author: O’QUIN'N; Justice.

text:
    TAYLOR v. A. B. C. STORES, Inc.
    No. 3736.
    Court of Civil Appeals of Texas. Beaumont.
    Nov. 22, 1940.
    Rehearing Denied Dec. 4, 1940.

      Elton Cruse, of Beaumont, for appellant.
    Orgain, Carroll & Bell, of Beaumont, for appellee.
   O’QUIN'N; Justice.

This is a suit by Mrs. Mae Taylor, a feme sole, against the A. B. C. Stores, Incorporated, for damages alleged to have been received by her in falling over some boxes of merchandise situated in an aisle of the store. For cause of action, she alleged that while a customer in the store she was pulling a basket or container on wheels kept by the store for the convenience of its customers to be used in placing articles purchased therein and pulled or pushed from point to point in the selection of merchandise, and while so doing, she fell over a box or boxes located in one of the aisles resulting in severe injuries to her for which she asked damages in the sum of $30,000. She alleged negligence on the part of the defendant in placing the boxes in the aisle and permitting them to remain there after having actual knowledge of their location; that she was thirty-five years of age, a nurse by profession, and that as a result of said injury her income gained by her profession had been totally destroyed, and her general health and physical well-being seriously impaired.

Defendant, appellee, answered by general denial, a plea of contributory negligence; and specially that the boxes were plainly visible, open and obvious to one in the exercise. of reasonable care for their own safety; that the manner of placing the boxes was the customary way which had been followed for a long period of time; that plaintiff was guilty of negligence: (a) In moving the basket backward when she had a perfectly safe way available to her to move forward when she could see every object fronting her, and (b) thus failing to keep a proper lookout for her own safety and protection.

The case was tried to a jury upon special issues, in answer to which, among other things, they found:

That plaintiff, Mrs. Mae Taylor, sustained a fall in the A. B. C. Stores, on April 28, 1938; that she sustained injuries by reason of the fall; that there was one or more., boxes of canned goods 'in the aisle over which plaintiff fell; > that the defendant placed the boxes in the aisle; that the defendant was not guilty .of negligence in placing the boxes in the aisle; that the defendant had actual knowledge of the boxes being placed in the aisle before plain7 tiff fell over same; ’ that the defendant was not guilty of negligence in- permitting the boxes to remain in the aisle with actual knowledge of their presence in the aisle; that the boxes had been in the aisle for such length of time the defendant through the exercise 'of ordinary care should have known of their presence; that permitting the boxes to remain in the aisle after defendant should, in the exercise of ordinary care, have known of their presence, was negligence, and that such negligence was' a proximate cause of plaintiff’s fall; that the plaintiff was entitled to damages in the sum of $1,500.

After the return of the verdict and before the discharge of the jury, plainfiff moved the court that the jury be returned to its room to consider further of its verdict, or, in the alternative, that the jury be discharged and a mistrial of the case entered. The defendant moved that thé> Verdict be received and judgment 'erítéréd in its favor.' The court granted ’the- motion of defendant and accordingly récbi.véd the verdict and entered judgment- -in-' its favor. Motion for a new trial was overruled,"and plaintiff brings this appeal.

We sustain appellant’s. assignment that the verdict was so conflicting that no judgment could be rendered on same. It is -seen by their answers to special issues that they found that defendant placed the boxes, over which plaintiff alleged she fell,. in the aisle and had knowledge of their presence in the aisle at the time of the,.’accident, but that defendant was not guilty of negligence in the placing of the boxes in-.the aisle, and was not guilty of negligenc.e-in permitting the boxes to remain in the.aisle. They also found that the boxes had .been in the aisle for such length- of time that the defendant by the exercise of ordinary care should have known of the presence of the boxes in the aisle, and that permitting the boxes to remain in the aisle after such time when the defendant by the exercise of ordinary care should have known -of their presence, was negligence, and that such negligence was a proximate. cause of plaintiff’s fall and her consequent injuries. These findings are diametrically opposed. The one destroys the other.

The issue of unavoidable accident was submitted to the jury. Unavoidable accident was defined by the court in his charge, but the second paragraph in this charge in defining the term, was in fact no definition but a general charge. It should be omitted on another trial.

For the error discussed the judgment is reversed and the cause remanded for another trial.


source: Caselaw Access Project

author: WALKER, Chief Justice.

license: Public Domain

text:
    JOSKE BROS. CO. v. EDDINGSTON.
    No. 3669.
    Court of Civil Appeals of Texas. Beaumont.
    Nov. 1, 1940.
    Rehearing Denied Nov. 13, 1940.
    Orgain, Carroll & Bell, of Beaumont, for appellant.
    Shivers & Keith, of Port Arthur, for ap-pellee.
   WALKER, Chief Justice.

This case is before us on a second appeal. The following statement from our opinion on the former appeal — Joske Brothers Company v. Eddingston et al., 123 S.W.2d 405, 406—gives the nature of the case: “H. T. Eddingston (plaintiff below) sued Joske Brothers Company and Charles F. Heidrick, in the district court of Jefferson County, Texas, to recover damages of Joske Brothers Company for an alleged breach of contract in writing to sell certain real estate. Briefly Eddingston alleged that Joske Brothers Company agreed in writing, acting through Charles F. Heidrick, to sell to him, Eddingston, Lot 7, Block 3, Range A, Port Arthur Land Company Subdivision in Jefferson County, Texas, containing 27 acres, but that said Joske Brothers Company refused to carry out the contract, and sold the land to one A. H. Kahn, whereby he, Eddingston, was damaged in the sum of $4,848.50, for which he prayed judgment.”

The judgment on the first appeal was affirmed in part and in part remanded, on the rulings of the lower court on the plea of privilege of Joske Brothers Company to be sued in Bexar county.

On the trial from which this appeal was prosecuted, the only issue presented was on appellant’s plea of privilege. Appellee sought to hold venue in Jefferson county on the theory that appellant, a ‘corporation, made a contract in Jefferson county to sell him the land and breached that contract in Jefferson county, and as a proximate result of the breach he suffered the damages sued for.

The trial was to the court without a jury. Filing conclusions of fact and law, the court found that appellant owned the land in controversy; that it gave authority in writing to Mr. Charles F. Heidrick to sell the land; that, acting under this authority, Fleidrick sold the land to appellee; that the contract of sale w.as made in Jefferson county, was to be performed in Jefferson county, and was breached in Jefferson county; that by the breach appellee suffered damages in the sum of $500. On these facts, judgment was entered overruling appellant’s plea of privilege, from which it duly prosecuted its appeal to this court.

The controlling point on the appeal is the sufficiency of the evidence to raise the issue that Mr. Heidrick was appellant’s agent in making the contract of sale plead and relied upon by appellee as the basis of his damages.

To hold venue in Jefferson county, it was necessary for appellee to show a prima facie right to recover — that is, to show that Mr. Heidrick was appellant’s agent to sell the land. On that point it was said in Taylor v. Whitehead, Tex.Civ.App., 88 S.W.2d 716, 717: “Independently of-the existence of other venue facts, it is but just that the defendant be not required to answer a suit in a county other than that of his residence unless plaintiff can introduce proof sufficient, prima facie, to show a right of recovery in the first instance.”

This rule controls this case because the agency of Mr. Heidrick was one of the essential venue facts, within the rule announced in the following authorities. Highway Motor Freight Lines v. Slaughter, Tex.Civ.App., 84 S.W.2d 533; Hermer v. Monnig Dry Goods Co., Tex.Civ.App., 77 S.W.2d 895.

The facts on Mr. Heidrick’s agency were as follows: On the 17th day of Sep-tember, 1936, Mr. Emmett B. Cocke, appellant’s attorney at San Antonio, wrote Mr. Héidrick the' following letter':

“Re: Joske Bros. Co. vs Harvey W. Gilbert
“Dear Sir:
“I am in receipt of your letter of September 14th with which you enclose tax statement and draft of deed for the signature of my client, which if executed would convey the property involved herein to Mr. Harley T. Eddingston, the same grantee in the draft of deed previously,sent me and which I returned to you unexecuted. I have noted all you say in your letter. Really, I feel a little embarrassed to know the course I should pursue. I feel like Mr. Eddingston was not as diligent as he should have been when he let this matter rest for two months or longer in an apparently inactive state. It looks like he thought he was getting the' benefit of his money and had the trade tied also. The mere fact- that you were absent does not furnish sufficient reason to my mind for his lack of diligence. About that I would care very little, however, except for the fact that I wrote Kahn and placed myself under a degree of obligation to Kahn but I do think there is a little moral duty involved. However, as Mr. Eddings-ton seems to waive an abstract of the title, I have decided to say that if he will at once make settlement on the basis of $515.-00 for the property (that will be the exact price we would receive from Kahn had we spent $35.00 for partial abstract) I will recommend to my people that the deed you last sent me be executed and delivered. So far as your charge of $100.00 is concerned, I am going to recommend it be allowed, and, of course, the taxes have to be paid. It follows that the check I would expect for my client to be $254.18 instead of the $239.18 mentioned in your recent letter.
“Please advise me promptly, that I may either go ahead with my prospective deal with Kahn or have the deed you sent executed and returned.
“Yours very truly,
“Emmett B. Cocke
“EBC/tm
“CG: Joske Bros. Co.” ■

After receipt of that letter, Mr. Heidrick made the contract plead by appellee. We do not give the letters written by appellant to Mr. Heidrick prior to September 17, 1936, because they are immaterial on the issue of his agency to sell the land to appel-lee. Prior to the writing of that letter, Mr. Heidijick- had made no contract with appel-lee. An analysis of its terms shows that Mr. Cocke did not authorize him to sell the land; .the very terms of the letter exclude that authority. Mr. Cocke simply wrote, “I will recommend to my people that the deed you last sent me be executed and delivered”;, aniji,' "Please advise me promptly, that I ,may go ahead with my prospective deal with Kahn or have the deed you sent executed' and returned.” Watkins Land Mortgage Co. v. Campbell, 100 Tex. 542, 101 S.W. 1078, is conclusive against appel-lee on his theory that this letter conferred power upon Mr. Heidrick to sell him the land.. On the undisputed evidence Mr. Heidrick was not appellant’s agent to sell the land.

