author: WALTHALL, Justice.

text:
    HIGHTOWER et ux. v. CITY OF TYLER.
    No. 3867.
    Court of Civil Appeals of Texas. El Paso.
    Nov. 2, 1939.
    Rebearing Denied Nov. 23, 1939.
    Lasseter, Simpson, Spruiell & Lowry, of Tyler, for appellants.
    Troy Smith, of Tyler, for appellee.
   WALTHALL, Justice.

This suit was brought in the Special District Court of Smith County by C. E. High-tower and wife, Caroline Hightower, against the 'City of Tyler, a municipal corporation, to recover damages alleged to have been sustained in the sum of $26,215.30 by reason of the matters hereinafter stated. The suit is brought by and in behalf of C. E. High-tower and wife and those for whose use and benefit they sue and named in the petition and in the several sums álleged therein. The material facts involved in the suit and disclosed by the record are substantially as follows:

Prior to the year 1937 C. E. Hightower and wife owned a tract of land adjacent to the City of Tyler, which they desired to subdivide. They prepared a plan of subdivision, laid out streets, dedicated them to the public, and subdivided the property into lots. They laid water and sewer lines in the streets and paved the streets. They sold lots, charging the purchasers thereof with their proportionate part of the cost of laying the water and sewer lines. As residences were built in the addition, they were connected with the water and sewer lines which appellants had constructed. Prior to laying the water and sewer lines appellants requested the City Commission of the City of Tyler to provide for repayment of the cost of constructing water and sewer lines in the subdivision. The City Commission declined the request and declared that where property owners, at their own cost and expense, laid water and sewer lines outside of the City in conformity-with plans and specifications used by the City of Tyler, they would be permitted to connect such lines to the City’s system at the city limits, but “without any obligation or agreement on the part of the City to ever take over or pay for any such mains or lines.”

Under these circumstances appellants laid the water and sewer lines, and requested the City to connect thereto and furnish service to them and those who had purchased lots from them, which was done. Thereafter, on or about November 22, 1937, the subdivision in question was annexed to and became a part of the City of Tyler by extension of the city limits. On the 24th of November, 1937 appellants sent the City a statement of the cost of the water, sewer and storm-sewer improvements, which they said they constructed in the southwest part of the City of Tyler, which improvements had been made by them in that part of the city recently annexed, saying, “Inasmuch as I understand the City contemplates taking over all of these improvements, it is respectfully submitted that I should be compensated therefor on the basis of the actual cost.”

The City Manager, on November 27, 1937, wrote Mr. Hightower declining to take over the water and sewer lines until requested by Mr. Hightower to do so. Hightower never requested the City to take over the lines or cease serving the people living in that area through these lines, but the City continued to furnish service to the inhabitants in the subdivision in the same manner after annexation as before, except that there was a reduction in the amount of rates charged for the service. On the trial Hightower testified that as he recalled the City didn’t claim any interest in the lines, and that the City was simply furnishing service to the people Hightower had sold lots to, charging them the regular rate for such service.

Appellants thereupon brought this suit claiming that the City had taken their property. The City answered with a general demurrer and a general denial. The case was tried to the court without a jury. On October 12, 1938 a judgment was entered by the court in favor of the appellee.

The parties to this action agreed that the water and sewer lines involved in this controversy were installed in an area which, prior to November 22, 1937, was outside of and adjacent to the corporate limits of the City of Tyler; that said area was duly and legally annexed to the City of Tyler on November 22, 1937, which annexation was the result of an election conforming to all of the requirements of law. Prior to the annexation the streets in the area had been opened up and were being used by the public. Appellants put in water and sewer lines in the area and paid the cost thereof. Prior to the annexation by the City the area had been subdivided into lots, improved and offered for sale. Some of the lots had been sold and quite a number of residences had been built and were served with water and sewer facilities through the lines constructed by appellants. Appellants did not collect any rent for the use of such facilities, but the users paid charges for water and sewer service to the City of Tyler.

In addition to the above appellant attached to his petition, which he testified as a correct statement of the actual cost of the water mains and sewer lines in question, an itemized statement of the cost of the water mains and sewer lines totaling $26,215.30, for which he sues.

Appellant filed, and in his brief presents, one assignment of error, and submits it as a proposition. It is so considered. It is to the effect that the court erred in not rendering judgment for the plaintiffs for the amount of his damages sued for as above, said amount being the actual cost of the water mains and sewer lines in question, because the undisputed evidence in the case shows the defendant, City of Tyler, has “taken” as that word is used in Article 1, Section 17, of the Constitution of Texas, Vernon’s Ann.St, the water mains and sewer lines of the plaintiffs and appropriated them to public use without compensation and without the consent of plaintiffs, and that the water mains and sewer lines, as taken and appropriated, constitute “property” within the meaning of the above article and section of the Constitution.

The applicable- part of the above article and section of the Constitution provides: “No person’s property shall be taken, damaged or destroyed for or applied to public use without adequate compensation being made, unless by the consent of such person.”

In discussing what will constitute a “taking” of one’s property for public use, our Texas Supreme Court, in City of East Dallas v. Barksdale, 83 Tex. 117, 18 S.W. 329, 330, said: “No especial formality is required by law to manifest the intention to apply the property to public use, though certain formalities are indispensable to a legal condemnation. The intention may be presumed from the fact that the city authorities, claiming to exercise the right, did actually take and appropriate the .property to public use, without disclaiming that such was their purpose.”

In the above case the court in the opinion said the defendant (City of Dallas) entered no disclaimer at the trial below and nowhere in its pleadings did it offer to restore the land to the plaintiff or abandon all claim thereto, except as it might show under a paramount right, had this been pleaded. Under the facts of that case the court said the appropriation to public use by the City of Dallas was complete and was done with that intent.

Appellant refers to other authorities which he claims are applicable under the facts of this case, such as McCammon & Lang Lbr. Co. v. Trinity & B. V. R. Co., 104 Tex. 8, 133 S.W. 247, 36 L.R.A.,N.S., 662, Ann.Cas.1913E, 870; Pumpelly v. Green Bay Co., 13 Wall. 166, 20 L.Ed. 557, where plaintiff’s lands were overflowed as the result of the construction of a dam and legislative authority for its construction was interpreted as a defense to an action for damages; 16 Tex.Jur., page 863, par. 216; Dillon on Municipal Corporations, 5th Ed., Vol. 3, page 1608, Sect. 1017, where the author discusses the meaning of the word “taken”; 20 C.J., page 666, Sect. 138, where the word “taking”' or injuring property is discussed as a ground for compensation, and where it is said the general rule deducible from the authorities seems to be that there need not be an actual physical taking, but that any restriction or interruption of the common or necessary, use and enjoyment of the property in a lawful manner may constitute a taking for which compensation must be made.

Appellant submits that any taking of the property, as “exercise of police power” is a taking within the provision of the Constitution, and refers to Delaware, Lackawana & Western R. Co., v. Morristown, 276 U.S. 182, 48 S.Ct. 276, 72 L.Ed. 523; Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 43 S.Ct. 158, 67 L.Ed. 322, 28 A.L.R. 1321.

Appellant contends that after the City of Tyler annexed the territory it became its duty to furnish the inhabitants water and sewerage, and that the City has accomplished this by using the water mains and sewer lines of plaintiffs, and has charged and collected rentals from the consumers.

We think the above fairly states appellants’ side of the question of the City’s liability.

In considering appellee’s side of the controversy we are confronted with the questions : Was there such “taking” of the water and sewer lines without appellant’s consent? and do the acts of appellant constitute a dedication of the water and sewer lines?

The court made no finding of facts, but each of the two issues were inferentially found by the court, the first in the negative and the second in the affirmative.

The facts clearly show that appellants, the Hightowers, in the matters involved in the two questions above, were engaged in promoting a subdivision soon to be taken into and to become a part of the City of Tyler, and that in order to aid them in selling lots in the subdivision they laid out streets, placed the water and sewer lines therein, paved the streets, and dedicated it to the City of Tyler, that is, set the property as so prepared over to the City by some voluntary act of their own. The evidence shows that appellants connected the water and sewer lines to the City’s lines at the city limits after appellants had been advised that the City would furnish water and sewer service through such lines at the rates charged for service in outlying districts; that the City had furnished such service to the High-towers and to people who had purchased lots from them in the addition before i.ts annexation and had continued to do so after its annexation.

The record does not show that appellants or other owners of the property in the annexed area ever requested the City to cease such service. It is apparent that the water and sewer lines built by appellants were of no use or benefit to any one or to the annexed district unless the City of Tyler rendered service through them. The deeds to the purchasers of lots in the addition carried title to that part of the water and sewer lines in the streets in front of the lots sold. As we interpret the evidence each and every act charged to have been done by the City of Tyler as a basis of liability for compensation for the damages sued for has been in furtherance of the purpose appellants had in mind in building the water and sewer lines, rather than in denial and contradiction of any right possessed by them. Having connected the water and sewer lines with the City’s system for such service and received such service, and the City having put the lines to no other use than that contemplated by appellants, and the record showing that appellants made no reservation, of any interest or right of use in the lines, we think it necessarily follows that appellants gave consent to the City to make such use of the lines as was made.

Consent is an act of the will. It need not be written, but may be spoken, or acted, or it may be implied. Volume 15, C.J. S., Consent, page 979, and authorities under note 83. We think the following authorities bear out our conclusion: Moser v. Greenland Hills Realty Co., Tex.Civ.App., 300 S.W. 177, writ refused; McQuillin on Municipal Corporations, Vol. 4, pp. 517, 518; Suburban Real Estate Co. v. Incorporated Village of Silverton, 31 Ohio App. 452, 167 N.E. 474, holding that where the real estate company had sold lots on the representation of furnishing water and that a means had been provided therefor, the real estate company could not claim ownership in the water mains; Ford Realty & Construction Co. v. City of Cleveland, 30 Ohio App. 1, 164 N.E. 62.

