of this suggestion and ap-pellee has likewise filed a memorandum of authorities answering such suggestion.

If the record should disclose that the special judge was not selected in one of the manners provided either by Art. 1930 or 1934, R.C.S.1925, such matter would present a question of fundamental error and would not be waived by the appellant voluntarily appearing and trying his case before such special judge without objection or exception. Grogan v. Robinson, Tex.Civ.App., 8 S.W.2d 571; Bailey v. Triplett Bros., Tex.Civ.App., 278 S.W. 250.

Such question of fundamental error is governed by two well established rules in this State.

The first rule is to the effect that where a case has been tried before a special judge,-without exception or objection, and the record is silent as to the reason for and manner of his selection as such special judge, the appellate court will presume that the proper cause existed for the election of such a special judge, and that he was selected in one of the manners provided by statutes, Art. 1930 or 1934, R.C.S. 1925, for the selection of such special judge. Bailey Bros. v. Lochman, Tex.Civ.App., 241 S.W. 626; Hess v. Dean, 66 Tex. 663, 2 S.W. 727; Compere v. Girand, Tex.Civ.App., 42 S.W.2d 278; Shultz & Bro. v. Lempert, 55 Tex. 273.

The second rule is that where the record affirmatively shows that the special judge was selected for a reason not provided by the statutes, or that he was not elected or appointed in the manner provided by law, then and under such circumstances fundamental error is presented and must be noticed by an appellate court, whether assigned or not. Pickett v. Michael, Tex.Civ.App., 187 S.W. 426; Dunn v. Home National Bank, Tex.Civ.App., 181 S.W. 699; Grogan v. Robinson, Tex.Civ.App., 8 S.W.2d 571.

Among the findings of facts made and filed herein we find the following: “(8) The Honorable Oliver C. Aldrich, being unable to hear this cause, J., R. Nor-vell, a duly licensed and practising attorney was, by agreement of the parties selected as Special Judge to hear the proceedings, and duly qualified as such Judge, as provided by law.”

This finding of fact affirmatively shows that the Special Judge, J. R. Norvell, Esquire, was selected by agreement of the parties, a method provided for by Art., 1930, for the reason that the regular judge was unable to act, a reason provided for in Art. 1934, supra.

It is suggested by appellee that even though the finding is that the regular County Judge was unable to act, such finding does not preclude the idea that he may not also have been disqualified to act. We cannot agree with this contention. A fair interpretation of the finding is that the special judge was agreed upon for the reason that the trial judge was unable to act. If the regular judge had been disqualified it could have been stated in a few words, and there would have been no occasion to mention his being unable to act.

In Pickett v. Michael, Tex.Civ.App., 187 S.W. 426, it was held that the judgment of a special judge, selected by agreement, was a nullity and void because the record showed the special judge was selected by agreement of parties because the regular judge had to undergo a surgical operation the following day and therefore had to be absent. It might have been argued in that case that there was nothing inconsistent between being absent for an operation and also being disqualified, and that in addition to being absent the trial judge might also have been disqualified, which fact was not expressly negatived, but the court held that the record disclosed the selection of the special judge for a reason other than that of his disqualification.

In Dunn v. Home National Bank, Tex.Civ.App., 181 S.W. 699, a special judge was selected by agreement of parties because the trial judge was absent under quarantine restrictions. He might also have been disqualified, but the judgment was reversed because the special judge was not qualified to act and his judgment was void.

In Grogan v. Robinson, Tex.Civ.App., 8 S.W.2d 571, the special judge selected by agreement of the parties was held to be disqualified, the record showing that a special judge was selected by agreement of the parties, because the regular judge was called out of town. The record does not affirmatively show that such regular judge was not also disqualified to try the cause.

In the above three cases the court held, in effect, that the parties were bound by the record and it is presumed the special judge was agreed upon for the reason stated, although the record did not affirmatively show that there were not other reasons.

Following these authorities, we feel that we must presume that in the case at bar a special judge was agreed upon by the parties for the reason, and only for the reason, that the regular judge was unable to try the case. This being the case the special judge was without authority to act and his judgment rendered herein is a nullity and void.

The judgment is reversed and the cause remanded.

NORVELL, J., did not participate in the decision of this case.


author: NORVELL, Justice.

text:
    KALLISON et al. v. SOUTHLAND LUMBER CO.
    No. 10658.
    Court of Civil Appeals of Texas. San Antonio.
    Jan. 31, 1940.
    Mueller & Mueller and Elbert Jandt, all of Seguin, for appellants.
    Dibrell, Mosheim & Campbell, of Seguin, for appellee.
   NORVELL, Justice.

The Southland Lumber Company sued Morris Kallison, Perry Kallison and Mason Altgelt in the Justice’s- Court of Precinct No. 1, Guadalupe County. The Justice’s Court rendered a judgment in favor of the Lumber Company and against Altgelt and Perry Kallison. Recovery against Morris Kallison was denied. An appeal was taken to the County Court of Guadalupe County, and there, after a trial before the court without a jury, judgment was rendered against Altgelt and both Kallisons. Morris and Perry Kallison bring the case here as appellants. Mason Altgelt appeared at neither of the trials in the lower courts, and has not appealed.

The question presented is one of the sufficiency of the evidence to support the judgment

Morris Kallison owned an oil and gas lease in Guadalupe County and entered into an oral agreement with Altgelt to drill a well upon the lease at an agreed price of $1.75 per foot, Altgelt to furnish everything' necessary to the drilling operations, such as labor and material.

