author: GALLAGHER, Chief Justice.

text:
    CITIZENS STATE BANK OF ALVARADO v. SCHMAUDER et al.
    No. 2208.
    Court of Civil Appeals of Texas. Waco.
    April 25, 1940.
    T. Wesley Hook, of Alvarado, for appellant.
    Irwin T. Ward, of Cleburne, for appel-lees.
   GALLAGHER, Chief Justice.

This suit originated in the justice court. The pleadings were principally oral. The record does not disclose the nature of the same with sufficient certainty to afford a basis for an accurate or comprehensive summary thereof. The issues involved must therefore necessarily be deduced in part from the facts in evidence on • the trial in the county court, to which the case was carried on appeal.

Petty, as tenant, rented from Mrs. Snyder, or Schmauder, a tract of farming land in Johnson county for the year 1938. He, agreed to pay her as rent therefor one-fourth of the crop raised on the land to be planted by him in cotton. No issue concerning that part of the rental contract is involved in this suit. He agreed to pay her cash rental at the rate of five dollars per acre on fifty acres of land which he agreed to plant in corn. He raised on said fifty acres approximately 1,100 bushels of corn. He used some'of the same for feed for his teams and sold some. Out of the first lot sold he paid Mrs. Schmauder $100 on the rent he owed her. On or about the 28th of August of that year he sold the remainder of his corn to the firm of Roten & Henderson and the same was then removed from the rented premises and delivered to said firm. They owed therefor the sum of $169.63. The value of the entire crop of corn raised on said 50 acres, including that sold to said firm, amounted to approximately $440. One-third of the value of the. same was therefore approximately $147, or $103 less than the amount of rental Petty had agreed to pay. Mrs. Schmauder’s representative asked Petty to pay her the balance due her on said rent out of the proceeds of such sale and he promised to do so and testified that he wanted to do so.

Appellant bank employed counsel, and on November 8, 1938, about ten days after said corn was removed from the premises and sold to said Roten & Henderson, caused a suit to be filed in the name of said Petty against said firm of Roten & Henderson and Mrs. Schmauder, in which, in a written pleading, he alleged the sale of said corn to said firm and their refusal to pay for same on the ground that Mrs. Schmauder claimed a landlord’s lien thereon and that said bank claimed a mortgage lien thereon. It was further alleged therein that Mrs. Schmauder had been paid in full. It was prayed that final judgment be entered in favor of said Petty for his debt against said firm, declaring that Mrs.. Schmauder had been paid and applying the proceeds of such recovery upon his debt to said bank.

A trial was had in the justice court on November 15, 1938. The judgment recited that the plaintiff appeared by his attorney; that the firm of Roten & Henderson made default; that the bank appeared by its president,, and that Mrs. Schmauder appeared by her brother, J. P. Kimmel, who pleaded orally for her. The court found that Roten & Henderson had purchased corn from Petty for which they had not paid; that said bank had a chattel mortgage lien on said corn, and that Mrs. Schmauder had no lien thereon. The court thereupon ordered that Petty have judgment that his creditor, said banl?, recover of said firm the proceeds of the sale of said corn. Mrs. Schmauder, on N'ovember 21, 1938, appealed from said judgment to the county court.

Roten & Henderson, on December 10, 1938, filed a written pleading in said cause in the county court, in which they alleged that they had bought corn from Petty and owed therefor the sum of $169.63, and deposited said amount in the registry of the court to abide its judgment. They further ■ alleged in that connection that they did not know to whom said money should be paid.

The case came on for trial in the county court on January 27, 1939. No further pleadings by any of the parties were shown. .The court heard the evidence, and on February 2, 1939, held that Mrs. Schmauder had a superior claim on the fund deposited 'in court and rendered judgment in her favor against said Petty and Roten & Henderson for the sum of $150 and costs. The ‘court' ordered that the sum deposited in court be first applied to the satisfaction of said judgment. The court also rendered judgment against Petty in favor of the hank for the sum of $197 and costs. The bank, so far as shown, filed no pleadings of any kind in either the justice or county court. Its president testified as a witness in the case in the county court and repudiated the recital in the judgment that he represented the bank in the suit in either court and stated that it was his understanding that he was only a witness, and that he had employed counsel to represent the bank.

The Citizens State Bank prosecuted an appeal to this court.

