author: WALTHALL, Justice. PRICE, Chief Justice WALTHALL, Justice.

text:
    TEXAS & N. O. R. CO. v. HANEY.
    No. 3981.
    Court of Civil Appeals of Texas. El Paso.
    Oct. 3, 1940.
    On Rehearing Nov. 14, 1940.
    Montgomery & Taylor, of Edinburg, and McDaniel & Catlett, of McAllen,, for appellant.
    Kennedy Smith, of Raymondville, Saw-nie B. Smith, of Edinburg, and E. B. Ward, of Corpus Christi, for appellee. ■
   WALTHALL, Justice.

This is a personal injury suit. On December 3, 1933, while appellee, Conrad Haney, was riding in a truck with a trailer, driven by Vollie Adair, the truck came in collision with a freight train of the Texas & New Orleans Railroad Company at a railroad crossing with a public highway, near the town of Edinburg, Hidalgo County, Texas, and in which collision Conrad Haney received the injuries for which he sues.

The injuries sustained by Haney, as alleged, are that his left leg and the flesh, bones, muscles and ligaments thereof, were crushed, torn and broken to such extent that it was necessary to amputate his left kg' at or about the knee joint; that thereafter it was necessary again to amputate the left leg six inches above the knee joint; that in the collision he sustained injuries to his head, scalp, skin and bones of his head, and that as a result of said injuries he is permanently injured and made a cripple for life.

The evidence shows that at the time of his injuries plaintiff was healthy and strong, and was earning seventy dollars per month; he alleges that as a result of his said injuries his earning capacity has been diminished, if not destroyed. He alleged that by reason of his injuries he suffered and still suffers physical and mental pain and will continue to do so; that because of his injuries he incurred hospital, medical and nurses’ expenses and doctors’ bills, which he itemizes, and which aggregate $2,358.25.

Plaintiff alleges as a proximate cause of his injuries each of the following grounds of negligence, and each of which the court submitted to the jury, substantially as alleged, in special charges, namely: operating the train at an excessive rate of speed at the time it approached the highway crossing in controversy; failure to blow-tile whistle sufficiently to give warning to the traveling public of the approach of the locomotive to the highway crossing; failure to ring the bell continuously during the time the locomotive was approaching from a distance of 1,200 feet and passing the highway crossing; that the railroad train as it approached the highway crossing on the occasion in controversy was not under control of the operators thereof; failure to have at the crossing of the highway in question an adequate signaling device sufficient to give warning to the traveling public generally who might then have been approaching said crossing with ordinary care in motor vehicles; failure to have a human flagman at the crossing in question on the occasion in controversy to give warning of the approach of the train at said crossing to the traveling public generally who might then have been approaching said crossing with ordinary care in motor vehicles; discovered peril of plaintiff and failure of the fireman to use such means at his command to prevent injuring plaintiff; the collision was an unavoidable accident; was the train driven at a speed such that it could not be brought to a stop in the distance withim which the occupants thereof could see and distinguish objects within the range of the headlights on said motor vehicle. The jury found all issues of negligence as- ’ signed and submitted in favor of the plaintiff, and that each was a proximate cause of the injuries plaintiff sustained.

The court submitted and the jury found all issues of contributory negligence in favor of plaintiff.

The jury found that plaintiff sustained damages by reason of his injuries and assessed his damages at $32,359.25.

The court received the verdict and entered judgment in accordance therewith, that is, entered judgment for $30,000, the remaining unpaid amount of the verdict.

On defendant’s motion for a new trial, which embraced grounds of alleged misconduct of the jury, the court made findings of fact to the effect that the foreman read to the jury the charge of the court, then propounded to the jury the following questions: “Whose fault was the accident?” or “Who was most to blame for the accident?” or “Is Conrad Haney entitled to some consideration?” and that all of the jurors indicated either that they thought the railroad was at fault for the accident, was more to blame for the accident, or that Conrad Haney was entitled to some consideration, according to the question propounded. The court found that the foreman then read again each issue and that as each issue was reached the jury agreed upon the answer thereto, but that the answers were not, on said reading, written down. The court found that then the foreman for the third time read over each issue to the jury and that on said reading, as each issue was reached, the jury’s answer thereto was written down according to the way they agreed to answer the same at the second reading of the issues. The court found that on the third reading there was inserted, in answer to issue No. 7, the amount of the damages found by the jury. The court found that the amount of the damages was arrived at substantially in the following manner: the jury first voted on whether or not they would find $40,000 as the amount of the damages. Only about three of the jurors voted this amount. The court found that the jury then voted on $35,000 as the amount of the damages and that only five or six of the jurors voted for said amount. The court found that then the jury voted upon $30,000, in addition to hospital, medical and doctors’ expenses, as the amount of the damages, and that the jury agreed upon $30,000 in addition to the $2,359.25 doctors’, hospital, etc.; expenses, as the damages, and thereupon wrote down $32,359.-25 as the amount of the damages. The court made other findings which we think immaterial, but found that no such misconduct of the jury was shown as would warrant setting aside 'the verdict, and overruled the motion.

Opinion

Appellant assigns error in overruling its motion for a new trial for the reason that the amount of $30,000 assessed as damages by the jury was so exorbitant that when coupled with the misconduct of the jury in first deciding the .questions stated by the court in passing upon appellant’s motion for a new trial, and stated above, before specifically answering the questions submitted to them, as found by the court, and further coupled with the fact that the answer of the jury with reference to the failure to blow the whistle, ring the bell, have the train under control, adequate signaling device, a human flagman at the crossing, and questions of discovered peril, were so contrary to the preponderance and weight of the evidence, the same show such extreme passion and prejudice against defendant on the part of the jury that it could not be considered by reasonable minds that defendant had received a fair trial.

The trial court heard the evidence in considering the motion for a new trial and found that there was no misconduct on the part of the jury in the matter charged in the motion. We think the evidence sustains the court’s finding as to misconduct of the jury.

We think, however, the jury’s findings on the issues of negligence and proximate cause referred to in the assignment are not sustained by the evidence. The evidence shows, we think, by several disinterested witnesses and the train crew that the train whistle was blown, the bell was rung, no evidence to show the train was not under , control. The evidence shows adequate signaling device; the evidence does not show the necessity for a human flagman at that highway crossing, nor is the evidence sufficient to show discovered peril. The only evidence in the record to show that the whistle was not blown and the bell was not rung was that plaintiff did not hear either, plaintiff did not see the wig-wag or wigwag posts; the evidence, by photograph and otherwise, shows that both were there. The evidence shows the accident occurréd very early in the morning of December 3rd, when it was yet dark, and there was a heavy fog.

The court submitted the issue of excessive speed at which the train approached the highway crossing. The court in the charge to the jury gave no standard of comparison or criterion for the’.jury to go by in deciding the issue, nor was any requested. The jury found the issue in ap-pellee’s favor. We think we cannot say, in view of all the evidence in the case, the jury’s finding on the issue of excessive speed was wholly speculative.

We have carefully considered the entire record of more than three hundred pages of evidence and have concluded that the only real issue in the case is the question of the amount of the verdict. Is it excessive? We have concluded that we.should not set the 'judgment aside and grant ⅛ new trial on any of the issues ‘ presented. We have concluded that the verdict is excessive. . ; , ’

If the appellee will enter a remittitur o.f $10,000 within twenty-five days from the date of filing this opinion the case will be affirmed; if no remittitur is made, the judgment' will be set aside and a new triál granted.

We have considered the assignments not specifically discussed, and they are each overruled.

PRICE, Chief Justice

(concurring).

While I concur with Justice WALT-HALL in the disposition of this case, not being entirely in accord with some of the holdings in his opinion, I deem it not inappropriate to state my grounds for concurrence.

While’ of no special significance, it might be stated that this is the second appeal of this case. By transfer from the San Antonio Court it was before the Beaumont Court. Haney v. Texas & N. O. Ry. Co., Tex.Civ.App., 119 S.W.2d 714. A judgment in favor of defendant was reversed on the ground of conflict in the findings as to contributory negligence.

In this case appellant contends, among other things, that the verdict of the jury upon which the judgment is founded was arrived at through passion and prejudice. If this appears from the record, the judgment should not stand.

Passion and prejudice are sought to be deduced from, first, the alleged misconduct of the jury; second,, from the amount of damages found; third, it is charged that certain findings in the verdict are entirely against the weight of the evidence, against the overwhelming preponderance thereof, and that this established passion and prejudice ; . fourth, that the three matters before enumerated, taken together, establish passion and prejudice.

The issue of misconduct was found by the trial court against the contention of appellant. Findings of the trial court as to same are not attacked. It was certainly harmless in itself for the jury to decide and discuss “who was to blame for the accident,” and that “plaintiff was entitled to some consideration.” If this discussion was susceptible of the construction made by the trial court that the plaintiff was entitled to damages, it may create a suspicion that the jury, in answering the question, might have sought to frame their answers so as to bring about a result, but does not establish the fact. The findings negative this fact, and we think there is a support in the evidence therefor.

As to the question of damages, the amount found is large, and we think too large. In a personal injury case the question of damages nearly always is a question of opinion. There is no criterion laid down by the law for the valuation of mental suffering and physical pain. Compensation is the end sought. Opinions of men and bodies of men will always differ thereon. For these elements the amount that may be assessed is not unlimited. Unless the amount is so large as to shock the conscience, a jury is not to be convicted of passion and prejudice simply because the damages are too large. Articles 1861, 1862, R.S.1925, were in part, no doubt, passed to prevent new trials where the only error was in the award of excessive damages.

