text:
    DAVIS et al. v. MORRISON et al.
    (No. 2232.)
    Court of Civil Appeals of Texas. El Paso.
    Feb. 14, 1929.

      R. L. Holliday and Dea, McGrady, Thoma-son & Edwards, all of El Paso, for appellants.
    Prod C. Poster, of Lincoln, Neb., and Kemp & Nagle and H. Potash, all of El Paso, for appellees.
   WALTHALL, J.

The statement of the nature of the case appearing in appellants’ brief, being both concise and complete, will be adopted for the purposes of this opinion.

In a former suit, to which appellants were not parties, James S. Morrison sought a divorce from Eunice Alma Morrison, who filed a cross-action against him, on which she secured a decree of divorce and a judgment to the effect that lot 1, in block 7, Mundy Heights addition to the city of El Paso, Tex., known as the Lambeth apartments, was community property of the said James S. Morrison and herself, although standing on the deed records in the name of Ed C. Morrison, a brother of James S. Morrison, which property was awarded to Eunice Alma Morrison as her share of the community estate, free of a lien against said apartments in the sum of $11,-000, on the theory that the lien had been paid by James S. Morrison out of community funds, regardless of the fact that the notes which the lien secured and the lien itself were held in the name of Ina Dell Davis, appellant herein.

This lien was originally created by a deed of trust on the above property from Austin D. Crile and wife, its then owners, to Robert L. Holliday, trustee for First Mortgage Company of El Paso, to secure notes aggregating $11,000 which were transferred, together with the lien securing the same, to appellant Ina Dell Davis on or about March 24, 1925, a little over five months before the rendition of the above divorce decree on September 8, 1925.

The present suit was filed by appellee Eunice Alma Morrison, as plaintiff, against appellant Ina Dell Davis and First Mortgage Company of El Paso, Tex., and Robert L. Holliday, as defendants, to cancel the above-mentioned deed of trust and notes in the hands of the said Ina Dell Davis on the theory that she had not paid consideration for the transfer from the First Mortgage Company to her, but that it had been paid by James S. Morrison.

Morrison did not answer in the suit. Holli-day and the First Mortgage Company disclaimed.

Ina Dell Davis appeared, answered, and filed a cross-action to recover judgment on the notes which she held and to foreclose the lien securing them.

Fred C. Foster, M. Nagle, and H. Potash intervened on the side of plaintiff, and claimed an interest in the property by virtue of an assignment from Eunice Alma Morrison in payment of attorney’s fees.

A. B. Heath intervened on the side of defendant, and claimed an interest to the extent of $4,000 in the lien against the property which he asked to be foreclosed.

Over the protest of defendant Ina Dell Davis and intervener Heath, the court submitted the case to the jury, and on its special veidiet rendered judgment in favor of plaintiff, Eunice Alma Morrison, and interveners, Foster, Nagle, and Potash, canceling the notes and lien.

From this judgment defendant Ina Dell Davis and intervener Heath appeal.

Opinion.

On the one and only issue submitted, the jury found that the funds or liberty bonds which were used to take up the notes from the First Mortgage Company, on the Lambeth apartments, were the funds of either James S. Morrison or of James S. Morrison and his then wife, Eunice Alma Morrison.

Appellants submit there was no competent evidence to support the jury’s finding. We do not concur in such conclusion. The evidence is circumstantial, but we think it sufficient to require the submission of the issue to the jury and to sustain the jury’s finding thereon. The evidence covers several pages of the record, and it would serve no useful purpose to reproduce it here.

On the trial, the witness Foster, testifying on behalf of plaintiff and interveners, other than Heath, was permitted to testify, over objection of appellants, that the evidence was immaterial and irrelevant; that he, witness, was one of the attorneys for Mrs. Morrison in the instant ease and in the former divorce case with her husband, James S. Morrison; that he w;as present and conducted the cross-examination of the witness James S. Morrison in the divorce case, and heard Morrison’s testimony in the divorce case as to how he (Morrison) received the Liberty bonds which were turned over to First Mortgage Company; that Morrison testified the Liberty bonds came by United States mail. Roster identified an envelope handed him as the envelope which James S. Morrison offered in evidence in the divorce-suit as that in which the liberty bonds came. The envelope referred to was introduced in evidence. The evidence shows the envelope to be nine and one-half inches long by four inches wide, with four two-cent stamps thereon, canceled at Woodlake, Cal., the date of cancellation being April 11, 192 — . The writing on the envelope being as follows: In the upper left hand corner: “Ina Dell Orchards, Woodlake, 'California. (Address) J. Morrison, Hotel Sheldon, El Paso, Texas.”

In the brief appellants submit that it was error to permit Foster to testify as to what Morrison had testified to in the former divorce suit with his wife concerning the receipt of the bonds in question through the mail; appellants Mrs. Davis and Heath not being parties thereto. Appellant Ina Dell Davis had testified on cross-examination that she sent the Liberty bonds from California to Morrison by registered mail. Morrison, while present as a defendant in the courtroom at the trial, was not called to testify by either side at any time.

The objection to the evidence was that it was “irrelevant and immaterial.” Appellee Mrs. Eunice Alma Morrison alleged that she and James S. Morrison owned a large community estate, acquired during their marriage, but that appellants James S. Morrison, Ina Dell Davis, Ed C. Morrison, brother of James S. Morrison, Mrs. Morrison, mother of James S. Morrison, Mrs. Mae Johnson, his sister, A. B. Heath, uncle of Ina Dell Davis, or in any event some of them, had, prior to and subsequent to the execution of said notes, and at the time of the purported transfer thereof to Ina Dell Davis, conspired together to defraud appellee Eunice Alma Morrison out of her portion of said community estate and her interest in the property involved in the suit, and agreed between themselves that the notes involved here should be transferred to Ina Dell Davis, which notes,-however, in truth and in fact were paid by appellant James S. Morrison out of the community funds of appellee Eunice Alma Morrison and said James S. Morrison, and that said appellants then and there caused the said notes and purported lien on said property to be transferred to said Ina Dell Davis, when in truth and in fact the said notes were fully paid and discharged with said community funds of appellee Eunice Alma Morrison and James S. Morrison, who were then and there husband and wife. The record discloses that, while the issue of conspiracy was not submitted to the jury, evidence was submitted apparently tending to show the participation in the alleged conspiracy by the parties charged. The record does not indicate whether the judge trying the case considered the issue of conspiracy had been shown.

The admitted testimony of the witness Foster merely identified an envelope as being the one James S. Morrison identified and testified to on the trial of the divorce suit between himself and his then wife, appellee Eunice Alma Morrison, as the envelope containing the bonds in question.

The rule seems to be well established, that, where there is evidence tending to show a conspiracy as alleged in the petition, all acts, declarations, and statements of any of the conspirators during the existence and in furtherance of such conspiracy are admissible against all parties so acting together. If the parties charged with the conspiracy were acting together as alleged, and in furtherance of the matters to be presented before and at the time the divorce proceedings were pending, and in anticipation of the issues therein to be presented or that might be presented, in the matter of the settlement of property .rights between the parties in the divorce proceedings, we think the objection to the evidence of Foster would not be tenable on the ground solely that Ina Dell Davis and A. B. Heath, nor either of them, were not parties in the divorce proceedings. In the absence of any evidence or statement by the judge presiding, we must presume that the evidence showed to his satisfaction the alleged conspiracy, that is, that Ina Dell Davis and A. B. Ileath were acting together with James S. Morrison in the common design and'purpose to effect the things charged as constituting the alleged conspiracy. We understand our courts to hold that overt acts done and declarations made by one acting in the conspiracy, and during its pendency, and in aid thereof, are admissible against all. Brown v. Chenoworth, 51 Tex. 469; Hughes v. Waples-Platter, 25 Tex. Civ. App. 212, 60 S. W. 981; Perry v. State, 44 Tex. Civ. App. 55, 98 S. W. 411; Witliff v. Spreen, 51 Tex. Civ. App. 544, 112 S. W. 98; Wells v. Scales (Tex. Civ. App.) 222 S. W. 303; Blum v. Jones, 86 Tex. 492, 25 S. W. 694; Whitmore v. Allen, 33 Tex. 356; 3 R. C. L. p. 1094 (citing Patch Mfg. Co. v. Protection Lodge, 77 Vt. 294, 60 A. 74, 107 Am. St. Rep. 765); 12 C. J. p. 632 et seq., stating the character of the evidence admissible and citing many cases, including this state and other cases than those above cited.

