text:
    A. B. C. STORAGE & MOVING CO., Inc., v. HERRON et ux.
    No. 10931.
    Court of Civil Appeals of Texas. Galveston.
    Feb. 21, 1940.
    On Filing of Remittitur Feb. 29, 1940.
    Rehearing Denied March 21, 1940.

      Vinson, Elkins, Weems & Francis and Wood, Morrow, Gresham & McCorquodale, all of Houston, for appellant.
    King, Cox & Rowe and Earl Cox, all of Houston, for appellees.
   CODY, Justice.

This is a suit by parents for the death •of their minor son who was killed while riding as a guest in a truck which was being driven by Robert A. Price, Jr., when it collided with a truck belonging to appellant, on the Houston-Dallas Highway, in Walker County, Texas. The suit was also to recover for the conscious pain and suffering of deceased. The jury awarded appellees $4,000 for the loss of services ■of their' son, and $15,000 for his pain.

The jury found negligence and proxi-Mnate cause against appellant’s truck driver: (a) in operating appellant’s truck to. the left of the center of the highway; (b) in not having appellant’s truck under reasonable control; (c) in failing to slacken the truck’s speed. On the defensive issues the jury found: (a) that the driver of the truck in which deceased was riding was •driving more than 25 miles per hour, but this was not the sole cause of the collision; •(b) that he was not driving at a high rate of speed; (c) that he was not operating the truck on his left-hand side of the center of the highway; (d) that he did not cause his truck to weave from side to side of the road; (e) that he did not fail to keep a proper lookout; (f) that he did not fail to have said truck under reasonable control; (g) that he was not operating said truck with old, worn and defective brakes; and (h) that he did not fail to slacken the speed of his truck.

Appellant urges as grounds for reversal, failure of the court to submit issues requested by appellant; failure of the court to give requested instructions; the exclusion of evidence tendered by appellant; that appellee’s counsel in his argument to the jury committed reversible error; that the jury’s verdict was excessive, both as regards damages awarded on account of lost services of the son, and as regards damages on account of the son’s conscious pain and suffering.

Appellant introduced evidence to the effect that Price, the driver of the truck in which the deceased was riding, and which collided with appellant’s truck, came over the hill between 40 and 45 miles per hour, and that as he started down the hill at such rate of speed he applied his brakes and his truck began zigzagging and skidding down the concrete highway and collided with appellant’s truck when appellant’s truck was on the right side of the road and the truck in which deceased was riding was on the wrong side. It is appellant’s contention that the court should have submitted the special issue of whether the operation of the truck by Price in excess of 25 miles per hour, combined with the act of applying the brakes while such truck was being so operated in excess of 25 miles per hour, was the sole proximate cause of the'Collision.

Not only must the evidence be sufficient to justify the submission of an issue, but there must also be sufficient pleadings. Appellant pled, in addition to general denial to appellees’ pleading, that the negligent acts of Robert A. Price, Jr., (the driver of the truck in which the deceased was riding as a guest passenger) were imputable to the deceased, and particularly in driving at a high rate of speed; in driving on the left-hand side of the center line of the highway; in driving and operating said truck in such a manner as to cause the same to swerve and swing from side to side of the highway and then to the left and collide with appellant’s truck; in not keeping’ a proper and reasonable lookout, etc. But submitting issues inquiring whether Price was operating the truck (in which the deceased was riding) on the left-hand side of the center line of the highway prior to or at the time of the collision, and whether he, Price, drove the truck in such a manner as to cause it to swerve and swing from side to side of the highway prior to the collision and then to the left and collide with appellant’s truck, the court, it seems to us, necessarily covered the same defensive issue as would have been submitted by inquiring whether the operation of the truck by Price in’ excess of 25 miles per hour, combined with the act of applying the brakes, was the sole proximate cause of the accident. Only ultimate issues are required to be submitted to the jury; 41 Tex.Jur., 1016; “obviously, if all the ultimate controlling issues are presented, the answers of the jury necessarily dispose of all subordinate issues.” Id., p. 1017. “ * * * it is not necessary to submit a special issue where it does not call for the determination of some ultimate fact necessary to form the basis of a judgment, as where it relates to subordinate facts to be considered in determining ultimate facts, and necessarily embraced in the determination of the ultimate fact issue.” Wichita, etc., Ry. v. Pepper, Tex.Sup., 135 S.W.2d 79, 84.

Appellant offered evidence to the effect that when Price started down the wet, slippery hill, applied his brakes, and his truck began skidding and zigzagging down the hill and collided with appellant’s truck on appellant’s right, ■ and Price’s wrong, side of the road the applying of brakes is of course, a mere incident of driving. The answers made by the jury to issues submitted to them in the language practically of appellant’s pleading covered the issue of whether or not the truck driver applied his brakes and, if he ’did, whether such act in applying his brakes was the sole proximate cause of the collision, as we have above indicated: It was not error for the court to refuse the issues in the language requested.

The court charged the jury in connection with proximate cause: “By the term ‘sole proximate cause’, as used in this charge, is meant the only proximate cause. There can be but one proximate cause of an event.” Our Supreme Court has adopted the holding by the Commission of Appeals in Southland Greyhound Lines v. Cotten, 126 Tex. 596, 91 S.W.2d 326, 327, 329, “The jury should be instructed in connection with the issues of sole proximate cause that there can be only one sole proximate cause of an event.” Appellant objected to the charge wherein it read “There can be but one sole proximate cause of an event” for the reason that “under the law several acts of one of the parties may singly or combined be the sole proximate cause of an event, and said charge is calculated to and probably will cause the jury to believe that one particular act of one of the drivers of the trucks could, under the law, be the sole proximate cause of the collision. * *” And appellant requested that the jury be instructed that “Only one act or combination of acts of one of the participants in a collision can be the sole proximate cause of that collision”. The court did not err in giving the definition which it did so give, and in refusing to give the definition appellant requested. The definition given has been approved by the Supreme Court, and is simpler and easier understood and applied, so it seems to us, than the definition tendered by appellant.

The court submitted a special issue 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 the plaintiffs, W. P. Herron and Beulah Herron, for the loss sustained, if any, by them as a direct proximate result of the death of their son, Clarence Ray Herron, taking into consideration, exclusively, the following elements of damage and none other”, etc. Appellant objected to such issue, among other things, because said issue, as submitted, failed to limit the damages to be recovered by ap-pellees to those proximately resulting from the negligence of the appellant. And in support of its objection appellant relies on Finck Cigar Co. v. Campbell, Tex.Civ.App., 114 S.W.2d 348; Anderson v. Reichart, Tex.Civ.App., 116 S.W.2d 772, 776; and Standard Paving Co. v. Pyle, Tex.Civ.App., 131 S.W.2d 200, 204. The rule enforced in these three cases, to quote from two of them, is this: “We here expressly hold that in suits for damages it is necessary for the charge to limit the recovery to damages directly and proximately caused by the negligent act of the party sought to be charged therefor.” This is no new doctrine originated by the Fort Worth Court of Civil Appeals, but has long been the law. But no special or peculiar language is required to be used in order to bring a charge to the jury in conformity with this rule. The charge on damages given by the court below limited the jury to compensating W. P. and Beulah Herron for the loss sustained by them “as a direct and proximate result of the death of their son. * * *” and the undisputed evidence shows that he died in something like an hour and half after, and as a result of, the collision. And issues were submitted to the jury, and the jury found that the collision was proximately caused hy appellant’s negligence. Appellant’s assignment of error is without merit, and is here overruled.