It follows that the judgment of the lower court overruling appellant’s plea of privilege must be reversed. And since, on the facts as fully developed, it does not reasonably appear that appellee can maintain venue in Jefferson county, it is further ordered that the lower court transfer this case to the district court of Bexar county.

Reversed and remanded with instructions.


author: SMITH, Chief Justice.

text:
    WHITE v. COOPER.
    No. 10702.
    Court of Civil Appeals of Texas. San Antonio.
    Sept. 18, 1940.
    Rehearing Granted Oct. 30, 1940.
    Rehearing Denied Dec. 11, 1940.

      Kent & Brown, of Harlingen, for appellant.
    Polk Harnaday and Arthur Klein, both •of Harlingen, for appellee.
   SMITH, Chief Justice.

Plaintiff, B. P. Cooper, sued the defendant A. B.' White for damages for an alleged breach of contract, dated August 13, 1937, by which plaintiff became obligated to ship, and defendant became obligated to take and pay for, an average of 150 to 160 barrels of crude oil daily, “as and if produced,” f. o. b. Pettus, Texas, to defendant’s refinery at Harlingen, Texas, for a period of six months beginning September 1, 1937.

It appears from the record that plaintiff made various deliveries to defendant under the contract, but not always in the daily quantities provided in the agreement; that before the contract period expired defendant notified plaintiff to cease shipments (for the stated reason that defendant's plant had broken down) • and thereafter refused to accept or pay for any more of plaintiff’s product. Plaintiff sued to recover the difference between the stipulated price of the product contracted for and rejected, and the price at which he was forced to sell it because of its rejection. In a trial to the court, without a jury, plaintiff recovered as prayed for and defendant has appealed. The parties will' be designated as plaintiff and defendant, respectively, as in the trial court.

The trial judge found that plaintiff breached the contract by consistently shipping less' quantities of oil daily than he had agreed to ship, but that defendant waived the' breach by his conduct and was therefore not entitled to the attempted cancellation. The case is •'one of fact, which the trial judge resolved against defendant upon full written findings and conclusions of law.

In his first and second propositions' 'defendant asserts that plaintiff was prohibited from recovering because it appeared and the court found that plaintiff first breached the contract, or only partially performed his obligations thereunder. The propositions are sound so far: as they go, but fail in the face of the finding that defendant waived the breach by plaintiff, by continually accepting less than full performance, without ' complaint, .'and thereby cut himself, off from the .righ.t .of repudiation without prior notice of an intention to thereafter exact strict, performance. We overrule defendant’s -first and second propositions, and for like ’ reasons his fourth and fifth propositions.

It appears that the court-admitted testimony that the parties had a parol ‘agreement concerning the number .of, tank cars to be used in shipping the oil to defendant, which had the effect of placing, a greater burden on defendant than was imposed upon him by express terms of the written agreement. The trial • court admitted this testimony over defendant’s objection that it varied the terms of the written agreement; it was admitted on the theory that the written agreement :was ambiguous. The parties write at • great length in their briefs upon this question, which is raised in defendant’s third proposition, but the question is not deemed material to the appeal. It did not affect the controlling questions of breach and waiver, and even if the testimony was inadmissible, it would be presumed, andi in fact the trial judge expressly stated in his findings, and he would render the judgment appealed from without regard to the objectionable testimony. We overrule defendant’s third proposition.

The judgment is affirmed.

On Motion for Rehearing.

Defendant contends that his acceptance of smaller quantities of oil than that specified in the contract did not constitute a waiver of the breach of .contract,' because delivery of the specified amount was made contingent upon that amount being produced; that it was not shown that his acceptance of the short shipments was done with knowledge that deliveries were substantially less than the amounts actually produced, as was .the case; that he had a right to assume that plaintiff Was shipping all he was producing, and to further assume that plaintiff’s failure to ship the full amounts contracted for was caused by lack of production, which would excuse the default, and not by a wilful breach. We sustain defendant’s contention.

The provision to ship oil “if and as produced” was sufficient to excuse appellee for shipping less oil than called for, unless it was actually produced, and by the same token, a short shipment due to short production would give appellant no cause to complain, and he would be bound by the terms of the contract to accept the smaller amount, which he did. This acceptance was not inconsistent with his right to rely on the contract. Unless it affirmatively appears that appellant accepted the short shipments with knowledge of the material fact that sufficient oil had been produced to comply with the contract, and thereby intentionally relinquished a known right, he can not be held to have waived the breach. “Waiver is operative only where the person charged has actual or constructive knowledge of all the material facts concerning the right or privilege involved. * * * no one can be said to have waived that which he does not know, nor can he be precluded where he has acted under a misapprehension of the facts.” 43 Tex.Jur. p. 895, sec. 4; Bering Mfg. Co. v. W. T. Carter & Bro., Tex.Civ.App., 255 S.W. 243; Id., Tex.Com.App., 272 S.W. 1105.

The burden was upon plaintiff, in order to establish waiver, to show that defendant accepted the short deliveries with knowledge of the material fact that the default was deliberate, and not because of insufficient production. Plaintiff did not meet that burden in this case, and the trial court therefore erred in holding that defendant waived the breach of contract and the judgment must be reversed.

The record in the case is not satisfactory, and other questions, some of them of doubtful solution, call for remand, in order that they may be clarified, and a mass of immaterial pleadings and evidence eliminated.

Defendant’s motion for rehearing will be granted and the judgment reversed and the cause remanded.


text:
    HOUSTON OXYGEN CO., Inc., et al. v. DAVIS et al.
    No. 3717.
    Court of Civil Appeals of Texas. Beaumont.
    Oct. 5, 1940.
    Rehearing Denied Dec. 4, 1940.

      C. C. Kirkpatrick, of Houston, L. B. Hightower, III, of Livingston, Vinson, Elkins, Weems & Francis, of Houston, and V. A. Collins, of Livingston, for appellants.
    Campbell & Foreman, of Livingston, for appellees.
   WALKER, Chief Justice.

On August 25, 1939, in a' collision on Highway No. 35, in Polk County, between a Chevrolet car driven by Sidney Lewis, in which Charles Applebhy, a minor, was riding as a passenger, and a truck owned and operated by Houston Oxygen Company, Inc., driven by Oliver R. Stanbury, appellants, Charles Applebhy received serious personal injuries, resulting in the loss of his arm and-other injuries. On October 25, 1939, Pearl Davis, Charles Applebhy’s mother, as his next friend and for herself, joined by her husband, Johnnie Davis, (negroes) filed this suit in district court of Polk county against the two appellants for damages for the injuries suffered by Charles; for Charles she prayed for damages in the sum of $50,000, and for herself in the sum of $17,000. On trial to a jury, the damages were assessed in favor of Charles in the sum of $16,000 and in favor of his mother in the sum of $4,000. Answering special issues, the jury convicted appellants of negligence in the respects charged in the petition, acquitting appel-lees, Charles Applebhy and his mother, of contributory negligence, and found against appellants on the issues of sole proximate cause and unavoidable accident.- On the verdict, judgment was rendered in favor of appellees and their attorneys against appellants for the damages assessed by the jury,, from which appellants have regularly prosecuted their appeal to this court.

At the time he was injured, Charles' was about 15 years old. When he was a little child his father and mother were divorced, and at the time of the trial his mother, ap-pellee Pearl Davis, had been married to Johnnie Davis about 12 years. The father lived in Abeline, Texas; he was not made a party to this suit.