The case is affirmed.


source: Caselaw Access Project

author: MURRAY, Justice.

license: Public Domain

text:
    BAKER v. HANCHETT.
    No. 10624.
    Court of Civil Appeals of Texas. San Antonio.
    Nov. 15, 1939.
    Rehearing Denied Dec. 13, 1939.
    Neel & King, Nat B. King, M. J. Raymond, and Fred Wulff, all of Laredo, for appellant.
    Gordon Gibson and Mitchell Schwartz-man, both of Laredo, for appellee.
   MURRAY, Justice.

Appellee, Miles L. Hanchett, instituted this suit in the District Court of Webb County against appellant, Norman Baker, seeking to recover for services allegedly rendered by appellee as a commission broker and agent.

The trial was to a jury who, by their answers, found in effect that appellee rendered services prior to August 1, 1932, of the value of $250, and that he rendered services after August 1, 1932, of the value of $7,00. The trial court seemingly regarded the claim for services prior to August 1, 1932, as barred by the two-year statutes of limitation (Art. 5526, Sec. 4, Vernon’s Tex.Civ. Statutes), and proceeded to render judgment only for the $700, found by the jury to have been earned by appellee subsequent to August 1, 1932.

This appeal is presented by Norman Baker.

The evidence shows that Norman Baker, who operated under several trade names, decided to construct a radio broadcasting station in Old Mexico. On or about May 15, 1932, he entered into an oral contract with Hanchett to represent him as his commission broker at Laredo, to act as his agent in purchasing goods and merchandise in this country, a.nd forwarding the same to him in the Republic of Mexico. On August 2, 1932, two letters of confirmation were sent to Hanchett. The two letters were worded identically and read as follows:

“Answering your kind letter, we accept your offer of representation for' our firm in Laredo, Texas, and will instruct you regarding all shipments for Texas, and export.
“We expect to be shipping considerable materials to your city for export into Mexico, and we trust you will give all shipments prompt attention.
“You are not to okey any hills for payment until same has been audited and oked by us for all purchases, labor, etc.”

This suit was filed on April 8, 1933, but no attempt was made to secure service upon Baker for more than two years, Baker being at all times a non-resident of the State. It is conceded by appellee that unless this suit is based upon a written contract the claim is barred by the two-year statute of limitations. Art. 5526, Sec. 4, supra.

The trial court, as stated above, apparently regarded the contract as a written contract after the letters of confirmation were written, and, therefore, rendered judgment for services rendered after the writing of the letters. The question here presented is whether or not the letters of confirmation were legally sufficient to change the original oral contract to that of a written contract.

It will be noted that the confirmation letter begins: “Answering your kind letter,” but it is conclusively shown that the letter was not written in answer to any letter written by appellee.

We conclude that the confirmation letter did not have the effect of changing the previously existing oral contract to a written contract. The oral contract was entered into on May 15, 1932. Services were rendered thereunder. There is no showing that the oral contract was not to become effective until confirmed by letter; quite the contrary is shown. The letter is not a complete contract within itself. A written confirmation of an already existing oral contract is not a written contract. Sanders v. Geo. M. Hester Cotton Co., Tex.Civ.App., 195 S.W. 269, writ refused; Taylor Milling Co. v. American Bag Co., Tex.Civ.App., 230 S.W. 782; Watson v. Howe Grain & Mercantile Co., Tex.Civ.App., 214 S.W. 843.

The letters did not constitute a complete written contract. They did not show the date the contract became effective, the character of service to be performed, the amount of compensation to be paid, and when same was payable, nor the duration of the agreement. It would be necessary to introduce parol evidence concerning these matters, and under such circumstances the cause of action is not one based upon a written contract. Mowatt v. Chicago, 292 Ill. 578, 127 N.E. 176; Johnson v. Harrison Hardware & Furniture Co., 119 Fla. 470, 152 So. 708, 160 So. 878; Lively v. Tabor, 341 Mo. 352, 107 S.W.2d 62, 111 A.L.R. 976.

The judgment is reversed; and it appearing to the Court that the case has been fully developed, judgment will be here rendered that appellee take nothing and pay all costs of this and the court below.

Reversed and rendered.


author: O’QUINN, Justice.

text:
    TEXAS & N. O. R. CO. v. HANCOCK et ux.
    No. 3537.
    Court of Civil Appeals of Texas. Beaumont.
    Nov. 17, 1939.

      Baker, Botts, Andrews & Wharton, of Houston, and L. V. Nelson and Duff & Cecil, all of Beaumont, for appellant.
    O. M. Lord, of Beaumont, for appellees.
   O’QUINN, Justice.

Appellees, Cecil Hancock and his wife, Minnie Hancock, sued appellant, Texas & New Orleans Railroad Company, seeking to recover damages for injuries to the eyes of Mrs. Hancock, alleged to have resulted from some foreign particles being blown in her eyes by compressed air negligently and carelessly released from appellant’s engine by an employee .of appellant who was in charge of the engine. Defendant answered by general demurrer, and general denial. At the close of the evidence appellant moved for an instructed verdict which was refused. The case was then tried to a jury upon special issues which were answered in favor of ap-pellees, and judgment rendered in favor of appellees in the sum of $1,000. Ap-pellees filed a remittitur of $500. Motion for a new trial was overruled, and appellant brings this appeal!

Appellant’s first three assignments of error read:

First Proposition. “The. court should not have refused to instruct the verdict for the defendant, as requested by the defendant, because the only ground of negligence plead by the plaintiffs was that the defendant’s, employees were negligent in releasing the air from the engine, and the only evidence introduced by the plaintiffs was the mere occurrence of an accident, which is no evidence of negligence, and the doctrine of res ipsa loquitur is not only not applicable to the facts, but is not relied upon by the plaintiffs in their pleadings.”

Second Proposition. “The finding of the jury in response to special issue No. 3 to the effect that the defendant’s employees were guilty of negligence in permitting air to escape from the defendant’s locomotive is not supported by any evidence because the plaintiffs’ proof only showed the mere occurrence of an accident, which is no evidence of negligence, and the doctrine of res ipsa loquitur is not only not applicable to the facts, but is not relied upon by the plaintiffs in their pleadings; and it is fundamental that a jury has no right to find negligence when there is no proof of any.”

Third Proposition. “The court should not have submitted special issue No. 3 to the jury over the defendant’s timely written objection that such issue had no support in the evidence, because the plaintiffs’ proof only showed the mere occurrence of an accident, which is no evidence of negligence, and an issue of fact, in order to authorize its submission to the jury, must arise from both the pleadings and the evidence.”

It is seen that each of the foregoing assignments raises the question of whether there was any evidence that appellant’s employees in charge of the locomotive were guilty of negligence as alleged in releasing the air from the locomotive, and thus causing the alleged injury to Mrs. Hancock’s eyes. Appellant insists that there was no such evidence, wherefore the judgment should be reversed and here rendered for it.

There is little or no dispute in the evidence. Mrs. Hancock testified in substance that on May 28, 1938, she was walking along the sidewalk on Park street about where it joins with Laurel street near the railway depot on the south side, going eastwardly down town. That there was a passenger train standing at the depot headed eastwardly — the same direction she was walking — with the engine or locomotive standing some 30 feet south of the street where she was walking. That when she got about even with the locomotive and about 30 feet from same on the left side of the locomotive she.heard a “spewing” sound at the locomotive and a gust of air blew dust and sand into her eyes which became so painful because of the foreign substances striking her eyes she turned and went back home. She said that the noise she heard was at the locomotive and the air came “just like a whirlwind.” When asked to describe the noise she heard as to whether it was loud or shrill, she answered:

“No, I wouldn’t call it no loud shrill— I don’t know. I couldn’t hardly describe just how it was, only I knowed it was a noise that was loud enough and strong enough that it just blowed the dust like a whirlwind and just’ covered things. It filled my eyes and I didnt remember more about the train.”
“Q. You heard some noise and later on some dust got in your eyes. Was there a little whirlwind, went across there at that time? A. I said this noise startled me, and it just puffed up the dust just like a whirlwind would.
“Q. And it came from the left side of the engine? A. From under it somewhere; it come from the engine.”

R. A. Stulting, engineer operating the locomotive, testified substantially that the train and engine were equipped with automatic air brakes; that the valve to release air from the engine was located on the right side of the engine at the bottom of the running board about seven feet above the ground, and that when air was released from the engine- it passed out through a half-inch hole and goes nearly straight down to the ground from the cab of the locomotive; that this half-inch hole for the escape of released air was underneath the running board on the right side; that the air when released could hardly be felt when it reached the ground.

“Q. Is it enough — say you have those brakes fully applied and you release them suddenly, would there be enough pressure come out of there to create a cloud of dust and blow gravel and stuff like that into the air? A. No, sir, it would not.”

He testified that there was no way for the air to escape or be discharged from the left side of the engine, and that none did escape from the left side, that all air was discharged or released from the right side of the engine.

“Q. If any air come out of that engine on the left side, you don’t know where it come from? A. I certainly do not, because I don’t know of any air port on the left side of the engine.
“Q. If it came out of there with such force as to blow thirty feet and get it in somebody’s eye you don’t know anything about it? A. That would be an impossibility.”

We have stated the material evidence as to the manner of the occurrence.

The only ground of negligence alleged by appellees as a basis for a recovery is: “Plaintiffs represent that at the same time plaintiff, Mrs. Minnie Hancock, was walking along the public Sidewalk on Park Street on the west side thereof and when she reached a point about 30 feet from said locomotive engine one of the defendant’s agents negligently and carelessly released and caused to be discharged a large quantity of compressed air from said locomotive engine directly towards plaintiff. That on account thereof a large quantity of 'dirt sand and other foreign substances was carried by the force of said compressed air, and struck the plaintiff in both eyes inflicting serious, painful and incurable injuries to both of plaintiff Mrs. Minnie Hancock’s eyes.”