The burden was on appellants to have asked the court to charge that the declarations of Morrison were admissible against them only in the event the jury found a conspiracy existed. Pyron v. Brownfield (Tex. Civ. App.) 238 S. W. 725; Reese v. Carey Bros. (Tex. Civ. App.) 286 S. W. 311; Massie v. Hutchison, 110 Tes. 558, 222 S. W. 962; Blum Milling Co. v. Moore-Seaver Grain Co. (Tex. Com. App.) 277 S. W. 78.

Appellants submit that, appellee having pleaded that the notes held by the First Mortgage Company had been paid and satisfied with funds belonging to the community funds of Morrison and wife, and that appellant having denied such allegation, and which issue having been submitted to the jury, the court should have instructed, the jury that the burden of proof was on appellee to establish the affirmative of that issue.

The case was submitted upon one issue, and in doing so asked the jury: “Do you find from a preponderance of the evidence?” Then follows the issue submitted. Appellants refer us to the following cases as supporting their contention: Kerr v. Blair, 47 Tex. Civ. App. 406, 105 S. W. 548; W. O. W. v. McCoslin, 59 Tex. Civ. App. 574, 126 S. W. 894; Moore v. Orgain (Tex. Civ. App.) 291 S. W. 583; M., K. & T. Ry. Co. v. Thomason (Tex. Civ. App.) 3 S.W.(2d) 106; Jenkins v. Moore (Tex. Civ. App) 230 S. W. 886; Boswell v. Pannell, 107 Tex. 433, 180 S. W. 593; Munger v. Hancock (Tex. Civ. App.) 271 S. W. 228; Sanger v. First Nat. Bank of Amarillo (Tex. Civ. App.) 170 S. W. 1087; Wichita Falls R. & F. W. R. Co. v. Mendoza (Tex. Civ. App.) 240 S. W. 570.

Appellants requested the court to give the following in charge to the jury:

“In connection with Question No. One sub- ' mitted to you in the main charge, you are instructed that the burden of proof is on plaintiff to prove by preponderance of the evidence the affirmative of said question.”

The requested charge was refused by the court, and no charge was given on the burden of proof.

In Wootton v. Jones (Tex. Civ. App.) 286 S. W. 688, it is said:

“In charging on the burden of proof in a special issue case, we think the proper practice is to point out to the jury where, and not upon whom, the burden of establishing by a preponderance of the evidence lies.”

To the same effect is St. Louis Southwestern Ry. Co. v. Preston (Tex. Com. App.) 228 S. W. 932, in which it is said:

“To instruct the jury that the burden of proof [in a cause submitted upon special issues], was on the plaintiff to show, by a preponderance of the evidence, such facts as would entitle him to recover, would necessitate a further instruction, informing the jury as to which of the facts submitted were relied upon and necessary to entitle him to recover.”

Appellants’ requested special charge, under the above authorities, and others hereinafter referred to, was not a proper charge to have been given. The court submitted the issue to the jury as follows:

“Do you find from a preponderance of the evidence that the funds or Liberty bonds, which were used to take up the notes from the First Mortgage Company on the Lam-beth Apartments, were the' funds of either James S. Morrison or of James S. Morrison and his then wife, Eunice Alma Morrison?”

Without reviewing the cases here refeitred to by appellant, none of them, seemingly, were , on special issues submitted under instructions similar to the instant case. Some of the cases were submitted under the general issue, and, of course, have no application to the case at bar. One of the cited cases (Moore v. Orgain [Tex. Civ. App.] 291 S. W. 583) says that it is not always necessary to give a charge on the burden of proof. In the cases of Jenkins v. Moore, Munger v. Hancock, Sanger v. First Nat. Bank, and Wichita Falls v. Mendoza, supra, referred to by appellants, on the several issues there submitted, the jury was not asked to answer a question by a preponderance of the evidence.

We are of the opinion that, where a case is submitted on special issues, a charge on the burden of proof is not necessary, where the court, as here, asks the jury, in propounding a question, if they find the same on a preponderance of the evidence.

Texas Power & Light Co. v. Bristow (Tex. Civ. App.) 213 S. W. 702, was submitted upon special issues, and in each instance the jury was instructed to return an answer in accordance with the preponderance of the evidence, and in each instance the question propounded was, “Do you find from a preponderance of the evidence,” etc. The Austin court, speaking- through Judge Jenkins, said: “We think this was a sufficient charge as to the burden of proof.” A writ of error was denied. In Tarwater v. Donley County State Bank (Tex. Civ. App.) 277 S. W. 176, it is said:

“The evidence was entirely circumstantial and opinion evidence. This being the nature of the case, it was improper for the court to charge upon the burden of proof as to either of the issues.”

In the last above-cited case Judge Hall cites Stocksbury v. Swan, 85 Tex. 563, 22 S. W. 963, in which case Judge Stayton said?

“In cases in which evidence is introduced by the respective parties, tending to prove and to disprove the issues of fact involved in the cause, occasion does not arise for declaration upon whom the burden of proof rests; for the question then becomes merely one of preponderance of evidence, which is for the decision of the jury under the evidence introduced, whether this be direct or circumstantial. In such cases a charge upon the burden of proof is more likely to mislead than to give a jury a correct view of their duties.”

In Roberts v. Nowlin (Tex. Civ. App.) 9 S.W.(2d) 69, special issue No. 1 reads:

“Do you find, from the preponderance of the evidence in this case,” etc.

The Amarillo court held that the effect of the charge was to place the burden of proof of that contention upon Nowlin, and was sufficient upon the burden of proof. Without further commenting from cases we have reviewed, we refer to the following as sustaining appellees’ contention on the sufficiency of the charge on the burden of proof: O’Brien v. McDow (Tex. Civ. App.) 8 S.W.(2d) 561; Blum v. Strong, 71 Tex. 324, 6 S. W. 167; Gulf, C. & S. F. Ry. Co. v. Bush & Witherspoon (Tex. Civ. App.) 136 S. W. 102 (citing many eases), in which the jury was instructed to answer, “as you may find from the evidence.”

Finding no reversible error, the case is affirmed.


source: Caselaw Access Project

author: LESLIE, J.

license: Public Domain

text:
    JONES v. WILLIAMS.
    (No. 514.)
    Court of Civil Appeals of Texas. Eastland.
    Jan. 4, 1929.
    Rehearing Denied March 1, 1929.
    Jno. W. Mackey, of Breckenridge, for appellants.
    Seay, Seay, Malone & Lipscomb and Winfrey & Lane, all of Dallas, for appellee.
   LESLIE, J.

This is a suit in the nature of a bill of review in contest of the approval of a guardian’s final account. The guardian, M. O. Williams, filed in the probate court of Stephens county, Tex., on April 28, 1926, an application to resign, accompanied by a final ¿ccounting. The final report and account remained on file in the probate court without any action thereon until September 80, 1926, when the wife and other members of the family of the non compos mentis filed a contest in which they protested the approval of said account and sought to have the guardian restate the same. It was charged that the estate of the ward had not been administered in accordance with law and that the funds belonging thereto had been unlawfully squandered and dissipated. Each item of expenditure was contested. .

M. O. Williams, guardian and appellee, answered by allegations explanatory and in defense of the various disbursements by him, and specially pleaded that the same had been made under authority of orders duly made and entered by the county judge of Stephens county, Tex., at prior- terms of said court, which had expired, and that such orders had the force and effect of final judgments and were conclusive and not subject to review in the manner in which they are here assailed.

The contest was initiated in the probate court of Stephens county, Tex., where the guardianship was pending, and a judgment aproving and affirming said guardian’s final account, except as to three items of disbursement aggregating $716.67, was rendered, and the contestants appealed to the district court ■of Stephens county, where a trial de novo was had, and two items, the same being premiums for guardian’s bond, were stricken out as improper charges against the estate, and in other respects the final accounting of the guardian was approved. He was ordered to pay the residue of the estate into the registry of the court, upon which event he would be discharged, together with the surety on his bond. This is the judgment appealed from and which this court is asked to review.

By order of this court the appellant has been permitted to amend his transcript by embodying therein the omitted assignments filed in the lower court, and he has also been permitted to file a supplemental transcript showing the appeal of this cause from the county court of Stephens county to the district court thereof. It is therefore unnecessary to discuss the several questions arising from these deficiencies in the record.

The appeal is presented upon 24 assignments of error and 23 propositions thereunder. The record is very voluminous, and the briefs are likewise. Having disposed of the matters having to do with the perfecting of the record, w'e come now to a consideration of divers objections to this court’s giving any consideration to the appellant’s assignments and propositions. These objections have called for much consideration upon our part, and we have reluctantly come to the conclusion that this appeal, in a substantial measure, must be disposed of upon the objections as urged. We will not undertake to set out verbatim the various assignments and statements, as they are lengthy, and to restate them would unnecessarily extend the opinion without serving any useful purpose.