Perry Kallison and one H. Lehman, not a party to the suit, had purchased a drilling rig at the cost of $5,000 and under a written agreement leased the same to Altgelt for $10 a month. The written agreement itself negatives the existence of a partnership between Perry Kallison and Alt-gelt. Perry Kallison, however, did testify that because of past relationships with Altgelt, it was his intention to allow Alt-gelt to use the rig at a nominal rental so that he could get enough money to purchase a third interest in the drilling machinery. This particular drilling rig was used by Altgelt upon the Morris Kallison lease.

Altgelt purchased a bill of materials from Southland Lumber Company which was originally charged to him. Later, however, Altgelt .told the Lumber Company he was just acting as agent fo.r Morris Kal-lison, and requested that the bill be changed and charged to Kallison. This was done and a demand for payment made of Morris Kallison, who, by letter introduced in evidence, denied all liability therefor.

It also appears that Morris Kallison paid a few of Altgelt’s employees. Morris Kal-lison testified that Altgelt’s performance under the contract was unsatisfactory, and that he put another man on the job to complete the well; that at the time of hi3 settlement with Altgelt he paid all the bills owed by Altgelt that he knew anything about and paid the balance to Alt-gelt. Altgelt did 'not testify upon the trial.

The trial court made no findings of fact and conclusions of law, and consequently all facts necessary to support the judgment will be presumed to have been found by the trial court, providing such findings are. supported by the evidence.

As to Perry Kallison it is conceded by appellee that if the evidence is insufficient to support a finding that Perry Kallison and Altgelt were partners, the judgment against Perry Kallison is erroneous. The evidence, briefly set out above, is insufficient to establish a partnership. The fact that Perry Kallison may have had the intention of forming a partnership with Altgelt at some future date, cannot make him liable as a partner of Altgelt’s at the time the Lumber Company’s bill was incurred. Fink v. Brown, Tex.Com.App., 215 S.W. 846.

As to Morris Kallison a number of theories are advanced, but in answer thereto it is sufficient to state that the facts of this case, as herein set out, were insufficient to support a finding that Kallison was liable upon the theory of agency, expressed or implied. Kallison was in no way es-topped to deny liability upon the bill in question simply because he owned the lease, and appellee may have expected Kallison would pay the bill incurred by Altgelt. 2 Tex.Jur. 448-450; Mechem on Agency, § 743; Burk Burnett-Mann Oil Co. v. Robertson, Tex.Civ.App., 240 S.W. 1046.

This case was apparently fully developed in the trial court, and that portion of said court’s judgment awarding a recovery against Morris Kallison and Perry Kallison will be reversed and here rendered in favor of said appellants. That portion of the trial court’s judgment awarding a recovery against Mason Alt-gelt will not be disturbed.


author: O’QUINN, Justice.

text:
    FEDERAL UNDERWRITERS EXCHANGE v. BICKHAM et al.
    No. 3561.
    Court of Civil Appeals of Texas. Beaumont.
    Jan. 6, 1940.
    Rehearing Denied Jan. 17, 1940.

      Touchstone, Wight, Gormley, Stras-burger & Price, of Dallas, Levert J. Able, of Houston, and Benbow, Saunders & Holliday, of Dallas, for plaintiff in error.
    Sanders & McLeroy, of Center, for defendants in error.
   O’QUINN, Justice.

This is a workmen’s compensation suit. W. G. Gray was the 'employer; Ed B. Bickham the employee; and Federal Underwriters Exchange the compensation insurance carrier. We shall refer to plaintiff in error as appellant, and defendants in error as appellees. On June 20, 1937, while •engaged in the course of his employment as an employee of W. G. Gray, Ed B. Bick-ham received an injury resulting in his death. Mrs. Ellie B. Bickham, wife of Ed B. Bickham, deceased, individually, and as next friend for Joy Bickham and Ed Carroll Bickham, minor children of Mrs. Bickham and- her deceased husband, Ed B. Bickham, duly filed claim for compensation with the Industrial Accident Board. On November 19, 1937, the Board made its final ruling awarding compensation to appellees. Appellant duly gave notice that it would not abide said award and filed this suit to set aside that ruling.

The case was tried to a jury upon special issues, upon their answers to which judgment was rendered for appellees for compensation at the rate of $20 per week for 360 weeks to be paid in a lump sum, one-third of said recovery being adjudged to attorneys representing appellees.

Appellant presents its first three assignments together. The first complains that counsel for appellees, while examining the jury panel, stated to said jurors in substance that appellant brought the suit to set aside the award of the Industrial Accident Board, and that the suit must be tried de novo, and that the burden of proof was upon the claimants to show they were entitled to recover, regardless of what it was, just to show that they were entitled to recover. That upon this statement being made, motion for mistrial and discharge of the jury was made by counsel for appellant because the statement of counsel for appel-lees was immaterial, irrelevant and highly prejudicial, and informed the jurors, of the effect of the final award of the Industrial Accident Board on the claim, which motion was overruled by the court and was reversible error. This assignment is overruled. . The statement did not inform the jurors what the award was, nor was the statement calculated to work injury to appellant.

The second assignment complains that the court committed reversible error in refusing to declare a mistrial and discharge the jury, because by reading to the jury certain portions of the appellees’ answer and cross-action counsel for appel-lees had thereby informed the jury that an award had been made by the Industrial Accident Board in favor of appellees from which award appellant had brought this appeal. Appellant also incorporates into its bill of exceptions to the court’s action in not sustaining its motion for mistrial, that it specially excepted to the allegations in paragraph 9 of appellees’ first amended original petition and cross-action because said allegations were immaterial and irrelevant, were highly prejudicial and should be stricken, because they were conclusions of the pleader, allegations of law rather than fact, and were highly prejudicial, and the court committed reversible error in overruling its special exceptions. The court certifies the bill of exceptions with the qualification that the malters stated in the bill are certified only as the motion and objections of appellant. No facts are certified as having transpired or existed, merely the statement of counsel for appellant. We have examined the various portions of ap-pellees’ petition referred to by appellant and do not find anything that told the jury or was calculated to inform the jury what the award of the board was, but merely that an award was made. This certainly was not objectionable. No error is shown in refusing the motion to declare a mistrial.