Appellant offered the deposition of W. E. Johnson, one of the attorneys for appellees, to explain why Price, the driver of the truck in which the deceased was riding at the time of the collision, was not produced at the trial as a witness. The deposition would have shown that W. E. Johnson, a member of a Dallas firm of lawyers, had been representing appellees since the beginning of the litigation; that the suit was first filed in Walker County, but was dismissed and later filed in the court below; that he learned that Price was driving the truck which collided with appellant, and that at Huntsville, Walker County, where Price came to be a witness in the case, Johnson knew that Price had given appellant a statement; that some time later Johnson went to San Antonio where Price lived and obtained a statement from Price, and also a contract to represent Price in a suit for damages against appellant, and that Price had agreed to come to Houston to testify in the case if they (appellees’ attorneys) would pay his expenses; that in talking to Price in Huntsville, Johnson had learned that Price’s testimony would corroborate the negro truck driver’s (i. e., appellant’s truck driver) to the effect that Price had negligently caused the collision, and that the statement obtained by Johnson (or his partner) from Price in San Antonio conflicted with what Price told him in Huntsville on material points. Appellant further proffered the testimony of Johnson (as a part of ■ its bill of exception to the court’s ruling which excluded the aforesaid evidence as hearsay, immaterial, etc.) that he had not brought Price to Houston as' a witness in the case,’ and did not intend to unless appellant desired him as a witness, but would arrange to have Price present if appellant desired to use him as a witness. Appellant offered to prove by its attorney that when the suit was called for trial in Huntsville, Johnson took a non suit, and that Price was then present in Huntsville as a witness for appellant, and that he. Price had then told said attorney for appellant who questioned him closely with reference to said statement which Price had given appellant, that said statement was true; that before appellant’s attorney went to San Antonio to see Price he had learned from an adjuster for appellant that Mr. Cox had told him, said adjuster, that an affidavit has been taken from Price in which he had repudiated his statement given to appellant; and appellant’s attorney would further have testified that Price refused to talk to him in San Antonio beyond saying “I have given another statement and I don’t care to discuss it at all.” The written statement which Price had given appellant was itself tendered for introduction in evidence, and it reflected that Price admitted the collision between the trucks was caused by his fault. Appellee’s counsel stated that if appellant wanted Price as a witness that they would bring him to Houston, but .that appellees were not going to use him as a witness.

Appellant apparently recognizes that the evidence above related was, as offered, objectionable, at least in part, as being hearsay. Appellant offered it, however, as showing that Price was a material witness who lived in San Antonio,' and as a witness who was under1 the control of appellees who did not avail themselves of the right to produce him as a witness; and it is, of course, the right of a party’s counsel to comment in argument ori the failure of a party to produce a witness who is under such party’s control. Kimmey v. Gulf, C. & S. F. Ry. Co., Tex.Civ.App., 128 S.W.2d 539; Marek v. Southern Enterprise, Inc., of Texas, 128 Tex. 377, 99 S.W.2d 594. In Houston Electric Co. v. Potter, Tex.Civ.App., 51 S.W.2d 754, 762, we' stated: “It is well settled that counsel has the right to comment on the absence of witnesses, when it is within the power of the defaulting -party to produce them, and when such witnesses are possess7 ed of a knowledge of the transaction inquired about. Such comment is especially permissible where such party has such witness under their control as an employee and depends upon his appearance at the trial without process” (citing authorities). In Green v. Enen, Tex.Civ.App., 270 S.W. 929, it was hel,d to be legitimate argument for appellee’s counsel tó comment- on the failure of appellant to produce his banker (who cashed his checks, and knew appellant’s signature) to testify upon the issue of non est factum. In the case of Gulf, C. & S. F. Ry. Co. v. Dooley, 62 Tex.Civ.App., 345, 131 S.W. 831, it appeared that two doctors had examined plaintiff’s wife hut that they were not produced as witnesses, nor had plaintiff taken his wife’s deposition in connection with his injuries. It was held permissible for counsel to comment on plaintiff’s failure to produce these witnesses.

We are not able to say that the court erred in refusing to admit evidence which was objectionable insofar as it was hearsay, for the sole purpose of showing that Price was available to appellees so that they could have placed him on the witness stand, to enable counsel to comment on the failure of appellee to call Price as a witness. For the evidence showed that Price had originally been appellant’s witness, and had given appellant a statement to the effect that the collision was his fault; and that he subsequently changed sides as a witness; whether, in changing sides as á •witness, he acted corruptly is a matter that could not be determined in the trial of this case. The rule which appellant seeks to invoke the' benefit of is based on the presumption that arises out of the relation existing between a party to a suit and one who is so related to such party that the mere failure of such party to call such a one as a witness does itself raise a reasonable inference that such failure to call such person was because his testimony would have been unfavorable. Obviously, this rule does not apply to a situation where the evidence of a witness was equally available to both sides. “Generally, however, no unfavorable' inference can be drawn or comment made on account of the absence of a witness whose evidence is equally accessible to both parties.” 64 Corpus Juris, p. 271. That Price’s evidence was equally accessible to both parties is manifested in the fact that he first was the witness of appellant, and gave it a statement that the collision was his fault; then afterwards established his accessibility to appellees by giving them a contrary statement. See Reynolds v. International & G. N. Ry. Co., 38 Tex.Civ.App., 273, 85 S.W. 323.

The evidence shows that after the collision Price went to Huntsville, which was about 16 miles from the scene of the accident, and reported it to Mr. King, the Sheriff of Walker County. ■ As to the statement which Price made to him, Mr. King would have testified, if permitted, that Price “made the statement that when he made this curve that he pulled back on the road and that when he pulled back on the road he went over a little, and applied his brakes, and it seemed that his steering gear had frozen — that is the expression he used, I asked him what he meant by that, and he said he couldn’t steer his car any further back and that he went across the black mark, and couldn’t hold it on the incline of the hill.” The court held that this statement was not res gestae, and refused to admit it in evidence. The musty subject of res gestae is well understood; it is only in' applying it that difficulty arises. Unless an appellate court can say, as a matter of law, that the trial court erred in applying the rule of res gestae it must refuse to reverse the trial court’s action in applying the rule.

Ellis Redding testified that upon hearing the crash he ran to the scene of the collision and that he and the driver of appellant’s truck pulled Price out of his truck, and that he seemed excited. To the question asked Mr. Redding, “Did he (Price) say' anything at that time ?” Mr. Redding answered “He said this: he said ‘a man was a darned fool — he said it was his fault.’” Appellees objected to the statement that it was his fault, as a conclusion and opinion, which objection the court sustained. Appellant contends that it was admissible as res gestae. Whatever may be the rule in other states, and whatever ought to be the rule in principle, the trial court applied the rule as its exists in Texas. In San Antonio Public Service Co. v. Alexander, 1926, Tex.Com.App., 280 S.W. 753, 754, the court said: “The doctrine by which the hearsay rule of evidence is relaxed so as to admit spontaneous contemporaneous statements as part of the res geste does not extend to statements such as those under consideration here, which are but the expressions of opinions by the declarant. The rule is that the reproduction of statements will not be permitted under the res. geste exception, where the declarant, if present as a witness himself, would not be permitted to testify to the facts embodied in the statement. * * * In City Ry. Co. v. Wiggins (Tex.Civ.App.) 52 S.W. 577 (w. ref.), it is-said: ‘The expression that “they did not blame him, and that it was not his fault,” embodied the very conclusion to be determined by the jury. Such conclusion of one not a party to the suit was certainly not adi-missible. See Gulf, C. & S. F. Ry. Co. v. Montgomery, 85 Tex. 64, 19 S.W. 1015 * * *.' ” We are therefore constrained to hold that the court correctly excluded the proffered testimony.

Appellant assigns as reversible error argument made by appellees’ counsel to the jury — there being several lawyers and other spectators in the room at the time:

“We are suing for $20,000.00,' for that recovery, and I have no apology to make. I say that I may be more liberal, but I have no apology to make because I say to you gentlemen that there is not a person within the hearing of my voice in this courtroom that would undergo what that boy underwent out there the last hour and a half of his life for $20,000.00, or $50,000.00. I say your answer to that issue should be $20,000.00 * * *.

“That is not all; that is not all; you have got the question of conscious pain and suffering experienced by that boy in that hour and forty-five minutes, or at least more than an hour, that he was pinned in that truck; suffering, knowing that he was going to die, feeling life slowly ebbing away, begging for help and calling on the Lord. The Court asked you what is that — what is the reasonable compensation for that. I say to you that there is not a man within the hearing of my voice that would undergo that physical pain and agony and torture of mind for anything like $20,000.00, and you know it.”