Upon objections urged, the first three assignments must be rejected because they are too general. They point out no specific error and in that sense do not comply with the rules for briefing or the authorities construing such rules. See Rules 2A-26, Courts of Civil Appeals; Underwood v. Hogg (Tex. Civ. App.) 261 S. W. 556; Musick v. O’Brien (Tex. Civ. App.) 102 S. W. 458; Stein v. Roberts (Tex. Civ. App.) 217 S. W. 166; Washington v. Giles (Tex. Civ. App.) 220 S. W. 439.

It is further objected that assignments 2 to 20, both inclusive, are multifarious. An examination of these convinces us that each of said assignments raises two or more distinct alleged errors. These assignments having the vice complained of, for that reason, fall under the condemnation of the rules of briefing and the authorities generally. Being multifarious, they are void, and do not .call for consideration.

The twenty-first assignment of error complains that the court erred in permitting a certain witness to testify to various items of expenditure by the guardian. If any error in the court’s action ,in this respect, no bill of exception presenting the objectionable testimony and .the ruling of the court appears in the record -as a basis for the assignment. The alleged error within itself is not fundamental, and, being unsupported by a proper bill of exception, the assignment is disregarded. Article 2237, Revised Civil Statutes; Brazelton Lbr. Co. v. Roberts (Tex. Civ. App.) 253 S. W. 698; Rabb v. Goodrich & Son, 46 Tex. Civ. App. 541, 102 S. W. 910; Davis v. Bowen (Tex. Civ. App.) 256 S. W. 621.

Assignment No. 24 is in the same condition as assignment 21. It complains of the admission of certain testimony, but the objectionable testimony and the action of the court are not presented by a-bill of exception. Therefore assignment 24 cannot be considered.

The appellant makes his twenty-second assignment of error his twenty-first proposition, and in it complains that the court erred in admitting as evidence a claim of Amos Atkins for $4 and one of John W. Hill for $3, as well as admission of the check evidencing the payment thereof. As either an assignment or proposition it is multifarious, complaining of two or more separate and distinct errors of the trihl court. It is not entitled to be considered.

The twenty-third assignment of error remains to be considered. It is presented as a basis for propositions 10, 11, and 22. Neither the tenth nor eleventh proposition is relevant or germane to the assignment, which complains that “the trial court erred in admitting as evidence the purported agreement between M. O. Williams, Guardian, and W. "V. Custer, whereby said Ouster was appointed as an attorney for the estate of said ward, H. H. Jones, and said guardian.”

The tenth proposition is to the effect that it was error for the court to admit evidence of (1) application for order, and (2) order of the probate judge for payment to Benson & Dean of $500, to Gresham & Willis, $2,077.77, $277.76, and $27.73, and to W. V. Custer $1,-027.77, and $138.88 as attorneys’ fees.

As noted, the assignment deals with the admission in evidence of a certain agreement. The tenth proposition specifically relates to the alleged error of the court in admitting evidence of application for and order of the probate court for the payment of certain attorneys’ fees. It will be further observed that six different sums of money were paid to three distinct firms of lawyers, and the complaint is that an application for an order was admitted in evidence in each instance, as well as an order of the probate court, and it cannot be determined whether but three errors are complained of, or two errors with reference to each of six sums paid out, making an aggregate of twelve errors. If presented separately and distinctly, each of these payments or each of the alleged errors relating thereto could have been considered upon its own merits. Some might have been overruled and some sustained. The proposition is evidently multifarious and must also be rejected.

The eleventh proposition complairis that the court erred in approving payment by the guardian of either or all of the above items of attorneys’ fees. This is not germane to an assignment complaining of the admission of certain instruments in evidence, as is above indicated.

The twenty-second proposition, while germane to the assignment, is, we believe, without merit and should be overruled. As an explanation of certain disbursements made by the guardian, we believe the contract between him and the attorneys employed by him to recover the ward’s estate was admissible in evidence. It was pertinent testimony and entitled to be considered.

This disposes of the various assignments sought to be presented, and, since the pleadings are sufficient and the trial court had jurisdiction to try the cause and there is no fundamental error appearing from the record, the law requires that the judgment of the trial court be in all things affirmed. Ford & Damon v. Flewellen (Tex. Com. App.) 276 S. W. 903.

By reason of the consideration we have necessarily given this record the following observations are made:

The appellee guardian presents a case wherein he has administered the ward’s estate and has disbursed numerous sums of money. These disbursements readily fall into two classes: First, the payment of claims to third persons and specifically ordered by the county judge; and, second, commissions to himself, and alleged necessary expenses of administration. The second class involves payments and transactions between himself and the trust estate. As to the first class of claims, they appear to have been paid upon the authority of the probate court and rest upon an order of approval from that court. Article 4250 of the Revised Statutes provides that “such order of approval or disapproval shall have the force and effect of a judgment.” These orders have never been appealed from, as is provided in article 4252 of the same statute, nor have the appellants in this proceeding shown any right to relieve the ward’s estate from these judgments upon the ground of fraud, accident, or mistake. It is unnecessary to discuss further the law relative to the character of attack sought to be made here by the appellants, but for a full and clear statement of the principles of law applicable, the following authorities are cited: Moore v. Hillebrant, 14 Tex. 312, 65 Am. Dec. 118; Heffner v. Brander, 23 Tex. 631; De Cordova v. Rogers, 97 Tex. 60, 75 S. W. 16; Eastland v. Williams, 92 Tex. 113, 46 S. W. 32; Krawietz v. Kneiski (Tex. Civ. App.) 236 S. W. 805.

As to the second class of disbursements which were subject to attack in the proceeding before us, suffice it to say that, the trial court having heard the evidence in support of such claims, as well as the reasonableness of the same, this court would not be warranted in setting aside the judgment, which appears to have reasonable support in the testimony.

Through the record the appellant complains that the court admitted testimony 'of an irrelevant and immaterial nature, as well as improper opinion testimony on the part of the witnesses. As to this, it must be recognized that the trial was before the court, and there is no bill of exceptions in the record disclosing that the court in any measure based his judgment upon this character of testimony, and in that state of the record the presumption prevails that the court in reaching his conclusion discarded all the testimony of irrelevant, immaterial, and unlawful nature.

The judgment of the trial court will therefore be affirmed.


author: HIGGINS, J.

text:
    DOUGLAS v. NAGLE.
    (No. 2269.)
    Court of Civil Appeals of Texas. El Paso.
    Feb. 21, 1929.
    Douglas, Carter & Black, of San Antonio, for appellant.
    Thomas Y. Banks, of San Antonio, for ap-pellee.
   HIGGINS, J.

This is an appeal from an order temporarily enjoining appellant from selling a tract of land under power conferred by deed of trust.

The suit is by appellee, Nagle, against H. A. Cartwright and wife, Mary Belle Cartwright, L. É. Cartwright, appellant Douglas, trustee, and others not necessary to mention.

Briefly stated, the facts shown by the verified petition are as follows:

May 17, 1927, H. A. Cartwright and wife, by general warranty deed, conveyed to Pauline Harper a tract of land in the city of San Antonio, in part payment for which the grantee and her husband executed their note to the order of said grantors in the sum of $1,-416.50, payable in monthly installments of $35 each, secured by vendor’s lien and deed of trust on said land. November 4, 1927, Pauline Harper and husband; conveyed the land to appellee, Nagle, the deed reciting that the conveyance was subject to the foregoing incumbrance of $1,416.50, but “it was, nevertheless, the express understanding and agreement of the parties that the - said Nagle should pay the same, and should hold the said Pauline Graham Harpef and husband, W. H. Harper, harmless therefrom.”

On or before December 10, 1927, the holder of said note declared same due for default in the payment of some of the monthly installments, and directed Hon. W. C. Douglas, as trustee, to sell said land to pay the note as authorized by the deed of trust, and Judge Douglas advertised the land for sale. 'On December 31, 1927, a writ of garnishment was issued against and served upo-n appellee based upon a judgment for $1,467.40, theretofore rendered in favor of C. H. Graves against H. A. Cartwright and Lee Hiokerson. Before answering the writ, appellee investigated the records of Bexar county, and ascertained that H. A. Cartwright and wife were the record owners of the note above mentioned, and same was either the separate property of H. A. Cartwright or community property of said Cartwright and wife; ap-pellee also inquired of L. E. Cartwright as to the ownership of the note, and was informed by him that H. A. Cartwright was the owner thereof, and he (D. E. Cartwright), was as agent for H. A. Cartwright, attending to the collection thereof. Relying upon the information indicated, appellee answered the writ of garnishment, admitting his indebtedness to I-I. A. Cartwright upon said note, and upon such answer judgment was rendered against him for $1,416.50. After appellee had answered in the garnishment suit, D. E. Cartwright filed for record in Bexar county a transfer to him of said note and lien from H. A. Cartwright and wife.