The assessed damages are large, the injury was grievous; plaintiff, a youth of eighteen, lost his leg above the knee,.two amputations were necessary; the pain and suffering were intense and prolonged; almost of necessity his capacity for earning has been materially decreased throughout the rest of his life; his earnings at the time were seventy dollars a month; he was strong and healthy and had a life expectancy of 43.5 years. The expenses reasonably accruing on account of his injuries amounted to $2,358.25. This amount is not included in the judgment, although found by the jury. It may have been same was paid by defendant before the trial. The assessment of $32,359.25 as damages, in view of the facts, we do not believe is any evidence of passion and prejudice on the part of the jury.

Complaint is made of the finding of the jury as to the sounding of the whistle in approaching the crossing. The issue was not submitted under the statutory duty as to the blowing of the whistle on approaching the crossing. The issue submitted was: “Do you find from a preponderance of the evidence that the whistle on defendant railroad company’s locomotive at the time said locomotive was approaching the highway crossing on the occasion in controversy was not blown sufficiently to give warning of the approach of said locomotive to said crossing to the traveling public generally who might then have been approaching said crossing with ordinary care along said highway in motor vehicles?” This was found in favor of the plaintiff, as were the related issues of negligence and proximate cause. An entire failure to blow the whistle is not found, but that the whistle was not sufficiently blown. Here, again, we have a matter as to which the minds of men may reasonably disagree. The evidence is that there was a heavy fog, visibility was low, and the train was about to proceed to a much-used crossing at a rate of speed of 30 miles per hour. Concede the truthfulness of all of the witnesses, and it may have been that the whistle, was not sufficiently blown to give warning to travelers on the highway. The situation was unusual; and ordinary care might have required unusual precaution in this respect. The engineer realized this, and said he blew the whistle at a point beyond the regular whistling post. The dense fog and surrounding conditions might have called for the almost continuous sounding of the whistle. It is thought that this finding does not evidence passion or prejudice on the part of the jury.

In substance it was found that the bell was not run continuously from a distance of 1,200 feet from the crossing until same was passed. Plaintiff and the driver of the truck testified when they approached the crossing before the collision neither heard the bell. From appellant’s statement under the assignment it is not clear just how far, under the evidence, the bell started ringing from the crossing. Miss Eikenberry testified she heard the bell as the train approached the crossing, but how far the train was from the crossing at such time does not appear. The same is true of the testimony of the witness J. E. Webb. The engineer does not fix definitely the distance from the crossing the automatic bell started ringing. Fireman Moser testified he started the bell at the Edinburg station. The testimony of plaintiff and the driver of the truck was admitted that they were in a position to hear the bell, and did not hear same, and is some evidence that the bell was not rung. Another question is presented, however, and that is, is the probative effect of this testimony destroyed by the positive testimony that the bell was ringing? There is some confusion and disagreement as to this in our decisions. Here, this question need not be determined, for we are considering only as to whether or not the findings of the jury were influenced by passion and prejudice. If the legal effect of the positive testimony be as contended by the appellant, the jury were not so charged — no guidance was given them in the matter. The negative testimony was admitted and the issue submitted to them. Hearsay testimony ordinarily is without probative effect. Suppose in such a case where same is admitted the jury makes a finding based on same, could it be for a moment contended that such a finding was based on passion or prejudice? It is thought not, even though the evidence clearly be insufficient to support the verdict.

The jury found the train in question was not under control. Control, as the controversy developed, depended on speed. There was no evidence that the brakes and the devices for controlling the train were not in proper order. Defendant’s engineer testified that in his judgment his speed was 30 miles an hour. There is no question but the evidence raised the issue as to the speed of the train constituting negligence when taken in connection with the low visibility, the consequence of the fog then prevailing. This finding does not evidence passion and prejudice. This is true even though the issue, together with supporting issues, might not justify a recovery.

There was a finding that at the time in question defendant did not maintain an adequate warning device at the crossing, and that same was negligence and was a proximate cause of plaintiff’s injury. It is clear at or near the crossing some sort of warning device in the nature of a wig-wag was maintained by defendant. In the statement there is no detailed description of the device. It was a bell and lighted or illuminated disc. On the occasion in question plaintiff Haney testified he was keeping a lookout and failed to either hear the bell or see the light. It is perhaps, a reasonable inference that a warning signal at a railroad crossing that can be neither seen nor heard by one approaching a crossing, a fog prevailing, is inadequate to properly warn the approach of a train along the track. The bell may have been ringing, it might have been heard by others and still might not have been heard by one approaching the crossing in a truck. There is incident to the operation of a truck necessarily some noise. It might be said this is true as to the operation of a railroad train, and that the engineer and fireman each heard the bell. To this it might be said that their position and the position of plaintiff was somewhat different. They had reason to believe that the bell was sounding there and were expecting to hear same. It seems that it would be a reasonable precaution on their part to ascertain whether the signal was functioning before proceeding across the crossing. It is not believed that this finding establishes that passion or prejudice inheres in any part of the verdict.

Issues were submitted on discovered peril. These issues are numbered 7-1, 7-1a, 7-1b, 7-1c, 7-1d, 7-1e, and 7-lf. Issues 7-1 and 7-la could, under the evidence, be answered only in the way they were answered by the jury. Under the evidence Haney was in a position of peril before the collision and he was discovered by defendant’s fireman before the collision. So as to issue No. 7-lb. Before the collision there was a realization of defendant’s fireman of Haney’s danger. The controversy arises as to the ■ finding that after the discovery and realization of Haney’s peril that by the use of ordinary care the injury could have been prevented by defendant’s employees.

The testimony of the fireman is that, on discovering the near approach of the automobile to the intersection, he shouted to the engineer to “big-hole” the train. This the engineer seems to have done, but this did not prevent the collision, although it seems same was almost averted. There is no evidence of lack of promptitude on the part of the engineer in the application of the brakes. If the collision could have been avoided it seems that some other means than slackening the speed of the train must have been resorted to. Plaintiff contends that a blast of the whistle would have done it. This, I think, is a mere conjecture. It is thought that the issue of discovered peril was not raised by the evidence.

If the evidence was insufficient to raise the issue, it was not an issue in the case. It should not have been submitted to the jury.

If an improper finding by the jury on an issue not in the case vitiates findings on the real issues in the case, then one of the purposes of submission on special issues is defeated. Piad this case been submitted on a general charge and the issue of discovered péril submitted, perhaps it would necessitate a reversal of the case. But here we have a judgment founded on material issues arising under the pleadings and evidence. Each and every member of the jury concurred in arriving at a verdict on these material issues.

If we are correct in the holding that the submission of discovered peril was not justified by the evidence might passion and prejudice on the part of the trial judge be as logically inferred from the improper submission of the issue as on the part of the jury from an improper finding thereon? Passion and prejudice are not to be presumed, and it may well be that the finding df the jury came about through a misapprehension of the factual elements involved.

' The finding on one other issue is assailed-as being against the great prep'ondérahce of the evidence, and hence evidencing the taint of passion and prejudice. The jury found that no flagman or watchman was maintained at the crossing; that same was negligence and a proximate cause of the injury to plaintiff. Neither watchman nor flagman was maintained at the crossing under the undisputed evidence. The factual basis giving rise to a duty to have a flagman at the crossing was not submitted. It is unnecessary to decide whether on this finding a recovery can be sustained. The finding of the jury does not evidence either passion or prejudice.

Considering together the alleged misconduct of the jury, the amount of damages assessed, and the findings of the jury on the issues, the taint of passion or prejudice in the verdict is not fairly deducible. The true rule in this matter is laid down in World Oil Co. v. Hicks, 129 Tex. 297, 103 S.W.2d 962. Had the jury found that the whistle .was not blown, the bell not rung, or that'no warning device was maintained, a different question might be presented: These are not the findings. The findings of a jury may not be sustained by the evidence and still be free from the taint of passion and prejudice. This rule, we take it, is fairly deducible from World Oil Company v. Hicks, supra.

Special issues No. 1, 1-A and 1-B, and the findings of the jury thereon were as follows:

“No. 1. Do you find from a preponderance of the evidence that defendant railroad company’s train was being operated’ at an excessive rate at the time it approached the highway crossing on the occasion in controversy? Answer ‘yes’ or ‘no.’ ”
“We, the jury, answer Yes.”
“No. 1-A. Do you find from a preponderance of the evidence that it was negligence, as that term ‘negligence’ has been hereinbefore defined, on the part of the defendant railroad company to so operate its train at an excessive speed, if you have found it did so operate said train in answer to the foregoing Issue No. 1 ? Answer ‘yes’ or ‘no.’ ”
“We, the jury, answer Yes.”
“No. 1-B. Do you find from a preponderance of the evidence that such negligence, if any you have found in response to the foregoing Issue No. 1-A, was a proximate cause, as that term ‘proximate cause’ has been hereinbefore defined, of the injuries to plaintiff Conrad Haney? Answer ‘yes’ or ‘no.’ ”
“We, the jury, answer Yes.”

It is held that the evidence was ample to support the findings of the jury that the rate of speed at which defendant’s train approached the crossing constituted negligence, and that such negligence was a proximate cause of plaintiff’s injury. The surrounding facts and circumstances are undisputed. Fog rendered visibility low. In the opinion of the engineer the train was operated at a speed of thirty miles an hour. If these findings are sustained by the evidence, on the issues above quoted, plaintiff established the liability of defendant.

Error as to the form of submission of special issue No. 1 is assigned. After copying the issue, the proposition is as follows: “The same gave the jury no standard of comparison or criterion to go by, and permitted the jury to speculate thereon and to decide the issue on the logic, and that alone, that if the train had not been there, the accident would not have happened, and that if the train had run slower, it would not have reached the point before the plaintiff had passed the same,- and it was therefore error for the Court to submit said issue and its subordinate issues, Nos. 1-A and 1-B, as to negligence and proximate cause, respectively, over the objection of the defendant that it authorized the jury to answer the same in the affirmative on the logic that if the train had not been there, the accident would not have happened.”