Appellants’ first two propositions are: (a) The father “is the legal owner of the services of his minor child and the proper party to bring suit for such loss of services and, therefore, the mother has not shown any damage to herself for such loss of services;” (b) The father “is an indispensable party to said suit, being the legal owner of such services as compensation for his primary and continuing obligation to support the child.” As an abstract legal proposition, it is correct to say that “Until the minor has been emancipated, his earnings belong to his father.” Weimhold v. Hyde, Tex.Civ.App., 294 S.W. 899, 900. And on this proposition the general rule of law is that the father is a necessary party to an action to recover damages for the loss of the earnings of a minor son. But the principle of law invoked by appellants does not, on the facts of this case, support their propositions. The testimony on this point was as .follows (Q. and A. reduced to narrative):

Lucinda Martin testified: “I am a first cousin of Pearl Davis. Charles Applebhy lives in Houston with his mother, and has lived with her all his life, and his mother has kept him in school — he is in school now. Before he was injured, Charles earned money by caddying and shining shoes; around the house he ironed, carried in wood and washed dishes; he seemed to think a lot of his mother and helped her around the house.”

Charles Applebhy testified: “Pearl Davis is my mother, I am IS years old; was IS years old on the 28th of last August and will be 16 on August 28, 1940. I have lived with my mother all my life, and I was living with her at the time I was injured. I have worked since I was 12 or 14 years old; shining shoes and caddying. I earnéd four or five dollars a day shining shoes and two or three dollars a day caddying. I also made some money selling papers. The money I earned I gave to my mother and she used it to buy food and clothing and the necessities of life for the others around the house. I think a lot of my mother. If I had not been hurt it was my intention to help her the rest of my life. ‘After this year I was going to quit' school and get a job, and the money I would have earned I .planned to give to my mother. My mothers owes a hospital bill here in Livingston as a result‘of my injuries. ’ My mothér has been married to my stepfather since I was a little boy. My father lives in Abeline; my mother was once married to my father and they are divorced.. I have not seen my father in a pretty good while; he did not come to see me when I was hurt.”

Pearl Davis testified: “Johnnie Davis is my husband. I have been married to him about 12' years; I have been living in Houston about 13 years but I do all the work I can. I have kept Charles in school ever since he was old enough to ' go to school. I wanted to give him an education. I am married to a good man and a good worker. Charles told me that he was going to stop' school this year, if it had not been for his accident and go to work and help me. Since 'this accident he is going to continue in school; I have always bought Charles? clothes and kept him in school. Charles has no legal guardian of his estate. He has always lived with me and I have attended to him the best I could.”

The evidence was further to the effect that Charles’ father had made no contribution to his support since the divorce.

On the undisputed testimony, the father abandoned his minor son, surrendering his care and custody to the mother. He made no contributions to his support; . since the divorce he made no effort to keep in touch with the child; he did not visit him and made no inquiries as -to his condition when he was injured. The mother had the custody of the minor and the burden of h'is support and maintenance from the time he was born up to the time he was injured. For about three years she had received from Charles his earnings and appropriated them to the family needs without objection by the father. On the undisputed facts, the mother was entitled to Charles’ services and earnings, and therefore had the right to sue for and appropriate as her separate property the damages suffered by her, proximately resulting from the injuries received by Charles in the collision in issue. This point is controlled by the following propositions from Trinity County Lumber Co. v. Conner, Tex.Civ.App., 187 S.W. 1022, 1024: “Although the general principle is clear and unquestioned that the father is entitled to the services of his minor- child, and to all that such child earns by his labor, yet it seems to be equally clear that, as the right of the father to the services .of the child'is founded upon. his duty to support and maintain his child, if he should fail, neglect, or refuse to observe and perform this duty, his right to the services of his child should cease to exist; and such is held to be the law. As the father may forfeit his right to the custody and control of his child’s person by abusing his power, so, by neglecting to fulfill the obligations of a father, he may forfeit his right to the fruit of his child’s labor. If he provides no home for his protection, if he neither feeds nor clothes him, nor ministers to his wants in sickness or health, it would be a most harsh and unnatural law which authorized the father to appropriate to himself all the child’s earnings.”

The following definition of “unavoidable accident” was submitted by the charge: “By ‘Unavoidable Accident,’ as used herein, is meant the unexpected happening of an event which is not proximately caused by the negligent conduct of any party involved therein, and for which no one connected therewith is to blame.”

We overrule the exception to the phrase “is to blame,” that it is “an uncertain and indefinite phrase, and is calculated to mislead and confuse the jury in its deliberations.”

The second point against the definition is that it “did not tell the jury in connection with unavoidable accident that it is an event happening without the negligence of either plaintiffs or defendants.” The phrase “of any party interested therein” included the plaintiffs and defendants— the exception is not made that this phrase included anyone not a plaintiff and defendant.

Appellants made Sidney Lewis, the driver of the car in which Charles was riding, a party defendant. The third point against the definition of “unavoidable accident” is that it placed “a greater burden on the defendants than the law allows by putting the negative on them to show that cross-defendant, Sidney Lewis, was not free of negligence proximately causing the collision and will permit the jury to find that the collision was not the result of an unavoidable accident, if the jury thought the plaintiffs and these defendants were both free of any negligence causing the collision, and at the same time thought that Sidney Lewis was guilty of negligence proximately causing the collision.” This point is overruled. As a party to the- suit Sidney Lewis was included in the term “of any party interested therein.”

The fourth point against the definition is: “If the plaintiffs and these defendants were not guilty of any negligence proximately causing the collision, it would be and constitute an unavoidable accident in so far as plaintiffs and defendants were concerned, and it would constitute a perfect defense on the part of defendants to plaintiffs’ cause of action even though the jury should feel that Sidney Lewis was guilty of negligence proximately causing the collision.” This point is overruled. Negligence on the part of Sidney Lewis, who was made a party defendant by appellants, would not have made, as between appellants and appellees, the collision an unavoidable accident; on such showing Sidney Lewis would have been a joint tort-feasor.

Some ten or fifteen minutes before the collision, and at a point four or five miles from the place of the collision, the car in’ which Charles was riding passed a car in which .Jack Sanders, E. C. Cooper and Mrs. Sally Cooper were riding. Jack Sanders testified that the car in which Charles was riding, at the time it passed their car, was being driven at 60 or 65 miles per hour. The .court excluded his proffered testimony that Mrs. Cooper said, after the car in which Charles was riding had passed their car, “She said they must have been drunk, that we would find them somewhere on the road wrecked if they kept that rate of speed up.” This statement by Mrs. Cooper was hearsay. She testified in the case on the very point involved in the excluded testimony. The statement by Jack Sanders was not admissible to corroborate her testimony.

The car in which Jack Sanders and Mr. and Mrs. Cooper were riding, at the time they were passed by the car in which Charles was riding, was travelling north, and Jack Sanders and Mr. and Mrs. Cooper continued driving north until they came to the place of the collision. When they reached there, quite a number of cars had stopped, 'and some of the passengers in these cars were assisting around the place of the accident. As stated above, Jack Sanders and Mr. and Mrs. Cooper testified as to the rate of speed of the car in which Charles was riding at the time it passed-their car. On this point, Judge Campbell made the following argument as reflected by appellants’ bill of exception No. 1:

“Mr. Campbell: It is strange indeed. According to their testimony there were ten or eleven cars there at the scene of the wreck, and when they were talking to Mr. Foreman and Mr. Collins there were fifteen or twenty cars there at the scene of the wreck. So that would mean that every car that reached there after the scene of the accident, traveling in a northerly direction, that were ahead of these boys, would have to have passed by those negroes before the wreck occurred. Why didn’t they get some that they had passed right recently — (interrupted)
“Mr. Hightower: We object to that, it is outside the record, and it is highly prejudicial and 'it is not justified by anything in the record.
“Mr. Campbell: I repeat, gentlemen, that every car that reached the scene of that accident, going in a northerly direction, after the wreck, reached there after the wreck, traveling in a northerly direction, that were ahead of these boys that were there, would have had to be passed by those negroes or they wouldn’t have beat them there. And I say it is borne out by the evidence. Then why did they pick out somebody twenty minutes behind them when they had these others that they only recently passed.
“Mr. Hightower: We take the same objections and ask the court to instruct the jury not to consider it.
“The Court: Stay in the record.
“Mr. Hightower: We. ask the court that the jury be instructed not to consider it.
“Mr. Campbell: We insist we are in the record.
“The Court: Overruled.
“Mr. Hightower: Note our exception.”
We overrule the exception that this argument was prejudicial and was not justified by the record. Judge Campbell’s statement that certain of the cars “would have had to be passed by those negroes or they would not have beat them there,” was not in the nature of testimony given by Judge Campbell, but was a deduction drawn by him from the evidence.

Appellants’ sixth point is that the charge “should have expressly limited a recovery to such damages as proximately resulted from the negligence of the appellants.” The charge was not subject to this exception. Special issue .No. 10, submitting the measure of damages suffered' by Charles, was as follows:

“What sum of money, if any, if paid now in cash, do you find from a preponder-anee of the evidence will fairly and reasonably compensate plaintiff, Charles Ap-plebhy, for the injuries, if any, proximately resulting to him on account of the collision of the car in which he was riding with the truck driven by Oliver O. Stan-bury, on the occasion in question?
“You will answer this question by stating the amount in dollars and 'cents, if any you find.
“In passing upon the foregoing issue, you are instructed that you may take into consideration the following elements of damage and none other.”