Judge Douglas answered by general and special exceptions, general denial and special ■plea, setting up that on December 6, 1927, H. A. Cartwright and wife transferred the note and lien to L. E. Cartwright for value, who acquired same in good faith and without notice of any defense thereto, and at that time said note was not matured: thereafter L. E. Cartwright declared same due for default in payment of installments then due, and directed the trustee to sell the land to satisfy the note. He further pleaded that Nagle merely acquired the property subject to the lien, and did not assume to pay the indebtedness against the land, and therefore was not contractually liable to pay the note.

Upon the hearing, the sale was temporarily enjoined. From this order the trustee alone appeals.

It is well settled that an indebtedness upon a past-due negotiable note is subject to garnishment for a debt owing by the owner of such note. Thompson v. Bank, 66 Tex. 156, 18 S. W. 350. The note in this ease was past due when the writ of garnishment issued. This is shown by the allegations of the petition and evidence adduced upon the hearing.

Three propositions are presented by appellant in support of the contention that appel-lee ivas not liable in the garnishment, viz.:

(1) Appellee acquired the mortgaged property “subject to the incumbrance”; therefore the relation of debtor and creditor between H. A. Cartwright and appellee was not created.

(2) D.. E. Cartwright acquired the note prior to the'garnishment; hence appellee was indebted to D. E. Cartwright, if indebted to any one upon the note.

(3) L. E. Cartwright was a necessary party to the present suit, and the trustee’s sale could not be-enjoined without bringing L. E. Cartwright “into court and giving him a hearing on the question.”

While the deed from the Harpers to appellee recited the land was conveyed subject to the lien, it was permissible to show that, as a part of the consideration, Nagle agreed to pay off the incumbrance and hold the Harpers harmless therefrom. Johnson v. Elmen, 94 Tex. 168, 59 S. W. 253, 52 L. R. A. 162, 86 Am. St. Rep. 845. The allegations of the petition show such an agreement, and ap-pellee became obligated to pay the note. The first proposition is thus without merit.

As to the second, the averments that D. E. Cartwright, in response to inquiry, informed appellee that H. A. Cartwright was the owner of the note and his connection therewith was as collecting agent for H. A. Cartwright and appellee’s reliance upon such information in answering the writ, are plainly sufficient to estop L. E. Cartwright from claiming the right to foreclose as owner of the note.

As to the other question, B. E. Cart1 wright is joined as a party defendant. The fact that he had not been served with process or answered when the hearing was had upon the application for the temporary injunction did not deprive the court of power to temporarily enjoin the sale. As to all or any of the defendants, it W-as within the sound discretion of the court to proceed ex parte in hearing the application for the. temporary injunction and in granting such relief.

Affirmed.


text:
    TELLES v. ESPARZA.
    (No. 2233.)
    Court of Civil Appeals of Texas. El Paso.
    Feb. 14, 1929.
    Rehearing Denied March 7, 1929.

      E. B. Elfers, of El Paso, for appellant. Jones, Hardie & Grumbling and Ben Howell, all of El Paso, for appellee.
   HIGGINS, J.

Appellee was a passenger for hire riding in an automobile owned by appellant and driven by the latter’s employee. At the intersection of Overland and St. Vrain streets in the city of El Paso the car collided with a truck owned by Lee Moor and driven by Moor’s employee.

Appellee was injured by the accident particularly about his head and mouth. He brought this suit against appellant to recover the resulting damage.

Defendant answered by general denial and special plea that the collision was not due to any negligence on the part of the driver of the car owned by him, but was due solely and proximately to the negligence of the driver of the truck, and that said driver and Moor were solely liable for the plaintiff’s injury and damage.

The case w'as submitted upon the general issue. Verdict was returned and judgment rendered in plaintiff’s favor- for $450, from which defendant appeals.

Plaintiff was a witness in his own behalf. Upon his cross-examination he testified:

“Mr. Lee Moor did give me the $64.00 that paid me for my work during the time I was off, and I made an agreement with Mr. Moor in that connection. That is my signature to the agreement.”

Thereupon counsel for defendant offered in evidence the following instrument:

“October 31st, 1927.
“Mr. Lee Moor, El Paso, Texas — Dear Sir:
' “In consideration of the advance by you to me of $64.00 for which I have this day signed a note, I agree to prosecute to final judgment my claim against Ramon Telles for injuries sustained by me while riding in a taxi owned by Ramon Telles. If this suit is decided against me then I will release you from any liability on account of the accident if you will cancel the note and pay the doctor’s bills resulting from the accident. If this suit is decided in my favor then in ease I recover the amount of $64.00 plus doctor’s bills then I will repay you the amount advanced by you to me and I will pay the doctor’s bills.
“This agreement is signed at the same time as an advance by you to me of $64.00, the receipt of which is hereby acknowledged.
“[Signed] Vicente Esparza.
“Accepted: [Signed] Lee Moor.”

Upon redirect examination he testified:

“At the time that I signed this instrument on the 31st of October, in Mr. Howell’s office, I had received some dental treatment at that time. When I came to the office of these lawyers, I was coming there to file suit against both drivers, of the truck and of the car. I did not have any money with which to pay for my dental treatment myself. I had been told by the doctors that I had to have dental treatment. I had the money that Mr. Lee Moor furnished me with which to pay the dentist for treating my teeth- at that time. That was after I signed this agreement. I did not have any other way to get the money except getting it from Mr. Lee Moor. I was out of work sixteen days, and I didn’t get any pay from the Railroad Company until a month afterwards. At that time I had a family, and I had ten children. Those children are twenty-one, twenty-two, eighteen, sixteen, twelve, six, eight, two and three years old. The youngest is one and a half years old. Those ages I gave are approximate. I didn’t have anything saved up with which to live on during the time I was laid up. Earning $4.00, with that big family, I couldn’t save anything.”

Error is assigned to the admission of the testimony developed uppn the redirect examination, particularly the latter part thereof.

The plaintiff had the right to elect whether he would seek to hold Moor or appellant liable for his injury, but the agreement with Moor was admissible against plaintiff, as affecting the credibility of his testimony against appellant. The agreement, if unexplained, was prejudicial to plaintiff. In this situation it was permissible for him to show the necessitous condition which prompted him to mahe the settlement with Moor, evidenced by the letter. Haney v Clark, 65 Tex. 93. Ordinarily, the evidence complained of is inadmissible, but appellant, having introduced the letter in evidence, cannot be heard to complain of the testimony in explanation of the reasons impelling the plaintiff to make the agreement with Moor.

In any event, we do not regard the same as having had any prejudicial effect against appellant, for the evidence abundantly shows negligence on the part of appellant’s employee, causing the collision, and the damages assessed are exceedingly moderate when the extent of the plaintiff’s injuries and suffering are considered. The undisputed evidence shows he was seriously injured, especially in his mouth, and he suffered very much. This is shown, not only by the plaintiff’s own testimony, hut by the dentist who treated the injury to his mouth and teeth.

It is contended the jury was guilty of misconduct, in that during their deliberation it was asserted appellant could force Moor to repay part of what damage might be awarded the plaintiff, and that such misconduct influenced the verdici returned.

Six of the jurors testified some reference was made in the jury room to Moor’s liability, but they are not clear as to what was said, and it is apparent the reference had no effect upon them. Three jurors testified they heard no such discussion. The testimony of the jurors Kilpatrick, Sampson, and Hampton is the most favorable to appellant.