In answer to special issue No. 1, the jury found that appellant’s employee permitted compressed air to escape from the locomotive engine; and to No. 2, that the compressed air blew sand and grit into Mrs. Hancock’s eyes, and to No. 3, that permitting the compressed air to escape from the locomotive engine was negligence on the part of appellant. An examination of the record shows no evidence to support the jury’s finding of negligence. This finding was wholly without support in the evidence. Negligence cannot usually be inferred from the mere happening of an accident itself. In this case there is no question but that an accident occurred and that plaintiff Mrs. Hancock suffered injury. She was injured by some foreign object being blown into her eye, but its origin or source, at most, in the state of the ■ record, is a mattér of speculation. While the noise heard by Mrs. Hancock came from the vicinity of the locomotive engine, the evidence wholly fails to disclose the cause of same, or that it resulted from any negligence on the part of appellant’s employee in charge of the- engine. The mere happening of an accident, without more, affords, no legal claim foi damages. Negligence must be shown. Interstate Circuit, Inc., v. Le Normand, 5 Cir., 100 F.2d 160; Davis v. Castile, Tex.Com.App., 257 S.W. 870; Gulf C. & S. F. R. Co. v. Shieder, 88 Tex. 152, 30 S.W. 902, 28 L.R.A. 538; Gulf, C. & S. F. R. Co. v. Davis, Tex.Civ.App., 161 S.W. 932, writ refused; Galveston, H. & S. A. R. Co. v. Landeros, Tex.Civ.App., 264 S.W. 524; Lone Star Brewing Co. v. Willie, 52 Tex.Civ.App. 550, 114 S.W. 186, writ refused. Furthermore, the undisputed evidence was that there was no escape vent on the left side of the engine for compressed air to pass out, but that the only such vent was on the right side of the engine, and that it pointed almost directly down to the ground. Mrs. Hancock was admittedly on the left side of the engine at a distance of some thirty feet away. The engineer testified that it was impossible for compressed air released on the right side of the engine to have passed around and to where she was at the time she says the air blew sand and foreign substances into her eyes. This would appear to be true.

The facts of the case appearing to have been fully developed, it follows that the judgment of the trial court should be reversed and here rendered for appellant, and it is so ordered.

Reversed and rendered.


author: SLATTON, Justice.

text:
    CARLE OIL CO., Inc., v. OWENS.
    No. 10557.
    Court of Civil Appeals of Texas. San Antonio.
    Nov. 1, 1939.
    Rehearing Denied Dec. 13, 1939.

      Spears, Conger, Baskin & Spears, of San Antonio, for appellant,
    H. H. Schuenemann, of Kenedy, and Wade & Wade, of Beeville, for appellee.
   SLATTON, Justice.

A. R. Owens sued' Carle Oil Company, Inc., in the District Court of Karnes County, to recover damages for personal injuries and damages to his automobile caused by a collision with his car and one belonging to the Oil Company.

A trial to a jury resulted in a special verdict in favor of Owens, and judgment was rendered thereon against the Oil Company for the sum of $1,110.33; hence this appeal.

The first two propositions assert error in the charge, in that the jury were permitted to consider mental pain suffered by Owens in arriving at the amount of damages, and that the pleadings of Owens limited his recovery to physical pain.

Owens averred his injuries as follows:

“His left eye and left side of his head were cut by pieces of glass, causing a deep laceration on the left side of his head near the eye, which caused him much pain and physical suffering, and which has caused permanent injury to the side of his head and the sight of his left eye.
“That his left arm and the muscles and ligaments of his left arm and shoulder were severely bruised, strained and torn, causing him much physical pain and suffering.
“That his neck was twisted and the muscles, ligaments and nerves -in his neck and spine were wrenched and strained, causing continued soreness and much pain and suffering.
“That his left leg and especially the knee and just below the knee, was bruised, and the muscles and ligaments of his left leg, together with the bones and the joint, were strained in such a manner as to cause the plaintiff much physical pain and suffering, all of which injuries were caused by the negligence of the defendant, and that because of such negligence of the defendant, its agent, servant and employee, the plaintiff has suffered damages in the amount of One-Thousand ($1,000.00) Dollars, for the physical pain and suffering sustained by him in the past, and for which he will in all time to come in the future, sustain.”

The appellee by the following paragraph, to-wit: “The plaintiff has suffered damages in the amount of one thousand dollars for the physical pain and suffering sustained by him in the past; and for which he will in all time to come in the future sustain.” limited his recovery for damage sustained in virtue of physical pain and suffering sustained by him. Houston & T. C. R. Co. v. Rogers, Tex.Civ.App., 117 S.W. 1053. However, the trial court in the charge allowed the jury to consider the elements of mental and physical pain suffered by Owen to the trial, and such mental and physical pain that Owens may suffer in the future.

The appellant made the following objections : “Because in such paragraph A of question No. 7, the jury is permitted to such construction of the court to consider elements of damage not alleged by plaintiff nor proved by plaintiff in arriving at the amount of damage which they may arrive at in answering question No. 7, and therefore permits the jury to find damages not authorized by law in that it authorizes damages to be assessed in plaintiff’s favor which have been neither plead nor proved.”

Appellee insists that the objection is too general to point out the defect claimed on this appeal. We sustain ap-pellee’s contention. Panhandle & S. F. R. Co. v. Brown, Tex.Civ.App., 74 S.W.2d 531; Jackson v. Amador, Tex.Civ.App., 75 S.W.2d 892; Chase Bag Co. v. Longoria, Tex.Civ.App., 45 S.W.2d 242; Abilene & S. R. Co. v. Herman, Tex.Civ.App., 47 S.W.2d 915; Baker Co. v. Turpin, et al., Tex.Civ.App., 53 S.W.2d 154, 155; Perkins v. Nevill, Tex.Com.App., 58 S.W.2d 50.

The appellant by its general objection to the charge “failed to comply with Art. 2185, R.C.S.1925, and the court’s charge stands as if not objected to at all, and any errors therein could not be considered on appeal.” Isbell et al. v. Lennox et al., 116 Tex. 522, 295 S.W. 920.

The appellee sought damages in his pleadings for physical pain in the sum of $1,000, and the jury assessed $800,. therefore, it cannot be said that the sum allowed by the jury is beyond the scope of the pleadings so as to present fundamental error.

The third proposition asserts th'at the verdict of the jury does not support the judgment. The complaint is grounded upon the fact that the jury made no finding that the negligent acts of appellant’s employee were committed within the course of his employment. The jury found:

a. That the truck belonged to appellant.

b. That Otto Eppler was driving the truck at the time of the accident.

c. That Otto Eppler was an employee of appellant at the time of the accident.-

There was no evidence adduced that Otto Eppler, at the time of the accident was not acting within the scope of his employment.

In the case of Studebaker Bros, v. Kitts, Tex.Civ.App., 152 S.W. 464, 467, writ refused, it is said:

“It is the contention of appellant that, in order to recover, the burden rested on appellee not only to show that the automobile was the property of appellant and being operated by his servant, but that he was at the time acting within the scope of his employment. No such onerous burden rested on appellee when he proved the ownership of the car and that it was being negligently operated by a servant of appellant at the time of the accident, a prima facie case was established, and the burden was upon appellant to rebut it by proof that the servant was not acting within the scope of his employment.”

The foregoing rule has been approved by our Supreme Court by the refusal of the application for writ of error. Under that rule of law and the record here presented, the findings of the jury quoted above support the judgment against appellant. If the appellant had, by competent evidence, rebutted the prima facie case made by appellee, then the trial court, upon proper request, should have submitted the issue of whether the servant was acting within the scope of his employment at the time of the accident. The case of Ormsby v. Ratcliff, 117 Tex. 242, 1 S.W.2d 1084, and those following it, cited by appellant, are not considered controlling in this case.

The fourth and fifth propositions assert error in the submission of the question of damages to appellee’s car. Appellee in his trial pleading claimed damages to his car in the sum of $310.33, alleged to be the-cost of necessary repairs.

During the trial appellee filed a trial amendment alleging that the car was worth, immediafely before the accident, the sum of $400, and immediately after the accident, the sum of $75; and alleging the amount of the repair expense necessary to place the car in the same condition as it was before the accident.

The trial court submitted the following issue and instruction:

“Question No. 8.
“From a preponderance of the evidence, what sum of money, if any, if paid now in cash, would be a fair and reasonable compensation to the plaintiff, A. R. Owens, for the damages, if any, sustained by plaintiff’s Chevrolet pick-up, as a direct result of said accident, if any?
“Answer by stating in dollars, or nothing as you may find.
“Answer: $310.33. '
“In connection with Question No. 8, you are instructed that the measure of damages, if any, to the automobile, is governed by the following rule of law, to-wit:
“ (a) The difference, if any, between the reasonable market value of his, plaintiff’s, Chevrolet pick-up, mentioned in his petition at the time of and immediately prior to said collision, if any, and its reasonable market value immediately after said collision, if any.
“The term ‘reasonable market value’ as used above has the following meaning:
“A reasonable market value means that price which a property will bring when offered for sale in a usual and ordinary way by a person who is willing to sell, but not obligated to sell, and who exercises ordinary care and reasonable diligence to sell for the best price obtainable to purchasers who are willing to purchase, but are not obligated to purchase, and who exercise ordinary care and reasonable diligence to purchase.
“Question No. 9.
“Do you find from a preponderance of the evidence that the charges made for the repair on plaintiff’s Chevrolet pick-up, as set out in his petition, including labor thereon, after the accident, if any, were reasonable ?
“Answer ‘yes’ or ‘no’
“We, the jury, answer: Yes.
“Question No. #9-A.
“Do you find from a preponderance of the evidence that the repairs made and labor performed on plaintiff’s Chevrolet pick-up as set out in plaintiff’s petition were made necessary as a' direct result of the accident, if any?
“Answer ‘yes’ or ‘no’
“We, the jury answer: Yes.”