This charge expressly limited his recovery to the damages “proximately resulting” to him “on account of the accident.” The charge in connection with this issue limited his recovery (a) to the. physical pain and mental suffering from the date of the injury to the day of the trial, and (b) to such as would be suffered by him in the future; both of these elements were restricted by the phrase, “and proximately resulted to Charles Applebhy from the injuries, if any, received by him as a result of said collision on the occasion in question.” The third element of recovery in Charles’ favor was, “The impairment of ability of Charles Applebhy to earn money, if any, you find from a preponderance of the evidence, he will, in all reasonable probability, suffer in the future, after reaching the age of twenty-one years, on account of the injuries, if any, received by him on the occasion in question, less,-however, any'sum, if any, you may have awarded plaintiff, Pearl Davis.” It is clear to our mind that under the wording of this charge, limited by the language of special issue No. 10, “the following elements of damage and none other,” constituted a sufficient submission of proximate cause.

Issue No. 9 submitted the measure of damages suffered by Charles’ mother, and was as follows:

“What sum of money, if any, if paid now in cash, do- you find from a preponderance of the evidence will fairly and reasonably compensate plaintiff, Pearl Davis, for the damages, if any, sustained by her by reason of the injuries received by Charles Applebhy on the occasion in •question ?
“You will answer this question by stating the amount in dollars and cents, if any you find.
“In passing upon the foregoing issue' you are instructed that you may take into consideration the following elements of damage and none other.”

This issue, was followed by a charge limiting the mother’s recovery to the loss •of earnings by the minor from the time of the injury to the time he should attain his 'majority, “suffered by reason of the injury” received by him in the collision; the loss of contributions he would have made but “will be unable to make by reason of the injuries on the occasion in question”; and compensation for doctor’s bills made “reasonably necessary on account of the injuries, if any, received by Charles Applebhy, as the result of said collision.” This charge was a sufficient submission of the issue of proximate cause.

We overrule the exception that the issues on the measure of damages were “misleading and confusing and permitted the jury to assess double recovery.”

After the accident, appellees’ attorneys took the sheriff with them to make a survey of the place of the accident, and the sheriff testified as to the facts found by him upon the ground. The jury panel was exhausted, and the sheriff, under direction of the court, picked up certain talesmen, who were taken on the jury. On the trial, immediately after appellants learned the sheriff’s part in making the survey of the place of the accident, they moved for a mistrial on the ground that the sheriff “had helped the- plaintiffs prepare their case for trial and was a material witness for the plaintiffs.” Their point is that the sheriff was disqualified to act as sheriff and to select the talesmen, and that had they known the sheriff’s part in preparing the case for trial they would have scratched certain of the talesmen. They do not contend that the sheriff was corrupt, or biased in favor of appellees, or prejudiced against them.' 'In their brief they say: “By this proposition it is not sought to reflect on Mr. Kimball, the sheriff; it would be admitted that he is a good man.” Appellants cite no authority to support their proposition, and we know of no authority in point; in fact they say, “It will be admitted that defendants have found no authorities exactly in point, but that they are standing simply upon their rights as citizens on the broad ground that such conduct on the part of the sheriff is not in keeping with his constitutional oath of impartiality and is contrary to public policy.” This point is overruled.

We overrule appellants’ points against the testimony o£ J. J. Collins, impeaching the witness Jack Sanders. This testimony extends over many pages of the statement of facts, and covers 12 pages of appellants’ brief.' We have examined the record and believe that the predicates laid support the impeaching testimony.

The court did not err in refusing to grant a postponement of the trial to give appellants an opportunity to secure the testimony of Houston Cooper and his wife, Mabel Cooper, to corroborate the statement of Jack Sanders. Due diligence on the part of appellants would have advised them that Mr. Collins and Mr. Foreman had taken a statement from Jack Sanders in the presence of Mr. and Mrs. Cooper.

The court submitted with the charge a form of verdict to be filled out and signed by the jury, with parts of the answers of the jury written thereon; thus, on one issue, “It-the sole proximate cause.” The jury was simply required to fill in the dash with the word “was” or' “was not.” This action by the court did not constitute error.

The judgment awarded one-half of the damages found by the jury in favor of Charles to his attorneys. Appellants assign error that this award was without support in the pleadings, and that a payment to the attorneys of the amount awarded them would not constitute a discharge of the damages found in favor of Charles. We sustain this assignment. On this point we direct that 50 percent of the recovery awarded Charles be deposited in the registry of the court, subject to disbursement under orders of the court'on a proper showing by the interested attorneys.

We overrule the assignment that the judgment in favor of Charles was excessive. The following testimony by Dr. W. W. Flowers, as summarized by appellants, supports the verdict: • “Dr. W. W. Flowers testified that he saw Charles Applebhy in the Livingston Hospital on August 25th and that his arm was cut and mashed to such an extent it had to be cut off; that he had a deep cut bn the left side of his face, rough cut or tear on the left leg and three or four cuts on the. right side; that the cut on his neck had healed but the scar had left a ridge, the only effect of which was appearance; that the injury to the neck, leg and side were of such a nature as to cause, physical pain; that the injury to his arm was such as to cause quite a bit of physical pain; that he was in the hospital from August 25 to September 13th; that he was brought back to the hospital on October 9th because the arm had not healed and went home on October 22nd and the arm was practically healed when'he left.; that it is characteristic of a person who loses an arm to talk of feeling pain as long as they live; that the effect of this bothers and irritates him; that the hospital, doctors and medicines was the total sum of $289.00.”

Reformed in the respect noted above, and as reformed affirmed.

On Rehearing.

We have corrected the opinion, on appellants’ exceptions, substituting “appellants” for “plaintiffs” in the paragraph beginning with the sentence, “Appellants made Sidney Lewis, the driver of the car in which Charles was riding, a party defendant.” The context showed the error in our use of the word “plaintiffs.” In our opening statement we make it clear that the suit was instituted by appellees against appellants, Houston Oxygen Company, Inc., and Oliver R. Stanbury. Again, in the paragraph in issue we state that Sidney Lewis was made a party defendant by appellants. On this issue, at appellants’ request, we make the following fact conclusion : “Plaintiffs did not make Sidney Lewis, the driver of the car in which Charles was riding, a party defendant, and sought no recovery whatsoever against him as a joint tort-feasor, but he was made a cross defendant on a cross action filed by appellants in which they sought to recover judgment over and against him as a joint tort-feasor.”

We overrule appellants’ request tb find that appellees offered “no evidence” on the issues of contributions to the support of Charles Applebhy by his father, and that the fáther had made no effort to keep in touch with Charles. In our judgment, the fact conclusions stated in the opinion on these issues have support in the general intendments arising on all the evidence.

Dallas Railway & Terminal Co. v. Boland, Tex.Civ.App., 53 S.W.2d 158, 159, cited by appellants on rehearing, does not support their fourth point against the definition of unavoidable accident. The case a't bar is for damages growing out of a collision, and all the parties to the collision were parties to the suit. In the Bo-land case there .was a. sharp issue as to whether the Dallas Railway & Terminal Company or McVey injured the two boys, or whether the two boys were injured through the negligence of the company or McVey, or whether by their joint negligence. As an abstract statement of the law, the definition in that case of “unavoidable accident” was correct; the issue was that it should have been given an affirmative application to the peculiar facts. Again, the issue on this point in the two cases is not the same. In the Boland case, the court stated the issue as follows: “Each, of appellants objected to the issue as submitted, and requested the court, in lieu thereof, to submit separate issues for the jury to determine whether it was an unavoidable accident in so.far as the bus company and the boys were concerned and whether it was an unavoidable accident in so far as McVey and the boys were concerned; appellants’ contention being that, under the peculiar facts in the case at bar, the jury might have found that as to one of them, or as to each of them if the issue had been submitted separately, that the injury was the result of an unavoidable accident.”

And on the issue, the court made the following legal conclusion: “While the definition as given by the court is the ordinary and accepted definition of an unavoidable accident, where, as in this case, there was no connection between the bus company and McVey, and appellees had alleged entirely separate and distinct acts of negligence on the part of each, the trial court should have submitted to the jury separately as to each defendant the question as to whether the injury was an unavoidable accident.”

In the case at bar, the exception as brought forward in our opinion does not present that point.

On appellants’ assignment against the argument of Judge Fox Campbell, at their request we make the following additional fact conclusion: “The negro’s car passed the Coopers and Jack Sanders south of the Town of Moscow; the collision occurred north of the Town of Moscow and Highway 35, which ran through the town of Moscow.”

All other requests for additional fact •conclusions are denied. The motion for rehearing is overruled.


author: BROWN, Justice.

text:
    LE SAGE et al. v. SMITH et al.
    No. 14134.
    Court of Civil Appeals of Texas. Fort Worth.
    Nov. 15, 1940.
    Rehearing Denied Dec. 13, 1940.