Kilpatrick testified:

“During our consideration of this case I heard statements or arguments advanced that Lee Moor should be made to contribute to or pay part of the judgment that might be rendered in this case against Ramon Telles. I did not pay much attention to it, except the argument came up in the course of the discussion. I know they said the plaintiff was entitled to damages being a passenger. Someone said the man was entitled to damages, and he could get it back from Lee Moor, he said Lee Moor -was guilty or would not have paid that doctor’s bill beforehand. The first ballot stood six to six. There • was kind of a confusion on the ballot, and they then put it in a different form, and the next ballot, I think, was changed considerably. I can not say whether the contention that was made that the man -was entitled to damages, and Lee Moor could be made to contribute or at least pay a part of the amount against Telles was made by a juror who was favoring a verdict in favor of the plaintiff or not. There were several made that statement. They all seemed to agree to it. I thought that should be done myself, and thought that statement was true, that if we did return a verdict against Telles that he could get it back from Mr. Moor. I do not remember any juror making that line of argument, several made it, it was discussed. ⅜ * * I do not know who made those remarks. I did not make them 'myself. I did not quite understand that agreement that was introduced in evidence, I never have got it straight yet. I heard it read, something about Lee Moor paying his doctor’s bill, and he was to get his money back when the matter was settled in court, I never did get it straight. I got the idea this man would get the money out of Lee Moor because he must have been liable, or he would not have advanced the money. I have seen lots of times when a man pays a judgment he turns right around and sues another man, I don’t know about a personal injury case. I thought the drivers of both cars were liable to a certain extent. I believe that this boy who was operating that car did not use the high degree of care he should have used, I figured he was liable to a certain extent. I thought that he was probably guilty o;f negligence. I figured there was another car coming, and he was doing the best he could to get-out of the way. I said he was probably to blame, he was doing the best he could to get out of the way of this truck. He was to blame because he had this man in charge as a passenger. He could have stopped. I think in not stopping he was probably to blame. My belief that Ramon Telles himself was negligent was independent of some other idea that some one else was negligent. I thought the man suffered that much damages. We figured that that was not too much damages. I do not know at what stage of the proceedings these remarks were made, we were trying to get together, and they were using all kind of arguments to get together. I remember that after the jury came in Mr. Howell asked me some questions out on the street. I do not remember that he asked me if there was any misconduct of the jury in the jury room. No one in the jury room who purported to have any expert legal knowledge said that either one could recover against the other. They gave their ideas of what might take place.”

Sampson testified:

“During the deliberation there was some talk that if a verdict was returned against Ramon Telles that Lee Moor could be made to pay part of it. I do not remember who brought that up. It just came up in general discussion about the case. We had not reached a verdict at the time that discussion came up. The remark was that they would split it, and Lee Moor would have to pay part of it, that is the way it was, as I understand it. I do not remember who made that remark or under what circumstances it was made. I did not think much about it.”

Cross-examination:

“That did not influence my verdict. It was just a suggestion of what might happen after it was over. So far as I know it did not influence the verdict of any juror.”

Hampton testified:

“During the deliberation in the jury room there was something said that if a verdict was 'returned against Ramon Telles for any amount he could make Lee Moor pay it or part of it. I do not recall who made that statement or advanced that argument. I do not remember whether more than one person made that statement or not, but there was something said like that. The way that argument came up, as I remember, some of the jurymen were not in favor of giving this man very much damages, and I think they thought this man Telles would have'his recourse on the other man, the man that owned the truck. I would not say that had any influence on the jurors who opposed giving a verdict, they first took a vote yes or no, voted yes or no whether this man was entitled to damages or not. I do not recall how we stood at that time. I think there were three or four that voted to give him more than the balance of them did. I think this discussion that Ramon Telles would have his recourse over against Lee Moor came up on the question of whether there should be any damages at all or not. I do not recollect what jurors advanced that statement or argument. Apparently it was one of the jurors who favored giving this man a verdict. I thought that Telles would have recourse on this other man that owned the truck when those statements were made. I do not think there was any argument on the question. Following that there was an agreement to give him damages, and an agreement as to the amount.”

Cross-examination:

“I think it was just mentioned that Mr. Telles might get something out of Lee Moor, I do not think the matter was argued. Nobody knew that he could, it was just simply a suggestion that he might he able to. It had no influence on my verdict. I passed on the case according to the evidence. When someone spoke about Lee Moor paying part of the judgment I think someone said that is not our case.”

This does not show any overt act of misconduct on the part of any member of the jury. They did not discuss any fact outside the record. The record is replete with evidence of Moor’s connection with the accident. A juror cannot impeach his verdict, and an unsound process of reasoning by jurors in arriving at a verdict does not constitute statutory misconduct. Inquiry into the mental processes of jurors in arriving at a verdict is not permissible, unless an overt act of misconduct is shown reasonably calculated to improperly influence some member of the jury in reaching a verdict. When an overt act of misconduct is shown, then it is permissible to show its improper influence upon the juror’s mind. Bradley v. T. & P. Ry. Co. (Tex., Com. App.) 1 S.W.(2d) 861, and cases there cited. Under the case cited, statutory misconduct of the jury in this case was not shown.

Affirmed.


author: GRAVES, J.

text:
    GALVESTON ELECTRIC CO. v. BIGGS.
    (No. 9251.)
    Court of Civil Appeals of Texas. Galveston.
    Jan. 31, 1929.
    Rehearing Denied Feb. 28, 1929.

      ■Terry, Cavin & Mills, of Galveston, for appellant.
    Stewart, Damiani & Harris and Brantly Harris, all of Galveston, for appellee.
   GRAVES, J.

Appellee, as plaintiff, sought a $15,000 recovery for injuries, pain, suffering, and permanent disability, together with $1,000 for medical attention, all alleged to have been sustained by her while a passenger on appellant’s street car in the city of Galveston, as a result of these acts of negligence:

“Plaintiff further alleges that at the time and place of said injury, as aforesaid, defendant did not manage and operate its road and its car with reasonable care, skill and diligence, but on the contrary, managed and operated same 'with - gross negligencej and carelessness in the following particulars, among others,'which directly and proximately caused said collision and injuries to the plaintiff:

“(a) Defendant, through its agent, the motorman in charge of said car, failed to keep a lookout and ran into and collided with a street car belonging to defendant.
“(b) Defendant, through its agent, the motorman, negligently and carelessly ran into a street car belonging to defendant.
“(c) Defendant’s agent, the motorman, failed to give proper care to the operation and running of said street ear, but on the contrary, had diverted his attention from said car, and was reading a card and not keeping a proper lookout ahead.
“(d) Defendant’s agent, its motorman, was negligent in that /its car was not equipped with proper brakes.
“(e) Defendant was negligent in that its motorman was operating said car at an excessive rate of speed under the circumstances.
“(f) Defendant was negligent in that its agent operating the stationary car stopped said car without giving proper signals and without warning defendant’s agent operating said car on which plaintiff was riding, that said car was blocking the track.”

In addition, a contractual obligation, in return for valuable consideration paid, to safely transport her, was charged to have befen made and likewise violated, without fault or contribution thereto upon her part)

The injuries claimed were, in substance: Being violently thrown to' the floor of the car against iron posts and left in a mangled and bruised condition, her right elbow lacerated, back wrenched and sprained, and bone in the left leg so crushed and permanently hurt as to make her a cripple for life; that, in consequence, she had suffered great pain, would not for some time to come be able to work at all, nor ever again to do any that required her to stand up or walk about,, as she had been doing, and at which she had been earning $20 per week, prior to her injury; that her future earning power had permanently been much impaired.

On conclusion of the evidence, the court, finding appellant guilty of negligence that proximately caused the collision and resulting injuries, granted plaintiff’s motion to withdraw that issue from the jury, ahd submitted only the question of the amount of-damages, if any, to which she had shown herself entitled. Thereupon, a verdict in her favor for $4,250 was returned, and judgment followed accordingly.

After the defendant’s motion for new trial, which, among other grounds, alleged misconduct on the jury’s part (1) in having discussed attorney’s fees for plaintiff without evidence thereon, and (2) in having added something to their verdict for “future pain and suffering” contrary to the court’s charge, had been heard but before it was acted upon, the plaintiff, in deference to the court’s suggestion that he thought the verdict for a greater sum than $2,118 tainted by the jury’s improper discussion of the attorney’s fees, and that if she would remit it down to that amount he would overrule the motion but otherwise grant it, filed a remittitur reducing the verdict to $2,118; an order overruling the motion was then entered, under these stated findings of fact:

“Eirst: That upon retiring to the juryroom to consider their verdict the jury' read the Court’s charge on the measure and elements of damage and proceeded to determine in the order in which said elements appeared in said charge, the amount of plaintiff’s damage on each of said elements; that it was agreed plaintiff was entitled to recover her doctor’s bills in the sum of $493,00; that for the loss of earnings from the time of the accident until the time of the trial, she was entitled to .recover the sum of $625.00; that for pain and suffering from the time of the accident to the time of the trial, and for diminished capacity to earn money in' the future, she •was entitled to recover the sum of $1000.00, making a total of $2118.00, which said sum of money it was agreed reasonably compensated the plaintiff for those elements of her damages as covered by the Court’s charge.
“Second: That after this compensation was arrived at and agreed to, it was mentioned by some of the jurors that plaintiff would be required to pay some portion of her recovery to her attorneys, and that in order to give plaintiff the full amount of her damages of $2118.00, the jury should add sufficient to this sum to enable her to pay her attorneys their fee and leave plaintiff the said sum of $2118.00; that considerable discussion was had in the juryroom as to what this added amount should be, and finally the sum of $4250.00 was arrived at. I find that at least three of the jurors would not have consented to a verdict in excess of $2118.00 but for the discussion relative to attorney’s fees.
“Third: I find as a fact that in arriving at said sum of $2118.00 none of the jurors discussed or considered that any portion thereof-was for ‘future pain and suffering,’ as alleged in defendant’s said amended motion for a new trial, but that said sum was arrived at as found in paragraph 1 hereof.
•‘Fourth: I find that portion of the jury’s verdict tainted with the juror’s misconduct is capable of- easy and definite ascertainment, and accordingly I suggested to plaintiff that if she would remit the judgment down to said sum of $2118.00 I would overrule the motion for new trial, otherwise same would be granted.”