The third assignment complains that the court erred in not sustaining its motion for a mistrial and discharge of the jury, because counsel for appellees by reading paragraph 10 of their first amended original petition to the jury, considered in connection with other stated portions and allegations in said petition, in which plaintiffs alleged why the compensation should be paid in a lump sum. Appellant insists that the pleading informed the jury that the award of the board was in favor of appellees, and also was prejudicial to appellant. A careful reading of the pleadings in both paragraphs 9 and 10 of appellees’ petition fails to disclose facts plead by appellees that would support appellant’s contention. The assignment is overruled.

Assignments of error 4 and 5 complain of the following argument of counsel for appellees in his opening argument to the jury:

“I wish, gentlemen, when you go out you would carry this instrument with you (referring to defendants and cross-plaintiffs’ Exhibit No. R-20, same being the instrument attached to the written deposition of R. O.- Kniveton and marked Exhibit A and attached to the interrogatories of said R. O. Kniveton to said such written depositions). The first thing up here at the top, over here, it don’t even have any consideration over here; it is left blank, for the consideration of blank dollars. Now, you read that instrument, and then you read the next one, over here it says ‘The Delta Drilling Company, a Texas corporation; that is rubbed out and that is not in the other instrument either. That wasn’t carried through because something fell through on that. The consideration over here is not named; that is the place there, not entered, and Kniveton signed every one of them, he was asked to put his name on every page so there wouldn’t be any question about it being the same instrument he testified about. That is interlined; see if the other one is interlined. This one interlined there, and see if the other one is interlined. What else? Oh, gentlemen, the strongest detail in the whole case is right there — the 30th day of June, 1937, Kniveton wanted to get it back before the man’s death but the facts, gentlemen, will not lie. We have been told that since we were boys and since we were children, and there it is, dated, and the notary public himself put his name in there, dated the 30th day of June, 1937, ten days after this man lost his life. If you will take that and hold it up between you and the sun I won’t say you will, I will say I believe you can see it distinctly right there as the 30th day there. What else? Shows Kniveton joining — ”
“I withdraw that and ask the court to instruct the jury not to consider what I said about the notary part as far as I am concerned.”
“I don’t care who put it there, it’s there,” * * * I don’t care about arguing with you gentlemen, what the notary did. That’s right; I told the court I didn’t have any desire to argue that point. But I have a right to argue there that 30th day on this instrument. Now, that has been in Knive-ton’s possession; it has not been in our possession, it hasn’t been in that good woman’s possession yonder where she could get it to use it but it has been in Kniveton’s possession. This is the copy that he had; that bears the 30th day of June, 1937, ten days after that boy was killed over there. Yet Kniveton says this agreement was entered into — let me say one thing then I won’t take but a little more' of your time. This instrument here, gentlemen, was never recorded at all; never was; never was put on record. My recollection —now, I could be mistaken about that but my recollection is that Kniveton testified in his deposition that this instrument was recorded, and my recollection is he said this one; whether he did or whether he did not, that has never been recorded.”

The 4th assignment is that there was no evidence in the record that the signature referred to by appellees’ counsel was the signature of any person; that there was no evidence to show the signature was that of J. Clifton Kemp, a notary, and that there was no evidence that the date alluded to was June 30th. An examination of the record discloses that the evidence did raise the issue of the instrument having been duly executed, and that same was executed before J. Clifton Kemp, a notary public in and for Caddo Parish, Louisiana. The record further discloses that at the time counsel for appellees made the argument complained of, he voluntarily withdrew that part of his statement that the notary had put his name to the instrument then in controversy, and requested the court to instruct the jury not to consider same, which the court did, and the presumption is that they obeyed the order of the court and did not consider that portion of the argument. The remarks complained against, if improper, were not of such a nature that the instruction could not cure same. However, a complete answer to the assignment is that the bill of exception itself recites that “despite anything in this bill above stated, there was evidence on the trial of said cause that J. Clifton Kemp was a Notary'Public in and for Caddo Parish, Louisiana.” Further, the question as to whether the instrument about which the argument was made had been executed on June 30, 1937, had strong support in the evidence that it was so executed. So the argument was proper.

Appellant presents its 6th to 18th assignments, inclusive, grouped. These assignments relate to several distinct and separate matters. They attempt to assert error in the submission of special issue No. 3 (had Bickham worked in the employment in which he was engaged on June 20, 1937, when he received his fatal injuries for substantially the whole of the year immediately preceding the date of his injuries) ; and special issue No. 4 (what amount of money did Bickham earn during the whole of the year immediately preceding the date of his injuries); and special issue No. 5 (what was the average weekly wage of Bickham for the year immediately preceding the date of his injuries) ; and special issue No. 6 (whether an employee of the same class as Bickham had worked, substantially- the whole of the year immediately preceding the date of Bickham’s injuries) ; and special issue No. 7 (what was the average daily wage of an employee who had worked for substantially the whole of the year immediately preceding the date of Bickham’s injuries). These issues were submitted over the objections of appellant, as follows:

“The cross-defendant objected to the submission of said special issues as follows:
“Cross-defendant objects and excepts to Special Issue No. 3 contained in the court’s main charge as follows and for the following reasons:
“(a). Because there is no pleading that Ed B. Bickham worked in the employment in which he was engaged at the time of his fatal injuries for substantially the whole t of the immediately preceding year;
“(b). Because the pleading is insufficient to support a finding by the jury that Ed B. Bickham worked in th,e employment in which he was engaged at the time of his fatal injuries for substantially the whole of the immediately preceding year;
“(c). Because there is no evidence that Ed B. Bickham worked in the employment in which he was engaged at the time of his fatal injuries for substantially the whole of the immediately preceding year;
“(d). Because the evidence is insufficient to support a finding of the jury that Ed B. Bickham worked in the employment jn which he was engaged at the time of his fatal injuries for substantially the whole of the immediately preceding year;”
“Cross-defendant objects and excepts to the instruction immediately preceding Special Issue No. 4, reading: ‘If you have answered Special Issue No. 3 Yes, and only in that event, you will answer Special Issue No. 4, next following,’ as follows and for the following reasons:
“(a). Because same amounts to a conditional submission to the jury of Special Issue No. 4; that is, the jury is not permitted to answer Special Issue No. 4 unless they have first answered Special Issue No. 3 Yes, thereby depriving the defendant of a right to have Special Issue No. 4 answered unconditionally.
“Cross-defendant objects and excepts to the instruction immediately preceding Special Issue No. 5, reading as follows: ‘If you have answered Special Issue No. 4 by stating any amount of money, and only in that event, you will answer Special Igsue No. 5, next following,’ as follows and for the following reasons:
“(a). Such instruction amounts to and is a conditional submission to the jury of Special Issue No. S and deprives the cross-defendant of the right to have the matters inquired about in said Special Issue No. 5 submitted to the jury unconditionally, to the prejudice of the cross-defendant;”
“Cross-defendant objects and excepts to Special Issue No. 6 contained in the Court’s charge, as follows and for the following reasons:
“(a). Because there is no pleading to support the submission of such issue to the jury;
“(b) Because the pleading is insufficient to support the submission of such issue to the jury;”
“Cross-defendant objects and excepts to Special Issue No. 7 contained in the Court’s charge, as follows and for thé following reasons:
“(a). Because there is no pleading to support the submission of such issue to the jury;
“(b). Because there is no evidence to support the submission of such issue to the jury.”

It is thus seen that the several assignments are duplicitous and multifarious— grouping assignments pointing to separate and unrelated matters in violations of the rules controlling briefing of assignments of error. 3 Tex.Jur. p. 855, Sec. 597; Id. Sec. 614; Id. Sec. 616; Largent v. Etheridge, Tex.Civ.App., 13 S.W.2d 974; Parker v. Allison, Tex.Civ.App., 22 S.W.2d 338; Clevenger v. Burgess, Tex.Civ.App., 31 S.W.2d 675, writ refused; Traders’ General Life Ins. Co. v. Powell, Tex.Civ.App., 44 S.W.2d 764, reversed on other grounds. Appellees object to our considering the assignments, and we think their objections should be sustained. However, in any event, the assignments do not show fundamental error, and the several findings by the jury in answer to the issues have ample support in the record.

Assignments 19 to 23, inclusive, relate to deceased Bickham working on Sundays. The jury answering special issue 9 found that Bickham did work on Sunday, and that the work done was a work of necessity, and in answer to No. 8, that his contract of hire obligated him to work seven days a week. It is first insisted that the evidence does not support the finding that the work performed by deceased on Sundays was a work of necessity. The undisputed evidence shows that Bickham’s employer was engaged in drilling oil wells, and that Bickham was an experienced oil well driller. He had had years experience as such driller and had worked for Gray, his employer, in this capacity for several years, and was so working at the time he received his fatal injury. It is a matter of common knowledge that when oil wells are being drilled, the nature and difficulties of the work call for constant and unre-mittant operations, and that of necessity no stopping can be indulged unless unavoidable. The operations are thus forced to be continued day after day, unless by reason of unavoidable occurrences they are forced to cease. It is a kind of work generally recognized as one of “necessity” and so lawfully performed on Sunday. Maryland Casualty Co. v. Marshall, Tex.Civ.App., 14 S.W.2d 337, writ dismissed. Furthermore, while working on Sundays is forbidden by the penal statutes (Vernon’s Ann. P.C. arts. 283, 284), unless the work done is one of necessity, still the question of whether work done was work of necessity is one of fact for the jury. Daniels v. Southern Surety Co., Tex.Civ.App., 40 S. W.2d 209, writ refused. Secondly, it is contended that the contract between Bick-ham and Gray required Bickham to work on Sunday, and so was against the penal statute, which rendered the contract void, and thus there being no contract of employment, appellees could not recover. This contention is without merit. Daniels v. Southern Surety Co., Tex.Civ.App., 40 S.W.2d 209; Carter Publications v. Davis, Tex.Civ.App., 68 S.W.2d 640. As stated above, working on Sunday is not penalized when the work done is one of necessity. That oil field worker’s employment contract required continuous work seven days weekly does not show, as a matter of law, a violation of the statute forbidding working on the Sabbath, work of necessity not being limited to unavoidable physical necessity. Maryland Casualty Co. v. Garrett, Tex.Civ.App., 18 S.W.2d 1102, writ dismissed; Lloyds Casualty Co. of New York v. Grilliett, Tex.Civ.App., 64 S.W.2d 1005, writ refused.