The first contention presented by appellant in this suit is that Mrs. Schmauder, at the time the corn matured and at the time it was sold and removed from the rented premises, had no valid landlord’s lien thereon to secure the payment of the $150 balance due her on the rental which Petty owed on said land planted in corn during the year 1939. The landlord is given by law a preference lien on the crop raised by the tenant on the rented premises during the current contract year for any rent that may become due, whether such rent is to be paid in money or agricultural products. It is expressly provided in that connection, in substance, that such provision shall not apply in any way or in •any case where the tenant rents land at will or for a term of years for agricultural purposes where the same is cultivated by the tenant and he furnishes everything except the land and the landlord, directly or indirectly, charges a rental of 'more than one-third of the value of the grain raised on said land, and that in such cases no statutory lien shall attach in favor of the landlord upon any of the crops raised on such rented premises. Vernon’s Ann.Civ.Stats. Art. 5222 (as amended Acts 1931, 42nd Leg., p. 171, ch. 100, sec. 1.) Prior to the adoption of the aforesaid amendment, said Article 5222, in addition to the provisions above recited, further provided, in substance, that any rental contract containing provisions for the payment of more than one-third of the value of the grain raiseij on the rented premises should be null and void, and that any tenant who had paid rental in excess of such amount might recover from the landlord receiving the same double the full amount so paid by him. The Supreme Court, in 1929, in the case of Culberson v. Ashford, 118 Tex. 491, 18 S.W.2d 585, held that said last recited provisions were unconstitutional and void. Said article in 'its amended form as aforesaid was adopted at the next session of the legislature. We think it clear that the purpose of the legislature in adopting such last amendment was to remove objections thereto on such grounds. Said amended article had been in force for approximately seven years at the time the contract here under consideration was entered into. No reported case has been cited or found after diligent search in which the validity of .the same has been questioned. The landlord’s preference lien, when given, is, by the terms of said amended article, given by law. It was held in a case originating under said article prior to its last amendment that the fact that such lien was given in some cases and withheld in others did not affect the validity of such provision. Hawthorn v. Coates Bros., Tex.Civ.App., 202 S.W. 804, par. 2. There was in this case no attempt to create such lien by express contract. Neither'was there any attempt to deny the landlord a right to enforce collection of the stipulated rental of five dollars per acre on the land planted in corn by an ordinary action for debt. Under the situation shown, we see no ground for holding that Mrs. Schmauder had a landlord’s lien on the corn to secure the promised rental. The judgment of the trial court holding that she had such lien must therefore be reversed, and it is so ordered.

There is great uncertainty in the record with reference to the existence and sufficiency of oral pleadings necessary as a basis for the rendition of a proper judgment. Clonts v. Johnson, 116 Tex. 489, 294 S.W. 844; Brinegar v. Henderson Hdw. Co., Tex.Civ.App., 95 S.W.2d 740. The cause is therefore remanded to the county court for another trial.


source: Caselaw Access Project

author: MURRAY, Justice.

license: Public Domain

text:
    REFUGIO REFINERY v. SPEED.
    No. 10714.
    Court of Civil Appeals of Texas. San Antonio.
    April 10, 1940.
    Rehearing Denied May 8, 1940.
    John C. North, of Corpus Christi, for appellant.
    M. J. Baird, of Edinburg, for appellee.
   MURRAY, Justice.

This suit was instituted by Guy B. Speed against the Refugio Refinery, a corporation, seeking to recover damages resulting to him personally and to his automobile, when his automobile collided with a truck owned by the defendant and operated by one of its employees.

The collision occurred on February 16, 1938, about 5:30 A. M., on U. S. Highway No. 281, in Jim Wells County, Texas, between the towns of Falfurrias and Alice, in fact, near the little town of Premont. Plaintiff and his wife were traveling north on the highway and the truck owned by the defendant was traveling south at the time of the collision.

The trial was to a jury who made the following findings, in response to the special issues submitted to them, to-wit:

1. Defendant’s truck was not being operated, immediately prior to the collision, in whole or in part, upon the east half of the highway.

2. The lights on the defendant’s Chevrolet truck, immediately before the collision in controversy and as the same approached the scene of the collision, were not dimmed, that this constituted negligence which was a proximate cause of the collision.

3. The collision was not the result of an. unavoidable accident.

4. Plaintiff was not driving his automobile at an excessive speed.

5. The fact that the left front wheel of plaintiff’s automobile was .on the west side of the center of the highway at the time of the collision did ,not constitute negligence.

-■ 6. The plaintiff did not discover the danger of the collision and realize the peril of such in time, by the exercise of ordinary care and by the use of all the means at his command consistent with safety, to have avoided the collision, and, likewise, that the driver of defendant’s truck did not make such discovery.