The evidence tended to show that the cost of repairs necessary to place the car in its condition before the accident was the sum allowed by the jury, to-wit, $310.-33. There was evidence to the effect that the value of the car before the accident was the sum of $400, and immediately after the accident, the sum of $75.

It has been difficult to determine the exact complaint sought to be tendered through these propositions. Appellant does not bring forward on this appeal its objection to the filing of the trial amendment. It does not claim prejudice in the manner of submission. It argues that the proper measure of damages is the difference in value of the property before and after the accident. If we apply that method here the damage, according to the evidence, would be the sum of $325. If we apply the reasonable cost of repair to the present case, according to the undisputed evidence, the damage is the amount found by the jury. The evidence with regard to the amount of damages was not disputed and the jury having allowed the lesser amount upon the two theories, we are unable to see any harm for which appellant is in a position to complain.

The sixth and seventh propositions claim that the findings of the jury upon the question of negligence do not support the judgment. The issues and the answers of the jury are as follows:

“Question No. 4.
“Do you find from a preponderance of the evidence that the said Otto Eppler, was operating said Ford truck at the time of the accident on the left-hand side of the highway?
“Answer, ‘yes’ or ‘no.’
“We, the jury, answer: Yes.
“If you have answered Question No. 4, ‘yes’, then answer Question No. 5, otherwise you need not answer same.
“Question No. 5.
“Do you find from a preponderance of the evidence that the said Otto Eppler was negligent in driving said Ford truck upon the left-hand side of the highway, if you have found he did so drive at the time of the accident?
“Answer, ‘yes’ or ‘no’.
“We^ the jury, answer: Yes.
“Question No. 6.
“Do you find from a preponderance of the evidence that such negligence, if any, was a proximate cause of the accident and injuries, if any, to the plaintiff.
“Answer, ‘yes’ or ‘no’
“We, the jury, answer: Yes.”
The contention cannot be sustained.

The appellant presents the eighth, ninth, tenth and eleventh propositions together, without a sufficient statement to entitle them to consideration. The propositions are without merit. They are overruled for both reasons.

Appellant, through the twelfth and thirteenth propositions, claims error in the charge of the court in the submission of the following question No. 10:

“Do you find from a preponderance of the evidence that the collision complained of was not the result of an unavoidable accident?
“Answer by stating, It was the result of an unavoidable accident, or It was not the result of an unavoidable accident.”

The jury answered: “It was not the result of an unavoidable accident.”

In connection with Question No. 10 the jury were instructed that “the term unavoidable accident as used in this charge means an accident which occurs without the fault or negligence on the part of any person concerned.”

Appellant requested the following special charge:

“Question No. 10. Do you find from a preponderance of the evidence that the collision complained of was not the result of an unavoidable accident?
“Answer by stating ‘it was not an unavoidable accident,’ or, ‘no.’ ”

Appellee asserts that’ the issue of unavoidable accident was not raised by the evidence in this case, therefore, if the charge be erroneous the same is harmless.

This contention must be sustained. According to the evidence, appellee was not guilty of any act of omission or commission that would in anywise proximately cause the accident. The collision was caused by the negligence of the employee of appellant. The appellant offered no witnesses. This explains in some measure the lack of evidence raising such issue. In the case of Dallas Ry. & Terminal Co. v. Darden, Tex.Com.App., 38 S.W.2d 777, it was held that under such circumstances the error in the charge was harmless.

The. question of unavoidable accident not being raised by the evidence, it becomes unnecessary to pass upon the question of whether or not the charge on that issue was erroneous. The Supreme Court has expressed its view as to the correct method of submitting such issue in the case of Gulf C. & S. F. R. Co. v. Giun, 131 Tex. 548, 116 S.W.2d 693, 116 A.L.R. 795.

The judgment is affirmed.


author: COMBS, Justice.

text:
    MURPHY et ux. v. McDONALD.
    No. 3526.
    Court of Civil Appeals of Texas. Beaumont.
    Nov. 16, 1939.
    Ramsey & Ramsey, of San Augustine, for appellants.
    J. J. Fisher and J. R. Bogard, both of San Augustine, for appellee.
   COMBS, Justice.

This is a land suit involving title to about 600 acres of land in San Augustine County. No fact issues are involved, the controlling question being which of two sheriffs’ deeds conveyed the title.

Appellants A. Murphy and wife Anna Murphy claim title under a sheriff’s deed made by virtue of a sale following foreclosure of a vendor’s lien. Appellee, E. E. McDonald, claims title under a sheriff’s deed by virtue of a sale of the land under execution levied upon the land, after Murphy’s judgment of foreclosure, but prior to'the sheriff’s sale to Anna Murphy under the foreclosure. The claim of title by Murphy arose as follows: In December, 1928, appellant, A. Murphy, conveyed the land here involved to C. G. Lee and retained a vendor’s lien to secure payment of five purchase money notes of $530.71 each, executed by said C. G. Lee, and also by C. C. Goodwin, who was not a grantee. On June 15, 1931, the debt being unpaid, A. Murphy recovered judgment in the district court of San Augustine County against Lee and Goodwin on the notes for his debt and for foreclosure of the vendor’s lien. The land was not sold by the sheriff under the judgment of foreclosure and order of sale until November 6, 1934, when it was sold by the sheriff and purchased by appellant, Anna Murphy, to whom the sheriff executed a deed on that date. But in the meantime, between June IS, 1931, when Murphy secured his decree of foreclosure, and November 6, 1934, when the sale was made under that judgment, the matters which form the basis of E. E. McDonald’s claim arose as follows: On August 28, 1933, McDonald recovered a judgment in the county court of San Augustine County against appellant A. Murphy and against C. G. Lee and C. C. Goodwin for $528.30. McDonald caused execution to be issued on that judgment and levied on the land here involved. On. May 30, 1934, by virtue of that levy, the sheriff sold the land to appellee McDonald and executed to him a deed. On December 22, 1934, McDonald instituted this suit against A. Murphy and wife, Anna Murphy, in the form of trespass to try title. On the trial of the case after all the evidence was in, it was agreed by the parties that only law questions were involved. The jury was discharged and the case submitted to the court who decided that plaintiff McDonald was entitled to recover the land by virtue of his purchase at the execution sale.

Opinion.

•• Obviously, the controlling question before us is whether or not the levy of execution and the sale of the land to McDonald by the sheriff under the county court judgment, served to extinguish Murphy’s right of sale under his prior judgment of foreclosure so as to render the sheriff’s sale to Anna Murphy subsequently made ineffectual to pass the title. Unquestionably, Murphy had the right to have the land sold under the decree of foreclosure prior to and at the time McDonald had his execution levied on the land and of course'a sheriff’s deed by virtue of such a sale would have passed the title. Such was the result of the sale made after the levy of the execution by McDonald unless that levy and the sale made thereunder had the effect of extinguishing Murphy’s right of sale.

We think Murphy’s right to have the land sold under his decree of foreclosure was in no wise impaired by the execution levy and sale. The rule is that the holder of a mere vendor’s lien has no such interest in the land as renders the lien subj ect to attachment or execution, and as a consequence a levy made against the land and a sale of the land thereunder does not affect the vendor’s lien. 43 Tex.Jur. § 139, pp. 226, 227; Douglass v. Blount, 95 Tex. 369, 67 S.W. 484, 58 L.R.A. 699; Traders National Bank v. Price, Tex.Com.App., 228 S.W. 160. Of course the rule is otherwise where the holder of the vendor’s lien has elected to rescind the sale contract and assert his superior title or where he has foreclosed his lien and purchased the land at foreclosure sale prior to the execution levy. But such is not the case before us. Here Murphy did not elect to claim his superior title, but instead he elected to foreclose his lien and did so by district court suit for the purpose. And although Murphy obtained his decree of foreclosure in 1931, the sale had not been had under the decree of foreclosure at the time McDonald levied an execution on the land and caused the sheriff to make sale of it. Thus at the time of the levy of the execution and the sale Lee still owned the land subject to Murphy’s lien with the right of redemption. And since. Lee was an execution debtor McDonald acquired Lee’s interest and succeeded to his rights. Willis v. Smith, 66 Tex. 31, 17 S.W. 247. But the title so acquired by McDonald was still as subject to Murphy’s lien as it was when held by Lee. And when the sheriff subsequently sold the land under the judgment of foreclosure, his deed conveyed to Anna Murphy title to the land as effectually as it would have if Lee had still owned the title. This is necessarily so because of the well established principle that Murphy’s lien and his right of sale to enforce it were not impaired by the execution levy and sale.

As we said in the outset of this discussion, the only question we are called upon to decide is which of the two sheriffs’ deeds as a matter of law passed the superior title. No equities are involved on the case as made. It follows from what we have said that it is our conclusion that the trial court erred in entering judgment for E. E. McDonald and against appellants. Judgment of the trial court is reversed and judgment here rendered for appellants.

Reversed and rendered.


author: WALKER, Chief Justice.

text:
    FOSTER v. WOODWARD et ux.
    No. 3547.
    Court of Civil Appeals of Texas. Beaumont.
    Nov. 16, 1939.
    Rehearing Denied Nov. 29, 1939.
    C. A. Lord, of Beaumont, for appellant.
    McCall & Broadus and Howell & Howell, all of Beaumont, for appellees.
   WALKER, Chief Justice.

Driving into a filling station in the town of Nederland, Jefferson county, Texas, owned and operated by appellees, Mr. and Mrs. E. J. Woodward, on the 14th day of September, 1937, Mrs. Sammie Bihn, the agent of appellant, S. W. Foster, struck one of the pumps, tearing off the pump hose, and causing the escaping gasoline to ignite and set fire to the filling station. The filling station was a two-story wooden building; appellees used the second story for the family residence. At the time of the accident, Mrs. Woodward was in the living- quarters up stairs, and was injured in her attempt to escape from the burning building.