      Marshall & King, of Graham, and Car-■rigan, Hoffman & Carrigan, of Wichita Falls, for appellants.
    F. V. Hinson, of Graham, and L. D. Hawkins, of Breckenridge, for appellees.
   BROWN, Justice.

Mrs. Hettie Smith, appellee here, was the wife of M. D. Smith, now deceased, and was riding in the family auto with her said husband and their two minor daughters, Betty and Prudence, going from the South. Bend neighborhood in an easterly direction toward the City of Graham, in which city the family lived, and the trip was being made in the late morning of June 12th, 1936, when an automobile driven by Roy Wheat, an employee of R. S. LeSage, traveling in the same direction, ran into the rear, of the Smith car and knocked it into the ditch on the side of the road, damaging the car and inflicting personal injuries on Mrs. Smith and the daughters.

A few months after'' the accident, Mr. Smith died, and, one day before the statute of limitations had run, Mrs. Smith, for herself and as next friend of her minor daughters, brought suit.

In the original petition we find that in stating .the cause of action it is alleged that M. D. Smith died since the accident and “left these plaintiffs as his. surviving heirs at law and who are entitled to as such heirs recover, damages sustained by M. D.. Smith on above date by the collision, etc.,” and the prayer is for “such other and further, general and special relief, in law and equity, that these plaintiffs and each of them may be justly entitled to.”-

Attention is specially called to this first pleading, in view of the position taken by appellants here.

Appellants (defendants below) addressed a plea of misjoinder of parties plaintiff and causes of action, and this plea being urged, the trial court sustained it and by amended petition Mrs. Smith alone is made the party plaintiff.

The defendants demurred generally, urged several special exceptions, pleaded “joint enterprise” on the part of Mr. and Mrs. Smith, and also the statute of limitations of two years, and contributory negligence on the part of Mrs. Smith and Mr. Smith.

The cause was tried to a jury and thirteen special issues were submitted and same were answered as follows: (1) that at the time and place of the collision Roy Wheat was acting in the scope of his employment as a car salesman for LeSage Motor Company, (2) that Wheat failed to keep a proper lookout for other vehicles on the highway, (3) that such failure was a proximate cause of the accident, (4) amount of damages, $2,800, (5) the accident was not unavoidable, (6) that Roy Wheat was not engaged on some mission or business of his own and not for the LeSage Motor Company, on the occasion in question, (7) that' Mr. and Mrs. Smith were engaged in a joint enterprise; (8) that Mrs. Smith failed to keep a proper lookout for other vehicles on the highway immediately prior to the collision, (9) such failure was contributory negligence, (10) that Mr. Smith had not stopped his car, at the time, without giving a signal, (11) not answered, dependent upon No. 10, (12) that Mrs. Smith’s disability is not solely the result of injuries or diseases suffered by her prior to the accident, (13) that Mrs. Smith, -.acting for herself and through her attorney, exercised reasonable diligence to have process issued within a reasonable time after the suit was filed.

After the verdict was returned, the defendants moved for judgment on the verdict, and the plaintiff moved for judgment notwithstanding the verdict. Defendants’ motion was overruled and plaintiff’s was granted, and judgment so entered, and the cause was appealed, after defendants’ motion for a new trial was overruled.

Seven assignments of error, being numbered 2, 3, 7, 10, 11, 13 and 16, said numbers corresponding with such numbered paragraphs of the motion for a new trial, are presented.

The first assignment presented is No. 3 and it asserts that the trial court erred in overruling defendants’ motion for a peremptory instruction. The proposition insists that since the cause of action accrued on June 12th, 1936, and the suit was filed June 11th, 1938, and citation was not issued upon instruction of plaintiff’s coun-. sel, the cause was barred by the two-year statute of limitations.

We see no merit in the contention for several reasons. First, Mrs. Smith was under the disability of coverture when she was injured, and her husband having died before the suit was barred by the statute (Art. 5526 R:C.S.) under the provisions of Art. 5535, R.C.S., she had the same time after the removal of her disability by reason of the death of her husband that is allowed to others by the provisions of the laws on limitations.

It is obvious that she exercised this right in less than two years after the- cause of action actually arose.

Second. If the mere pleading of said statute of limitations, under the facts disclosed by the petition, is sufficient, and no necessity existed for pleading negligence on the part of plaintiff in causing citation to be issued, we find that the facts concerning the matter were given to the jury' and the jury, in answer to issue No. 13, found no lack of-diligence on the part of plaintiff and her counsel. We think the jury had ample evidence to support such finding. The case of San Saba Nat’l Bank v. Parker, Tex.Sup., 140 S.W.2d 1094, supports our views.

Assignment of error No. 2 is next presented, and it contends that the trial court erred in not sustaining the defendants’ special exception No. 3, which complains that the plaintiff’s petition does not sufficiently itemize the several items of damages' sued for, viz.: hospital expense, physician’s bill, physical suffering and loss of ability to earn a livelihood.

We think the pleading is specific and that it sufficiently sets forth the different items sued for. Farmers’ & Mechanics’ Nat’l Bank v. Marshall, Tex.Civ.App., 4 S.W.2d 165, writ dismissed.

Assignment of error No. 7 is next presented in these words: “The court erred in giving special issue No. 1 in that it is vague, indefinite and uncertain and should not have been given at all for the reason that the same is drawn in accordance with the definition of the phrase, ‘acting within the scope of his employer’ in the Workmen’s Compensation Law of Texas. Said law having been enacted in terms sufficiently broad and flexible to protect the employee and does not apply nor was it intended to apply to personal injury suits as in this case and as so drawn constitute a general charge in violation of the laws relating to the form of special issues on the weight of the evidence and indicates to the jury what the answer to special issue No. 1 should be in order .to arrive at a favorable answer to the plaintiff and is therefore prejudicial. (See para. 7, Motion for New Trial, Trans, p. 111).”

The following proposition is urged in support of the quoted assignment of error :

“Since the proof showed that Roy Wheat, the driver of the car which collided with that of the plaintiff, was returning to his home at Graham from a mission on which he had embarked to Eliasville, Young County, Texas, which mission was concerned chiefly with the location of three ball players, but on which mission Wheat, if he had found a prospective car purchaser, would have undertaken to sell a car belonging to the défendant, LeSage; and since LeSage knew nothing about the trip by Wheat to Eliasville, and since the suit is one for damages at common law and not one for recovery of compensation under the Workmen’s Compensation Act, the court erroneously instructed the jury as to the meaning of ‘scope of employment’, in that he defined the phrase in accordance with the Workmen’s Compensation Law of this State, and did not give the correct definition of that phrase, which is applicable to a common law action for damages where an employer' is sought to be held liable for the negligence of his servant. (Germane to Asst, of Error No. 7, Trans, p. 111).”

Examining the record, as quoted by us, assignment of error No. 7 complains of .the giving of Special Issue No. 1, and,since the assigned error does not complain of the giving of such issue over the objection urged by the defendant against if, we must look to these objections in order that we may correctly interpret the assignment of error. It is fundamental that the appealing party, who presepts error in the giving of an issue, must be relegated to and bound by the objections made by him to such issue. He cannot enlarge his objections either by his assignment of error, or by any supporting proposition. Appellant is complaining of the giving of Special Issue No. 1. Let us see what objections were urged against the issue. We find the following:

“Special Issue No. 1 is improperly submitted for the reason that there is no competent evidence in the case justifying the submission of such issue, all of the evidence , being to the effect that Roy Wheat was on a private mission of his own upon the occasion in question.
“Special Issue No. 1 is drawn on the weight of the evidence in that it indicates to the jury by the verbiage used what the answer of the jury should be to said issue in order to find in favor of the plaintiff; furthermore, the same is vague, indefinite, uncertain and so broadly worded as to prejudice the possibility of a favorable finding thereon in favor of the defendants.
“In lieu of the Special Issue No. 1 the defendants request the following issue: ‘Do you find from a preponderance of the evidence that on the occasion in question Roy Wheat was acting in furtherance of his employer’s business ?’ ”
Special Issue No. 1, given by the court, is in the following - language: “Do you find from, a preponderance of the evidence that at the time and place of the. collision in question that Roy Wheat was acting in the scope of his employment as a car salesman for LeSage Motor Company?”

Thus it will be seen that the objection urged against Issue No. 1 is not leveled at any'definition of the term, “acting within the scope of his employment”, but the complaint is of the form and substance of the very issue itself.

After consideration of these objections that were urged against the issue, we find no merit in them.

We are of opinion that there is competent evidence to support the issue and the finding of the jury thereon. The very best that can be said of the evidence, taken from the defendants’ viewpoint, is that on the trip made by Wheat he mingled' his personal business with the business of his employer and, he was returning to the place where his employer lives—the city in which he and his employer live—when the accident occurred..

We see nothing in the issue tending to support the criticism that it is on the weight of the evidence, or that it is vague, indefinite or uncertain, or so broadly worded as to be prejudicial to the defendants.