Appellant in the trial court objected to this issue as follows:

“Defendant objects to the submission of Issue No. 1 and its subordinate issues Nos. 1-A and 1-B relating to whether or not the defendant’s train was operated at ah excessive speed on- the occasion fin question, and defendant says: '
“(a) That there'is "no évidence in this record authorizing the submission of said Special Issue to the jury.
“(b) That there is in the evidence no criterion as to the rate of speed that defendant’s train should have been driven and such question by reason of lack of evidence authorizes the jury to speculate upon the rate of speed, not by reason of any evidence in the record, but by reason of what they may think or féél individually or as a whole, and the rate of speed at which a train should be operated not being a matter of common knowledge.
“(c) That the question is so framed as to authorize the jury to answer the same in the affirmative on the well-known logic that if the train had not been there, the accident would not have happened, and, therefore, the answer would not be sufficient to authorize the submission of Issue No. 1-A as to negligence, and the submission to the jury of Issue No. 1-A as to negligence is wholly unauthorized, even if the answer of the jury to Question No. 1 should be in the affirmative.”

Now the gravamen of appellant’s objection to the issue was, that there was no-evidence in the record showing that the train was operated, on the ' occasion in question, at an excessive rate of speed. After all, the objection goes rather to the lack of evidence to support the issue than to its form. It is thought that what was really meant was, that the evidence failed to show what was the proper rate of speed to operate a train under -thé circumstances involved. Of course,' the 'proposition assails the issue on the ground that no direction was given the jury as to what would constitute an excessive rate of speed. This, however, was not the objection before the trial court. If there, is any error in the form of special issue No. 1, the objection urged was insufficient te-cali attention to the vice, if any, therein.

The case of Fort Worth & R. G. Ry. Co. v. Sageser, Tex.Civ.App., 18 S.W.2d 246, 250, is cited in support of appellant’s proposition. In the opinion the issue 'is not set forth. It is stated the jury, in answer to special issue No. 1, found the, 'defendant, in the -operation of its traiii 'at an excessive rate of speed, guilty of neglil gence which was the proximate cause of Sageser’s death.' The issue -is- criticized in that same is said to be duplicitous) further, that the word “excessive” tended to confuse the jury. It is thought that -the confusion arose from the failure .to delfine or explain insome manner what was an excessive rate of speed. Of course, the “ordinary care”- standard would apply. In the instant case appellant’s.-pro,ppsjfipn is, “the same gave the-jury .no, standard of comparison or criterion to go by.”: ¡, .1⅛§ objection was tl^at there, is in evidence.no criterion as to the rate of speed. - '

There is considerable similarity between the case of. Fort Worth & R. G. Ry. Co. v. Sageser, supra, and the case under .consideration here. It. was a .cross.ipg acci7 dent between a train and ap automobile, It was there said: “We'believe-the-plaintiffs’ pleadings properly based their right to recovery on two propositions: First, that the rate of speed, whatever it was, at which appellant’s agents operated said train, constituted negligence under the circumstances; and,, second, that such negligence proximately'_ caused the death of Miller Sageser. The plaintiffs’ pleadings clearly draw such issues, and it 'is alleged thaf the train was operated gt ‘about 45 miles per hour.’ ” Here, we think, practically the same issues were involved and passed upon by the jury, namely:. Tf"tie rate of speed at which appellant’s' train approached the crossing in ‘question constituted negligence, was such' négligerife a proximate cause of' plaintiff’s irijuty? This, we think, established liability and the finding was sustained by the1 evidence;

I concur with the holding of ⅝⅜0 WALTHALL as to the excessiveness of the verdict, and that the remittitur of $10,-000 should -be required as condition to the affirmance of the judgment.

On Rehearing.

WALTHALL, Justice.

In the opinion this court affirmed the judgment of the District Court, but upon the condition that the appellee, within twenty-five days, would file a remittitur in the amount of $10,000.

The appellee, within twenty-five days, filed in this court a motion to set aside the judgment insofar as it required a re-mittitur as a condition to the affirmance of the judgment, and to grant him a rehearing and in all things affirm the judgment.

The order of this court in ordering the remittitur was clearly error, as this court was without power and jurisdiction to require a remittitur, it not appearing from the record that the verdict was in any way influenced by passion and prejudice.

We sustain appellee’s motion to- set aside the order requiring the remittitur as a condition to the affirmance of the judgment.

It has often been truly said that it is difficult, indeed, for courts or jurors to set a monetary compensation for injuries sustained. The facts are so different in each case. In this case the issue of compensation was submitted to a jury on the evidence, and it was solely the duty of the jury to state in its verdict the compensation the appellee should receive, in the event the Railroad was found to be negligent in causing appellee’s injuries.

We fully considered the evidence on each issue submitted to the jury, and while we thought, in writing the opinion, it was doubtful whether some of the issues submitted should have been submitted, we concluded that the jury findings on the issues of negligence and proximate cause were well sustained on the undisputed rate of speed at which the train was moved as it crossed the highway.

We come now to consider appellant’s, the Railroad’s, motion for a rehearing and to reverse and remand the cause.

The grounds urged for reversal are that this court erred in overruling 'its assignments of error discussed in the opinion. It is submitted and insisted by appellant that because this court held that several of the issues submitted to the jury should not have been submitted, not having sufficient support in the evidence, that the jury rendered a verdict which is excessive, and that this court, in view of such findings, held that appellant had not received a fair trial at the hands of the jury.

We do not think that every excessive verdict would necessarily indicate an unfair trial, or that an excessive verdict would indicate, as a matter of law, that the jury’s verdict necessarily was influenced by passion or prejudice. But the rule seems to be that if the verdict is grossly excessive, that fact may be regarded to some extent as reflecting the jury’s mind in arriving at the verdict. World Oil Co. v. Hicks, 129 Tex. 297, 103 S.W.2d 962. We do not say that the verdict is so grossly excessive as to make the rule applicable.

In writing the opinion we thought that under the undisputed testimony of the train crew as to the speed of the train in crossing the highway, the darkness of the morning, and the added darkness caused by the fog, to the extent that the driver of the automobile could not, or at least did not, see the wig-wag, and the absence of any person at the crossing to warn travelers of the approach of the train, indicated to this court that appellant was negligent vel non, in driving the train across the highway at a speed of thirty miles -an hour.

We may be in error in holding, as in the opinion, that the verdict and judgment based thereon is excessive. We have again reviewed the entire case, an'd while we thought the verdict was excessive, it certainly is not so grossly excessive as to suggest a reversal solely on that alone. There is nothing in the record, as we view it, to indicate that the jury was in the least biased or prejudiced. While the compensation is large, so was the injury.

We have reconsidered each of appellant’s grounds for reversal in its brief and in its motion for a new trial and not discussed, and they are overruled.

We have concluded to overrule appellant’s motion for a new trial.

The case is affirmed.


source: Caselaw Access Project

author: BOND, Chief Justice.

license: Public Domain

text:
    TEXAS & N. O. R. CO. v. LIDE et al.
    No. 12923.
    Court of Civil Appeals of Texas. Dallas.
    Oct. 19, 1940.
    Rehearing Denied Nov. 16, 1940.
    Baker, Botts, Andrews & Wharton, of Houston, and Landman & Landman, of Athens, for appellant.
    Ross Huffmaster, of Kaufman, for ap-pellees.
   BOND, Chief Justice.

Appellees, in County Court of Kaufman County, recovered judgment against appellant, in the sum of $545.10, as damages alleged to have been sustained by a shipment of 40 head of cattle from Lufkin to Mabank, Texas. Plaintiffs (appellees here) alleged negligence ■ of the defendant in improper bedding, delay, and rough handling of the cattle in transit, and subsequent damage — 8 cattle killed and 32 injured; also that the cattle were delivered to the railroad at Lufkin in good condition and received at’ Mabank in a damaged condition; thus, relying for recovery upon presumptive negligence on the part of the Railroad Company’s operatives in the transportation of the cattle.

The defendant answered by general denial, and specially alleged that its agents and servants handling the shipment, operated its train in the ordinary' and usual manner; that, no unusual or unnecessary jerking or bumping of its trains occurred; that it was not guilty of any act of negligence in the movement of its train and the handling of the cattle; that injury to the cattle was due solely to their natural vice; weakness, and inherent propensities; and that plaintiffs were guilty of negligence, proximately causing all the injuries, in the following particulars: (1) Plaintiffs loaded into the car in question certain weak cattle; (2) loaded cattle which were high-tempered and of a .vicious nature; and (3), loaded the cattle too .soon after they had been dipped in a strong solution, causing them to become restless and of a kicking and goring disposition.

The cause was submitted to a jury, resulting in findings: (1) That plaintiffs did not load any cattle at Lufkin which were unusually weak and unable to stand the journey from Lufkin to Mabank; (2) that the solution in which the cattle were dipped immediately before delivery did not irritate and cause them, to be unusually vicious ; (3) that plaintiffs did not load wild and .vicious steers into the car with weaker cattle; (4) that the death of the 8'cat-tle in question was not caused by the loading of any unusually weak, wild, or vicious cattle in the car; and (5) that none of the animals were injured hecause of their viciousness after they were loaded for shipment at Lufkin; the jury also found (6) that the reasonable market value of the 8 dead cattle at the time of their arrival at Mabank — had they arrived in the condition they would have been in but- for their injuries and death — was $360; (7) that the reasonable value of the 32 head of live cattle, at the time of their arrival at Ma-bank — had they been delivered there 'at said time without injury — was $1,440; and that the reasonable market value of said 32 head of cattle 'at Mabank, at the time they were delivered and in their then condition, was $1,340; and (8) (on request of defendant) that plaintiffs did not load into the car in question certain weak cattle, which a person of ordinary- prudence would not have loaded under the existing circumstances. On such findings of the jury, the court entered judgment in favor of plaintiffs for the sum of $460, plus $85.10, interest from date of the alleged damage , to date of shipment, with 6% interest on such judgment until paid. The defendant duly excepted, gave notice of and-perfected this appeal.