Assignments 24 to 33, inclusive, presented grouped, complain that special issue No. 1 should not have been submitted to the jury. It reads: “Do you find from-a preponderance of the evidence that Ed B. Bickham was an employee of W. G. Gray on the 20th day of June, 1937, at the time he sustained the fatal injuries?” It was answered “Yes.” The pleadings of ap-pellees and the evidence adduced raised the issue. It was properly submitted. Complaint is also made of the submission 'of special iss'ue No. 2, which reads: “Do you find from a preponderance of the evidence in this case that the fatal injuries-suffered by the said Ed B. Bickham were sustained by him while in the employment, if any, by the said W. G. Gray?” It was answered “Yes.” It is insisted that this issue was (a) duplicitous; (b) too general; (c) no pleading to authorize its submission; (d) no evidence to warrant its submission; (e) evidence insufficient to support its submission; and (f) was on the weight of the evidence and assumed that Bickham was in the employment of W. G. Gray. None of the objections to the special issues were well taken. The pleadings and the evidence raised the issues and they were in proper form and properly submitted, and the evidence amply supported the jury’s findings. While we have considered the matters complained in the assignments, they should not have been under the statutes and rules governing briefing of assignments of error. The several assignments, 24 to 33, inclusive, relate to separate and distinct’matters, and so could not be grouped in presentation.

Assignments 34 and 35 assert that there was no evidence to justify the submission of the special issue relating to the payment of compensation in lump sum. The assignments are overruled. The pleadings were ample and the evidence supports the jury’s findings.

Assignments 36, 37, and 38 complain that the charge of the court was conflicting and confusing as to the burden of proof, did not contain a guide with respect to the burden of proof, and was calculated to confuse the minds of the jurors as to where the burden of proof rested. These assignments are overruled. Each special issue submitted to the jury began: “Do you find from a preponderance of the evidence.” This is the method recommended and approved by the supreme court. 41 Tex. Jur., p. 1194, Sec. 335; Texas Employers’ Ins. Ass’n v. Finney, Tex.Civ.App., 45 S.W. 2d 298, writ refused; Federal Underwriters Exchange v. Bullard, Tex.Civ.App., 128 S.W.2d 126; Traders & Gen. Ins. Co. v. Huntsman, Tex.Civ.App., 125 S.W.2d 431, writ dismissed. Neither did the admonitory portions of the court’s charge relating to the issues submitted constitute error. They were proper and timely. 41 Tex.Jur. p. 1186, Sec. 330; Speer’s Special Issues, Sec. 145, p. 194; Id. Sec. 604, p. 790.

Assignments 39 and 40 urge that the court erred in not sustaining appellant’s special exception to the allegation in appellees’ petition that they were entitled to $20 per week compensation for 360 weeks because of the injuries and death of Ed B. Bickham, and that said compensation to which they were entitled amounted to $7,-200, and prayed for judgment in that amount. The grounds of the special exception to said pleading were that said allegations were merely conclusions on the part of the pleader, were questions of law and not of fact, were immaterial, irrelevant and highly prejudicial. To these exceptions, appellant has in its brief added a statement found .in one of its bills of exceptions, that the court, over its objections, permitted counsel for appellees to read the pleadings excepted to' (subdivision “d”, paragraph 3, alleging' appellees entitled to $20 weekly compensation) to be read to the jury to its prejudice. An inspection of the record (recitals in bill of exception No. 2) shows that. subdivision “d” of paragraph 3 of appel-lees’ first amended original answer and cross-action was not read to the jury. Appellant appealed this cause from an award of the Industrial Accident Board. Appel-lees answered and by cross-action sued for compensation, and set up the necessary facts to show jurisdiction- in the trial court, and the necessary facts to entitle them to compensation. While it may not be necessary for the claimant to allege directly the amount involved in his claim before the board, yet it is considered the better practice to do so in a contest in the trial court hearing the matter on appeal. Beal v. Texas Indemnity Ins. Co., Tex.Com.App., 55 S.W.2d 801; 45 Tex.Jur. p. 805. The contention that the allegation of the weekly wage sought to be recovered was an allegation of law, is not sound. Traders’ & General Life Ins. Co. v. Williams, Tex.Civ.App., 66 S.W.2d 780. As in principle supporting this holding, see: Employers’ Liability Assurance Corporation v. Sims, Tex.Civ.App., 67 S.W.2d 445. If the matter complained was error, it was harmless.

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


author: CODY, Justice.

text:
    BEARD v. SMITH et al.
    No. 10915.
    Court of Civil Appeals of Texas. Galveston.
    Jan. 25, 1940.
    Rehearing Denied Feb. 15, 1940.

      McComb & Davis, of Conroe, for plaintiff in error.
    Geo. N. Lusch, of Houston, for defendants in error.
   CODY, Justice.

As will appear from the docket number of this case in this court, this is the writ of error suit prosecuted by Covey A. Beard, receiver, from the default judgment cancel-ling a certain oil, gas and mineral lease, and awarding damages, — which is referred to in our opinion delivered in the proceeding styled Smith et al. v. Rogers, District Judge, et al., reported in 129 S.W.2d 776, wherein we declined to issue a writ of prohibition against the prosecution by Covey A. Beard, receiver, of a bill of review attacking the default judgment — which default judgment the said receiver seeks in this proceeding to have reversed.

Before 11 o’clock the morning of June 21, 1938, which was appearance day, the appearance docket was called, and this default judgment was taken, and the evidence on the issue of damages heard. This we necessarily infer, because the clerk of the court received and filed plaintiff in error’s answer on the same day said judgment was taken, and indorsed on said answer, “Received at 11:00 A. M. 6/21/38.”

As indicated, the default judgment can-celled a certain oil, gas and mineral lease, and awarded plaintiffs in judgment damages. The lease so cancelled was given by Eleanor T. Smith, the surviving widow of W. T. Smith, deceased, on a tract of land in Grimes County, on. January 22, 1923, which was some fourteen years before Covey A. Beard was appointed receiver. The judgment for damages appears to have been awarded on the basis of the rental, value of the oil rights in the land since January 22, 1923, at the rate of $1 per acre per year. The answer of the receiver, which, as just stated, was filed by the clerk after default judgment was rendered, consisted of a disclaimer, and, subject to such disclaimer, the answer consisted of a general denial, and a plea of not guilty of the wrongs and trespasses alleged in plaintiffs’ petition.