But if, under the most liberal rules laid down by our Supreme Court, we are cálled upon to consider Issue No. 1 in connection with the objections made to the definition given in support of the issue, we find no error in the record.

The definition is: “By the term ‘acting within the scope of his employment’ is meant acts of every kind and character having to do with and originating in the work, business or trades of the employer, done by an employee while engaged in or about the furtherance of the affairs or the business of the employer, whether upon the employer’s premises or' elsewhere, and which act is done for the accomplishment of the object for which he is employed.”

The “elements” embraced in this definition seem to have been expressly approved by the Supreme Court when it decided the case of Texas Power & Light Co. v. Denson, 45 S.W.2d 1001, and affirmed the judgment of the Court of Civil Appeals in the same case, reported in 81 S.W.2d 36. See, also, Fort Worth Hotel Co. v. Waggoman, Tex.Civ.App., 126 S.W.2d 578, writ dismissed, correct judgment and authorities there cited. Furthermore, at the defendants’ request and in support of their contention- that Wheat was not engaged in his employer’s business but was on a personal mission, the court submitted to the jury Issue No. 6: “Do you find from a preponderance of the evidence that Roy Wheat was engaged on some mission or business of his own and not for the Le-Sage Motor Company, on the occasion in question?” And the jury answered, “No.”

This issue, as framed by the trial court, embraces the subject matter set forth in Special Issues Nos. 4 and 5, which were requested by the defendants, and there is no objection urged against this issue which presented the affirmative defense -on the part of the defendants.

The eleventh assignment of error, next presented, asserts that the trial court erred in rendering judgment for the plaintiff because the jury found her guilty of contributory negligence.

The automobile in which plaintiff was riding was struck from the rear by the car that was driven by Wheat.

Mrs. Smith would have never seen Wheat’s car but for the fact that she looked back at á producing oil well that had just been “brought in”. The testimony shows that there was a lane of automobiles on the highway near this oil well; that Mr. Smith slowed down his car as they were passing through the lane and by the well, and had accelerated the speed of his car when Wheat’s car struck it from the rear. Wheat testified that he was not looking straight ahead when he hit the Smith car. He, too, was evidently interested in the oil well.

Mrs. Smith testified that as she looked back at the oil well she saw Wheat coming, and the following appears:

“Q. Now, from the time you first saw Mr. Wheat coming back there and the time he ran into the back of your car, how much time elapsed there? • A. It was almost instantly. I didn’t have time to do anything—just a few seconds.”

Mrs. Smith further testified that when she saw Wheat was about to hit her car she screamed out—she “hollered” to her husband that “he was going to hit us, but he (the husband) didn’t know what I was talking about, he didn’t know anybody was coming behind us.”

We do not believe" that this evidence raises the issue of whether or not Mrs. Smith was keeping a proper lookout for other vehicles on the highway just immediately before the collision, and for that reason such an issue should not have been given and the trial court was correct in ruling that the answer to such issue (and to the supporting issue of negligence because no proper lookout was kept) should be disregarded.

In the absence of some evidence that would impose upon Mrs. Smith the duty to look for an automobile approaching from the rear, there could be no duty on the part of Mrs. Smith to keep a lookout for cars coming from such direction. We find no evidence here that would impose such a duty upon Mrs. Smith.

Mrs. Smith timely filed objections to the giving of these two special issues touching the question of contributory negligence on her part, and the trial court overruled her objections, whereas they should have been sustained. Evidently realizing the error thus committed, the trial court, on proper motion, disregarded the jury’s findings thereon. Myers v. Crenshaw, 134 Tex. 500, 137 S.W.2d 7.

Assignment of error No. 13 next presented asserts that the trial court erred in refusing to grant defendants’ motion for judgment on the verdict. The proposition urged in support of the assigned error asserts that the said motion was well taken because the jury found the plaintiff guilty of contributory negligence.

What we have said in connection with the next preceding assignment of error renders it unnecessary to discuss the thirteenth assignment.

Assignment of error No. 16 presents error bottomed upon the theory that judgment could not be properly rendered on the' verdict because the undisputed proof shows a want of necessary parties plaintiff.

The supporting proposition asserts that the cause of action asserted by Mrs. Smith constitutes the community estate, and Mr. Smith having died prior to the filing of the suit, leaving Mrs. Smith and his two minor daughters as his heirs, these daughters inherited the community interest of their deceased father, in the cause of action brought, and these minor daughters are necessary parties to the suit.

. It is nowhere contended that Mr. Smith suffered any personal injury in the accident.

We have shown, supra, that Mrs. Smith first brought suit for herself and in behalf of the minor daughters.

It cannot be said that the mere fact that this original petition contains two paragraphs in which, as next' friend, Mrs. Smith attempts to recover for personal injuries which are alleged to have been sustained by the two daughters, that the pleading so filed comprehends only a recovery for the daughters as to such matters. The very forepart of the petition which we quoted in the statement of this case, discloses that Mrs. Smith, individually and as next friend, brought suit for herself and for the daughters, as the surviving heirs of the deceased husband and father to recover what he could have recovered had he lived. The defendants are responsible for the case not being tried on that theory. They urged their plea insisting that there was a mis-joinder of parties plaintiff and of causes of action. Their plea, at their insistence, was sustained, and the court so ordered, and the result was that Mrs. Smith was compelled to sue alone and only for a recovery bottomed upon damages sustained by and to her person.

We confess that no such situation has ever been brought tó our attention heretofore.

No objection was urged against this amended pleading by the defendants, on the theory that there is a want of necessary parties.

If there was error, it was invited by the defendants in express language. More than that, it was urged by them.

We do not believe that the defendants can be heard to take advantage of any such situation,-under the facts disclosed.

At the insistence of the defendants, these minor daughters were dismissed from the suit, as participants therein, without prejudice to their rights.

What is Mrs. Smith trying to recover?

Obviously, damages for injuries sustained by her in and to her person. That she was entitled to recover such, in a suit brought by her husband, had he lived, no one will question. Now, that he is dead, we see no barrier to her bringing suit in her own name to recover the same damages.

Appellants cite no authority to support their contention and we do not believe that their position is well taken here.

Mrs. Smith had no husband on whom she could rely to bring suit for the personal injuries sustained by her. She was a widow when the. suit was brought and we believe that she had the right to do so.

In the case of Rowland v. Murphey, 66 Tex. 534, 1 S.W. 658, the Supreme Court had before it a suit where a surviving husband, who had several children surviving their deceased mother, brought suit to recover damages done to community property. The children were not made parties plaintiff and, on the trial, the defendants, discovering from the evidence that the children had inherited an interest in the subject matter from their mother, requested a charge limiting the right of the father to recover only such damages as resulted to him from injuries done to his interest in the property, and the trial court refused to give the charge. This was held to be error.

No such situation is presented here. No such charge was requested and no objections were urged to the charge presenting Mrs. Smith’s right to recover.

It seems to us that under the authority cited, Mrs. Smith had the unquestioned right to tecover “for the injury done to her own estate”, and the failure of the defendants to have the recovery so limited cannot give them the right to complain here. Indemnity Ins. Co. v. Sparra et al., Tex.Civ.App., 57 S.W.2d 892, writ dismissed; Electric Express & Baggage Co. v. Ablon, 110 Tex. 235, 218 S.W. 1030; Schelb v. Sparenberg, Tex.Civ.App., 111 S.W.2d 324, affirmed by Supreme Court in 133 Tex. 17, 124 S.W.2d 322.

We find the following authority cited by Speer’s Law of Marital Rights in Texas: Texas & P. Ry. Co. v. Watkins, Tex.Civ.App., 26 S.W. 760. In this case the mother suffered personal injuries at the hands of the railroad company and no suit was brought by her husband during his lifetime, whereupon,, after the death of the husband, the wife brought suit to recover for the injuries done her person', as well as for the expenses incurred by reason of her injuries and attendant illness. She made her two minor children, also survivors, parties plaintiff, and recovered judgment in the trial court.

On appeal to this court it was expressly held that the surviving wife had the right to bring the suit and to recover for the damages done to her person. The railroad company raised the question of the children being improperly joined as parties plaintiff and the court overruled the contention. The Supreme Court granted a writ of error and the judgment was affirmed, 88 Tex. 20, 29 S.W. 232, 233.

In the opinion-, we find the Supreme Court using this language: “It is not made to appear that any injury resulted to plaintiff in error from the fact that said children were joined in the suit as co-plaintiffs, and therefore it is unnecessary for us to determine whether the court below erred in holding them proper parties plaintiff. [San Antonio St.] Railway Co. v. Helm, 64 Tex. 147; Lee v. Turner, 71 Tex. 264, 9 S.W. 149.”

It occurs to us that in the light of the cases we have cited thei-e can be no error in permitting Mrs. Smith to recover in the instant suit.