We think the testimony amply sustains the findings of the jury. The 40 head of cattle were in good physical .condition when delivered to defendant, normal tractable, cattle, free of, inherent defects or vices, and that the dipping of the cattle immediately before shipping was not calculated to irritate them, or cause them to be vicious and hard to handle. The cause of the death of the 8 head of cattle and injury to 32 head is not disclosed by any direct testimony. The shipment was not accompanied by shippers, and the testimony of the train operatives does not disclose knowledge of the manner of injury and death of the cattle. Very evidently, something caused the loss by death and injury to the cattle while in the possession of the Railroad Company. Plaintiffs’ theory is that, the cattle sustained damage through unnecessary rough handling, and lack of due care, based upon legal presumption of negligence of the carrier, proximately causing such loss and injury.

As a general rule, . where it is shown that live stock were delivered to the carrier in good condition, and that the shipper or his agent did not accompany them under a contract to care for them during transit, and they arrived at destination dead or in an injured condition, negligence is 'ordinarily presumed to the extent that the shipper is said to have made out a prima facie case, casting upon the carrier the burden of showing that the loss or injury was not the result of its negligence, or that such was due to the natural vice, weakness, and inherent propensities of the cattle, or to some cause which would exempt it from liability. 13 C.J.S., Carriers, § 254, p. 551; Panhandle & S. F. Ry. Co. v. Wilson, Tex.Civ.App., 135 S.W.2d 1062. Recognizing this burden, defendant sought to free' itself from such imputation of negligence and absolve liability for the cattle’s disorder, by showing that the shippers negligently loaded weak cattle into the car; that the cattle were vicious and wild; and that, the dipping of the cattle in arsenical solution immediately before delivery at Lufkin caused." them to become restless, proximately causing the damage.

We would be inclined to accept defendant’s proof as being sufficient to exonerate it from liability in the particulars, above mentioned; and, if the proof in the case had stopped there, or had been sustained by findings of the jury, undoubtedly the trial court would have been warranted in entering judgment for the defendant; but, such is not the case; plaintiffs’ evidence rebutted defendant’s issues relative to the inherent vice, weakness, and natural propensities of the cattle and the effect of - dipping immediately before delivery. Such being controversial issues of fact, and defensive issues, the findings of the jury must be sustained, as was done by the trial court. Therefore, we think the carrier has failed to fully exonerate itself from the imputation of negligence by its attempt to show that the death of 8 head of cattle and injury to 32 head were caused by the shippers’ contributory negligence in loading weak, vicious, and wild cattle, too recently dipped for shipment.

Under such jury findings, obviously, we must conclude that the shippers delivered to the carrier 40 head of tractable cattle in good condition, and the undisputed fact •is, that 8 of them were killed and 32 injured in transit. Such being true, plaintiffs have made out a prima facie case of negligence against the Railroad Company. When such loss or injury to the cattle was shown not to have been caused by inherent defects or qualities of the shipment, the carrier then had the burden of exculpating itself from all-negligence reasonably calculated to cause damage to the shipment entrusted to its care as a common carrier. There remained only the issue of negligence of the carrier, its agents and employes, in the handling of the shipment.

The defendant adduced witnesses who handled the cattle from the time received at Lufkin until delivered to shippers at Mabank. By this testimony, defendant tried to exonerate itself from all negligence, and we conclude that it successfully did so, except as same was rebutted by the physical condition of the cattle, and the lack of suitable and proper facilities for unloading and reloading them at Jacksonville, an intermediate point enroute, after the railroad employes discovered that they were in a condition of unrest and that several were down in the car.

The testimony in the case shows the cattle were first loaded in trucks, at a point about twenty miles from Lufkin, at 6 or 7 o’clock A. M. on April 15, 1936, carried to Lufkin, where they were dipped in an arsenical-caustic-soda solution some two hours before delivery, loaded into defendant’s railroad car for transportation at 10:45 A. M.; and that the shipment arrived at Nacogdoches at 11:45 A. M. The operatives of the train testified there was no rough handling, unnecessary switching or jerking of the train, and that nothing unusual happened to the train ór cattle from Lufkin to Nacogdoches; there were no cattle down in the car, and nothing about their condition attracted attention. At Nacogdoches, the car was cut out of the train and attached to a train going to Jacksonville. Mr. Henderson, defendant’s conductor, testified that “the cattle were in good condition” at Nacogdoches. The shipment left Nacogdoches at 12:45 P. M., arriving at Jacksonville, 3:15 P. M. On this run, the train’s first stop was at Cush-ing, about 20 miles from Nacogdoches, where it took on freight, but there was no switching; then, at Cycle, another stop was made; the train switched in some cars and continued on to Jacksonville. Mr. Fuller, train conductor, said that when the train reached Jacksonville, “three of the cattle were down and two' apparently dead. We left them in there and turned the car over to the switching crew. We are supposed to get the cattle up when we find them down, or make a reasonable effort to do so. We are supposed to do whatever is necessary to get the cattle up in as good condition as possible. There was no unusual handling of this train from Nacog-doches to Jacksonville, ’ and no switching of the cattle”. The cattle remained in the car at Jacksonville from 3:15 P. M. until 3:55 A. M. (April 16th). At 9 o’clock P. M., the switching crew took the car to the stockpen for the purpose of unloading, and removing the dead and injured. To do this, the Company’s agent sent a negro porter and a clerk, two of its employes, to the stockpen, at about 9 o’clock that night, and, according to their testimony, because of the viciousness of the cattle, their fighting, and wild disposition, they were unable to unload them without additional help which, at the time, was not available. At 3:55, the car was switched to defendant’s main line, set into the train, and proceeded to Mabank. Enroute to Mabank, the train stopped at all intermediate points and took on freight and baggage; no unusual switching or handling of the car is related; it. moved in the usual and ordinary manner. The car was “set out” at Ma-bank at 6:05 A. M., April 16, and the cattle were then delivered to shippers — 5 dead, 3 fatally injured, later dying, and 32 skinned and bruised, hair and skin rubbed off. There was no evidence of hooking or goring — the skin and flesh not being torn. Mr. Hide testified: “There wasn’t a steer in there but what was skinned up terribly, some worse than others. Just all over; no particular part — backs, necks, hips, and legs. There were marks on them that didn’t have any hair on them, scars on them remained for a year.” He further testified that he was an experienced cattleman, had shipped many loads of cattle, and had helped unload the cattle in question from the car at Mabank. He said: “When we got to Mabank, we intended to hand them over to Mr. Norman on a truck, and we backed my car up to the car, —first opened the door and took the ‘bull-board’ down and I got in and roped one and drug him through the door into the truck and pulled another one in and tried to scare the rest of them out and decided then to move the truck and put some grain doors up to the train, and we did that. I went inside and got them to come out. When I was inside with them, none of the steers attempted to fight or hook me.” Mr. Heidle testified to practically the same facts, and further said that he was present when the cattle were loaded at Lufkin, and unloaded at Mabank; that he was familiar with their condition, saying: “We would call them in good living order. Stout cattle for the time of the year. They had been fed hay and went into the winter in good shape and they were just what I would call stout cattle for March or April. Good living order. They were not wild or vicious, and when they were unloaded, they were not restless, wanting to fight Mr. Lide. He went among them in the car to help unload them in his truck ; they were skinned and bruised, and several dead.”

We think the evidence shows that the defendant, in not unloading the cattle at Jacksonville after seeing their disorder, failed to exercise due care. They stood in the car at the stockpen for twelve hours, and the fact that the carrier did not have sufficient help to unload them under such circumstances is no excuse. The railroad employes, having seen the perilous condition of the cattle, were, we think, impelled, in the exercise of due care, to furnish suitable and adequate facilities for unloading and reloading the cattle for water and rest, especially so, when the railroad agents saw the necessity for the discharge of such duty. Southern Pac. Co. v. W. T. Meadors & Co., Tex.Civ.App., 176 S.W. 882.

Furthermore, we think the condition of the cattle, on arrival at destination and delivery to shippers, sufficiently rebuts defendant’s testimony that they were properly handled and that the switching of the train was usual and customary; or, at least, raises such a reasonable inference of rough handling as to create a controversial issue; and, the burden being on the carrier to show that death and injury to the shipment was not the result of negligence, it devolved upon defendant to request such issue, to free itself from such imputation. Having failed to do this, the issue must be considered waived, or found by the court to have existed. In the light of this record, defendant has failed to meet the burden; thus, presumptive negligence in the handling of the cattle in transit must prevail. The verdict of the jury having acquitted the plaintiffs in all the alleged causes claimed by defendant which would exempt it from liability, other than due care in the handling of the shipment, the trial court did not err in rendering judgment for the shippers.