This suit was brought by appellees against appellant for damages for the injuries suffered by them in the fire. The issues of negligence raised on appellees’ pleadings and evidence, and the defensive issues raised on appellant’s pleading and evidence, were submitted to the jury. On the verdict, answering special issues and assessing appellees’ damages at $5,350, judgment was entered in their favor, from which appellant has duly prosecuted his appeal to this court.

Appellant asserts that he was entitled to an instructed verdict, on the proposition that the evidence did not raise against him the issue that the injuries suffered by appellees were “the natural and probable result” of the negligence charged against him in their petition, and that the evidence did not raise the issue that Mrs. Bihn “in the light of the attending circumstances ought to have foreseen the consequence” of her act in striking the pump. We make the following summary of the evidence on these issues. The evidence satisfactorily established the issue that Mrs. Bihn was guilty of negligence in driving into the filling station and striking the pump, and that the fire resulted from her negligence; that Mrs. Woodward was in the second story of the building when the accident occurred and was injured in her efforts to escape.- Mrs. Woodward testified (Q. & A. reduced to narrative):

“On the day of the fire I was in my room upstairs over the garage. I just don’t know especially what I was doing. The first information I had of the fire, well, I heard an explosion and commotion downstairs, and I knew something terrible had happened. So I went to this window in this bathroom, to see what had happened and when I got there I could see a fire and smoke all downstairs and the flames were so much and the smoke was so much I couldn’t make my way down the stairs. I went to the door that leads down the stairway, opened the door and saw the smoke and flames in the stairway. There was lots of smoke, and when I opened the door it filled the room so full of smoke I could hardly make my way out. I knew there was plently of gas in and around the place, in the underground tanks. When I opened the door and saw the smoke and the flames were so much I couldn’t go downstairs, I went through the house out to this window to make my way downstairs. I went through my bedroom into the kitchen out onto the roof. I tried to get down, I slipped or something; I fell, that’s all I know. I fell to the ground. When I opened the door and saw what was happening I hardly know what happened after that; I was so frightened. When I opened the door and saw the flames and smoke on the stairs I turned as fast as I could go to go out at the window.

“Q. How long was it after you got out of the window before you fell? A. Well, immediately after I got out, because I made no steps that I know of; I hardly know what happened; I was frightened so when I saw what happened.
“Q. Why were you frightened, Mrs. Woodward? A. Well, because I knew that we were in danger with the gas and oil that were around the place.
“Q. I’ll ask you if in your mind you .felt that your life was in danger? A. I was in danger.
“Q. Was that what frightened you? A. Yes, sir.
“Q. And is that what caused you to go out of the window and try to descend from the roof? A. Yes, sir, because I knew if it all exploded that we would all be burned to death.
“Q. You say you knew if all this gas exploded down there you all would be burned to death? A. Yes, sir.
“Q. Did you know at that time that there was a quantity of gas down there? A. I did, yes.
“Q. Why did you go to the door and open it? A. Well, because I knew there was fire down there; I saw fire through the window. I rushed to the door to get down, because I knew I had to get out. some way.
“Q. Why did you not go on down on- the stairs? A. The fire and smoke would not permit me to go down the stairs.
“Q. Was it your purpose to get out of the building in any way that you could? A. Yes, sir.
“Q. As quickly as you could? A. Yes, sir.
“Q. Now, Mrs. Woodward, how did you think that you would descend from the building after you got on the roof? What were you going to try to do? A. Well, the only way that I could see was to let myself down by a pipe that came up by the side of the house, to keep from hurting myself ; so when I reached for the pipe, whatever I stepped on came out from under me and I went directly to the ground, and my feet — .
“Q. I’ll ask you, Mrs. Woodward, if you intended to say there that your feet slipped? A. Well, I suppose they did. I hardly know what happened. I know when I got out, the next thing I knew I was on the ground.
“Q. Is the roof up there steep or flat? A. It is slanting.
“Q. Is it a steep slant? A. Well, I would hardly know; the roof just slants and that’s all I can say. I know I couldn’t stand on it very well.
“Q. You couldn’t stand on it? A. No, sir.
“Q. Were you frightened at that time when you were trying to get off on the pipe? A. I was frightened, I hardly knew what I was doing.
“Q. Now, Mrs. Woodward, do you know how far you fell or about how far? A. Well, if I was judging, not knowing, anywhere from fifteen to sixteen feet.”

The evidence as quoted was sufficient to raise the issue that the negligence of Mrs. Sammie Bihn was the proximate cause of the injuries suffered by appellee. In Carey v. Pure Distributing Corp., 124 S.W.2d 847, 849, Judge Critz, speaking for the Supreme Court, said: “It is the settled law of this State, and the law generally, that a mere showing of negligence will not justify holding the one guilty thereof liable for damages. The evidence must go further, and show that such negligence was the proximate, and not the remote, cause of the resulting injuries. In order for it to be said that an injury proximately resulted from an act of negligence, the evidence must justify the conclusion that such i jury was the natural and probable result thereof. In order to justify such a conclusion, the evidence must justify a finding . ' party committing the negligent act ought to have foreseen the consequences thereof in the light of the attendant circumstances.”

Continuing in that case his statement of the law, on authority of San Antonio & A. P. R. Co. v. Behne, Tex.Com.App., 231 S.W. 354, Judge Critz said: “In spite of the above rules of law, it is not required that the particular accident complained of should have been foreseen. All that is required is ‘that the injury be of such a general character as might reasonably have been anticipated; and that the injured party should be so situated with relation to the wrongful act that injury to him or to one similarly situated might reasonably have been foreseen.’ ”

Mrs. Bihn was visited with knowledge, by the physical facts before her, that the filling station was a two-story building and that the second story was used as a dwelling; from common experience she should have anticipated that someone might be in the second story of the filling station at the time of the accident, and that, such person would try to escape. So, when by her negligence she caused the filling station to catch fire, the issue was raised that Mrs. Woodward’s’ injuries in trying to escape from the building were the natural and probable result of Mrs. Bihn’s negligence, that is, “in the light of the attending circumstances” Mrs. Bihn ought to have foreseen the result of her negligence. What we have said construing “natural and probable result,” as that term relates to the facts of this case, is supported by the definition given by Judge McClendon of that term in the Behne case, supra [231 S.W. 356]: “The expression ‘natural and probable result’ has been used and interpreted to mean what should reasonably be anticipated in the light of common experience applied to the surrounding circumstances. ‘Since every event is the result of a natural law, we apprehend the meaning is that the injury should be such as may probably happen as a consequence of the negligence, under the ordinary operation of natural laws.’ ”

The Supreme Court’s opinion, Justice Critz speaking, in Missouri-Kansas-T. R. Co. of Texas v. McLain, Tex.Sup., 126 S.W.2d 474, affirmatively supports our construction of the facts of this case. See, also, Paris & G. N. R. Co. v. Stafford, Tex.Com.App., 53 S.W.2d 1019; and Sullivan v. Flores, Tex.Com.App., 132 S.W.2d 110.

We overrule appellant’s proposition; “Plainly it was the condition of the roof and the fact that Drucilla Woodward went out upon the same, that immediately and directly and proximately caused her to fall and thereby sustain whatever injury she sustained.” The evidence did not establish, as a matter of law, that a defect in the roof — rotten shingles, defective shingles, etc. — caused Mrs. Woodward to fall. We have quoted above her explanation of the facts attending her fall, and the facts as testified to by her refute appellant’s proposition.

Nor can it be said, as a matter of law, that Mrs. Woodward was guilty of contributory negligence in trying to escape from the building through the window and over the roof. The facts of this case invoke the doctrine of “imminent or sudden peril.” Since Mrs. Bihn’s negligence caused Mrs. Woodward to be in a situation of great peril, whether or not she acted wisely and cautiously in trying to escape through the window is not an issuable fact. International & G. N. R. v. Neff, 87 Tex. 303, 28 S.W. 283; Beck v. Browning, 129 Tex. 7, 101 S.W.2d 545; Graham v. Hines, Tex.Civ.App., 240 S.W. 1015; Texas & N. O. R. Co. v. Diaz, Tex.Civ.App., 234 S.W. 919.

The testimony given by Mrs. Woodward in her oral depositions is subject to the construction that she did not try to escape from the building because of “imminent or sudden peril” to her life. We overrule appellant’s contention that appellees were bound by this testimony. While it is the law that the testimony of a party to a law suit must be construed as binding upon him, Southern Surety Co. v. Inabit, Tex.Civ.App., 1 S.W.2d 412; Wristen v. Wristen, Tex.Civ.App., 119 S.W.2d 1104; Burguieres v. Farrell, Tex.Civ.App., 85 S.W.2d 952; Watkins Co. v. King, Tex.Civ.App., 83 S.W.2d 405; Texas Jurisprudence, vol. 17, pp. 576, 581, that rule is not controlling where he subsequently modifies or explains his former testimony. Watkins Co. v. King, supra. Mrs. Woodward testified clearly to facts showing that she tried to escape through the window because she thought her life was in imminent peril. That testimony rebutted or modified any' former statement she made.

We give special issue No. 10-C: “Do you find from a preponderance of the evidence that such terror and fright (if you have so found) was ■ proximately caused by the negligence, if any, of the operator of the defendant’s automobile?”

Appellant reserved the following exception to this issue: “The defendant objects and excepts to Special Issue No. 10-C because the same is a general charge and does not submit to the jury any specific act of negligence as alleged in the- plaintiff’s pleadings.”

We overrule these exceptions. Preceding special issue No. 10-C, the acts of negligence, together with proximate cause, as charged against appellant were submitted to' the jury; all of which were found in favor of appellees. Following that form of submission, it was not error for the court to fail to resubmit the specific acts of negligence as elements of special issue No. 10-C.