Assignment of error No. 10 is last presented and it asserts that the trial court erred in submitting Special Issue No. 3, and the instruction in connection therewith, because it is on the weight of the evidence and indicates to the jury the effect of its answer both to special issue No. 2 and'3, and furthermore, indicates to the jury that the court thinks issues 2 and 3 should be answered favorably to the plaintiff.

We see no merit in the contention.

Special Issue No. 2 required the jury to find from a preponderance of the evidence whether or not Wheat failed, immediately prior to the collision, to keep a proper lookout for other vehicles on the highway, and the instruction required the jury to find “He did fail” or “He did' not fail” as its answer.

It then became necessary to have the jury find whether or not such failure, if •any, was a proximate cause of the injury of which complaint is made, and the trial court merely submitted Issue No. 3 conditionally, as follows: “Issue No. 3: If you have answered the foregoing issue in the affirmative, or he did so fail, then you will answer this special issue, otherwise you need not answer the same. Do you-find from a preponderance of the evidence that such failure, if any, referred to in Special Issue No. 2, was a proximate cause of the injury complained of?”

We find no reversible error here. Finck Cigar Co. v. Campbell, Tex.Civ.App., 114 S.W.2d 348, affirmed in 134 Tex. 250, 133 S.W.2d 759.

The jury could not have answered Issue No. 2 in any other manner than same was answered, in view of Wheat’s admissions' on the witness stand. Any other answer would have had no support in the evidence.

Finding no reversible error, the judgment of the trial court is affirmed.

On Motion for Rehearing.

Appellants have filed a vigorous and lengthy motion for a rehearing and we have carefúlly considered same, hut feel that it is necessary only to discuss the matter of our disposition of 'the issues touching contributory negligence on the part of Mrs. Smith.

It is noticeable that appellants only allege that Mr. Smith and Mrs. Smith were guilty of negligence in not keeping a proper lookout for the motor vehicle being driven by Roy Wheat on the same highway and behind the plaintiffs.

There is no pleading averring that Mrs. Smith discovered the car driven by Wheat and was guilty of negligence in not giving Wheat a proper signal - or warning, or in not operating their vehicle carefully after discovering Wheat’s car approaching.

We have said, in our opinion, that we know no rule of law that would require either Mr. Smith or Mrs. Smith to keep a proper lookout for vehicles approaching from the rear. Our idea of a proper lookout incumbent upon' the operators of motor vehicles upon . highways, is one that' concerns vehicles in front of the party to be held to such rule, and not those approaching from behind, unless there appears some particular fact that calls the attention of the. driver of the front car .to the car that follows, which would impose some duty upon the driver of the front car to maintain such a lookout, or unless the driver of such car either slows down his vehicle or intends to stop the same, under which circumstances, or either of them, it would be the driver’s duty to keep a proper lookout for vehicles following such car and to then give a proper signal to apprise the driver of the car in the rear of such intention.

But even so, in the instant suit, where it appears that Mr. Smith was not “looking back” and it appears that Mrs. Smith, when she looked back at the oil well near the highway, saw Wheat’s car approaching from the rear,' she had every reason to believe that Wheat was obeying “the law of the road”: that he was keeping a proper lookout for the Smith car and would not negligently run into it. At least she had a right to so believe and depend upon Wheat’s obeying such law until she saw that he was not going to do so. And when this'fact was made known to her, •under the undisputed testimony, it was too late for her to do more than she did do, namely, scream to her husband. This act upon her part did not prevent the collision, and there is no issue requesting' a finding that Mr. Smith was negligent in not heeding her warning. In fact, there is no pleading justifying the submission of any such issue.

Appellant cannot rely upon the provisions of subdivision (A) of Article 801, Penal Code of Texas, as he contends, for the reason that no issue was submitted or'requested, and there is no 'finding that Roy Wheat gave any audible signal of his intention to overtake and pass the Smith car; and there is no evidence to support any such finding, had it been made. Furthermore, there is no pleading raising such issue of contributory negligence on the part of Mrs. Smith.

The motion is overruled.


author: SPEER, Justice.

text:
    BARRETT v. COMMERCIAL STANDARD INS. CO.
    No. 14135.
    Court of Civil Appeals of Texas. Fort Worth.
    Nov. 15, 1940.
    Rehearing Denied Dec. 13, 1940.

      Fay W. Prescott, of Fort Worth, for appellant.
    Buck & Knapp, of Fort Worth, for appellee.
   SPEER, Justice.

James R. Barrett sued Commercial Standard Insurance Company on a policy of insurance alleged to cover the loss of an automobile from theft. The parties will carry the same designation here as in the trial court.

Plaintiff owned an automobile and purchased from defendant a policy of insurance against theft. The contract was in evidence and provides, among other things, that the defendant would pay to plaintiff such loss as he should sustain, caused by theft of the car, excepting, however, a theft committed by a person or persons in the insured’s household, or by one acting under express or implied authority of the insured. The obligation provides for payment as insured’s interest may appear.

Plaintiff’s contention was that the automobile was stolen by Cramer Lee Payne on August 19, 1939. The policy contract was effective at that time. The Sun Auto Finance Company was made a party plaintiff under an allegation that it held an interest, as mortgagee, in the insured car. The Sun Auto Finance Company appeared and alleged that it held a chattel mortgage lien on the car to secure an unpaid balance of $16.36 owing by plaintiff Barrett.

The case was tried to a jury on special issues. Along with the issues submitted,, the court defined the words “Family” and “Household”. These explanations were: “By the word ‘family’ as used in this, charge, is meant, all of the individuals who live under the authority of another, including the servants of the family.”' And, “The word ‘Household’ as used in this charge, means, those who dwell under the same roof and constitute a family.” In response to the special issues submitted, the jury found that, (1) Cramer Lee Payne, the nephew of Barrett (insured), was not a member of the household of Barrett at the time of the taking of the car by Payne; (2) Payne did not have implied quthority to take -the'car at the time and place he took it; (in connection with the foregoing issue an explanation was made of what was meant by “implied” authority) ; and (3) the value of the' car,' when taken, was $200.

After the verdict was received by the court, defendant filed its motion for judgment non obstante veredicto, based upon the grounds that the verdict was contrary' to the -undisputed and uncontradicted evidence which established as a matter of law that Cramer Lee Payne was a member of the ’ insured’s, household, within the meaning of the contract, when he took the automobile on August 19, 1939. The court sustained defendant’s motion' for judgment notwithstanding the verdict, and entered judgment accordingly. The Sun Auto Finance Company did not appeal, but from the judgment entered plaintiff has perfected his appeal. and now brings the record before us for review.

That part of-Article 2211, Vernon’s Texas Civil Statutes, applicable to this appeal is as follows: “Provided, that upon motion and reasonable notice the Court may render judgment non obstante veredicto if a directed verdict would have been proper.” It is always true that if a plaintiff fails to produce sufficient evidence to raise an issue of his right to recover, the court should instruct a verdict for the defendant. It is equally true that if such-evidence is produced, the court should not summarily instruct a verdict, but leave the matter to a 'determination by the jury, who are ’the exclusive judges of the credibility of the witnesses and the weight to be given to their testimony. It logically follows that when a jury question is thus presented, the court should not sustain a motion for judgment non obstante veredicto, for obviously a “directed verdict” would not be proper.

If it could be said that Payne, who took plaintiff’s car, was a member of his “household”, then there was no coverage by the terms of the policy sued on. We have seen no case by the courts of this State which construes the word “household” when used as in this case. The trial court’s definition, quoted above, was not objected to by defendant, and it is deemed to have - approved what the court said. Article 2185, R.C.S.

Provisions in insurance contracts similar to the one before us have been construed by courts of other jurisdictions. In those cases the words “family” and “household”seem to be treated as if meaning the same. Rydstrom v. Queen Ins. Co., 137 Md. 349, 112 A. 586, 14 A.L.R. 212, was a suit on a contract of insurance against theft. Insured’s car was stolen by his nephew, who at the time was visiting in his uncle’s home. The nephew resided in a distant state and was a temporary guest in the home where the car was stolen. The insured testified that .his nephew had the freedom of the household at the time; while living for the short time in his uncle’s home, the theft was committed. The court held that the nephew was a member of insured’s household and no liability was incurred by the insurance company. In such circumstances the court in that case held that the meaning of -the word “household,” when used as a qualifying word, pertained to the house or family.

“Household” is defined by Webster’s New International Dictionary as: “Those who dwell under the same roof and com-póse a family; a domestic establishment; family.” Murray’s Oxford Dictionary says:. “The members of a house collectively; an organized family, including servants or attendants dwelling in a house; a domestic establishment.” To the same effect is the Century Dictionary. The foregoing definitions were relied upon by the court in Ocean Accident & Guaranty Co., Ltd., v. Schmidt, 6 Cir., 46 F.2d 269. That court also cites Arthur v. Morgan, 112 U.S. 495, 499, 5 S.Ct. 241, 243, 28 L.Ed. 825, wherein it is said: “Persons who dwell together as a family constitute a ‘household.’ ”

The evident purpose of placing an exception, such as the one here, in a policy of insurance, was to guard against liability when the theft' is committed by one who has unrestricted access to the home and its contents, including the keys to the car in the instant case. In its most common acceptation, the word “family” includes father, p mother and all the children, wherever they may reside. A servant is an employee, but if his duties are such that he does not have freedom of the home as would a member of the immediate family, certainly such employee would not be classed as a member of the “household”; but if his employment was such as to make it his duty to go in and out of the family home and exercise watch over its contents, he would be embraced within the word “household”. We think this is what was meant by the parties to the contract under consideration.