On motion for judgment, the trial court allowed plaintiffs 6% interest on the amount recovered, from date of injury to the cattle to date of judgment. There were no pleadings for such interest as an element of damage and, in the absence of a special plea, the court was not warranted in assessing $85.10 interest. In such case, interest is allowed, as a matter of law, only from date of judgment. Interest, eo nomine, is not recoverable until after judgment. Texas Electric Ry. Co. v. Greenhill, 112 Tex. 419, 247 S.W. 840; Southern Gas & Gasoline Engine Co. v. Adams & Peters, Tex.Com.App., 227 S.W. 945. Therefore, the judgment of the court below is reformed, deducting $85.10 therefrom, and, as reformed, is affirmed for $460, with interest from date of judgment until paid, and all costs of the court below. Other assignments of error urged by appellant have been considered, are, we think, without merit, and are accordingly overruled.

Judgment of the court below is reformed and, as reformed, affirmed.

Reformed and affirmed.


author: DUNKLIN, Chief Justice.

text:
    JONES v. TRADERS & GENERAL INS. CO.
    No. 14111.
    Court of Civil Appeals of Texas. Fort Worth.
    Sept. 27, 1940.
    Rehearing Denied Nov. 8, 1940.

      Houtchens & Houtchens and J. Harold Craik, all of Fort Worth, and Lindsley M. Brown, of Arlington, for appellant.
    Lightfoot, Robertson & Gano, of Fort Worth, for appellee.
   DUNKLIN, Chief Justice.

This suit was instituted by Lucille Jones, surviving wife of Tom P. Jones, deceased, in behalf of herself, individually, and as next friend of Tom P. Jones, Jr., minor son of the deceased, against the Traders & General Insurance Company, for compensation under the Workmen’s Compensation Act, Vernon’s Ann.Civ.St. art. 8306 et seq., for the death of the said Tom P. Jones, Sr.; and this appeal is prosecuted from the judgment of the trial court sustaining a general demurrer to plaintiff’s petition and dismissing the suit.

The general demurrer sustained was addressed to plaintiff’s second amended original petition. In plaintiff’s first amended original petition, claims for other compensation alleged to have accrued in behalf of Tom P. Jones, Sr., before his death were included, to which pleas in abatement were addressed, but those claims were abandoned in plaintiff’s second amended original petition, thus confining the suit to a claim for compensation by the surviving wife and minor child, for the death of Tom P. Jones, Sr., and this is the only claim involved in this appeal, and the only one hereinafter referred to in this opinion,

It is a familiar rule of court that the general demurrer admits the truth of all material allegations contained in the pleading on which relief is sought.

According to allegations in the petition, the claim for compensation sought was presented to and rejected by the Industrial Accident Board, and thereafter plaintiff complied with all the legal requirements necessary to confer jurisdiction on the district court to determine the controversy.

The facts on which the.claim for compensation was based may be briefly summarized as follows:

“That plaintiff, Lucille Jones, is the surviving wife, and Tom P. Jones, Jr. is the -surviving son of Tom P. Jones, deceased, and said plaintiffs are the sole defendants (dependents) and beneficiaries of the said Tom P. Jones, as defined by the Compensation Act of the State of Texas; and only person or persons entitled to recover herein; and the said Tom P. Jones, Jr. is a minor, now 13 years of age; that at the time of the death of the said Tom P. Jones, he and the plaintiff, Lucille Jones, were lawfully married to each other, and were living together as husband and wife on the date of his decease; that no children were born to said marriage; that the said Tom P. Jones, Jr. is the son of plaintiff by a former marriage; that plaintiffs are the sole surviving heirs at law of the said Tom P. Jones; that the said deceased died intestate, and no administration has ever been had upon his estate and none is necessary, for. the reason that his estate owes no debts which are now unpaid.
“That the said Tom P. Jones is dead; that he died in Tarrant County, Texas, on November 14th, 1938, as a result of injuries sustained by him on May 4th, 1938; that upon the date of his injuries afore^ said, at about 3:00 o’clock P. M. on said day, while Tom P. Jones was in the employment of and in the regular discharge of his duties and course of his employment with and for E. L. Jones (sometimes known and referred to as E. L. Jones Construction Company), and while working in water in Eagle Mountain Lake, upon or immediately adjoining the W. W. Lechner property, situated about twelve miles northwest of the City of Fort Worth, in Tar-rant County, Texas, the said Tom P. Jones sustained injuries resulting in his disability and death, as more fully hereinafter set out.
“That E. R. Jones was engaged in the work of an industrial concern at all times mentioned herein, and that at all such times he was susceptible to carry and did carry a policy of compensation insurance with Traders & General Insurance Company, covering and insuring the employees of the said E. L. Jones against losses growing out of incapacity to work by reason of damages and harm done to the physical structure of the body, and such diseases and/or infection as resulted therefrom, and that said defendant, Traders & General Insurance Company, wrote, made, executed and delivered to the said E. L. Jones a policy of compensation insurance, covering the employees of the said E. L. Jones, of which Tom P. Jones was one on the,day and date of the injuries to said Tom P. Jones, aforesaid, and for a long time prior thereto, which said policy of compensation insurance was in full force and effect at all times mentioned herein, and that defendant herein has the original or a duplicate copy of said policy of compensation insurance, knows and is cognizant and is fully apprised of all the contents and provisions' thereof, and- is hereby notified to produce the same in court, to be used in evidence upon a trial of this cause, or upon its failure to do so, secondary evidence will be used to establish the - existence and contents thereof, and that plaintiffs herein have never had access to said policy of compensation insurance, and do not know its technical provisions and/or contents, and cannot more fully in detail set forth the technical provisions thereof, but they say that the same, as they verily believe, is in the form prescribed by the Workmen’s Compensation Laws and Employers Liability Act of this State for policies of compensation insurance. * * *
“That the injuries so inflicted upon the said Tom P. Jones, at the time and place above Set forth, were sustained by him to his left foot while the deceased was working and wading about in the water of the aforesaid'lake, and came about when he stepped with his said left foot upon some hard object, either a very sharp rock or sharp stick or a stump which pierced his shoe and penetrated the ball of his foot, as a result of which a painful and serious infection immediately set up, and rapidly spread throughout his entire left foot- and entire body; that as a result of said injury and infection, he was compelled to obtain medical attention and to undergo five successive surgical operations to his said foot, in an effort to prevent the amputation or loss of use thereof, which operations extended over a period of several weeks. That during the course of such medical treatment and continuously up until the day of his death, the said Tom P. Jones suffered continuous, intense and excruciating pain in his left foot, which extended throughout his left-leg; that said infection spread from his left foot and throughout his left leg, and up into his body generally, causing him to suffer intense pain, uneasiness and discomfort throughout his entire left leg and throughout his body generally; that by reason of the continuous pain and discomfort aforesaid, and the’infections which spread throughout his entire body, he became exceedingly nervous, suffered with neurasthenia and became, as a result of such injuries, a neurastheniac, and his mind became afflicted to the extent that the said Tom P. Jones became delirious and permanently insane, and on the 11th day of November, 1938, while the said Tom P. Jones was mentally deranged and in a de-. lirious frenzy and insane condition, brought about by the pain of his injuries, and the infections resulting therefrom, he drank a mixture of concentrated lye and cleaning fluid, and subsequently died on the 14th day day of November, 1938, at approximately 1:15 P. M. of said date; that the death of the said Tom P. Jones was not intentionally self-inflicted, but resulted while the said decedent was possessed of an uncontrollable insane impulse, delirium and frenzy resulting from his injury, disability and infections aforesaid, at a time when the said Tom P. Jones had no rational knowledge of the consequences of his act, or conscious volition to produce his death; that such suicide was not the result of a voluntary and/or wilful choice, determined by a moderately intelligent mental power with knowledge of the purpose.and effect of his act, but the said Tom P. Jones upon said occasion was dominated by a disordered, insane mind, and while so insane and delirious, brought about by the injury, infections and the intense, excruciating pain and suffering resulting therefrom, as aforesaid; that by reason of the matters and facts hereinabove alleged, the injuries sustained by the said Tom P. Jones on the 4th day of May, 1938, accompanied by the diseases and infections resulting therefrom, as herein elsewhere plead, was the sole producing cause of his death on the 14th day of November, 1938.”

Then follow claims for compensation for the death of Tom P. Jones, Sr., fixed by the provisions of the Workmen’s Compensation Act, computed under alternative allegations of fact, and for a lump sum settlement, which are not necessary to be specifically noticed, in view of the action of the trial court in holding that the allegations in plaintiff’s petition were insufficient to show liability of the defendant in any sum.

Article 8309, Section 1, reads in part as follows:

“The terms ‘injury’ or ‘personal injury’ shall be construed to mean damage or harm to the physical structure of the body and such diseases or intection as naturally result therefrom.
“The term ‘injury sustained in the course of employment,’ as used in this law, shall not include:
⅜ # íjí ⅜ ⅜
“4. An injury caused by the employe’s willful intention and attempt to injure himself, or to unlawfully injure some other person, but shall include all other injuries of every kind and character having to do with •and originating in the work, business, trade or profession of the- employer received by an employé while engaged in or about the furtherance of the affairs or business of his employer whether upon the employer’s premises or elsewhere.”

In 45 Tex.Jur., page 475, section 82, this is said:

“Compensable disability or death must have for its foundation ‘injury’ (section 8, article 8306) of the nature of ‘damage or harm to tire physical structure of the body,’ and of origin in causative danger in the employment. In order for the employee or beneficiary to recover, however, it is-not necessary to show that the injury complained of was the proximate cause of incapacity or death, in the sense that the term ‘proximate cause’ is used in ordinary cases of negligence. All that need be shown is that the injury was a producing cause. The controlling issue is the continuity of the chain of causation between the alleged injury and the incapacity or death for which compensation is sought.”

That announcement has ample support in the decisions cited in the notes.