Appellant, conceding that the remittitur removed all possible taint as concerned attorney’s fees, under its propositions X to XV, inclusive, assails the judgment on the contention that the entire verdict was vitiated by misconduct of the jury in allowing some damages for “future pain and suffering,” when such element of damage was neither alleged nor covered by the court’s charge, in that the evidence clearly disclosed, not only that there was discussion in the jury room touching that question, but also that it was at least reasonably doubtful as to whether or not Juror Foster’s verdict was influenced thereby, in that he swore he allowed $1,000 on that account.

It is true that the appellee neither in her petition sought a recovery for “future pain and suffering,” nor did the court’s 'charge permit it to be considered, wherefore it was an improper element.

But, in the quoted order overruling the motion for new trial, the learned trial court has made a finding of fact that none of the jurors discussed or considered that any portion of the $2,118 allowed was for “future pain and suffering,” and, a careful reading of' the statement of facts disclosing that there is clear support for it in the testimony, this court is bound thereby. Houston & T. C. R. Co. v. Gray, 105 Tex. 42, 143 S. W. 606; Moore v. Orgain, writ of error refused (Tex. Civ. App.) 201 S. W. 583; Sandifer v. Bank (Tex. Civ. App.) 8 S.W.(2d) 512.

Although four were examined, the juror named was the only one who testified to any such discussion 'or consideration, others affirmatively saying it did not occur; even he seems to have at least confused in his mind the element of disability to earn money, which was a proper one under both pleading and charge, with the tabooed one for “future pain and suffering,” 'because he also swore “that $1,000.00 was agreed on by all as representing any pain or suffering, or disability right up to the time of the trial,” and “I will state that at the time we added the. $1,000 to make up the $2,118.00, if I had felt that she was not entitled to any compensation for future pain and suffering, but that she was entitled to compensation for diminished capacity to labor and earn money in the future, I would, still have felt that she was entitled to that $1,000.00.”

In any event, we find nothing shown in this matter, under all the evidence touching it, even tending to indicate that the trial court abused its discretion in refusing to grant a new trial on account of it.

The $493 allowance for medical bills is attacked as lacking the necessary support of a pleading that the amount sought on that score was a reasonable, necessary, or customary charge for the service claimed. The allegation on this feature was: “Plaintiff alleges that by reason of the premises and by reason of said pain and suffering, she has sustained damages in the sum of $15,000.00 and that she has been forced to incur bills for medical attention in the sum of $1,-000.00.”

Appellant interposed no special exception ■to this averment, ’ although it did object to the testimony received in support, on the ground that the pleading did not set out that the bills were reasonable, customary, and proper. The court charged with reference to it': “In arriving at your answer to this question you may take into consideration the bills, if any, necessarily incurred by her for medical attention, made reasonable by reason of the injuries, if any, sustained by her in said collision not exceeding the sum of $493.00. In determining the amount of medical bills, if any, jncurred by plaintiff, you can only, allow bills in such sums as you may find from the evidence were necessary and customary and reasonable for the services, if any, performed.”

In these circumstances, there was no reversible error in receiving the testimony and allowing the recovery. Texas & Pac. Ry. Co. v. Lee, 21 Tex. Civ. App. 174, 51 S. W. 351, writ of error refused 21 Tex. Civ. App. 174, 57 S. W. 573; G., H. & H. R. R. Co. v. Greb, 63 Tex. Civ. App. 78, 132 S. W. 489; Dickey v. Phoebe Jackson (Tex. Com. App.) 1 S.W.(2d) 577.

Complaint against the verdict is further made as having been excessive, to the extent of the $1,000 allowed for “future pain and suffering,” the $493 for medical bills, and generally “in view of the testimony as to the character and extent of appellee’s injuries, such injuries not being shown to have been of such nature or gravity as to justify damages in the sum found.”

This too, we think, is without merit. What has already been said disposes of this objection with reference to the first mentioned two items, since in deference to the trial court’s finding, we must assume no allowance was made for future suffering, and since the .evidence just referred to, if admissible, fully sustained the amount of the bills incurred for medical attention as having been reasonable, customary, and proper for the service actually shown to have been rendered.

On the general issue as to the extent of the appellee’s injuries, the testimony was sharply in conflict, but there was in it ample support for the remaining $1,625 recovered; the fact of the accident and consequent injury were directly proved; the collision occurred in February of 1927, and the appellee testified on this trial a year later that she had never been able to work since, dance, play tennis, walk for any considerable time, or do many other things she had before been accustomed to doing, having all that time both suffered pain and been under the constant care of her physician; her physician, a high-class one of experience, who was then connected with-the Medical Department of the University of Texas, testified that when she came to him in February of 1927, he found an injury to the bone itself of her left leg, called periostitis, which he had continued to treat up to the time of this trial, saying also in that connection: “My present bill for services rendered to this young lady for injuries to her leg is $443.00,” and he was still treating her every day.

It is deemed unnecessary to further detail the- testimony, it being plainly sufficient to have supported findings by the jury that the injury to the leg. had been caused by the collision complained of, that it had persisted with the attendant consequences mentioned to the time of the trial, was still serious and incapacitating to the extent the appellee then said it was, and that it might permanently remain so, if indeed it did not go into the more serious condition the physician termed’ “osteomyelitis.”

Obviously, under such a state of evidence,, an appellate court could not properly hold' the moderate amount permitted to stand excessive.

There but remain for disposition the-first six propositions, through which it is in.substance urged that: The court erred in instructing the jury that appellant was negligent, and should have submitted that question to them, despite the, fact that it did not’ so request — such action not being incumbent upon it — because the appellee neither conclusively nor even by a preponderance of the evidence proved any of the specific acts of negligence she alleged; her general averment of negligence being insufficient, and-her own testimony as to any specific act being uncorroborated.

Here again we must differ with the presentment made; appellant offered no testimony at all, hence there was no rebuttal of that received in support of the case declared upon.

It would be a work of supererogation- to recount that evidence; the fact, time, place of, and consequent fall of the appellee from, the accident — if not indeed the substantial manner of its occurrence — were all proved' in reasonably near conformity to the allegations made by the direct testimony of the ap-pellee herself, corroborated by that of another passenger upon the same street car, a Mr. Picard; this general summary, taken from-the appellee’s brief, is not an overdrawn statement of what was shown: “So from all1 the evidence, we have the positive direct evidence of the girl that she saw the motorman at the time of the collision, that he was reading the card, and had his head down. This-evidence is corroborated by the fact that a street car, with no obstructions whatever, ran into another street car on Twenty-First and Avenue Q, which was in plain sight, as shown by the evidence of Mr. Picard. Certainly the corroborative evidence of the facts and circumstances are sufficient, taken with the clear and unequivocal testimony of the plaintiff to establish the case, there being no-rebuttal whatever by defendant, and there being no calling of defendant’s motorman or conductor to testify, and all the facts and circumstances , corroborating the testimony of plaintiff,”

A careful review of the statement of facts has convinced us that the learned trial court did not err in the action here challenged.

These conclusions require an affirmance of. the judgment; that order will be entered.

Affirmed.


author: PLEASANTS, C. J.

text:
    WHITE SEWING MACH. CO. v. LINDSAY.
    (No. 9236.)
    Court of Civil Appeals of Texas. Galveston.
    Jan. 12, 1929.
    Rehearings Denied March 7, 1929.
    King, Battaile & Sonfield, of Houston, for ■plaintiff in error.
    Allwyn W. Pirtle, of Houston, for defend.ant in error.
   PLEASANTS, C. J.

This suit was brought by defendant in error to recover of plaintiff in error the sum of $55, the value of a sewing machine belonging to defendant in error, and alleged to have been wrongfully converted by plaintiff in error, and the further sums of $400 actual damages and $540 exemplary damages, alleged to have been caused defendant in error by the wrongful and malicious •conversion of his property by plaintiff in . •error.