Bearing in mind that the trial court sustained defendant’s motion for judgment notwithstanding the verdict, upon the theory that the undisputed testimony showed the alleged thief was a member of the insured’s “household” as a matter of law, and that an instructed verdict would have been proper, let us look at the testimony in the record.

James R. Barrett, the plaintiff, Cramer Lee Payne,'the alleged thief, and the witnesses. Birdie Lee Brown and Helen Dickson are negroes. Plaintiff testified substantially that Payne was his nephew, about nineteen years old, had no home except where his hat was hung; he saw Payne pretty often and ran around with him some; he felt a certain responsibility to help Payne as best he could, since he seldom had work and had no parents; he often gave him small sums of money to buy food and gave him clothes occasionally. Witness lived in the home of a woman on Texas Street in Fort Worth for several months prior 'to the time he went to the St. Louis Avenue house, and that while he lived on Texas Street, Payne ate some of his meals there and slept in the house twenty or thirty nights; witness did not know where Payne slept on other nights.

Plaintiff said that when he left the Texas Street residence, he went to live with Birdie Lee Brown in a servant house at 463 St. Louis Avenue. He had lived there about a month when the car was stolen. Helen Dickson also lived in the house with Barrett and Birdie Lee Brown; he said that on August 19, 1939, he and the women went to a nearby cafe for breakfast, brought Payne and James Riley, another negro, back to the house with them; that he went to sleep before noon and left the two men and women playing cards in the room; that when he awoke in midafter-noon his car was gone and upon being told that Payne had taken the ignition key and some change from a dresser and left, saying he would be back in a few minutes and not to awaken Barrett, he went out to hunt for the car; he reported the loss'to police that night; he said he had permitted Payne to drive his car a time or two on errands in the city and that Payne had stolen it on a previous occasion and drove to Cor-sicana, but returned the car next day; that he did not consent for Payne, or any other person, to take the car on August 19, 1939. He reported the loss to the defendant, and some days later had a letter from a woman whom he believed had gone with Payne in the car, written from Palestine, Texas; that he and a representative of defendant went to the address given in the letter but were unable to locate either Payne, the woman or the car; he said Payne never stayed or slept at .the St. Louis Avenue address at any time while he lived there, insofar as he knew, that there were a few nights when witness was not there.

Birdie Lee Brown testified as did Barrett as to his staying with her at the St. Louis Avenue address; that she had lived there for four years and that Helen Dickson stayed there a part of the time; she also related the occasion of the two men and women being at the house and playing cards while Barrett slept; that Payne went to the dresser, picked up the car keys and some change and said not to awaken Barrett, that he would be back in a few minutes ; Payne did not return and when Barrett awoke she told him what Payne had said and done; she said Payne had slept in her house one night since Barrett had been there and that was when Barrett was away; that Payne left the house in Barrett’s car.

The other negro woman, Helen Dickson, likewise told the story of the card game while Barrett was asleep, and the taking by Payne of the keys and money from "the dresser and corroborated Birdie Lee Brown as to what Payne said, and that Payne drove away in the car. This witness, however, said that Payne slept on a pallet at the St. Louis Avenue house nearly every night while Barrett lived there. This is substantially all of the testimony touching on the point of whether or not Payne lived with and was a member of Barrett’s “household”. Riley did not testify; he was said to be in a hospital at the time of trial.

Clearly, the contradictory statement-by the witnesses, two of whom said Payne did not live at the St. Louis Avenue house and never slept there more than one night and then when Barrett was away, and the testimony of Helen Dickson that he did stay there, slept on a pallet practically the whole time of Barrett’s .residence there, only raised an issue of fact for the jury. There is no doubt that reasonable minds could differ as to which was true. A trial court is only authorized to' instruct the jury to return a particular verdict when there is no evidence of probative force in support of the contention'of the party against whom the verdict is directed. If there is competent evidence to support a verdict if rendered for one of the parties, the court should not instruct the jury to return a verdict in favor of the other. When a motion is made for a directed verdict, the court will presume to be true the evidence of the opposite party, and give it the most favorable construction that it will bear and give to that party all reasonable- inferences arising therefrom. All contradictory evidence will be -disregarded, when determining if the directed verdict should be given against that party. Burroughs et al. v. Smith, Tex.Civ.App., 294 S.W. 948, writ refused.

If the evidence upon the controlling controverted issues is such that reasonable minds could differ in its construction and application, and a jury trial is demanded; a directed verdict should not be given, and consequently a judgment non obstante veredicto should not be entered. Draper v. Presley et al., Tex.Civ.App., 111 S.W.2d 1124, writ dismissed.

In Johnson v. Moody, Tex.Civ.App., 104 S.W.2d 583, writ dismissed, judgment correct, it was held that the power of a trial court to render judgment non obstante veredicto is controlled by the same principle involved when a Court of Civil Appeals reverses and renders a case when the trial court erroneously- refuses to give a peremptory instruction. Citing Wininger v. Fort Worth & D. C. Ry. Co., 105 Tex. 56, 143 S.W. 1150, wherein the rule in such cases was announced to be: “The honorable Court of Civil Appeals [141 S.W. 273] had authority to reverse the judgment of the trial court on the preponderance of the evidence; but it could not render the judgment, if, discarding all adverse evidence, and giving credit to all evidence favorable to the plaintiff, and indulging every legitimate conclusion favorable to the plaintiff which might have been drawn from the facts proved, a jury might have found in favor of the plaintiff.” The rule announced is especially applicable here, for the question was submitted to the jury and answered favorable to plaintiff.

We do not think that the testimony of Barrett, to the effect that Payne was his nephew, a son of his deceased sister, that he had no one to look after him and that he, Barrett, had an interest in him, often bought him meals when he was hungry, gave him some of witness’ clothes when he was ragged and dirty, and interested himself in the kind of woman he lived with, constituted Payne a member of Barrett’s “household” and excepted the defendant from liability on its contract, under that exception. Nor do we believe that Payne’s relation to the household of Barrett was changed by the fact that the former was in the latter’s room, apparently by invitation, on the day the theft is alleged to have taken place. It cannot be said that a guest invited by another into his home to play a game of cards thereby becomes a member of the host’s “household”.

Under the facts revealed by this record, Payne was not a member of the insured’s household, as a matter of law, at the time of the alleged theft, and the court could not properly so hold and instruct a verdict for defendant under the provisions of the Contract; this was the only theory upon which judgment notwithstanding the verdict could have been entered. The trial court should have entered judgment in conformity with the pleadings, the evidence and the verdict. Article 2211, R.C.S.

It is .contended by defendant, by cross-assignment of error, that even if we reverse the judgment of the trial court we cannot render a judgment on the verdict, for the reason the issue of whether or not Payne was guilty of theft when he took the car was not submitted to the jury and that plaintiff did not request the submission of such an issue. The testimony of three witnesses indisputably shows that Payne took the car without the knowledge or consent of Barrett; that he had not been apprehended, although a charge had been filed against him for the theft, and that the car had not been returned by the alleged thief. Barrett testified in two or three different instances, without objection by defendant, that Payne “stole” the car. Under such circumstances there was no issue to be submitted on the point. The court was not required to submit anything but controverted issues. The cross-assignment is overruled.

The contract sued on by plaintiff provided that defendant would pay him for the loss of the automobile from theft (except under conditions previously discussed herein) “Payable as interest may appear to the named Insured (James R. Barrett) and the Sun Auto Finance Company, Fort Worth, Texas (Name and address of the mortgagee).” The record shows without dispute that the value of the car was $200; that mortgagee held a lien to secure a balance of $16.36 and that its interest therein was for that amount; that plaintiff’s interest was $183.64. It does not appear from the record that plaintiff could recover any more than his interest in the car. The mortgagee did not appeal from the judgment which denied it a recovery. The judgment became final in that respect. Under the terms of the contract it would be improper to allow plaintiff to recover of defendant more than to the extent his interest appeared in the stolen car; that interest was $183.64 and that is the amount he should have recovered in the trial court.

For the errors shown, the judgment of the trial court, insofar as it denied a recovery to plaintiff, is reversed and here rendered for plaintiff in the principal sum of $183.64, with interest thereon at six per cent after August 19, 1939, the date of the loss of the car, and all costs will be taxed against the defendant. Insofar as judgment was against Sun Auto Finance Company, mortgagee, from which no appeal was taken, the judgment below is undisturbed. Reversed and rendered in part and undisturbed in part.