In Texas Employers’ Ins. Ass’n v. Burnett, 105 S.W.2d 200, 201, the following announcement was made in the opinion of the Commission of Appeals:

“ ‘In connection with the issue quoted above, the court gave the following charge : “In this connection you are instructed that the ‘producing cause’ is such as naturally resulted in the death of said J. W. Burnett.” As the judgment of the lower court must be reversed for reasons hereinafter discussed, we do not discuss appellant’s exceptions to this charge, but suggest that on another trial the court define “producing cause,” as that term is used in the purview of our Workmen’s Compensation Act, as that cause which, in a natural and continuous sequence, produces the death (or disability) in issue, and without which the death (or disability) would not have occurred.’
“So we have clearly presented the following question: Do the beneficiaries of a deceased employee have a right to recover compensation for death of the employee when the death is due directly to an independent intervening agency, having no connection with or relation to the original injury, although the injury may have to some extent reduced the power of resistance of the deceased, and in that manner contributed in some degree to his death ?
“We think the question is answered by our statute. Compensation for either disability or death must have- for its foundation an ‘injury’ received by an employee in the course of employment. Our compensation law has defined ‘injury’ in this language: ‘The term's “injury” or “personal injury” shall be construed to mean damage or harm to the physical structure of the body and such diseases or infection as naturally result therefrom.’ (Rev.St.1925, art. 8309, § 1.)
“It is thus seen that diseases which naturally result from an injury are themselves classed as an injury, and if an employee be incapacitated thereby, or if he die therefrom, compensation is allowed. On the other hand, it was held in the case of Buchanan v. Maryland Casualty Co., 116 Tex. 201, 288 S.W. 116, that death by typhoid fever contracted by an employee as the result of impure water or food furnished by an employer is not compensable. It is pointed out, as was done in the case of Texas Employers’ Insurance Association v. Jackson (Tex.Com.App.) 265 S.W. 1027, that a disease which does not ensue by reason of an injury inflicted upon the body, that is, by ‘damage or harm to the physical structure of the body,’ is not com-pensable. It follows, therefore, that death by disease not naturally caused by the injury, but intervening as an independent agency, is not compensable. To be com-pensable, the death must result from the physical injury or from disease or infection which naturally results from the injury. If there be no such disease or infection, as in the present instance, there can be no compensable death; unless the physical injury itself be the cause of the death.
“Our statute in one or more instances uses in substance the expression ‘if death results from the injury,’ and in section 16 of article 8306 provides, ‘in all cases of injury resulting in death, where such injury was sustained in the course of employment, cause of action shall survive.’ •It is thus seen that the statute specifically provides that the death must be the result of the injury itself; or conversely, the injury must be the primary, active, and efficient cause of the death.”

In accordance with the well settled rule that every reasonable intendment from the facts pleaded will be indulged in support of the plaintiff’s petition as against a general demurrer, we believe it reasonably appears that the mixture of concentrated lye and cleaning fluid, which Tom P. Jones drank, was poisonous and that he died from the effects thereof three days after drinking it.

As pointed out in appellant’s brief, this case is of first impression in this State, but they have cited decisions from other States, seemingly in point.

The following excerpts from 71 Corpus Juris, under the title Workmen’s Compensation Acts, summarize the holding of other States, including Pennsylvania, Massachusetts, Vermont and others:

Section 392, page 638: “Provided the insanity results from a compensable accident and not from a brooding over the injury or other causes, the suicide of an employee while insane may entitle his dependents to compensation therefor; thus, where there follows as a direct result of the accident an insanity of such violence as to cause the victim to take his own life through an uncontrollable impulse or in a delirium of frenzy without conscious volition to produce death, there is a direct and unbroken causal connection between the physical injury and death; however, where the suicide is the result of voluntary and willful choice determined by a moderately intelligent mental power with knowledge of the purpose and effect of the act, even though dominated by a disordered mind, a new and independent agency breaks the chain of causation.”

Section 484, page 770: “Workmen’s compensation statutes generally preclude compensation when the injury is self-inflicted or due to a willful intent on the part of the employee to injure himself. Within the concept of such a statute the injury must be intentionally self-inflicted, and compensation is not barred because the employee was negligent, or guilty of an error in judgment or of a heedless and inadvertent act. Where the employee kills himself while in a delirium or frenzy caused by the pain of his injury, his death is not ‘intentionally self-inflicted’ so as to bar his dependents from recovery.”

In Words & Phrases, Permanent Edition, volume 45, beginning on page 186, there are many definitions of the terms “willful” and “willfully”, both in civil and criminal law. We quote a few only:

“ ‘Willfully’ means deliberately and intentionally, and with design and purpose. State v. Smith, 159 Minn. 511, 199 N.W. 427, 429; Gatewood v. Commonwealth, 215 Ky. 360, 285 S.W. 193.”

As defined in Bouvier’s Law Dictionary, the word “willful” means “intentional”.

It is reasonably inferable from allegations in plaintiff’s petition that the act of the deceased in drinking the poisonous solution was done by him designedly, but that by reason of the disturbed condition of his mind, resulting from the pain he was suffering from his injury and the infection therefrom, he was incapable of appreciating the consequences of the act, which therefore was not willful and intentional, within the legal concept o'f those terms.

But in view of another trial, we will add that the converse of that contention is well established by the authorities. Thus, in 24 Tex.Jur. section 2, page 372, this is said: “The test for determining the responsibility of the individual for his acts — whether responsibility be challenged on the score of mental unfitness, ‘incapacity,’ ‘incompetency,’ ‘intoxication,’ ‘undue influence,’ or what not — is that which is embodied in the issue as to whether he understood or was able to understand or appreciate the consequences of the particular act or transaction. Thus it has been said that if one has the ability to transact ordinary affairs of life, to understand their nature and effect, and to exercise his will in relation to them, he is not deemed of unsound mind in the sense of the law.”

Also, in section 5, page 377, of the same volume, this announcement is found:

“ ‘The general definition of the term “mental capacity”' seems to contemplate the ability to understand the nature and effect of the act in which a person is engaged and the business he is transacting.’ ”

And the following in 12 Tex.Jur. section 55, page 292: “Mere weakness of mind will not excuse a person from the consequences of his criminal acts if he is able to distinguish between right and wrong. The law. does not require, as the condition on which criminal responsibility shall follow the commission of crime, the possession of one’s faculties 'in full vigor, or a mind unimpaired by disease or infirmity; a person may be criminally responsible though his mind is so weakened or impaired.”

We believe that rule of decisions in othfer States announced in the above quotations from 71 Corpus Juris is sound and is applicable and controlling here. Applying the same as a test to plaintiff’s petition, we conclude that'the allegations therein, when taken as true, show a right of recovery of the compensation sought. They negative .the exception to the general rule giving a right of recovery, viz., “When the suicide is the result of voluntary and willful choice determined by a moderately intelligent mental power with knowledge of the purpose and effect of the act, even though dominated by a disordered mind, a new and independent agency breaks the chain of causation.”

And we may add that if the suicide was a new and independent agency that brought about the death of Tom P. Jones, and that the drinking of the poison was done with a willful -intent to injure himself, then a recovery therefor would be prohibited by the provisions of 2nd sub. 4 of sect. 1 of Art. 8309, quoted above.

In 40 Words & Phrases, Permanent Edition, page 625, is the following statement: “To constitute suicide at common law, the person must be of the years of discretion and of sound mind. Weber v. Supreme Tent of Knights of Maccabees of the World, 172 N.Y. 490, 65 N.E. 258, 92 Am. St.Rep. 753.”

Appellee invokes that meaning to the designation in one portion of plaintiff’s petition of the act of Jones in drinking, poison as suicide; but it- definitely appears that the same was used merely as a convenient designation of preceding allegations to the effect that the act of taking the poison was not the act of a person of sound mind.

Appellee has cited such cases as Texas Pac. Fidelity & Surety Co. v. Hall, Tex.Civ.App., 101 S.W.2d 1050; Houston & T. C. Ry. Co. v. Harris, 103 Tex. 422, 128 S.W. 897; Traders & Gen. Ins. Co. v. Keahey, Tex.Civ.App., 119 S.W.2d 618, writ dismissed; Byerly v. Consolidated Light, Power & Ice Co., 130 Mo.App. 593, 109 S.W. 1065; announcing the rule that when the evidence adduced leaves the cause of the injury made the basis of the suit in doubt, and the same may reasonably be construed as favorably to the defendant as to plaintiff, then plaintiff has not discharged the burden of proof on that issue. That rule of decisions is invoked as applicable to pláintiff’s burden to allege and prove a causal connection between the injury to the foot of the deceased and infections resulting therefrom, and his death. But in view of the specific allegations in plaintiff’s petition on that issue, we believe those authorities cannot be given controlling effect here. Nor do we believe that those allegations are mere conclusions rather than allegations of fact within the purview of the decision in De Grazier v. Panell Oil Corporation, Tex.Civ.App., 109 S.W.2d 1109, writ dismissed.

For the reasons indicated, the judgment of the trial court sustaining defendant’s geijeral demurrer to plaintiff’s second amended original petition and dismissing the suit is reversed and the cause is remanded for further proceedings not inconsistent with our foregoing conclusions.

On Motion for Rehearing.

The judgment from which this appeal is prosecuted recites that defendant’s pleas in abatement Nos. 1, 2,.3, 4 and 5, and also the general demurrer to plaintiff’s second amended petition, on which plaintiff went to trial, were sustained and the suit dismissed, with no recital as to whether the dismissal was by reason of the order sustaining the pleas in abatement or the sustaining of the general demurrer.