On October 22, 1938, defendants in error caused an alias execution to be issued on the default judgment to the sheriff or any constable of Montgomery 'County, which is the county where the receiver resides, and the county the district court of which appointed him receiver in June, 1937. This alias execution was levied on November 8, 1938, on certain property in Montgomery County, which was advertised for sale on December 6, 1938, but the sheriff’s return shows that the sale was not made because plaintiffs’ attorney requested the writ be not further executed, and the return was filed in court on December IS, 1938; and on December 19, 1938, the receiver applied for writ of error.

In the recent case of Craddock v. Sunshine Bus Lines, Tex.Com.App., 133 S. W.2d 124, 126, the Supreme Court sanctions this rule: “A default judgment should be set aside and a new trial ordered in any case in which the failure of the defendant to answer before judgment was not intentional, or the result of conscious indifference on his part, but was due to a mistake or an accident; provided the motion for a new trial sets up a meritorious defense and is filed at a time when the granting thereof will occasion no delay or otherwise work an injury to the plaintiff. This is a just rule. It prevents an injustice to the defendant without working an injustice on the plaintiff.” Of course the quoted rule is for the guidance of the trial court, and is not applicable unless it has been invoked there. But had plaintiff in error applied seasonably in the trial court to have the judgment set aside, there seems to have been no basis to refuse such application. For the record in this case indicates that there was no intention on the part, of the receiver not to answer in the cause, and the purpose to disclaim any interest in the lease, and to deny any responsibility for damages in connection therewith, is manifested by the receiver’s answer. And it would seem somewhat difficult to hold a receiver, who was only appointed as such in 1937, liable for damages in connection with a lease, in which he disclaimed any interest, which damages are alleged to have accrued for the greater part prior to his appointment, and which for the greater part were subject to the plea of limitation. Indeed, if under the law and the facts the receiver was liable for the damages sued for, it was his duty in the preservation of the properties over which he was appointed receiver to plead the statute of limitations in bar. However that may be, this is an attack by the receiver against the judgment of the trial court by writ of error; and as the judgment was by default, the trial was ex parte, it will only be for errors apparent on the face of the record as so made, that the judgment will be reversed. The test, as we understand it, to be applied in' this case is: (1) Are the allegations of the petition, if they were proved, sufficient to support the judgment rendered. (2) Is the proof admitted at the trial sufficient to support the allegations. And, of course, if there was a want of necessary parties, no binding judgment could be rendered.

In substance the allegations of the petition, which cover some 14 pages of the transcript, boil down to this: That defendants in error, Mrs. Smith and her twelve children, one or more of whom were minors in 1922 (but none of whom joined in executing the lease, nor did she purport to bind their interests), were the fee-simple owners of the land subjected to the lease in 1923, at the time the lease was given. That at such time a trust estate, the Empire Lease & Royalty Company, acting through trustees, agents and employees, by false and fraudulent and material representations induced Mrs. Smith, who was unable to read or write, to execute the oil lease in question. That said trustees, etc., represented among other things that the lease was only a five-year lease, whereas it is by its terms a twenty-year lease, which provides that if production has not been obtained in five years of the date the lease was executed, the lessee is bound to release the leased premises upon demand being made therefor. That there had been no exploration for oil on defendants in error’s land, and that defendants in error have demanded of the receiver that he release said land, and tendered him a release which he declined to execute. And that defendants in error have been wrongfully deprived of the rental value of the land in question for oil purposes since January 22, 1923, at the rate of $300 per year, and thus damaged $4,000. The allegations bearing on the appointment and powers of the receiver are these: “VIII. The Receiver, Covey A. Beard, has been appointed receiver in Texas for all the assets of the Empire Lease and Royalty Company, a Trust Estate, and has authority thereunder to sue and defend all litigation regarding the assets of the Trust Estate, and therefore plaintiffs are suing him for a cancellation of this lease in that capacity.”

Defendants in error’s proof of the authority of the receiver is an uncertified, unsigned instrument which was testified to be an order of the district court of Montgomery County in said Vineyard v. Mellon case appointing Covey A. Beard receiver. This instrument is dated August 20, 1937, and recites:

“And it further appearing that on June IS, 1937, upon the presentation of petition of the plaintiff to the court, that Covey A. Beard was appointed receiver of said trust estate for the purpose of taking charge of the property of said trust estate which is involved in a certain law suit in Brazoria County, Texas, entitled Empire Lease & Royalty Co., Ltd., v. Jay Simmons, et al., pending a hearing on plaintiff’s petition for a receiver of all the property of the Empire Lease & Royalty Co. as trust estate; and it further appearing that the said 'Covey, A. Beard has made the required bond and qualified as such receiver;
“It is therefore ordered by the court that the receivership heretofore granted, be extended to include all of the assets of the Empire Lease & Royalty Co., a trust estate, and that Covey A. Beard, of the County of Montgomery, State of Texas, be and he is hereby appointed receiver of all the assets of the Empire Lease & Royalty 'Co., a trust estate,*and that he take immediate possession and charge of all such properties with full authority to demand possession of the same and to enter suit against any and all parties having possession of any of the assets of said trust estate with full authority to defend any and all law suits brought against said trust estate and brought to his attention, especially that of Ethel Florence Moore, et al. v. S. W. Mellon, Jr., et al.; No. 27362 on the docket of the District Court of Brazoria 'County, Texas, and to compromise any such law suit and generally to manage the property of such trust estate subject to the further orders of this court.”