Appellant made no objection to the argument at the time, and complained of it for the first time in its motion for new trial.

The argument complained of in Rio Grande, E. P. & S. F. Ry. Co. v. Dupree et al., Tex.Com.App., 55 S.W.2d 522, 526, opinion by Judge Critz, when on the Commission of Appeals, was “Gentlemen of the Jury, the failure of this crew to blow the whistle and ring the bell has taken a life. Mrs. Dupree has lost her husband and her sons a father. It might have been you. It might have been me. Some of you gentlemen have sons. It might just as well have been your son. Remember that when you render your verdict, to do unto others as you would have them do unto you.” Said the court, “as to the first objection, (a) above, we think the argument is not of such a character as would be calculated to cause the jury to forget their oaths and duties, and return a verdict regardless of the facts and the law. Under our system lawyers are allowed some latitude to engage in oratory. Of course they must stay within the record, and must not attempt to appeal to prejudice, passion, or sympathy. On the other hand, an attorney has a right to use such legitimate argument as will impress the jury with the seriousness and importance of the case. . * * * ” In Texas & N. O. R. Co. v. McGinnis, 130 Tex. 338, 109 S.W.2d 160, 164, the court said, “Not every argument containing the bare suggestion to the jurors to consider the case from the standpoint of one of the parties, or as they would have their own cases considered, is ground for reversal.”

We are unable to say that the argument complained of was an appeal to passion and prejudice rather than reason. Counsel was arguing the point what sum of money would compensate for the pain and suffering which the deceased underwent on the occasion in question. As stated in Texas & N. O. Ry. Co. v. New, Tex.Civ.App., 95 S.W.2d 170, 176, writ of error dismissed, the court said: “In transmuting pain and suffering into dollars and cents, the problem of the jury is to construct an equation composed of relatively imponderable elements. The law awards compensatory damages in money for wrongfully inflicted pain and suffering; but it furnishes no yardstick or scale by which to measure or weigh such pain and suffering pecuniarily. The only standard supplied is that the damages shall be compensatory ; that is, commensurate with the injury. To ‘compensate’ is to pay the value of. To estimate the value or compensatory measure in money one must be able to visualize the intensity and duration of the pain and suffering, and then endeavor to place a fair value thereon.”

If a lawyer could not make such a comment as is here complained of, he would in effect be limited to a bare recital of the evidence which the jury had heard bearing on the issue, and to reading the issue to the jury. Jurors do not expect such judicial restraint of an advocate, and are not so easily moved by advocacy as appellant seems to believe. The argument, so it seems to us, did not, under the authorities approved by the Supreme Court, exceed bounds of legitimate advocacy. We overrule this assignment.

Appellant complains that an award of $4,000 for the loss to the parents of the earnings of their son from his death until he attained his majority less the expense to them of his education and maintenance, and for the loss of the pecuniary benefits ths parents in reasonable probability received from the deceased after he attained his majority, is excessive. At the time of the boy’s death the father was 66 years old, and had a life expectancy of 10.54 years; the mother was 58, and had a life expectancy of 15.39 years. The deceased was born September 5, 1916, and was killed on June 28th, preceding his twentieth birthday, and had a life expectancy of 42.87 years. Deceased had had three years of college work, and on the occasion of his death was returning from Galveston where he had made arrangements looking to entering the Medical School in the fall. He earned about $1,000 a year and contributed about three-fourths of it to his parents. His father was no.longer working on account of his age. The deceased was the only child left at home, and he intended to help his parents as long as they lived. Hé had brothers and sisters older than himself who were doing well. . We.do not consider the award excessive. It was held that $7,500 was not excessive for parents, 57 and 65 years old, for the death of a son 20 years old. Galveston H. & S. A. Ry. Co. v. Pigott, 54 Tex.Civ.App. 367, 116 S.W. 841. The sum of $5,000 for the death of a 19 'year old man very much attached to his . mother was held not excessive. Texas & P. Ry. Co. v. Jenkins, Tex.Civ.App., 26 S.W.2d 305. However, we doubt the advantage of consulting other cases to see what verdicts have been upheld' in other instances. We assume that the jury took into consideration that the deceased was at the outset of his intended professional education, but that they considered from the 'unusual enterprise that he exhibited in earning money that the sum of $4,000 was a reasonable award. We have no hesitation in sustaining the award as reasonable.

Appellant complains that the award of $15,000 for conscious physical pain and mental suffering of the deceased from the time he was injured until the time of his death, about an hour and a half, was excessive. Dr. Patterson, a physician at Madisonville, testified that the deceased was in a state of severe shock when he was brought to the hospital at 11:15 A. M. (which was something like two hours after the collision), was unconscious, and appeared to have a comminuted fracture of the right thigh, which was sufficient to cause unconsciousness, and that he never gained consciousness, and that notwithstanding the deceased cried out after he was injured, that it was his opinion that it was not reasonably probable that deceased was ever conscious after receiving the injury; that in his opinion the deceased died of shock. The deceased was pinned between the frame of the windshield with his feet up and his head down. Some witnesses testified that the deceased cried out “Lord have mercy”, and “Oh God help me out of here”, “Somebody help me out of here”. The highest estimate of the time deceased was pinned in the truck was an hour and forty-five minutes. The collision occurred after 9 and before 10 o’clock in the morning.

In the state of the record before us, we are not warranted in doubting the liability of appellant for the injuries suffered by the deceased. But it is our opinion that the' award by the jury for the conscious pain and suffering under the evidence in this case is excessive in the amount of $7,000. It is therefore our duty to reverse the judgment of the lower court because of- the excessive amount of the judgment unless, before the expiration of 20 'days, appellees file a remittitur of $7,000 in this court.

In the event such remittitur is filed, the judgment of the trial court will be reformed and affirmed so as to allow ap-pellees the recovery of the $4,000 awarded for the loss of the services of their son and the sum of $8,000 for the conscious pain and suffering of their deceased son. Should the remittitur not be so filed, the judgment of the trial court will be reversed and the cause remanded for a new trial for the reasons above stated.

Reversed and remanded unless $7,000 re-mittitur filed within 20 days.

On Filing of Remittitur.

It having been made to appear that appellees have filed the remittitur, as required by us to avoid a reversal of the' judgment, to cure its excessiveness in the sum of $7,000, the judgment of the trial court is now here accordingly reduced, and, as so reformed, is affirmed.

Reformed and affirmed.


source: Caselaw Access Project

author: CODY, Justice.

license: Public Domain

text:
    ROGERS v. PORT CITY BARBER & BEAUTY SUPPLY CO., Inc., et al.
    No. 10938.
    Court of Civil Appeals of Texas. Galveston.
    Feb. 21, 1940.
    Rehearing Denied March 14, 1940.
    Escar R. Wren, of Houston, for appellant.
    Reid & Strickland, of Goose Creek, for appellee, Joe E. Lee.
    H. A. Crawford, of Houston, for appellee Port City Barber & Beauty Supply Co., Inc.
   CODY, Justice.

Appellee, Port City Barber and Beauty Supply Company, as plaintiff, brought this suit against appellant, W. B. Rogers, and appellee, Joe E. Lee, alleging in substance that on April 13, 1938, Lee sold to Rogers for the sum of $746, payable at the rate of $25 per month, an undivided half interest in the fixtures and equipment of a certain barber shop, and retained a mortgage to secure the payment thereof; that Lee assigned said contract to said appellee, who was plaintiff below, and guaranteed the payment thereof; that on October 25, 1938, Lee failed to make payment, arid that plaintiff, within the terms of said contract, accelerated the balance due, and asked recovery thereof from Lee only. Lee asked for judgment over against Rogers, if any judgment was obtained- against him. Rogers answered with-a general demurrer and general denial.