Proximate cause, following the submission of each specific act of negligence, was submitted by the following issue: “Do you find from a preponderance of the evidence that such negligence, if any, on the part of the operator of defendant’s automobile, was a proximate cause of the injuries, if any, to the plaintiff Drucilla Woodward?”

Appellant excepted to this manner and form of submitting proximate cause on the ground that it was “on the weight of the evidence and assumed that -Drucilla Woodward sustained injuries.” Appellant’s point is that whether or not Mrs. Woodward suffered an injury should have been submitted to the jury; whether or not Mrs. Woodward suffered an injury on the occasion in question was not submitted to the jury. The point was not controverted by the evidence. Under the undisputed evidence, Mrs. Woodward did suffer an injury in the form and manner plead by her. The only point at issue was the extent of her injury.

Answering the following issue, the jury assessed damages at the sum of $5,000: “From a preponderance of the evidence, what amount of money, if any, if paid now, do you find would reasonably compensate the plaintiffs on account of the personal injuries, if any, sustained by the plaintiff, Drucilla Woodward, which were proximately caused (if you have so found) by the negligence, if any, of the defendant?”

Appellant urges the following propositions against the jury’s answer to this question :

(a) “There is no predicate that would support the judgment for $5,000.00 rendered against the defendant on account of alleged personal injuries sustained by the plaintiff Drucilla Woodward, because there is no finding of the jury that she sustained any of the injuries alleged to have been sustained by her, and because the court did not submit any special issue and the plaintiffs did not request the submission of any special issue requiring a finding of the jury as to whether Drucilla Woodward sustained any of the personal injuries alleged to have been sustained by her; and because said issue was an ultimate and determinative issue in the case and an issue which was contested by the defendant by his pleadings and evidence, and because there were strong facts and circumstances established showing that Drucilla Woodward did not sustain injuries alleged to have been sustained by her, and which contradicted her testimony and the testimony of plaintiffs’ other witnesses given with respect to her injuries; and furthermore, because the credibility of the plaintiff Drucilla Woodward, and that of other witnesses whose testimony the plaintiffs offered with reference to her injuries, was a question for the determination of the jury and one to be passed upon by the jury alone. Therefore, without such submission and finding of the jury the trial court could not and should not have rendered any judgment for the plaintiffs on account of the personal injuries alleged to have been sustained by Drucilla Woodward.”

(b) “It was error for the court to refuse to set aside the finding of the jury in response to Special Issue No. 12, that the sum of $5,000.00 would be the reasonable amount to compensate the plaintiffs for the injuries sustained by Drucilla Woodward, and to grant a new trial, because of no finding by the jury of any personal injuries alleged to have been sustained by Drucilla Woodward that would support such finding of the jury; the defendant having moved the court to set aside such judgment for said reason with respect to such portion of the judgment rendered, in his amended motion for new trial.”

Under all the evidence Mrs. Woodward sustained injuries; only the nature and extent of her injuries was in controversy. Appellant’s exceptions do not present the point that the court sent to the jury evidence of injuries not plead. • Where the evidence establishes beyond question that the complaining party received an injury, the issue was one of law and should not be submitted to the jury. 41 Tex.Jur. 1070.

The jury awarded damages in the sum of $125 in answer to the following special issue: “From a preponderance of the evidence, what amount of money, if any, if paid now in cash, do you find would reasonably compensate the plaintiffs for the doctors’ bills, if any, medical bills, if any, incurred by the plaintiffs, such as were reasonable and necessary for the treatment of the plaintiff Drucilla Woodward (if you have so found), for her injuries, if any, proximately caused by the negligence, if any, of the defendant, .his servant and agent ?”

Appellant excepted to this issue: “Because the same was a general charge and required the jury to find negligence and proximate cause that occasioned the expenditures referred to,- without reference to the plaintiffs’ pleadings and without reference to any issue of negligence alleged in the pleadings, and because said charge was duplicitous, multifarious and omnibus and submitted numerous issues and questions to the jury without reference to any specific and definite fact element made by the pleadings and supported by the testimony.”

What we have said above disposes of all exceptions to this issue except that the issue was multifarious. The question submitted as one issue, (a) “The doctors’ bills,” and (b) “Medical bills.” On authority of Bull-Stewart Equipment Co. v. Sparra, Tex.Civ.App., 109 S.W.2d 784, this exception is overruled. We add further that appellant makes no statement that the amount of the bills was controverted; in fact, as we construe the evidence, the inference should be drawn that the bills weré not controverted — $5 of the award was remitted.

Question No. 12-A submitted the loss of earnings of Mr. Woodward resulting from injuries suffered by him; answering the question, the jury assessed his damages at $50. The exceptions to this issue are in substance the same reserved against question No. 13, discussed above.

The court’s definition of “proximate cause” was approved by this court in Wells v. Henderson, Tex.Civ.App., 78 S.W.2d 683. The court’s definition of “unavoidable accident” was approved by this court in Vincent v. Johnson, Tex.Civ.App., 117 S.W.2d 135.

What we have said above overrules appellant’s exceptions to special issues No. 11 and No. 15.

A careful review of the record shows no error. The judgment of the lower court should be affirmed, and it is so ordered.

Affirmed.


author: GRAVES, Justice.

text:
    BRADLEY et al. v. OLDHAM et al.
    No. 10898.
    Court of Civil Appeals of Texas. Galveston.
    Nov. 23, 1939.
    Rehearing Denied Dec. 14, 1939.
    Dick Young and B. C. Johnson, both of Houston, for appellants.
    Geo. W. Graham, of Houston, for ap-pellees.
   GRAVES, Justice.

This statement, adopted as correct by both sides, is taken from appellants’ brief:

“T. C. Bradley, E. R. Courrege, and A. J. Rosenquest, doing business as Houston Dunbrik Company, sued M. C. Oldham, owner of the hereinafter described property; E. Lee Bond, general contractor for the improvements erected thereon; and L. D. Fore, sub-contractor of the lath and plaster work of the building erected upon Lots One (1), Two (2), Three (3), and Four (4), Block Twenty-Two (22), Hadley and Franklin Addition to the City of Houston, Harris County, Texas, to recover the sum of $314.50, with interest thereon, for materials sold and delivered upon the premises to L. D. Fore and used by him in the performance of his sub-contract, and to foreclose plaintiffs’ claimed materialman’s lien upon the property, alleged to have been created in conformity-with the provisions of Article 5453, Revised Civil Statutes, as amended; plaintiffs alleged that M. C. Oldham, after due notice to him as provided by law, paid to the general contractor a large amount of money, more than sufficient to cover the amount due plaintiffs; that defendants, jointly and severally, had failed and refused to pay plaintiffs, to their damage.
“L. D. Fore answered, admitting purchase and use of the materials, and asking judgment over against E. Lee Bond and M. C. Oldham for all amounts adjudged against him, contending that they should have paid for such materials under the method of handling purchases for his sub-contract.
“Defendants M. C. Oldham and E. Lee Bond answered by general demurrer, general denial, and by cross-action asked removal of any cloud that may have been cast upon the title to the property by recording of plaintiffs’ claimed materialman’s lien.
“Trial was without a jury, and, on December 31, 1938, judgment was rendered for plaintiffs against L. D. Fore for the sum of $314.50, with interest; against Fore on his cross-action over against Oldham and Bond; against plaintiffs as to their claims against Oldham and Bond, and in favor of Oldham and Bond cancelling and annulling the declared-upon materialman’s lien upon the property, and removing any seeming cloud cast thereby upon the title thereto.”

Only the Dunbrik Company has ap,-pealed, making no attack upon the trial court’s findings but questioning its conclusions, the material portions of both being as follows:

“Findings of Fact.
“(1) Under date of January 24, 1938, M. C. Oldham, of Houston, in Harris County, Texas, as owner of Lots numbers one (1) two (2) three (3) and four (4) all in Block number twenty-two (22) of Had-ley & Franklin Addition to said City, entered into a written contract with E. Lee Bond, of Houston, Texas, as contractor, for the construction of a one story garage and -office building on said property, according to plans and specifications entered into by and between said parties, for a consideration of $39,323.00; said improvements to be constructed on the southwest corner of said tract of land. At the time of the execution of said contract, M. C. Oldham executed, acknowledged and delivered to E. Lee Bond, a Mechanic’s Lien contract, giving and granting a mechanic’s, laborer’s and materialman’s lien upon and against the aforesaid property, to secure the payment of the aforesaid sum of money.
******
“(3) Thereafter, E. Lee Bond entered into a written contract with one L. D. Fore, of Houston, Texas, as sub-contractor, by the terms of which said contract, among other things, L. D. Fore agreed to furnish materials and do the necessary plastering work on that part of the build‘ing under construction by E. Lee Bond, for the sum of around $2650.00. * * * *
“(6) Between the dates of. March 28, 1938, and April 18, 1938, the Dunbrik Company delivered to L. D. Fore, upon the premises under construction by him, certain lath and other materials, to the extent and value of $314.50, upon orders placed direct with them by Fore; said material being receipted for by, and charged direct to, L. D. Fore, and used in the construction of that portion of the building under construction by E. Lee Bond as master contractor.
“(7) Prior to the delivery of said material by Houston Dunbrik Company to L. D. Fore, and at the instance and request of the general architect, certain changes were made in the general specifications, which included changes in the kind, quality and quantity of material to be used by L. D. Fore; E. Lee Bond, as master contractor, and M. C. Oldham, as owner, concurred in the changes proposed by the architect. The kind, quality and quantity of material furnished by Houston Dunbrik Company to L. D. Fore were such as would come within such changed general specifications.
“(8) Thereafter, on or about the first part of May, 1938, the Houston Dunbrik Company made demand upon E. Lee Bond for payment in the sum of $314.50 covering the material furnished to L. D. Fore, which demand was refused. Prior to such demand, the material in question had been ordered by L. D. Fore direct from Houston Dunbrik Co.; delivered upon the premises under construction; receipted for by, and charged direct to, L. D. Fore, without the expressed authority, consent or knowledge of the said E. Lee Bond, or M. C. Oldham, their agents, servants or employees, or either of them; and the first knowledge E. Lee Bond had of said material having been furnished by Houston Dunbrik Company to L. D. Fore, was when demand was made upon him for payment, as aforesaid, and receipted delivery tickets or invoices for material furnished by Houston Dunbrik Company to Fore were never presented to Bond for payment, by Fore, in the usual and customary method of handling such transactions between them.
“(9) Thereafter, on or about May 9, 1938, and again on May 16, 1938, Houston Dunbrik Company, acting by and through its attorney, furnished E. Lee Bond and M. C. Oldham with an itemized statement of such account, and under date of June 8, 1938, caused to be filed and recorded in the Materialman’s-Lien Records of Harris County, Texas, itemized statement of such materials furnished, together with affidavit, as provided by law, for fixing a ma-terialman’s-lien upon the property herein involved.
“(10) Thereafter, E. Lee Bond completed the construction of that part of the improvements under his direct supervision as master contractor; said improvements were accepted by owner and architect as being in compliance with plans and specifications ; around $5000.00 in cash paid over to E. Lee Bond as balance due him upon his contract of May 30, 1938, and E. Lee Bond executed, acknowledged and delivered to M; C. Oldham; as owner, a release of the Mechanic’s, laborer’s and ' material-man’s-lien contract covering said improvements.
“(11) Under the agreement between E. Lee Bond and L. D. Fore, Bond paid all bills for labor and materials, except the materials furnished by Houston Dunbrik Company in the sum of $314.50; the amount of $2650.00, the bid of L. D. Fore under his sub-contract, was claimed by E. Lee Bond to have been exhausted prior to completion of the sub-contract, and thereafter, E. Lee Bond paid only Fore’s workmen’s wages until completion of the subcontract;
“(12) There has never been an accounting between L. D. Fore and E. Lee Bond as to the sub-contract and payments thereunder.
“Conclusions of Law.
“(1) Houston Dunbrik Company is not entitled, under the provisions of Article 16, Section 37, of the Constitution, Vernon’s Ann.St. to fix a lien upon and against the land and improvements involved herein, for material furnished to L. D. Fore under open account arrangement, to which neither the owner, M. C. Oldham, nor master contractor, E. Lee Bond, were parties.
“(2) The contract between M. C. Old-ham, the owner of the property herein involved, and E. Lee Bond, as master contractor, did not authorize the fixing of a materialman’s lien in favor of Houston Dunbrik Company for material furnished by them on open account to L. D. Fore, sub-contractor.
“(3) The provisions of Article 16, Section 37, Constitution, does not authorize the establishment of a lien on the property herein involved in favor of Houston Dun-brik Company simply as a furnisher of material, not put into the building by them, and between whom and the owner, M. C. Oldham, or the master contractor, E. Lee Bond, there was no privity of contract.
“(4) When the Houston Dunbrik Company delivered to L. D. Fore upon the premises being constructed, the material herein involved, and took his receipt on delivery tickets, the title and possession of the material in question passed to and vested in L. D. Fore as its owner, whether paid for or not, and the Houston Dun-brik Company parted with whatever title they held, and conferred upon L. D. Fore unrestricted dominion over the material, to be placed into the construction of the building or not, as he saw fit.
“(5) At the time the material herein involved was used in the construction of the building in question, L. D. Fore owned and controlled the material, and became then and there the furnisher of such material appropriated by him and placed by him in the construction of such building.
“(6) Houston Dunbrik Company merely selling material to the sub-contractor, L. D. Fore, to be used by him in the making of the improvements to the building in question, took no part in that work itself, had no contractual relation to it, and therefore did not come within that interpretation of the meaning of Article 16, Section 37, Constitution, providing for the fixing of lien upon and against property and improvements for labor performed or material furnished.
“(7) L. D. Fore is justly indebted to Houston Dunbrik Company in the principal sum of $314.50 for material furnished upon the job herein involved.
“(8) Houston Dunbrik Company is not entitled to any money judgment over against M. C. Oldham, as owner, or E. Lee Bond, as master contractor, or either of them, for material furnished to L. D. Fore; nor to judgment foreclosing materialman’s lien upon and against the property herein involved.”

Appellants insist they were entitled both to the money and the lien so sought against Oldham, the owner, as well as the contractor, E. Lee Bond, on the ground that he had, after due notice of their $314.50 claim under R.S. Article 5453, Vernon’s Ann.Civ. St. art. 5453, paid Bond, his general contractor, much more than that as the bal - anee then justly due the latter, citing these authorities: Article 16, Section 37, Constitution of Texas; Article 5452, 5453, Revised Civil Statutes, 1925; Wilson v. Sherwin-Williams Paint Co., 110 Tex. 156, 217 S.W. 372; Gay v. Acme Brick Co., Tex.Civ.App., 15 S.W.2d 725, writ of error refused; Wilson v. Hinton, 131 Tex. 593, 116 S.W.2d 365; Keystone Pipe & Supply Co. v. Wright, Tex.Civ.App., 37 S.W.2d 227, 230, pars. 3-4 of opinion; Breckenridge City Club v. Hardin, Tex.Civ.App., 253 S.W. 873.

The appellees, on the other hand, counter with this suggestion:

“The fact-issues involved herein, as set forth in the trial court’s findings of fact, are different from the facts involved in the authorities relied upon by appellants, in that the material in question was ordered direct from appellant by L. D. Fore, subcontractor; was delivered upon the premises under construction; receipted for by, and charged by appellant direct to L. D. Fore, without the expressed authority, consent, or knowledge of appellees, their agents, servants, or employees, or either of them, and without any privity of contract between said furnishers of material and said owner of the property or master contractor, appellees herein,” relying for support upon these authorities: Article 16, Section 37, Constitution of Texas; First Baptist Church v. Carlton Lumber Company, Tex.Civ.App., 173 S.W. 1179; First National Bank v. Lyon-Gray Lumber Co., Tex.Civ.App., 194 S.W. 1146; Horan v. Frank, 51 Tex. 401; Shields v. Morrow, 51 Tex. 393.

It is concluded: (1) That the issue thus joined on the appeal has been foreclosed against the challenged holding below, and in appellants’ favor, by the Supreme Court in Wilson v. Sherwin-Williams, cited by them supra, upon analogous facts to those here involved; (2) that the unchallenged findings here — indeed, those so relied upon by themselves — differentiate this cause from First Baptist Church v. Carlton, et id genus omne, upon which the appellees’ quoted-position rests.

In view of the extended statement from this record, as well as what are conceived to be the clear-cut distinctions made by our Supreme Court in the two lines of cases referred to, it is deemed unnecessary to either essay a restatement here of the considerations upon which those holdings were rested, or to do'more than point out why it is thought this cause falls within the principles applied in the Sherwin-Williams case rather than those in the Baptist Church case.

There is no suggestion in this record of any waiver of a materialman’s lien upon appellants’ part, nor of any circumstance upon which such a claim might have been predicated, the undisputed findings being that this material was delivered to one who was a sub-contractor under a written agreement establishing that relationship with a then-existing and active general contractor, on the premises, and was in fact incorporated in the owner’s building then under construction; in such circumstances, the Supreme Court, in the Sherwin-Wil-liams case, does not condition the right of the materialman to his statutory lien upon any state of the accounts between the contractor and the sub-contractor, nor upon whether or not the material has been so furnished, delivered, and used by purely inter sese transactions between the ma-terialman and the sub-contractor only, as was the case in this instance, but predicates his right under the statute upon the broader ground that the prescribed notice proceedings in behalf of the materialman, have the effect of a writ of garnishment in his favor, both against, the owner and the general contractor; in other words, where there is such a general contractor, and statutory written notice is served on the owner at a time when he owes.such general contractor more than the cost of material furnished a bona fide sub-contractor — whether with the owner’s knowledge or consent at the time the material was furnished or not- — the owner is bound.

Whereas, the principle applied in the Baptist Church case is entirely different, in that there was no general contractor at all through whom a lien might be fixed against the owner, because the contractor in that instance had already abandoned the contract, after being paid in full for his work to that date, before the materialman undertook to fix any lien by filing his claim for material furnished one who had formerly been a sub-contractor under him. This statement from the opinion of the court clearly discloses the materially dissimilar state of the facts [173 S.W. 1181]:

“The appellee may only recover, if at all, it is thought, upon the ground that it has a mechanic’s lien. In this respect it appears undisputed that the McGavick Construction Company, in point of fact, abandoned the work and breached the contract at a time when the building was incomplete, and the church committee, accepting the breach, and acting independently of the contract, made a distinct contract relet-ting the work to the appellant insurance company for a stated and fixed price. At the time of the abandonment of the contract the original contractor had been paid in full, and appellee had not fixed a mechanic’s. lien until after the contract had been relet to appellant insurance company. In these facts it is believed that no recovery could be had or statutory lien enforced against the church or the subsequent contractor. Article 5623, R.S.; Berry v. McAdams, 93 Tex. 431, 55 S.W. 1112; Medley v. Radiator Co., 27 Tex.Civ.App. 384, 66 S.W. 86; Riter v. Mfg. Co., 19 Tex.Civ.App. 516, 48 S.W. 758.”

The subsidiary holding the court adds, to the effect that the materialman there did not have a constitutional lien under Article 16, § 37, independent of the statute, either, is also based upon the same finding that there had been no principal contractor in existence when the materialman’s notice was filed, hence no basis for even privity of contract between him and the owner.