The only allegation made by defendants in error with reference to the authority of the receiver is that the receiver “has authority to sue and defend all litigation regarding the assets of the .Trust Estate * * * .” They made no allegation that the receiver had authority to make releases such as defendants in error contend the receiver should have made. We believe the petition, so far as it sought damages against the receiver on the score that the receiver did not release the property on demand, was subject to a general demurrer, because it was not alleged that he had authority to do so. Brown v. Warner, 78 Tex. 543, 14 S.W. 1032, 11 L.R.A. 394, 22 Am.St.Rep. 67. And certainly the proof offered failed to show that the receiver was given any such authority. The closing words of the order of appointment, which we have italicized, shows that the court gave no such authority to the receiver, but retained it. The following letter was introduced in evidence by defendants in error to show that the receiver refused to make the release upon demand. It merely proves that the receiver indicated the matter of a release had to be referred to the action and decision of the court.

“Replying to your letter of March 1st, about the Eleanor Smith lease in Grimes County, it is my understanding that the court is not authorizing the receiver to make voluntary releases in the early stages of the proceedings to reduce to possession the assets of the Empire Lease and Royalty Company. However, in the end of the litigation such may be done, I do not know.
“If you care to submit to the receiver a proposition to settle the matter by releasing most of the lease and validating the other portion for the balance of the term, I will be glad to submit the same to the court.
“It would appear to me that a validation of 20 acres would be sufficient consideration to justify the court in authorizing the receiver to release the balance.
“This is other people’s property, you understand, and the court is hardly authorized to give it away because the real owner might claim that he should not have done so.
“If you will submit this proposition, I will promptly attend to the same.”

■As the judgment of the trial court must be reversed, for the reasons given, we will not pass on plaintiffs in error’s other assignments of error.

Judgment reversed, and cause remanded.

Reversed and remanded.


author: DUNKLIN, Chief Justice.

text:
    TEXAS PUBLIC UTILITIES CORPORATION v. MARTIN.
    No. 14023.
    Court of Civil Appeals of Texas. Fort Worth.
    Feb. 2, 1940.

      R. B. Flood, of Weatherford, and Cantey, Hanger, McMahon, McKnight & Johnson and Carlisle Cravens, all of Fort Worth, for appellant.
    Ben J. Hagman, of Weatherford, for appellee.
   DUNKLIN, Chief Justice.

This appeal is by the Texas Public Utilities Corporation from a judgment against it in favor of W. T. Martin, for damages resulting to him from an injury which he alleged he. sustained in stepping into an' open water meter box maintained by the defendant on a sidewalk of one of the public streets of the City of Weatherford.

In answer to special issues, the jury before whom the case was tried found that defendant was guilty of negligence in the following particulars, each of which was the proximate cause of -the injury sustained by plaintiff when he stepped into the meter box and fell, to-wit:

(a) In setting up and placing the meter box on the sidewalk and traveled portions thereof.
(b) In failing to provide and keep in good repair a lock to fasten the lid on the meter box'.
(c) In failing to lock and keep locked and fastened said lid.
(d) In failing to provide a cover or lid that would sit securely on the meter box.
(e) In allowing the grooves in the side of the meter box to become so filled with dirt and debris that the lid failed to sit securely on the box.

All of those issues were tendered in plaintiff’s pleading.

Preliminary to the issues, the court gave definitions of “ordinary care”, “negligence”, “contributory negligence” and “proximate cause”. Definition of the latter was as follows: “You are instructed that the term ‘proximate cause’, as that term is used in this charge, means the moving and efficient cause, without which the injury in question would not have happened; an act or omission becomes the proximate cause of an injury whenever such injury is the natural and probable consequence of the act or omission in 'question, and one that ought to have been foreseen by a person of ordinary care and prudence in the light of the attending circumstances. It need not be the sole cause, but it must be a concurring cause, which contributed to the production of the result in question, and .but for which the said result would not have occurred.”

Plaintiff testified that he was 43 years of age; that bn January 2, 1939, at 8:00 o’clock in the evening, while walking towards town, he stepped in defendant’s open water meter box located in about the center of the sidewalk, which caused him to fall and sustain the injury for which he sued. According to plaintiff’s testimony, there was no lid on the meter box when he stepped in it and fell and his leg was injured. Testimony of other witnesses for plaintiff showed ' without controversy that the lid, which weighed thirty and a half pounds, was lying to one side and near the meter, with the bottom side up, thus showing that some one had removed it from the box. According to testimony introduced by defendant, the lid was not removed by any of its employees or by any one else at defendant’s instance. And according to the testimony of one witness, the lid was on and covered the box about one hour before the accident occurred. It was undisputed that the lid was unlocked and no lock provided for it.

Oscar Green, witness for plaintiff, testified that on one occasion just before Christmas of 1938, he found the meter box lid sitting “antigodling”, meaning partly over and partly off the box, ■ and he pushed it back over the top of the opening, without lifting it, and that it fitted in a groove. J. C. Gunn, an employee of the defendant, as a meter reader, was introduced as a witness for plaintiff and testified that he read this particular meter some time between the 16th and 23rd of December, 1938; that he always read the water meters of the defendant between those dates of each month, and had done so for five years; in order to read them it was necessary to first remove the lid; if the lid was locked he unlocked it with a heavy metal key he carried for that purpose; that although the lid on this box had no lock on it he had never found it off the meter box; that the only way you can remove the lid from any box is to lift it off with a key inserted in a slot in the lid; that the meter box is about 14 inches deep and 12 inches wide; and that no complaint was ever made to him that there was anything wrong about the meter box; when he found the grooves in the edge of a box filled with sand, his custom was to remove it; that. he could not remember finding that condition in this box; he never reported to ,his company the absence of a lock on the lid or anything about the lid not fitting into the grooves; that it was his duty to report to the defendant any defective condition of the water box.