At the conclusion of the evidence introduced by plaintiff, the court heard argument on a general demurrer to the sufficiency of plaintiff’s petition, not to the sufficiency of plaintiff’s evidence, to sustain the allegations of the petition. We quote the following language which the statement of facts concludes with: “The Court: Let the record .show after the introduction of the evidence by plaintiff and the plaintiff rested, that Mr. Wren (appellant's attorney) urged his demurrer and the Court read the pleadings and turned to Mr. Reid (Lee’s attorney) and inquired if Mr. Reid had read the pleadings carefully and he stated. that he had, and he thought that no judgment could be rendered against the defendant, Lee, by virtue of the fact that Lee was the guarantor, and no judgment was sought against' the original obligor. The Court then stated : Gentlemen, I think you are right about that.” Whereupon Mr. Crawford moved for a non-suit, which was granted over defendant Rogers’ objection.

By Art. 2182, a plaintiff is given a statutory right to take a non-suit, when the case is tried before a judge, at any time before the decision is announced.

We think it clear that no decision had been announced at the time plaintiff notified the judge that he was taking a non-suit. As used in the article the word decision means deciding the case for or against one of the parties. The sustaining of a general demurrer is not such a decision; according to general practice a plaintiff takes leave to amend when a general demurrer is sustained to his petition. The usual formula in an appeal of a case where a general demurrer has been sustained runs “and plaintiff refusing further to amend, the court rendered judgment dismissing the cause”, etc. Circumstances can be imagined where it would not be an abuse of discretion for a court to refuse a plaintiff leave to amend a petition to which a general demurrer had been sustained, but ordinarily, the court will grant such leave as of course.

We believe no good purpose- will be served by discussing cases where a plaintiff notified the court he will take a non-suit after the court has sustained a demurrer to the evidence, by announcing that he has decided to instruct a verdict in defendant’s favor. An instructed verdict is decisive of a case, and unless such action is reversed the cause of the party against whom such instruction is rendered is barred by a plea of res adjudicata. But where a general demurrer to a petition is sustained, the plaintiff may replead. And should we reverse and render the action of the trial court on this appeal, the plaintiff could, of course, by pleading his cause so as to. be good against a general demurrer, refile, and have the right to a trial on the merits, just as is the situation now. Clearly, where the situation is such- that an affirmance or reversal of the action of the trial court appealed from will leave the parties’ rights unaffected, such action was not a decision of the case.

Under these conclusions it becomes our duty to affirm the judgment of the trial court; it will be so ordered.

Affirmed.


author: FOLLEY, Justice.

text:
    CLARE v. CLARE.
    No. 5103.
    Court of Civil Appeals of Texas. Amarillo.
    Jan. 22, 1940.
    Rehearing Denied Feb. 19, 1940.

      Price & Moss, of Post, for plaintiff in error.
    Nelson & Brown, of Lubbock, for defendant in error.
   FOLLEY, Justice.

This is a divorce suit involving the custody and maintenance of a child which cause has reached us by writ of error prosecuted by John B. Clare, plaintiff in error herein and defendant in the trial court. Hilda Gene Clare is the defendant in error and was the plaintiff in the trial court. The parties shall hereafter carry their trial court designations.

The plaintiff filed the suit against the defendant on April 8, 1938, in the District Court of Terry County, Texas. She asked for divorce from the defendant, for the care and custody of Rosemary Gene Clare, a child born of the marriage, and that the defendant be required to pay her $25 monthly for- the support and maintenance of the child. The defendant answered by general demurrer and general denial. A hearing was had on August 29, 1938, the decree of divorce granted and the defendant was ordered to pay into the registry of the court the sum of $15 monthly for the support and maintenance of the child until such child should have attained the age of six years, and the same amount was required thereafter to be paid by the defendant unless the order. was modified until the child should become capable of self-support. The judgment recites that the parties had agreed upon the order with reference tb the support and maintenance of the child. The judgipent was signed and approved as to form by the attorneys for both the plaintiff and the defendant.

There is no statement of facts in the record before us and therefore all questions of fact must be resolved in favor of the validity of the judgment. However, the defendant asserts that there is fundamental error in the judgment by reason of the alleged insufficiency of the plaintiff’s petition to confer jurisdiction upon the court. This assertion is based upon the allegations with reference to the residence of the plaintiff and of the age and residence of the child. The allegations of the petition in question are as follows:

“Now comes Hilda Gene Clare, who resides in Terry County, Texas, hereinafter called plaintiff, complaining of John B. Clare, who resides in Terry County, Texas, hereinafter called defendant, and for cause of action plaintiff represents to the Court:
“That she is now and has been for a period of twelve months an actual bona fide inhabitant of the State of Texas and has resided in said County of Terry for Six Months next preceding the filing of this suit.
“That on or about the 21st day of August, A. D. 1937 Plaintiff was legally married to the defendant.
“That there was born of the marriage between plaintiff and defendant one child, to-wit, a girl named Rosemary Gene Clare, an infant.”

The defendant asserts that under article 4631, Vernon’s Ann.Civ.St., the language of the second paragraph of the petition above with reference to the plaintiff’s in-habitancy in the State of Texas is insufficient in that such allegation does not state that she was an actual bona fide inhabitant of the State of Texas for the period of twelve months “at the time of exhibiting her petition” and therefore the trial court was without jurisdiction in the divorce action. Under the authority of Aucutt v. Aucutt et al., 122 Tex. 518, 62 S.W.2d 77, 79, 89 A.L.R. 1198, this contention of the defendant must be overruled. In the Aucutt case the court refers to the authority invested in the district courts of this state by section 8 of art. 5 of our State Constitution, Vernon’s Ann. St., wherein it is said: “The District Court shall have original jurisdiction * * * ' of all cases of divorce’’. Judge Critz, in the opinion of the court discussing this constitutional provision in connection with article 4631, said:

“A reading of the constitutional provision as contained in section 8 of article 5, supra, demonstrates that it is all embracing in its provisions, and operates to vest all district courts in this state with jurisdiction 'of all divorce cases.’ Since district courts of this state are clothed by the Constitution with divorce jurisdiction, it does not lie within the power of the Legislature to take such jurisdiction away from them. Reasonover v. Reasonover [122 Tex. 512] 58 S.W.2d 817. Of course the Legislature has power, within proper bounds, to prescribe rules of practice and procedure for the exercise of divorce jurisdiction by our district courts.
* * * * * *
“It will here be noted that the six months’ residence in the county provision of article 4631 is coupled with the twelve months’ residence in the state provision of the same article. In this regard we think article 4631 has effect to define the qualifications of the plaintiff or petitioner in divorce cases, and is not intended to circumscribe the jurisdiction of the district courts of this state. In this respect we call attention to the fact that article 4631 applies to all district courts alike. Its effect is to disqualify the applicant for a divorce of the right to maintain the suit unless he has resided in the state for twelve months at the time of exhibiting his petition, and in the county in which the suit is filed for six months next preceding the filing of the same.
“Under the above construction of article 4631, we hold that it is not a jurisdictional statute at all, but merely a statute prescribing the qualifications of the plaintiff in divorce cases. The plaintiff must possess the qualifications prescribed by article 4631 before he is entitled to prosecute a divorce suit in the courts of this state.”

The petition of the plaintiff in the Aucutt case was identical to that of the instant case with reference to the residence of the plaintiff. Although the divorce in the Aucutt case was granted upon the cross-action of the defendant therein, the Commission of Appeals had this to say about the plaintiff’s petition in such case: “It appears that Mrs. Aucutt’s petition was in due form as to allegations of residence in the state and county.”

We think the above holding, when carefully analyzed, is to the effect that the district court is clothed by the Constitution with potential jurisdiction of all divorce cases which jurisdiction may not be taken away by the Legislature, but that the Legislature may, within proper bounds, prescribe rules of practice and procedure whereby the power to exercise such jurisdiction may or may not be invoked by pleadings. It is our opinion that the pleadings of the plaintiff were sufficient to invoke the jurisdiction of the court, and, in the absence of a statement of facts, we must presume the proof as to residence was sufficient to support the judgment.