The following correct statement of the substance of the petition is copied from plaintiff in error’s brief:

“On May 22, 1926, plaintiff’s wife made inquiries concerning a cabinet for a Singer sewing machine and called defendant company. A representative saw plaintiff’s wife and induced her to exchange the Singer sewing machine for a new White sewing machine. It is further alleged that a written contract was entered into between plaintiff’s wife and the White Sewing Machine Company, by the terms of which it was agreed to sell and deliver to plaintiff’s wife a White sewing machine for the agreed price of $165.00 and in part payment defendant company would and did accept the Singer sewing machine at an agreed price of $55.00 to be credited on the purchase price, the balance of $110.00 to be paid in monthly installments of $7.00 each; that the plaintiff was not present during the negotiations for sale or the execution of the contract, and upon learning the facts called the company’s office and advised its representative ‘that he would not confirm the agreement made with his wife,’ and demanded return of the Singer sewing machine; that the company agreed to return the Singer sewing machine, but failed to do so; that on or about August 17, 1926, while plaintiff and his wife were absent from home, the company’s agent ‘wilfully and maliciously forced their way into the plaintiff’s home in the presence of the neighbors and others passing along the street and with force did unlawfully take said machine from plaintiff’s home, thereby creating the impression among the neighbors that the plaintiff had not and would not pay his debts, thereby subjecting him and his wife to great embarrassment, humiliation and mortification.’ The reasonable value of the Singer sewing machine is alleged to be $55.00 and plaintiff prays for damages in the sum of .$400.00 for humiliation, mortification, etc., by reason of the malicious entry into his home, and further prays for exemplary damages in the sum of $540.00.”

The defendant answered by general demurrer and general denial, and specially pleaded the execution by plaintiff’s wife of a contract for the purchase of a White sewing machine from the defendant for the sum of $165, and the sale by bill of sale and delivery to defendant of the Singer sewing machine, claimed by plaintiff, for .the sum of $55, to be credited upon the purchase price of the White machine; that by the terms of the contract of purchase the $110 balance of the purchase price of the White machine was payable in monthly installments of $7 each, and the contract provided that, in event of default in the payment of any of these installments, the defendant might at its option declare the whole amount due and might enter the premises of the purchaser, and take and remove the machine therefrom “without hindrance, or demand of any kind against the defendant by the purchaser”; that none of the monthly installments of the purchase price of the machine were paid by the plaintiff, who kept the machine from May, 1926, until August 16, 1927.

The following provision of the contract is also pleaded by the defendant:

“That said written contract of- sale above recited further provides as follows: ‘And I agree, that until this contract is fully paid, with interest, after maturity, that all payments made, shall be considered by the parties hereto as payments by me for the use and rental of said machine while in my possession.’ And said written contract of sale further provides that the purchaser acquires no title to said machine until the entire amount of purchase money is paid thereon, but that title remains in said defendant.”

Based upon these provisions of the contract and the facts stated in the answer as above set out, defendant pleaded that plaintiff is estopped to now deny the validity of said contract of purchase and the sale of the Singer machine to defendant.

The trial in the court below with a jury resulted in a verdict and judgment in favor of plaintiff for the sum of $405.

Without setting out the evidence in detail, we are of opinion that it fully sustains the verdict and judgment for $55 on the value of the Singer sewing machine converted by the plaintiff in error. The machine was not the separate property of the wife of plaintiff, and she had no authority to dispose of it without plaintiff’s consent. The contract by which this machine was transferred to plaintiff in error and the White machine purchased, though signed by the wife, purports to be the contract of the plaintiff. The undisputed evidence shows that she was not authorized to execute the contract as the agent of the plaintiff, and that, as soon as he was informed of its execution, he. notified . plaintiff in error that he would not ratify the contract, and demanded the return of the Singer machine and the surrender of the contract. This demand, though several times repeated, was ignored by plaintiff in error. Upon this state of the evidence we think it clear that the plaintiff was entitled to recover the value of the Singer machine.

We do not think the evidence raises the issue of estoppel against plaintiff to deny the validity of the contract.

The jury found, in answer to a special issuk submitted by the court, that plaintiff was entitled to recover the sum of $350 as compensation for the damage sustained by him by reason of the entry into his home during his absence, and the removal of the White machine therefrom by an agent of defendant.

We do not think the evidence sustains this finding. The entry into the home and the removal of the White machine, while made in the absence of plaintiff and his wife, and without the consent of the servant in charge of the premises was not accompanied with violence, and, so far as the evidence shows, no one other than the servant and child of plaintiff knew of the removal therefrom of the White machine. The removal of the machine during the absence of plaintiff and wife is not shown to have been premeditated, and there is nothing to show any malice on the part of defendant or its agent in taking possession of the White machine in accordance with the terms of the contract under which it was delivered to plaintiff’s wife. There is also a total lack of evidence to sustain plaintiff’s allegation that the removal of the machine caused him to suffer humiliation and mental anguish, .and injured his credit and reputation.

It seems to be settled that mental anguish is not ordinarily an element of actual damage in cases of this character.

In the case of Crawford v. Doggett, 82 Tex. 139, 17 S. W. 929, 27 Am. St. Rep. 859, in which damages were claimed for the wrongful sequestration of land upon which plaintiff and his family resided, and by the writ were dispossessed, the court said:

/‘So much of the charge as instructed the jury that injury to the plaintiff’s feelings was an element of actual damages is assigned as error, and we think the assignment well taken. In the case of Trawick v. Martin-Brown Co., 79 Tex. 460, 14 S. W. 564, after mature consideration, this court held that injury to feelings could not be recovered in a suit for wrongfully suing out an attachment; but that, if the writ were maliciously issued, and exemplary damages were recoverable, distress of mind produced by it was proper to be considered by the jury in assessing such damages”—citing many authorities.

In the case of Williams v. Yoe, 19 Tex. Civ. App. 281, 46 S. W. 659, in the course of the opinon the court says:

“The court below instructed the jury that in estimating actual damages, they might allow the plaintiff compensation for distress of mind, humiliation, on sense of shame, and this charge is assigned as error. We sustain this assignment, and reverse the case. As a general rule, mental anguish or distress of mind is not to be considered as an element of actual damages. There are exceptions, however, to this general rule, such as libel and slander cases; suits for damages resulting from failure to deliver telegraph messages announcing the last sickness or death of certain relatives; actions to recover damages for physical injuries, accompanied by mental suffering; also suits against carriers for wrongfully ejecting passengers. But in these latter cases the mental suffering has generally been connected with physical injury or peculiar personal inconvenience. There may also be some other exceptions to the general rule. According to the averments of the plaintiff’s petition, and the testimony submitted by him, the defendant did nothing more than wrongfully and unlawfully, and without violence to the plaintiff’s person, deprive him of the possession and use of property that he was entitled to, and in such a case actual damages cannot be recovered as compensation for injury to feelings.”

The ease of Bassham v. Evans (Tex. Civ. App.) 216 S. W. 446, and Haile v. Coker (Tex. Civ. App.) 258 S. W. 228, announce the same rule.

It follows from what we have said that the judgment of the court below should be affirmed for the sum of $55, the value of the plaintiff’s machine and reversed and remanded, as to the judgment for $350 compensating damages, and it has been' so ordered.

Affirmed in part, and reversed and remanded in part.


author: VAUGHAN, J.

text:
    HALEY v. PEARSON.
    (No. 10321.)
    Court of Civil Appeals of Texas. Dallas.
    Feb. 16, 1929.
    Burgess, Burgess, Chrestman & Brundidge, of Dallas, for appellant.
    Shires & Pearson and S. P. Sadler, all of Dallas, for appellee.
   VAUGHAN, J.

Appellee, as plaintiff in the court below, filed his original petition September 8, 1927, in which it was alleged that: “On or about July 15, 1927, the defendant entered into an oral contract with plaintiff, plaintiff acting by and through his agent, A. N. Barker, by which contract and agreement plaintiff gave to defendant his listings of a certain piece of real estate (description omitted); that plaintiff gave to defendant his said listings on said property in consideration of the agreement of defendant to sell said property and to give to plaintiff one-half of the commissions to be earned by defendant, in.case he should make a sale of said property.”

Appellee further alleged that appellant, as a broker, acting under said agreement, sold the property of which listings were so given to him to one Dr. Oscar M. Marchman, and received on account of such sale a commission in the sum of $1,000, and that appellee was entitled to one-half of said sum, to wit, $500. At the time of the filing of said petition, ap-pellee sued out a writ of attachment, which was levied on real estate belonging to appellant. To said original petition, appellant filed his original answer on October 1, 1927, consisting of a general demurrer, four special exceptions, and a .general denial. On or about January 18, 1928, appellee amended his original petition by inserting therein at the close of paragraph 1 thereof the following language, so as to make same a part' of his count declaring on an expressed contract, namely: “That there was at all times herein mentioned a custom between real estate agents and brokers in the City of Dallas, wherein, if one agent or broker gave to another agent or broker listing of real estate, as herein set forth, that the commissions realized by virtue of giving such listing, would be divided share and share alike between such brokers.”