Such testimony was sufficient prima facie to support a finding that plaintiff’s injury resulted from some new and independent intervening agency other than the negligence of defendant. And the failure of the court in omitting from the definition of proximate cause the element of new and independent intervening agency, to-wit, some person other than an employee of defendant, upon defendant’s objection pointing out that -omission, was reversible error. Texas & N. O. Ry. Co. v. Robinson, Tex.Civ.App., 57 S.W.2d 938, and decisions there cited. Also, Miller v. Panhandle & S. F. Ry. Co., Tex.Civ.App., 35 S.W.2d 194; Blanch v. Villiva, Tex.Civ.App., 22 S.W.2d 490. See, also, Leap v. Braziel, Tex.Com.App., 121 S.W.2d 334, in which it was held that although the definition there invoked was erroneous, yet the error was harmless, since the evidence showed liability of the defendant as a conclusion of law. Robertson & Mueller v. Holden, Tex.Com.App.; 1 S.W.2d 570, and cases there cited.

Indeed, plaintiff’s allegations of negligence in failing to keep the lid. on the water box locked, and in permitting debris to accumulate in the grooves of the box and thereby prevent a secure seating of the lid, were necessarily referable to the removal of the lid by some third person other than an employee of defendant. They could have no application to the defendant’s reader of meters, because in order to read them it was necessary for him to remove the lid so he could look down in the opening and see the' meter dial, whether or not the lid was locked, or insecurely seated in the grooves, as the result of accumulation of sand therein. And the evidence shows without dispute that the meter reader was the only employee charged with looking .after ffie condition of the water box.

In appellee’s briefs it is further insisted that the definition of proximate cause given, by the court necessarily excluded an. intervening cause or agency, citing the opinion of the Court of Civil Appeals in Texas & Pacific Ry. Co. v. Bufkin, 46 S.W.2d 714 (writ of error dismissed), in which a definition quite similar to the one in question here was held to exclude the element of intervening cause, even though there was evidence tending to show such. In Leap v. Braziel, Tex.Com. App., 121 S.W.2d 334, the decision in the Bufkin case was noted. Also the opinion of the Court of Civil Appeals in Panhandle & S. F. Ry. Co. v. Miller, 64 S.W.2d 1076, in which it was stated that the definition given in the Bufkin case was favorable to the defendant. The court also cited the decision of our Supreme Court in Phoenix Ref. Co. v. Tips, 125 Tex. 69, 81 S.W.2d 60, 61. From the last cited case we quote the following from the opinion of Justice Critz:

“In this connection the term ‘proximate cause’ is generally defined by our authorities as that cause which, in natural and continuous sequence, unbroken by any new and independent cause, produces the injury, and without which the result would not have occurred. 30 Tex.Jur. p. 710, and notes. Of course there are some cases of proximate cause in which the issue of new and independent cause does not arise.
“Where under the evidence it is necessary to use the phrase ‘new and independent cause,’ or a phrase of similar meaning, in defining ‘proximate cause,’ it is proper to define the phrase ‘new and independent cause.’ This term or phrase means ‘the act or omission of a separate and independent agency, which destroys the causal .connection between the negligent act or omission of the defendant and the injury complained of, and thereby ■ becomes, in itself, the immediate cause of such injury.’ 30 Tex.Jur., p. 712, and notes.
“We think a mere statement of the rules of law involved in the question of proximate cause as applied to the evidence we have detailed demonstrates that the trial court should have stayed in the beaten path in submitting the issue of proximate cause. This is evident because had he done so the defendant could have requested a charge or charges defining the term. As it was he was denied this right.
“Also the evidence we have detailed shows that in defining ‘proximate cause’ it would have been necessary to use the phrase ‘new and independent cause,’ or a phrase of similar import, and this being true, defendant would have been entitled to a charge defining ‘new and independent cause.’ He was deprived of this by the way the case was submitted. New and independent cause was in the case because of the circumstance of Tips passing the other car just before the collision with the events attendant upon such passing.
“Also the question of whether the Refining Company ought to have foreseen the accident and its resultant injuries was raised by the evidence in this record. The charge as submitted was calculated to eliminate such question.”

We believe that special issue No. one was erroneous, because it submitted the alleged negligence of defendant in maintaining the water meter box on the sidewalk, irrespective of the condition in which it was maintained, in the absence of any pleading or evidence that its presence on the sidewalk was of itself necessarily dangerous to the public and that it necessarily could have been placed at some other location, without impairing defendant’s duty to furnish water to the citizens of Weather-ford. . Indeed, in plaintiff’s pleadings the complaint is of failure to keep the lid locked and properly fitted in the grooves of the box provided to hold it in place; with no allegation of negligent construction of the box, or that its presence on the sidewalk was per se a dangerous public nuisance, for which defendant was answerable; but that the conditio'n in which it was maintained was the negligence for which defendant .was liable. With those specific issues of negligence submitted it was error to submit the first issue under which the jury might have found that, independently of those specific issues of negligence, the defendant had no lawful right to maintain the water box in the traveled portion of the sidewalk, at all events.

Since the judgment must be reversed and the cause remanded, for the errors indicated above, we deem it unnecessary to discuss other assignments of error presented in this record, except to say that if there be evidence sufficient to support a finding that the lid was removed from the water box by some third person, other than an employee of defendant, then defendant cannot be held liable for the resulting injury to plaintiff in the absence of a further showing that by the exercise of ordinary care it could and should have discovered that condition and replaced the lid before the accident in question happened, and the failure of the court to submit that phase of negligence as a basis for recovery was error, as pointed out by appellant in some of its assignments of error.

For the reasons noted, the judgment of the trial court is reversed and the cause remanded.