The defendant further asserts that the trial court was without jurisdiction of any issue in this case because the plaintiff failed to allege the age and residence of Rosemary Gene Clare, the child of the marriage, as required by article 4639a, Vernon’s Ann. Civ. St. Such article provides, in part, as follows: “Each petition for divorce shall set out the. name, age, sex and residence of each child under sixteen (16) years of age born of the marriage sought to be dissolved, if any such child or children there be; and if there be no such child or children, then the petition shall so state. No Court having jurisdiction of suits for divorce shall hear and determine any such suit for divorce unless such information is set out in such petition or in each cause of action for divorce.”

It is true that the petition of the plaintiff did not specifically allege the age of the child but it did allege that such child was bom of the marriage of the parties and that such child was an “infant”. It is our opinion that the word “infant” must be construed to have been used in this petition in its popular, rather than its legal, sense, and especially is this true since the marriage was alleged to have occurred on August 21, 1937, of which union such child was alleged to have been born. The statute does not require that the birthday of the child be alleged nor does it require that the exact age in years, months and days be specified. Under the allegation made the trial court was apprized of the fact that an ’‘infant”, in the ordinary sense of the word, was born of the marriage under consideration. The child being an “infant” in the popular sense and both of its parents alleged to be residents of Terry County, Texas, we think it will be presumed that the residence and domicile of the child followed that of its father. Lanning v. Gregory et al., 100 Tex. 310, 99 S.W. 542, 10 L.R.A.N.S., 690, 123 Am.St.Rep. 809; Wright v. Wright, Tex.Civ.App., 285 S.W. 909; Gulf, C. & S. F. Ry. Co. v. Lemons et al., 109 Tex. 244, 206 S.W. 75, 5 A.L.R. 943. Under such circumstances we deem it unnecessary to determine the question as to the authority of the Legislature, in the face of the constitutional provision above, to prescribe the requisites of the petition as set out in article 4639a above, but think it sufficient to state that, if the Legislature has such authority, the pleadings of the plaintiff constituted so substantial a compliance with the provisions of the article that the court was not deprived of its jurisdiction by the specific defects in the pleading urged by the defendant. We think the pleadings of the plaintiff were at least sufficient to admit proof as to the age and residence of the child and we must also presume, in the absence of a statement of facts, that sufficient evidence was offered on, this issue to support the judgment. We therefore over-, rule this assignment.

The judgment of the trial court is affirmed.


author: GRAVES, Justice.

text:
    CARPENTERS AND JOINERS UNION OF AMERICA, LOCAL NO. 213, et al. v. RITTER’S CAFE et al.
    No. 11026.
    Court of Civil Appeals of Texas. Galveston.
    Feb. 15, 1940.
    Rehearing Denied March 21, 1940.

      Sewall Myer, of Houston, for appellants.
    Bernard A. Golding, of Houston, for appellees.
   GRAVES, Justice.

' This appeal — brought to and advanced in this court under R.S. Article 4662 — is from an order of the 127th District Court of Harris County, sitting without a jury, temporarily restraining and enjoining the appellants from picketing or causing to be picketed the appellees’ place of business at 418 Broadway in Houston, Harris County, Texas, pending a final trial of the cause for a permanent injunction on its merits; it was entered after a hearing of testimony presented by the appellees, the appellants “having offered no testimony nor evidence, though full opportunity to so do was afforded them.”

In support of its decree, the learned trial court (pursuant to statutory requirement after request) filed these findings of fact and conclusions of law, those of fact having been in no wise attacked, as being without support in the evidence, either below or here: ■ -

“Findings of Fact.
“(1) That the plaintiff E. R. Ritter, at all times material hereto, owned and operated Ritter’s Cafe, located at 418 Broadway, in the City of Houston, Harris County, Texas, and that said Ritter was at such times and is engaged in the cafe and restaurant business -in the sale and dispensation of cooked foodstuffs and other incidental commodities, usually and generally offered for sale to the general public by similar cafes and restaurants.
“(2) That in the operation of said restaurant and cafe plaintiff Ritter, at all times material hereto, and for some three years prior thereto, employed as cooks, waiters, and waitresses only members in good standing with Hotel and Restaurant Employees International Alliance, Local No. 808.
“(3) That plaintiff Ritter, in the conduct and operation of said restaurant and cafe, at all times material hereto, had no bona fide labor-dispute with his said employees, as to working conditions, hours of employment or wages, and that plaintiff had no dispute with said union.
“(4) That said Local No. 808 is the only organization having jurisdiction ’over plaintiffs’ said employees.
“(5) That on or about November 4, 1939, plaintiff Ritter entered into a written agreement with one W. A. Plaster, a contractor, whereby the latter was to construct and erect a building for said Ritter in the 2800 block on Broadway, which is twenty-four (24) blocks removed from plaintiffs’ said cafe, being some mile and a half therefrom.
“(6) That the business-agents of defendant-unions called upon plaintiff and asked that a provision be inserted in said contract requiring the contractor to use union labor on said job.
“(7)'That shortly after the said Plaster began erecting said building defendants Carpenters and Joiners Local No. 213, and Painters Local No. 130, by and through and upon the advice of their duly authorized officers and representatives, and by agreement between them, began a picketing campaign against plaintiff and his cafe, by having a member of one of said unions walk back and forth on the sidewalk in front of plaintiff’s said cafe, and at no other place, carrying a sign' or placard bearing the following inscription, or words to this effect:
"This Place is Unfair to' Carpenters and Joiners Union of America, Local No. 213, and Painters Local No. 130, Affiliated With American ■ Federation of Labor.”
“(8) That plaintiff at all times material hereto, and for a long time prior theretofore, had employed no carpenters or painters at his said cafe. ’
“(9) That no building was under construction at 418 Broadway at all times material hereto, nor was any painting being done there.
“(10) That said Locaí No.-213 and said Local No. 130 had no dispute with plaintiff concerning, in any manner, the conduct and operation of plaintiff’s cafe at 418 Broadway.
“(11) That no representative of either said Local No. 213 or said Local No. 130, had called upon the said contractor Plaster to request said Plaster or to urge him to use only members of said defendant-locals in the construction of said building in the 2800 blocl? on Broadway.
“(12) That shortly after plaintiffs filed suit for injunctive relief, the defendants, acting jointly and in pursuance of the agreement between them, changed or had changed the wording or inscription on the banner or placard being carried by the picket to the following, or words to this effect:
“The Owner of This Cafe Has Awarded a Contract-to Erect a Building to W. A. Plaster Who is Unfair to the Carpenters Union 213 and Painter Union ,130, Affiliated With the American Federation of Labor.”
“(13) That the said contractor Plaster had no contract with either of the defendant unions and that tío dispute existed, at all times material hereto, between -said Plaster and any of his employees engaged in erecting said building.
“(14) That no employee of Ritter’s cafe and E. R. Ritter, and no employee of W. A. Plaster is on strike.
“(15) That the purpose of picketing plaintiff’s cafe at 418 Broadway is for the avowed purpose of forcing and compelling plaintiff to require the said contractor, ■Plaster, to use and employ only members of the defendant unions on the building under construction in the 2800 block on Broadway.
“(16) That plaintiff’s receipts at his said cafe and restaurant were some sixty (60%) per cent less while said picketing continued than theretofore.
“(17) That plaintiff’s employees, members of said Local 808, quit plaintiff’s employ on the dky the picket-line was established after a telephone call from the Secretary of said Local No. 808, and had not returned at the time of the hearing herein.
“(18) That said Local No. 808 withdrew from plaintiff’s cafe its union' card after said picketing began.
“(19) That the further effect of' said picketing has been to make it impossible for plaintiff to have deliveries made to his cafe by truck-drivers, members of unions not connected with this law suit, of foodstuffs and other commodities .necessary to the orderly conduct of his business.
“(20) That the further effect of said picketing is to prevent members of all trades-unions from patronizing plaintiff’s cafe and to erect a barrier around plaintiff’s cafe, across which no member of defendant-unions or any affiliate will go.
“(21) That no violence attended the said picketing of plaintiff’s cafe.
• “(22) That defendants and each of them will continue to picket plaintiff’s said cafe unless restrained'by order of this Court.
“Conclusions of Law. ■
“(1) That plaintiff is engaged in a lawful enterprise in a lawful manner in the operation' of his cafe and restaurant.
“ (2) That the picketing at 418 Broadway constitutes an unlawful invasion of plaintiff’s right to conduct a legitimate enterprise and an attempt to interfere illegally with plaintiff’s right to contract with third-parties.
“(3) That said picketing, being illegal and for an unlawful purpose, should be restrained.
“Kenneth McCalla,
“Judge, 127 Judicial District of Texas.”