In appellee’s briefs on original hearing, in answer to appellant’s assignments of errer, by counter assignments and propositions thereunder, the contention was presented that in the absence of a statement of facts the findings of. the court on the pleas in abatement, after. evidence heard, cannot be disturbed; . and since appellant has riot assigned error to the action of the court in sustaining those pleas in abatement, but has complained only of the overruling of the general demurrer, her appeal should be dismissed or the judgment affirmed. In other words, that plaintiff’s suit having been abated, the further order sustaining the general demurrer should be treated as surplusage.

That contention is again stressed in ap-pellee’s motion for rehearing.

All those pleas in abatement were addressed to plaintiff’s first amended petition, but were omitted from the second amended petition, on which trial was had; and all were therefore abandoned except the first. That first plea was a general demurrer to the first count in plaintiff’s petition, and without further pleading it was applicable to the same count in the second amended petition, on which alone plaintiff sought relief. 33 Tex.Jur. par. 84, page 515. And that, too, notwithstanding it was essentially a plea in bar and did not include the necessary elements of a plea in abatement of the first count, as defined in 1 Tex.Jur. pages 21 to 24, inclusive, and decisions there cited.

In the second, third and fourth counts in the first amended petition, recovery was sought for compensation which accrued to Tom P. Jones between the date of his injury and his death, the amount of compensation being predicated on different theories, such as the loss of left foot in one count, and of entire leg in another, etc. Those counts were alleged in the alternative, and compensation sought in each count was predicated solely upon the possible inability of plaintiff to recover on the next immediately preceding count. As said before, all those counts except count No. 1 were abandoned because omitted from the second amended petition. Hence, the action of the trial court in sustaining the second, third, fourth and fifth pleas in abatement addressed thereto was void for lack of pleading as a basis therefor, as is apparent from the face of the record. And being fundamental error, it must be considered, in the absence of an assignment of error. 3 Tex.Jur. par. 571, page 808.

But the court had jurisdiction of the general demurrer to plaintiff’s second amended petition, and to dismiss the suit after sustaining it, in the absence of any offer of amendment by plaintiff áft'er the demurrer was sustained. We conclude, therefore, that plaintiff had the right of appeal from that ruling, to the exclusion of the rulings on the so-called pleas in abatement Nos. 2 to 5, inclusive, of which the court had no jurisdiction. 3 Tex.Jur. par. 719, page 1008, and decisions there noted.

- Accordingly,, appellee’s motion for rehearing is in all things overruled.


author: MURRAY, Justice.

text:
    HATLEY et al. v. BEXAR COUNTY et al.
    No. 10954.
    Court of Civil Appeals of Texas. San Antonio.
    Nov. 13, 1940.
    Supplemental Opinion Nov. 15, 1940.
    Rehearing Denied Nov. 18, 1940.

      Moursund, Ball, Moursund & Bertgstrom., of San Antonio, for appellants,
    John R. Shook and J. Sam Levey, both of San Antonio, Robert Ogden, of Dallas, and Mueller & Green, of San Antonio, for appellees.
   MURRAY, Justice.

This suit was instituted by Roy O. Hat-ley, Gerald S. Connell, Frank M. Gifien, H. G. Williams, Claude R. Towers, and Joe Garza, as resident taxpaying citizens of Bexar County, against Bexar County, Charles W. Anderson, individually and as County Judge of Bexar County, Sam H. Anderson, J. W. Donnell, Robert F. Uhr and R. W. Stappenbeck, Sr., individually and as County Commissioners of Bexar County, Edgar G. Garvey, individually and as Auditor of Bexar County, and Sam C. Bell, individually and as County Treasurer of Bexar County, Texas, and also against Automatic Voting Machine Corporation, a New Jersey corporation, seeking, among other things, the issuance of a temporary restraining order and on hearing a temporary injunction restraining the defendants from complying with any of the orders of the Commissioners’ Court described in the petition and from paying or taking any steps for the payment of any items described in and provided to be paid by the terms of an alleged illegal contract between Bexar County and Automatic Voting Machine Corporation for the rental of 300 voting machines, with an option to purchase. Chester Slimp and others intervened in the cause and prayed that the injunction be not issued.

A temporary restraining order was first granted but upon notice and hearing a temporary injunction was refused and plaintiffs have prosecuted this appeal from the order refusing the temporary injunction.

Plaintiffs allege in their petition, among other things, as follows:

That Bexar -County was, during all-the times therein mentioned, governed by Chapter 206 of the Acts of the 42nd Legislature, Regular Session, Vernon’s Texas Civ. Statutes, Arts. 689a — 9 to 12, known as the “Budget Law.”

That the present budget of Bexar County ■contains an item of sixteen thousand dollars for “Elections,” the same being subdivided and specifically itemized into different items as follows, to-wit:

19-A General-Special and School

Judges and Clerks. $ 9,275.00
Repairing booths and ballot boxes . 100.00
Delivering ballot boxes- 600.00
Rent chairs, tables & supplies . 800.00
Hauling election equipment 800.00
Printing, stationery, stamps 4,200.00
Advertising . 25.00
$16,000.00

That no provision was made in said budget for renting or purchasing voting machines, nor was any item of the proposed expenditures set out or contained in said budget which in any way related to the renting or purchasing of voting machines.

That the Commissioners’ Court of Bexar County, on April 25, 1940, adopted an order which recited in substance that the Court found and determined it to be desirable, feasible and practicable for the County of Bexar to adopt voting machines for use in elections, under authority of the statutes (Vernon’s Civ. Stats. Art. 2997a), and that it was deemed advisable and to the best interest of the County that no more than three hundred voting machines be rented and/or purchased by the Court, and that the rental of the voting machines was an expense of election, and that the current budget of Bex-ar County, as adopted and existing, contains provisions appropriating a sufficient fund for the payment of rentals of such machines, and that it was estimated that the purchase price of such three hundred voting machines would not exceed the sum of $305,000, and the County Auditor was directed to advertise for bids for rental and/or purchase of voting machines.

That in answer to said advertisement the Automatic Voting Machine Corporation filed with the County Clerk its bid dated May 8, 1940. The bid contained two proposals. On May 17, 1940, the Commissioners’ Court accepted the first proposal of the Automatic Voting Machine Corporation of Jamestown, New York, for the rental of 210 voting machines at $125 each, and 90 machines at $1 each, for one year beginning June 1, 1940, including the'option to purchase any or all of said machines during said rental period, and to apply the rental and freight charges paid, on the purchase price of said machines. On the same date the county entered into a contract with Automatic Voting Machine Corporation whereby the County bound itself among other things as follows:

To pay within 150 days from May 17, 1940, for rental upon the 300 voting machines, the sum of. $26,340.00
to pay for freight on 210 of said machines from Jamestown, New York, to San Antonio, the sum of. 6,100.50
to pay a like sum for the return of the machines in the event they were not purchased. 6,100.50
$38,541.00

There were other obligations in the contract not necessary to here mention.

The question here presented is the validity of this contract for the rental of these 300 voting machines. The allegations of the petition were not denied under oath either by defendants below or by interven-ers and must be here taken as true.

It is clear that there was no item in the budget which could be expended for renting voting machines. However, if it be considered that the entire appropriation for elections could properly be diverted to the renting of voting machines this would provide far less than one-half of the amount required to pay the rental on the machines, thus leaving a deficit of more than $22,000.

The “Budget Law”, Art. 689a — 11, Vernon’s Tex.Civ.Stats., provides in effect that when the budget is adopted taxes shall be levied only in accordance therewith and no expenditure of the funds of the county shall thereafter be made except in strict cornpliance with the budget as adopted by the Court. The only exception to this rule is that emergency expenditures may be made in case of grave public necessity, to meet unusual and unforeseen conditions which could not, by reasonably diligent thought and attention, have been included in the original budget. The rental of the voting machines under the circumstances set forth in the petition did not constitute a grave public necessity which could not have been foreseen.

The Commissioners’ Court by entering into the contract for the rental of the voting machines did so in violation of the “Budget Law” and in doing so created a debt which they could not reasonably have expected to pay out of the current revenues of the county, which are presumed to be only sufficient to meet the budget as approved and filed.

The Commissioners’ Court, in contracting to rent the voting machines, did not only violate the “Budget Law” but also Section 7 of Article 11 of the Constitution of Texas, Vernon’s Ann.St., which provides in part as follows: • “But no debt for any purpose shall ever be incurred in any manner by any city or county unless provision is made, at the time of creating the same, for levying and collecting a sufficient tax to pay the interest thereon and provide at least two per cent (2%) as a sinking fund.”

The term “debt” as used in said clause of the Constitution “means any pecuniary obligation imposed by contract, except such as were, at the date of the contract, within the lawful and reasonable contemplation of the parties, to be satisfied out of the current revenues for the year, or out of some fund then within the immediate control of the corporation.” Stevenson v. Blake, 131 Tex. 103, 113 S.W.2d 525, 527.

A contract thus attempted to be entered into creating such a debt is void and unenforceable. McNeal v. City of Waco, 89 Tex. 83, 33 S.W. 322; Case Threshing Mach. Co. v. Camp County, Tex.Civ.App., 218 S.W. 1; Stevenson v. Blake, Tex.Civ.App., 88 S.W.2d 773; Id., 131 Tex. 103, 113 S.W.2d 525; City of Terrell v. Dissaint, 71 Tex. 770, 9 S.W. 593.

Accepting the allegations of plaintiffs’ petition as true, which we must do in the absence of a denial of same under oath by defendants and interveners, it becomes apparent that the trial court erred in not issuing the temporary injunction. Accordingly, the order refusing the temporary injunction will be reversed and the temporary injunction ordered issued as prayed for in. plaintiffs’ petition.