On the 23d day of January, 1928, appellant filed his first supplemental answer containing a general demurrer, four special exceptions, and a general denial, to appellee’s petition, as changed by said interlineation. Appellant filed his first and second motions to dissolve the writ of attachment. Said motions were overruled, and the action of the court in this respect will not be reviewed; same not being necessary to the disposition of this appeal. Appellant’s general demurrer and his four special exceptions to appellee’s petition, as originally filed, and his four special exceptions to appellee’s petition, as amended by said interlineation, were each overruled. Trial was had before the court without the aid of a jury and resulted in judgment in favor of appellee, Pearson, against appellant, Haley, for the sum of $500, with the foreclosure of attachment lien on real estate levied upon, except the portion thereof which represented appellant’s homestead.

Appellant, by special exception No. 6, being No. 1 as contained in his supplemental answer, asserted that said petition as so amended was defective-in form, in that “the same as interlined sets up two duplicitous, ambiguous and contradictory causes of action, and does not put the defendant on notice as to which of said contradictory causes of action plaintiff intends to rely.” As amended by said interlineation, appellee apparently declared on an expressed contract and on an implied contract in one count. By his petition, as originally filed, appellee’s cause of action was based upon an expressed oral contract. Did the interlineation, added to the cause of action as originally pleaded, become a part of one and the same count, and within its own terms allege a cause of action-based upon an implied contract through custom alleged by such interlineation ? If so, said exception should have been sustained. A cause of action upon custom can only arise by implication that, by the contract made, the parties intended that a custom then prevailing, as to the subject-matter of their contract, should become a part thereof as one of its controlling features, essential to complete the contract intended to be entered into. We do not think that it conclusively appears from said interlineation that it was the purpose of the pleader in making same to allege another cause of action, viz., an implied contract based upon custom; for just as clearly it can be drawn from the “count” excepted to that said interlineation was made by way of explanation of the oral contract alleged to have been made, or as stating a reason why the terms of such oral contract were in fact agreed to. In this state of uncertainty, we ,do not think the court erred in overruling said special exception. In this connection, we think it advisable to say, if this was in fact the purpose of the interlineation, then such purpose should be alleged with more certainty. However, if by said interlineation it was intended by appellee to declare both upon an expressed contract and an implied contract based upon custom, then two counts should have been employed — one for claim based upon an expressed contract, and one for claim based upon an implied contract pleaded in the alternative, with appropriate prayer for relief. Jones v. Holtzen (Tex. Civ. App.) 141 S. W. 121; Henderson v. Davis (Tex. Civ. App.) 191 S. W. 358; Booth v. Houston Packing Co. (Tex. Civ. App.) 105 S. W. 46; Thames v. Clesi et al. (Tex. Civ. App.) 208 S. W. 195.

A. N. Barker, a witness for appellee, testifying in person, was permitted to testify over appellant’s objection as to usages and customs between real estate brokers, as follows: “I am familiar with the usage and custom among real estate agents in the city of Dallas in reference to commissions. There is such a custom and I know what that custom is, and knew what it was 'in 1927. Where two real estate agents are both working to sell a certain piece of property and when such piece of real estate is finally sold, then each of such agents - is entitled to one-half of the commission fee, unless otherwise agreed upon.” And by oral deposition, to testify as follows: “There is a custom among real estate agents with reference to the amount of commissions to be collected in case( a sale is consummated, and that commission is five per cent, and it is also customary in Dallas, Texas, that when one real estate agent turns over to another real estate agent a piece of property that the commission will be split and divided equally in the ease of a sale or trade.”

Appellant objected to tbe admission of said ■testimony on the grounds that same was immaterial and irrelevant, in the absence of further testimony that the contracting parties agreed to be bound thereby, or that the custom was so general and so well established that any one dealing in that trade would be presumed to know it. Said objections should have been sustained. Appellee failed to introduce testimony to the effect that appellant and appellee agreed to be bound by the custom so testified to, or that they knew of such custom and contracted in reference thereto, or that such custom was so general and so well established that any one dealing in the business of a real estate • agent would be presumed to know it. Davie v. Lynch & Blakeley, 1 White & W. Civ. Cas. Ct. App. p. 382, § 696; Missouri Pacific Ry. Co. v. Fagan, 72 Tex. 127, 9 S. W. 749, 2 L. R. A. 75, 13 Am. St. Rep. 776; Chateaugay Ore & Iron Co. v. Blake, 144 U. S. 476, 12 S. Ct. 731, 36 L. Ed. 510; Johnson & Moran v. Buchanan, 54 Tex. Civ. App. 328, 116 S. W. 875; Oxford v. Rogers (Tex. Civ. App.) 238 S. W. 295; Elliott on Contracts, vol. 2, §§ 1682, 1696, 1699, and 1709; Beach on Modern Law of Contracts, vol. 1, § 750, p. 912; Clark on Contracts, pp. 582-584.

Appellant’s seventh proposition, namely: “Where the uneontradieted evidence showed that A. N. Barker was a joint owner with plaintiff Pearson of the cause of action sued on, if any, Barker was a necessary par- • ty plaintiff, and -it was fundamental error for the court to render judgment against the defendant in the absence of Barker being made .a party plaintiff” — will have to be sustained. The evidence established without conflict that the property involved was listed by one J. D. B. Baker with the witness A. N. Barker, and not with plaintiff, or with said Barker as the • agent of and acting for plaintiff in securing •the listing of said property.

Said A. N. Barker and appellee Pearson worked together under an agreement whereby appellee, received 40 per cent., and said Barker 60 per cent., of the commissions collected on sales, of property made by said Barker. Appellee paid all office expenses, including rent. As to Barker’s interest in the $500 sued for, he testified as follows: “I have an interest in whatever may be recovered in this suit, or whatever we may recover. I will get sixty per cent, of it and Mr. Pearson will get forty per cent. * * * I receive no salary but work for part of the commission on real estate sales. The business transacted by me is transacted in the name of W. E. Pearson, T acting as his agent. My earnings depend entirely upon the amount of business I produce. On the real estate sales I make, when same are consummated and collections made, then I get sixty per cent, of whatever fee for commission we collect.”

Appellee did not testify in any respect as to the character of arrangements he had with said A. N. Barker. Appellee sued for the equal division between himself and appellant of the real estate commission of $1,000, and alleged that appellant and appellee had agreed upon such equal division; that appellant had collected the whole commission and had failed and refused to divide the same with appellee. The evidence clearly established that appellee was not entitled, if entitled at all, to recover all the commission sued for, but, to the contrary, that he had only a 40 per cent, interest therein; in other words, that appellee and said Barker were jointly interested in the cause of action; therefore said A. N. Barker is a necessary party to enforce the right of recovery, as shown by the proof to exist, if at all, in said Barker and appellee jointly. As the interest of said Barker was necessarily affected by the judgment rendered, appellee could not alone maintain the suit; hence, it was fundamental error for the trial court to render judgment in appellee’s favor-. Barmore v. Darragh et al. (Tex. Civ. App.) 227 S. W. 522; Waldrep v. Roquemore et al., 60 Tex. Civ. App. 138, 127 S. W. 248; McKay v. Phillips et ux. (Tex. Civ. App.) 220 S. W. 176; Dawson v. George (Tex. Civ. App.) 193 S. W. 495; Stachely v. Peirce, 28 Tex. 328; Barlow v. Linss (Tex. Civ. App.) 180 S. W. 652; Hanner et ux. v. Summerhill et al., 7 Tex. Civ. App. 235, 26 S. W. 906; Houston & T. C. Ry. Co. v. Hollingsworth, 2 Willson, Civ. Cas. Ct. App. p. 149, § 173.

Because said Barker did not join in the suit as a plaintiff, the cause will be remanded in order that said Barker may become a party plaintiff, or be made a party defendant, if he should refuse to join as a party plaintiff. It- follows as a natural sequence that the writ of attachment and levy thereof will necessarily be quashed and vacated, as the right of action did not reside alone in appel-lee, at whose instance and for whose sole benefit the writ of attachment was sued out and levied upon appellant’s property, as if he was- justly indebted to appellee in his individual right in the full amount sued for, and appellee would probably lose his debt, viz., the sum of $500, if said writ of attachment was not issued, when as a matter of fact ap-pellee only had a joint interest in the debt sued for with said Barker. , -

The costs of attachment proceedings yvill be taxed in the cdurt below against appellee and the sureties on his attachment bond, and the costs of this appeal will be taxed against said appellee.

On account of the errors above pointed out, this cause is reversed and remanded for further proceedings in accordance with this opinion, and the writ of attachment levied upon the property of appellant is, in all respects, quashed and vacated.

Reversed and remanded.