The single question of law the appeal presents is whether the court abused its discretion in thus granting the writ. Scanlan v. Houston L. & P. Co., Tex.Civ.App., 62 S.W.2d 537, at page 539, and authorities there cited.

In passing upon it, the facts so 'found below aré 'binding upon this court, in the absence both of a jury and any challenge thereof: 3 Tex.Jur., paragraph 771, footnote 5, and-cited authorities; 4 Tex. Dig., Appeal and Error, and collated cases; International-Great Northern R. Co. v. Singer Iron & Steel Co., Tex.Civ.App., 96 S.W.2d 1003, 1006; Standard Savings & L. Association v. Fitts, Tex.Civ.App., 24 S.W.2d 507.

Not only so, but they will be here reviewed with the objective of determining whether or not they support the court’s exercise of discretion.

In challenging the determination thus adverse to 'them, the appellants — making common cause here as they did below — through able counsel thus state their conception of the fundamental issues involved:

“This appeal involves the determination of two very simple propositions:
“First. The right of a labor-union to carry upon a public sidewalk, in a peaceful manner, a placard having inscribed thereon a 'statement advising the public of a situation which affects such union. . Stated differently, the appellants contend that they are, entitled to the protection of free speech and freedom of the press (guaranteed to them by the 14th, Amendment to the Constitution of the United States and Section Eight of the Bill of Rights of the Constitution of Texas, Vernon’s Ann.St.) in publicising their views upon a situation and condition affecting themselves.
“Second. The other question to be decided by this court is the contention of appellants that Secfion Eight1 of thé Bill of Rights of Texas denies to courts of equity the jurisdiction to interfere by injunction with the exercise of the right of -free speech and freedom of -the press, and that Section Eight vests jurisdiction for remedying any abuse of this constitutional privilege, exclusively in the courts of law.”

They rely for support, in the main, upon these authorities: Snyder v. City of Milwaukee, 308 U.S. 147, 60 S.Ct. 146, 84 L.Ed. —, November 22, 1939, Lovell v. City of Griffin, 303 U.S. 444, 58 S.Ct. 666, 82 L.Ed. 949; First Amendment, United States Constitution; Fourteenth Amendment, United States Constitution; Bill of Rights, Texas Constitution, Section Eight; Ex parte Tucker, 110 Tex. 335, 220 S.W. 75.

In briefs and arguments, however, they become inept in appealing to their own construction of the evidence rather than the findings so returned by- the learned trial judge.

They further — courteously and with respect — invoke a direct deliverance from this tribunal upon the postulates they so lay down.

But after careful consideration of the record, it is the opinion of this court, not only (1) that appellants’ quoted propositions constitute a non sequitur from the factual basis to which alone they are referable, but (2) that, when the challenged order is measured by the facts so found, it becomes plain that no abuse of discretion appears — on the contrary, that the quoted conclusions of law are each correct, and should be affirmed.

Indeed, under the declaration of this State’s public policy with reference to “Labor Organizations”, as expressed in R. S. Articles 5152-5154, inclusive, and the interpretation and construction thereof given by our courts, that the questions so sought to be raised by appellants have, upon states of fact not in legal effect different from those embodied in these findings, already been determined adversely to the appellants in these, among other holdings: Webb v. Cooks Union, Tex.Civ.App., 205 S.W. 465; Cooks’, Waiters’ and Waitresses’ Union v. Papageorge, Tex.Civ.App., 230 S.W. 1086, 1087; Sheehan v. Levy, Tex.Civ.App., 215 S.W. 229; Culinary Workers’ Union v. Fuller, Tex.Civ.App., 105 S.W.2d 295; International Association v. Federated Association (Beard & Stone case), Tex.Civ.App., 109 S.W.2d 301; Id.; Tex.Com.App., 130 S.W.2d 282; Henke & Pillot v. Amalgamated Meat Cutters, Tex.Civ.App., 109 S.W.2d 1083, error dismissed; Texas Motion Picture case, Texas Motion Picture & Vitaphone Operators, Union No. 56,880, v. Galveston Motion Picture Operators, Tex.Civ.App., 132 S.W.2d 299.

In other words, that these decisions in Texas, authoritatively construing this state’s law with reference to the same subject-matter this controversy has to do with, have evolved two principles that control the disposition of this appeal, to wit: (1) That picketing by a labor organization or union, or its members (which was unlawful at common law), has been legalized by our cited statutes, with the rather limited objective of allowing striking employees who have a bona fide dispute with their employer over wages, hours, or working conditions, to persuade other employees to leave him, or dissuade third persons from becoming his employees; (2) that our courts of equity will, in proper cases affecting labor organizations or unions, as well as any other litigants, grant protective injunctions where that relief is necessary to the continued preservation and enjoyment of an existing contract between parties having a legal right to make and live under it, as against third persons who sustain no relation either to such parties thereto or to the contract itself.

Not only so, but as a corollary, they have further declared that no right of free speech under the fundamental law of either nation or state is transcended by an injunction restraining the picketing of a place of business by persons (whether members of a labor organization or union, or not) who-seek either to prevent the public from trading , with the picketed place, or to compel its owner to break a contract which he-has with some such disassociated third person; see the Webb, Papageorge, and Texas Motion Picture Co. cases, supra, respectively.

It would serve no needful purpose to detail or reiterate those holdings, sincethey seem to declare the now settled law in Texas that must rule the undisputed facts here presented; under them, the appellants in this instance were without right either, first, to picket the appellees’ cafe, or, second, to exert the pressure they were employing upon him, with the objective of breaking his preexisting contract with a disassociated third- person—it also having, to do with a subject-matter far removed both from the place and business of the picketing.

While the conclusions stated determine the merits of the appeal, in deference to the earnestness of appellants and their able counsel, who are within their privileges in invoking this court’s consideration of what they conceive to be their rights under the constitutions of the United States and of Texas, the opinion may be added that those principles do not apply to facts like those at bar; that neither the holding of the Federal Supreme Court in the Snyder case, nor that of the Texas Supreme Court in the Tucker case, both supra, rule this situation, each being distinguishable upon its facts, in this:

(1) In the former, public ordinances of the City of Milwaukee were under review, which, in terms, absolutely prevented the distribution on the street of printed circulars, without reference to whether they were libelous, obscene, or fraught with injury or damage to another, or whether they contained statements sounding in fraud or trespass—the court in consequence holding them to be invalid, as against the constitutional right of an individual member of a labor union—then having a bona fide labor . dispute with, and being in a consequent strike against, his employer—to - peaceably distribute circulars along the sidewalk in front of its place of business about that controversy; while here the appellants were acting-^-not as individuals in assertion of personal rights in a controversy between themselves and the appellees, growing out of relations of employer and employee among them—but as complete strangers thereto, in two cooperating organizations, and with no interest of any sort involved or at stake, except the possibility of getting the work another already had.

(2) In the latter, Tucker, an individual officer of his union, which had been enjoined by the district court from using such abusive language towards the employees of the Telephone Company “which might be calculated to provoke! * * * a breach of the peace”, was discharged from a punishment for contempt for violation of such sweeping restraint against a man so situated from speaking his mind; the court holding that equity would not supervise what such a man might say, or write, by limiting' his utterances to what a court or judge might think proper; but in doing so, Chief Justice' Phillips' added this declaration as ■ the law, upon facts deemed to be upon a parity with those here at bar: “Equity will protect the exercise of natural and contractual rights from interference by attempts at'intimidation or coercion. Verbal or written threats may assume that character. When they do, they amount to conduct, or threatened conduct, and for that reason may properly be restrained. Cases of that sort, or of analogous nature, are not to-be confounded with this one.” [110 Tex. 335, 220 S.W. 76.]