It follows from these conclusions that the trial court’s contrary determination should be reversed, and that judgment should here be rendered in appellants’ favor, both against M. C. Oldham, the owner, and E. Lee Bond, the-general contractor, for the $314.'50 sued for, together with fore-cltisure of their materialman’s lien upon the property involved, substantially in all respects as prayed for below. The judgment against L. D. Fore, not having been appealed from, will remain undisturbed.

Reversed and rendered.


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    SULSER v. CARAWAY et al.
    No. 3531.
    Court of Civil Appeals of Texas. Beaumont.
    Nov. 13, 1939.
    Rehearing Denied Nov. 15, 1939.
    Coleman & Coleman, of Lufkin, for appellant.
    Ned Shands, Jr., of Lufkin, for appel-lees.
   WALKER, Chief Justice.

This suit was filed in the district court of Angelina'county, September 1, 1932, by appellant, Mrs. Edna Sulser, against ap-pellees, Archie Caraway, et al., praying for judgment for the balance due on a promissory note and for foreclosure of a deed of trust lien against certain real estate described in the petition. At the time appellant filed her petition she caused the property to be seized by writ of sequestration; after appellees failed to replevy the property, appellant duly executed her re-plevy bond, took possession of the property, paid the repair hills, and collected the rent up to the time final judgment was entered herein in the lower court, December 17, 1938. On the 20th of October, 1932, ap-pellees filed their original answer consisting of a general demurrer, general denial and a special plea on the issue of heirship. On the 14th day of December, 1938, ap-pellees filed their first amended original answer and cross action, pleading as in their original answer and praying for an accounting by appellant on the profits of her possession of the property under her replevy bond. Appellant filed her supplemental petition, answering appellees’ answer, pleading general and special demurrers, and specially denying special matters plead affirmatively by appellees, and specially pleading limitation of two and four years against the demand for an accounting. If the demurrers were called to the attention of the trial court, and if he ruled thereon, no record of such ruling is reflected by the judgment.

On trial to a jury, the amount due on appellant’s note was established beyond controversy. On the issue of accounting the jury found that appellant had collected rents in the sum of $3,744, and that she had expended in caring for the property the sum of $1,129.50. The amount due on the note was $1,417.41. The court decreed an accounting between the parties, can-celled appellant’s deed of trust as having been duly paid, and awarded judgment against appellant for the balance due on the accounting in the sum of $1,761.81. In decreeing the accounting, as a matter of law and not a fact issue, the court awarded appellees interest on the rents. On her motion for new trial, appellant complained of the interest charges made against her in the accounting, and that she had not been allowed proper credits for interest on her note. Appellees conceded these points in the lower court, and remitted their damages from $1,761.81 to $1,000. From the judgment entered against her, appellant has duly prosecuted her appeal to this court.

Her first point is that appellees’ action for an accounting was barred by limitation. We pretermit a discussion of the counter propositions to the effect that the plea for accounting was not within the statutes of limitations. Answering this point, it is sufficient to say that, if the issue of limitation was within appellant’s special exceptions, these exceptions were not called to the attention of the trial court and no ruling was made thereon; therefore, they were waived. As a jury issue, limitation was not submitted by the court in the main charge. Appellant failed to except to the charge in the manner and form required-by law; therefore, as a fact issue, the issue of limitation was waived. We overrule the point that the verdict of the jury finding the amount of rents collected by appellant was without support in the evidence. The evidence on this issue was conflicting but as a whole satisfactorily supports the jury’s verdict.

The amount of rents collected by appellant was sent to the jury by special issue No. 1. She assigns misconduct ,against the jury in answering this question “in that the jury disregarded the evidence and agreed on a mathematical formula by which to reach an answer to Special Issue No. One, agreed before hand to be bound by the result of this formula, and rendered as their answer to Special Issue No. One the result of applying to the formula devised.” As misconduct, appellant assigns the following facts: “The jury agreed to consider three of the houses vacant during the entire six years, and twelve houses occupied continuously during those years. They further agreed to consider four dollars a month as the amount of rent collected from each of the twelve houses each month, and that all of the rent was actually collected.”

There was evidence to the effect that from time to time certain of the tenant houses were vacant. In deliberating on their verdict, weighing all the testimony, the jury determined that during the time appellant held this property, on an average three of the houses would be vacant. The evidence was sufficient to support that conclusion. There was. testimony as to the rental value of the houses; the evidence was sufficient to support a finding that the average rental value per month of each of the houses occupied — that is, all the twelve houses — was $4 per month. Having reached these conclusions on the evidence, the jury made its calculation of the rents collected by appellant. After the calculation was made, the jury again considered the issue of the amount of rents, and on the evidence assessed the damages for rents at $3,744. It is our conclusion that ■these facts do not constitute misconduct. 'The basis of the calculation was not a mere “assumption” by the jury, but was a fact finding on the evidence. But if this manner of calculating the rent was irregular, the jury did not consider itself bound by the result, but reached its verdict, assessing damages on this item, on a • review of the evidence. The facts of this case bring it within the following rule announced by 31 Tex.Jur., page 53: “There can be no new trial if the quotient served merely as a working basis, and if the question of damages were thereafter fully discussed.”

The second assignment of misconduct must be sustained. During the trial, and before returning their verdict, two of the jurors made a personal inspection of the property in controversy, and reported back to their brethren that two of •the items of expenditure claimed by appellant, totaling- $230, should not be allowed. This conduct by these two jurors Constitutes error. However, the error assigned relates only to these two items of $230; no contention is made by appellant that this misconduct entered into any other • element of the verdict.

' If appellees within fifteen days from the date of this order will file a remittitur of $230, reducing their recovery against appellant to the sum of $770, the judgment of the lower court will be affirmed. If the remittitur is not filed, the judgment of the lower court will'be reversed and the cause remanded. In the event the remittitur is filed, all cost will be taxed against appellees.


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    KELLY et al. v. LOBIT et al.
    No. 10875.
    Court of Civil Appeals of Texas. Galveston.
    Dec. 7, 1939.
    A. D. Dyess and Franklin & Blancken-becker, all of Houston, for relators.
    Stewart & DeLange and Albert J. De-Lange, all of Houston, and Byron Econo-midy, of Galveston, for respondents.
   GRAVES, Justice.

This is an original application filed in this Court by Donald S. Kelly and Myrtle E. Kelly, the latter acting individually and as guardian for the estate of Joseph Lobit, Jr., a minor, and such minor himself, acting also by counsel, as relators, against Hon. Charles G. Dibrell, Judge of the 56th District Court of Galveston County, as respondent, for a writ of prohibition; they hereby seek to prevent such 56th District Court from trying — or further proceeding in .any way with — cause No. 54277 on the docket thereof, styled Paul Lobit et al. v. Myrtle E. Kelly et al., until cause No. 246873 in the 113th District Court of Harris County, styled Myrtle E. Lobit Kelly et al. v. Louis Lobit et al., has first been tried and disposed of; the general ground declared upon being that the jurisdictions of such two courts conflict as to parties and subject-matter involved in the suits, hence as to their respective powers in the premises, and that as to such matters not cognizable by both at the same time, the Harris County district court first acquired jurisdiction.

In so far as material, the gist of and parties to the two suits thus brought into opposition were, respectively, as follows:

(1) In that in Harris County, which was filed first, Mrs. Kelly and husband and the minor, Joseph Lobit, III, claiming to own the interest of Joseph Lobit, II, deceased, in the estate of his father, Joseph Lobit, I, sued Louis and Paul Lobit, likewise sons of Joseph Lobit, I, individually and as executors or trustees of their father’s estate, seeking an accounting of them as such and a recovery of their claimed interests in such estate, as against all others claiming any interest therein; they alleged that Joseph Lobit, I, long since dead, had willed his property, in part at least to his five children, including the named Louis, Paul, and Joseph Lobit, II, along with two daughters;

(2) In suit No. 54277 in Galveston County, being a straight-out action for partition of three specific tracts of land lying in Galveston County, and being part of such devised estate of Joseph Lobit, I, in which Paul and Louis Lobit — joined by Edgar Lobit and Bertha Lobit Wilson' — as plaintiffs, sought partition of such three tracts against Joseph Lobit, Jr., the minor referred to supra, and Donald S. Kelly, individually, as administrator of the estate of Myrtle E. Kelly, deceased (she having died since the filing of the Harris County suit), and as guardian of the estate of Joseph Lobit, Jr., they declared that all such parties were tenants in common as affected the three tracts of land sought to be so partitioned, that together they constituted all persons owning interests therein, and invoked the power of the 56th District Court to equitably partition the same between such joint owners, as 'provided by law.

It is thus undisputedly made to appear from the record in this court that all the heirs and devisees of Joseph Lobit, I, and the successors in interest of such heirs and devisees, were parties to the partition suit at Galveston having to do with his estate in the respects specified; consequently they were all vitally interested as such in the issues therein involved.

Despite this situation, the applicants for the writ of prohibition at bar directed the same against the 56th District Court and the incumbent Judge thereof, the Hon. Charles G. Dibrell, alone, and did not make as parties thereto either Louis Lobit or Paul Lobit, whom they had so sued in Harris County, nor any others of the named joint owners with themselves in the estate of Joseph Lobit, I; wherefore, it becomes plain that the application is fatally defective for the want of necessary parties. The petition will accordingly be dismissed, without prejudice to the rights of relators to again present the same to .this court, with all necessary parties included. Douglas v. Parish, 124 Tex. 39, 72 S.W.2d 591; Goebel v. Carter, 124 Tex. 314, 77 S.W.2d 215; Atwood Cotton Breeding Farm v. Gallagher, 123 Tex. 505, 73 S.W.2d 525; Magnolia Petroleum Co. v. Walker, 124 Tex. 125, 73 S.W.2d 526; Lee C. Scruggs v. McCart, 119 Tex. 464, 32 S.W.2d 823; City of Houston v. Allred, 123 Tex. 35, 66 S.W.2d 655.

Application dismissed without prejudice.