Supplemental Opinion.

In view of the fact that some confusion has arisen as to the extent of our holding and disposition of this cause in our original opinion, delivered November 13, 1940, we add the following supplemental opinion:

It is the order of this Court that this cause be remanded to the trial court, with instruction to issue the temporary injunction upon appellants’ giving bond in such sum as may be determined by the trial court. The temporary injunction to be issued shall restrain appellees from paying out any money under the terms of the contract made- and entered into by and between the Automatic Voting Machine Corporation of Jamestown, New York, and the Commissioners’ Court of the County of Bexar, State of Texas, on May 17, 1940, pending a final disposition of this cause on its merits.'

The temporary injunction heretofore issued by this Court herein shall be construed only as a temporary restraining order, restraining the Commissioners’ Court from-paying out any money under said contract, and shall terminate and become ineffective as soon as and when the trial court has issued the temporary injunction herein directed to be issued.

Appellants will file with the Clerk of this. Court a bond for temporary restraining order in the sum of $1,000, payable to appel-lees, as required by law, within three days-from the delivery of this supplemental opinion, or otherwise the restraining order heretofore issued out of this Court will become null and void and of no further force and effect.


author: PRICE, Chief Justice.

text:
    GENERAL EXCHANGE INS. CORPORATION v. APPLING et al.
    No. 3995.
    Court of Civil Appeals of Texas. El Paso.
    Oct. 31, 1940.
    Rehearing Denied Nov. 20, 1940.
    Kemp, Lewright, Dyer, Wilson & Sorrell, of Corpus Christi, for appellant.
    Lloyd & Lloyd, of Alice, for appellees.
   PRICE, Chief Justice.

This is an appeal from the judgment of the County Court of Jim Wells County. The judgment was against General Exchange Insurance Corporation, hereinafter called defendant, in favor of F. O. Appling, hereinafter called plaintiff, and General Motors Acceptance Corporation, hereinafter called G.M.A.C. The recovery in favor of plaintiff was in the sum of $217.79, and in favor of G.M.A.C. in the sum of $133.21. Trial was to a jury on special issues, and on the verdict the above judgment was rendered. Defendant’s motion for a new trial was filed in due time, overruled, and this appeal perfected therefrom.

Two grounds for reversal are urged by the defendant. These, in substance, are, first, that the court erred in overruling the general demurrer interposed by defendant to plaintiff’s first amended petition; second, as to a lack of a necessary party.

To the first ground plaintiff countered with the contention .that the court never ruled on the general demurrer interposed by defendant to the first amended original petition.

The trial pleadings were, first amended original petition of plaintiff, first amended original answer of defendant, first supplemental petition of plaintiff, and the original answer of G.M.A.C.

Plaintiff’s original petition does not appear in the transcript, and the date of filing of same does not appear therefrom. The first amended original petition was filed September 27, 1939; the amended answer of defendant on the same date.

Plaintiff declared upon a Texas Uniform Standard Automobile Policy issued by defendant covering one Chevrolet Sport Sedan from loss or damage by fire and other causes. The policy was attached to his amended petition as an exhibit and made a part thereof. Destruction of the automobile by fire .during the month of October, 1938, was alleged, and the value of the car was averred to be $375; further, that General Motors Acceptance Corporation was asserting some right, title or claim in the proceeds of the policy; notice of loss, demand for payment and refusal also appeared therefrom. Further, that by virtue of the premises defendant was legally bound to pay the plaintiff the sum of $375. The copy of the policy attached showed the coverage thereof to be the automobile in question for loss or destruction by fire. The' policy likewise provided for certain exclusions of liability under specified conditions. The pleading fails to negative these exclusions; it likewise fails to particularize as to how, when, or where or under what circumstances the automobile was destroyed by fire. It was likewise averred, in substance, that it was issued with loss payable clause to plaintiff and to G.M.A.C. and Nance Chevrolet Company, George West, Texas.

Defendant’s first original answer consisted of a general demurrer, general denial, and a special plea that plaintiff should not recover because he had wilfully caused the automobile to be destroyed by fire; that thereafter he fraudulently represented to the defendant that he had not so wilfully destroyed same.

The answer of G.M.A.C. set up a lien on the automobile in question securing obligations of plaintiff, and sought recovery to the extent thereof against defendant.

The judgment recites as follows: “On this, the 27th day of'September, 1939, came on to be heard the above entitled and numbered cause, wherein F. O. Appling is plaintiff, and General Exchange Insurance Corporation and General Motors Acceptance Corporation are defendants) and came the defendant, General Exchange Insurance Corporation, urging its general demurrer to plaintiff’s original petition, and the court, having heard and considered the same, is of the opinion that it should be, and it is hereby, accordingly, overruled, to which ruling the defendant, General Exchange Insurance Corporation, then and there in open court excepted; and came the plaintiff, F. O. Appling, urging his general demurrer to defendant’s first amended original answer, and the court having duly heard and considered the same, is of the opinion that it should be, and it is hereby, accordingly, overruled, to which ruling the plaintiff, F; O. Appling, then and there in open court excepted; and came the parties and stipulated and agreed by and between themselves that the defendant, General Motors Acceptance Corporation, is entitled to recover upon its cross-action filed herein, the sum of $109.82, together with interest thereon at the rate of ten (10%) per cent per annum from the 17th day of September, 1938, and the further sum of fifteen (15%) per cent of the principal and interest recovered, as attorney’s fees; and the parties, plaintiff and defendants, then announced ready for trial; * *

Following the literal language of the judgment as to the general demurrer, it appears the demurrer overruled was one addressed to the original petition of the plaintiff and not to the first amended original petition as here urged by defendant.

Unless it appears from a construction of the judgment in connection with the entire record that the use of the words, “original petition,” was a clerical error, and what was really meant was “first amended orig-. inal petition,” there is no basis for defendant’s assignment.

It is fundamental that if the language of a judgment is plain and unambiguous there is no room for construction; the effect thereof must be declared in the light of the literal meaning of the language used. If the language be ambiguous, there is room for construction. In determining the meaning, the judgment is to be construed as a whole and in the light of the record.

In the light of the record there are indications that the ruling was as to a demurrer to the first amended original petition. On the other hand, a party may amend even though a demurrer be overruled. It does not appear in the record when leave to amend was granted, if same was granted, to either party. When the amendment was filed the original petition ceased to be a part of the record, except for a very limited purpose. Here, it was superseded contemporaneously with the ruling assailed. It might be urged that it was not shown by the record that the original answer contained a general demurrer. This is true, but the record fails to show that such was not the case.

The entry of the judgment rendered is a formal act, and same should, at least, evidence with clarity and certainty the action taken by the court. This action may or may not have been that evidenced by the entry of the judgment. If it was not, it was a very simple matter to have same corrected. The judgment entered is certainly the best evidence of the judgment rendered.

Further, by an admission of record the G.M.A.C. was entitled to recover. Now it might have been entitled to recover, even though plaintiff had not the right; however, it could not have been reasonably entitled to recover had not the loss been within the coverage of the policy. Wilful destruction of the automobile by the assured was not within the contractual exclusion. This agreement was between plaintiff and defendant, as well as the G.M.A.C. By this agreement plaintiff extinguished an obligation of his to the extent the G.M.A.C. recovered against defendant. In our opinion, error is not shown by the assignment.

We might further add that, in our opinion, the first amended original petition was subject to genera! demurrer. It seems it has been uniformly held that where there are exceptions contained in a policy to the coverage thereof, and that unless these exceptions be in some way negatived, the petition is vulnerable to attack by general demurrer. Pelican Fire Ins. Co. v. Troy Co-Operative Ass’n, 77 Tex. 225, 13 S.W. 980; Travelers’ Ins. Co. v. Harris, Tex.Com.App., 212 S.W. 933; Century Ins. Co., Ltd. v. Hogan, Tex.Civ.App., 135 S.W.2d 224.

Was the Nance Chevrolet Company a necessary party herein, and in its absence could a valid judgment be rendered? Defendant did not plead in abatement on ac-i count of its non-joinder. Item 5 of the policy recites a lien in favor of the G.M. A.C. and the dealer, the dealer being the Nance Chevrolet Company. The pleading of the G.M.A.C. avers, in substance, that it was the legal holder and owner of all right of the Nance Chevrolet Company, the dealer, and of all liens securing plaintiff’s indebtedness. Defendant was a party to an agreement made in open court that G.M. A.C. was entitled to recover on its cross-action the amount claimed by that company therein. The terms of such agreement were not that the G.M.A.C. should have judgment in that amount, but it was entitled to recover in that amount.

If the Nance Company had any interest in the proceeds of the insurance policy, then the G.M.A.C. was not entitled to recover on its cross-action. This was true because there was a lack of necessary parties. Barlow v. Linss, Tex.Civ.App., 180 S.W. 652, writ refused.

In the case last cited rights founded on a joint contract were sought to be asserted by cross-action by one of the joint possessors of such rights without his co-obligee being a party. It was held no judgment could be rendered on the cross-action.

Requirement that all holders of a joint contractual right be parties to the action for its enforcement is for the benefit of the obligor. Thus he may have the extent and content of his obligation established in one action. Manifestly, if it be undisputed that all other joint obligors have assigned their right to one, there would be no necessity of all joining in the answer.

The record herein shows, almost without question, that the G.M.A.C. had succeeded to all rights held by the Nance Chevrolet Company, the dealer.

It occurs to us that the reversal of this case to the end that the Nance Chevrolet Company be made a party would be a useless proceeding. The agreement of the parties, according to our construction, shows that it has no interest. Under the undisputed evidence it has no interest.

There is no reversible error in the case.

Affirmed.