Wherefor, as contradistinguished from appellants’ quoted conceptions, the two contrary rules, supra, deemed to have been established by our courts may be thus in purport restated:

“(1) The right of free speech is limited by the constitutional rights of others to acquire and possess property, an instance of which is the right to carry on a business in a lawful way. It has been said that it does not follow that because a single individual may under the constitutional guaranty freely speak and write as he pleases without in-junctive restraint, an association or combination of persons may lawfully do likewise, as, in such cases, the views expressed .are not merely those of the individual, but the express concerted will and desire of a powerful organization.” See Oakes on Organized Labor, 1927 Ed., p. 884, section 880.

(2) These appellants have no legal grievance merely because the appellees refused to abrogate a private • contract they had with W. A. Plaster to which the appellants were neither parties nor in privity; furthermore, they being such strangers thereto, but at the same time having full knowledge thereof, and of the business being conducted between themselves by the parties thereto, they, as such interlopers, not only would have laid themselves liable in damages to a party thereto for having knowingly induced a breach thereof, had that occurred as a result of their acts (Raymond v. Yarrington, 96 Tex. 443, 72 S.W. 580, 73 S.W. 800, 62 L.R.A. 962, 97 Am.St.Rep. 914, and Brown Hardware Co. v. Indiana Stove Works, 96 Tex. 453, 73 S.W. 800), but did in fact subject themselves to the power of a court of equity in this proceeding to protect the appellees against such an unwarranted interference with their peaceful contractual relationship with ■Mr. Plaster; especially so, since obviously no remedy at law would have been ade-. quate, and irreparable injury would probably have resulted, had the interference been permitted to continue. Henke & Pillot v. Amalgamated Meat Cutters, supra, 109 S.W.2d, at page 1085, par. 3, and cited' authorities.

Obviously, it is thought, the rules so relied upon and the citations appellants make as supporting them, have no practical application to the case here made.

Without further discussion, an affirmance will be ordered. .

Affirmed.


author: STOKES, Justice.

text:
    FARMERS MUT. ROYALTY SYNDICATE, Inc., et al. v. ISAACKS.
    No. 5113.
    Court of Civil Appeals of Texas. Amarillo.
    Feb. 12, 1940.

      Phillips, Trammell, Estes, Edwards & Orn, Edwin T. Phillips, Jr., and Joe E. Estes, all of Fort Worth, and Dudley, Hyde, Duvall & Dudley, of Oklahoma City, Okl., for plaintiffs in error.
    Mahan & Broughton, of Childress, for defendant in error.
   STOKES, Justice.

This is a suit in trespass to try title filed by defendant in error, W. F. Isaacks, against plaintiffs in error, Farmers Mutual Royalty Syndicate, Inc. and Farmers Royalty Holding Company, private corporations, and G. T. Blankenship, to recover 204%ths acres of land out.of Sec. No. 62, Blk. H. of the B. S. & F. Survey in Hall County. Plaintiffs in error answered by plea of not guilty, Blankenship alleging that he had conveyed all of his interest to his co-defendants and the two corporations setting up title in themselves to certain undivided interests in the oil and mineral rights in the land sued for.

The case was submitted to the. court without the intervention of a jury and judgment was rendered in favor of defendant in error, from which this writ of error is prosecuted by the named corporations, Blankenship not having appealed.

. Under appropriate assignments of error plaintiffs in error contend the judgment is erroneous and should be reversed because, first, they, established a superior title to the interests claimed by them; secondly, defendant in error ha.d notice of the unrecorded deeds under which they hold or of facts and circumstances which, if pursued, would have informed him thereof and, thirdly, they assign reversible error in the refusal of the court to permit them to introduce certain documentary evidence and interrogate defendant in error and his attorney concerning their knowledge of the unrecorded deeds which constitute plaintiffs in error’s chain of title.

The record shows that J. L. Cromartie is the common source of title and was so recognized by all parties to the suit. On July 13, 1931, Cromartie executed and delivered to G. T. Blankenship a mineral deed conveying %2nds of the oil, gas and other minerals in and under two tracts of land described as “Sec. 60, Blk. H, A, B. M. Sur. 204-%ths acres, Sec. 62, Blk. H, B. S. F. Sur., 320 acres containing-acres more or less.” On the same- day he conveyed to plaintiff in erfor, Farmers Royalty Holding Company, ^snds interest in the oil, gas and other minerals in and under the same land, the description being identical with that contained in his deed to Blankenship. On the 28th of March, 1934, Blankenship conveyed to Farmers Royalty Holding Company %2nds of the %2nds interest which had been conveyed to him by Cromartie, and on the 25th of January, 1937, he conveyed the balance of the oil, gas and mineral rights owned by him to plaintiff in error, Farmers Mutual Royalty Syndicate, which amounted to %2nds interest therein. Thus it will be seen that Farmers Royalty Holding Company procured 1%2nds and Farmers Mutual Royalty Syndicate became the owner of %2nds of the oil and mineral rights in the land sued for unless their title is defeated by the facts relied upon by defendant in error. Plaintiffs in error did not file their deeds for record in Hall County until long after defendant in error purchased the land from Cromartie.

On April 1, 1932, J. L. Cromartie executed and delivered to defendant in error, W. F. Isaacks, a general warranty deed to the land in controversy in which it was described as “204-%th acres out of Survey No. 62, in Block H, B. S. & F., Certificate No. 1/580, described by metes and bounds as follows: Beginning at the southwest corner of said survey; thence N. 10° E. 1231 vrs. to stake in W. line of said survey; thence E. 928 vrs; thence S. 1231 vrs. to stake in the S. line of said survey; thence W. 949 vrs. to the place of beginning. * * * ” This deed was filed in the office of the county clerk of Hall County on the 11th of April, 1932. None of the deeds constituting the chains of title of plaintiffs in error was of record at that time.

On the 30th of December, 1931, G. T. Blankenship made an affidavit, duly sworn to but not acknowledged, in which he stated under oath that he and the Farmers Royalty Holding Company owned an undivided one-half interest in the royalty and minerals in a large number of tracts of land in Hall County, one of which was the two tracts described in his deed, the description given in the affidavit being identical -with that contained in his deed from Cromartie. The affidavit stated that the ownership was evidenced by warranty deeds which were then in the possession of Blankenship and the Farmers Royalty Holding Company; that each party had a separate deed to ins interest, and that in due season the do .would be recorded in the county where : > land was located. This affidavit w«; file: in the office of the¿ county clerk oí Hall County on the 2nd of January, 1932, and recorded by the county clerk in the deed records. Defend-, ant in error purchased from Cromartie on April 1, 1932, and this affidavit was, therefore, recorded in the deed records 'more than two months before he purchased the land. ' (

The record shows that, wiien defendant in error was negotiating Cromartie for'the purchase of the land A- procured from the Grundy Abstract & f tie Company at Memphis a supplemental abstract of the title which was examifed by his attorney before the transaction vas closed. A copy of the affidavit - of Bhnkenship was inserted in the supplemental abstract and constituted the first page theriof. Upon the trial of the case plaintiffs in error offered, in evidence the supplemental abstract of title containing the cop/ of the affidavit, which was objected to by defendant in error and the objection was sustained. Plaintiffs in error then offered in evidence the original affidavit which was objected to by defendant in e.ror and the objection was sustained by the court. Plaintiffs in error then attempted to prove' by defendant in error, Isaacks, a:¡ * iRo by his attorney who examined the • • .ract that, before purchasing the laud, both defendant in error and his attorney had seen the copy of the affidavit as shown upon the first page of the supplemental abstract but the testimony was ruled out upon objection of defendant in erro*-. The ground upon which the objections were sustained kand the evidence ruled out by the court, ^as, as contended for in defendant in error’s brief, (1) that the affidavit was an linstrument which was not authorized by [the law to be recorded in the deed records and, therefore, it was a nullity and could l^not constitute notice of the facts therein tated, and (2) the affidavit was not acknowledged by Blankenship as required by law as a prerequisite to permit title documents to be recorded.

The principal point in the case as presented by the briefs is that the court erred in refusing to permit plaintiffs in. error to introduce the copy of the Blankenship affidavit as shown by the supplemental abstract and in refusing to permit them to prove by defendant in error and his attorney that, before closing the deal for the purchase of the land, both of them saw the affidavit in the supplemental abstract. They contend that the evidence was material and that it would have established their contention to the effect that, although their deeds were not of record at the time defendant in error purchased the land from Cromartie, both defendant in error and his attorney had notice that their deeds were in existence, or at least would have shown that they were in possession of sufficient facts and information to require them to pursue an inquiry which would have put them in possession of all the facts concerning the existence of the deeds constituting their chains of title.

The affidavit was not such an instrument as is authorized by Art. 6626, R. C.S. 1925, Vernon’s Ann.Civ.St. art. 6626, to be placed of record in the clerk’s office and, therefore, its record did not constitute constructive notice to defendant in error of the facts revealed by it. Copelin v. Shuler, Tex. Sup., 6 S.W. 668; Burnham v. Chandler, 15 Tex. 441. The law recognizes two kinds of notice and the rules concerning each of them are well established by the decisions of the courts. One of these is constructive notice which is imposed by the law upon a purchaser of real estate, whether he has actual knowledge of it or not, of a deed conveying land, the purchase of which is contemplated by him, when the deed is of the nature described in the arti-jf cle mentioned and is duly filed for record./ The other is what the law terms “actual notice” which consists in actual or express knowledge or information of a fact or cir- j cumstance. The law is well established} that whatever fairly and reasonably would put a person of reasonable care and prudence upon inquiry concerning facts or circumstances in connection with the title to property which he contemplates purchasing binds him to a proper and reasonable inquiry concerning the truth and charges him with notice of all facts and circumstances which such reasonable inquiry would reveal. 2nd Pomeroy’s Equity, 4th Ed., par. 589; Uvalde Co. v. Tribble et al., Tex.Civ.App., 292 S.W. 932; Palacios v. Hernandez, Tex.Civ.App., 277 S.W. 714.

While, as we have said, the affidavit was not such an instrument as could legally be filed and placed of record in the clerk’s office, and, under the law, it did not have the effect of visiting upon defendant in error constructive notice of the existence of the deeds under which plaintiffs in error held the oil and mineral interests, the record shows that the abstracters had placed a copy of it in the supplemental abstract and that the attorney for defendant in error examined the abstract. Defendant in error admitted on the witness stand that he saw the abstract. If defendant in error or his attorney read the affidavit or the copy thereof inserted in the supplemental abstract he knew that G. T. Blankenship and the Farmers Royalty Holding Company were claiming to own an undivided one-half interest in the royalty and minerals in the land. He knew' furthermore that at least Blankenship was claiming that such ownership was evidenced by warranty deeds which were then in the possession of Blankenship and the' Farmers Royalty Holding Company. He knew also that the deeds conveyed separate interests to each of the alleged grantees and that in due season it was contemplated that the deeds would be recorded in Hall County. If his attorney knew these things, it would make'' no difference whether defendant in error personally knew them Or not. He was bound by what his attorney knew concerning them just as effectively as he would have been if he, himself had known them. Granting that these statements of Blankenship, although sworn to, did not have the effect of giving to defendant in error the absolute knowledge of the matters therein contained, yet, if he or his attorney read it, it cannot be questioned that defendant in error was, by the contents of the affidavit, placed in possession of the fact that such deeds may be in existence and imposed up-t on him the duty of making a reasonable in-1 vestigation. Where one has the duty of' making, such investigation the careless disregard or ignorance of the facts which such an investigation would have revealed has an effect under the law equal in all respects to actual knowledge. It has been said that actual knowledge embraces those things of which the one sought to be charged has express information, including that which a reasonably diligent inquiry would have disclosed. Hexter v. Pratt, Tex.Com.App., 10 S.W.2d 692.

It was said by the court in Palacios v. Hernandez, supra, that the slightest notice to a proposed purchaser of an adverse asserted claim or claim by an adverse holding or possession puts the party upon inquiry, and in Uvalde Co. v. Tribble, supra, the court approved a charge given by the trial court to the jury which instructed them that any information which was sufficient to put a prudent man’ upon inquiry will be regarded as notice, if it was of such a character that he might have ascertained the facts by the use of proper diligence. In that case it was held that where the prospective purchaser of property in a city, prior to his purchase, had crossed a street in front of the premises where work of paving the street was in progress, it was sufficient notice to require of him an investigation as to whether or not a paving lien existed against the property.

In our opinion, the trial court committed reversible error in denying plaintiffs in error the right to show by the introduction of the copy of the affidavit contained in the supplemental abstract and by the testimony of defendant in error and his attorney that either or both of them had seen the affidavit and through it, or by any other competent evidence, that, at the time and before he purchased the property, defendant in error had notice of, or was in possession .of facts sufficient to put him upon inquiry which would have revealed the existence of, the mineral deeds held by plaintiffs in error.

Defendant in error contends that the description contained in the deeds held by plaintiffs in error was wholly insufficient as a legal description of any land whatever and that an inspection of them would not have revealed information of a nature sufficient to overcome the prima facie case made by him when he introduced his deed from the common source of title. If section 62 contained more than 320 acres, we believe it may be conceded that the descriptions contained in the deeds were wholly inadequate and insufficient to constitute a conveyance of specific land. The record does not show the amount of land contained in Sec. 62. The land purported to be conveyed is described as Sec. 62, Blk. H, B. S. & F. 320 acres. If the section or survey contained only 320 acres the description is probably sufficient to convey the entire section. If the section contained more than 320 acres, obviously the tract conveyed is not located and the deeds fail as conveyances of specific tracts. Plaintiffs in error had the equitable right, however, to have the deeds reformed. .First State Bank v. Jones, 110 Tex. 623, 183 S.W. 874. If the transactions represented by them were legal in other respects, equity would reform the deeds so as to correct the erroneous or inadequate descriptions if they were the result of mutual mistake or arose in some other manner cognizable in equity. In all events the ‘ deeds would have revealed to defendant in error the transaction theretofore had between plaintiffs in error and Cromartie and Blankenship and were certainly sufficient to charge defendant in error with notice of the .equitable right of plaintiffs in error to have the deeds reformed if necessary. There is no escape, therefore, from the conclusion that, whether plaintiffs in errors’ rights were legal or equitable, defendant in error was charged with notice of them if he or his attorney read or saw the affidavit of Blankenship or the copy of it that was inserted in the supplemental abstract.

The record reveals a controversy between the parties as to the burden of proof in respect to the matter of notice, each party contending that the other had the burden of establishing knowledge and notice vel non on the part of defendant in error when he purchased the land. The rule is that if the survey contained only 320 acres and the descriptions in the deeds were, therefore, valid, both parties would be claiming a legal title. In that event the burden rested upon defendant in error to show that he did not have notice and was in all respects an innocent purchaser for value. Not only would he have to establish the absence of knowledge concerning the deeds held by plaintiffs in error, but also that he paid a valuable consideration. The recitation in his deed which he held from Cromartie would not be sufficient but he would have to go further and establish it by extrinsic evidence. On the other hand, if the section No. 62 actually’ contained more than 320 acres, the least that can be said of the rights and interests of plaintiffs in error is that they were equitable, and in that event the burden of proof rested upon them to produce evidence’ of notice on the part of defendant in error when he purchased the land from Cromar-tie. Teagarden v. R. B. Godley Lbr. Co., 105 Tex. 616, 154 S.W. 973; Ryle v. Davidson, 102 Tex. 227, 115 S.W. 28; Silverman v. Harmon, Tex.Civ.App., 250 S.W. 206; Turner v. Cochran, 94 Tex. 480, 61 S.W. 923; McAlpine v. Burnett, 23 Tex. 649; Watkins v. Edwards, 23 Tex. 443.

For the errors discussed, the judgment of the court below will be reversed and Jhe cause remanded.