7. Plaintiff suffered personal injuries, proximately caused by the collision, in the sum of $2,800.

8. The value of plaintiff’s automobile immediately before the collision was $300, and immediately after the collision, $75.

Judgment was entered in Speed’s favor in the sum of $3,025, and the Refugio Refinery has prosecuted this appeal.

It is apparent that the only negligence of which the driver of the truck stands convicted is that of failure to dim his lights, and this in the face of the finding that the truck-driver did not discover the peril of the plaintiff in time to have done so. There is no allegation or finding that the lights on the truck were unduly bright, or that they were lights other than those which the law requires a truck to have burning while traveling on the highway. There is no law which requires a truck, or other automobile, to be equipped with a dimmer, nor is there any law which requires a driver to dim his lights. There is no suggestion here that the driver of the truck knew, or by the exercise of diligence should have known, that Speed was blinded by the lights from the truck. The jury found, in effect, that the driver of the truck stayed on his own proper side of the highway, but that appellee crossed the center of the highway and struck appellant’s truck while on his left-hand side of the highway. Under such circumstances the evidence is' insufficient to show that the driver of the truck was guilty of negligence in not dimming his lights.

Furthermore, appellee was guilty of contributory negligence proximately causing the collision as a matter of law. Appellee testified that he could at all times see the right-hand edge of the pavement, and this being true he should have stayed on' his own right side of the highway, in which event no collision would' have occurred.

On the other hand, if the lights were so blinding that he could not see even on which side of the highway the truck was traveling, then it was his duty to stop. Appellee testified that the highway was straight, that he saw the truck some distance before he met it, that he was blinded by the lights from the truck. He first thought that the truck had stopped on the wrong side of the' road. He also saw a post near the .truck, which marked the approach to a bridge, and he did not think that he could pass between the post and the truck. He pulled first to the left and then back to the right. During this time he was driving about twenty-five miles per hour.

In Carlson v. Johnke, 57 S.D. 544, 234 N.W. 25, 72 A.L.R. 1352, a reversal was granted because the trial court refused to give the following instruction to the jury, to-wit:

“It is not enough that a driver be able to begin to stop within the range of his vision, or that he use diligence to stop after discerning an object. The rule makes no allowance for delay in action. He must, on peril of legal negligence, so drive that he can and will discover an object, perform the manual acts necessary to stop, and bring the car to a complete halt within such range. If blinded by the lights of another car so he cannot see the required distance ahead, he must, within such distance from the point of blinding, bring the car to such control that he can stop immediately, and if he cannot then see, shall stop.
“A prudent person would reasonably have anticipated that the lights might interfere with his view ahead. When cars meet at night, each driver must anticipate the possibility of interference with his vision by the headlights of the approaching car, and, if he cannot see the road beyond such car, must have his own automobile under such control which will enable him to stop immediately, or within such distance as he can at all times see ahead.”

In Blashfield’s Cyclopedia of Automobile Law and Practice, Vol. 3, Permanent Edition, p. 427, the following note is found: “If the motorist seeks to avoid the charge of negligence on the ground that he is unable to know whether the street car has stopped to accommodate passengers, because of the glare of the light on the street car, or for other reasons, the reply is that he must not recklessly proceed upon his way under circumstances of doubt; he must know or, failing to know, should bring his car to a stop as in cases where his vision is blinded by a glare. House v. Ryder, 129 Me. 135, 150 A. 487.”

In the case of Fulker v. Pickus, 59 S.D. 507, 241 N.W. 321, 323, it is said: “A careful review of all the evidence and according the respondent’s own version and viewing his testimony in the most favorable light in which he states that he was blinded by a headlight and thereafter permitting his car to proceed at a speed to what he thought was a safe rate of speed when a moment before he was driving from twenty-five to thirty miles an hour while the light blinded him and continuing to drive after suffering the blinding effects for some 150 to 200 feet until he struck the tractor, made him guilty of contributory negligence as a matter of law. The respondent should have done all he could to avoid the injury to himself and property by slowing down or bringing his car to a stop. It may be inferred that he was conscious of the danger, but even so he did not stop, but moved ahead, and, not only straight ahead, but to the left and across the center of the highway over in front of and in the path over which the appellants were traveling. . The collision tool? place with the on-coming tractor on the west third of the highway. Had the respondent stopped or had he driven straight ahead on his own side of the highway, no collision would have -taken place. We must therefore say that as a matter of law his conduct was such, that is, his caré and prudence does not conform to the required legal standard to be observed by an operator of a motorcar.”

The case seems to be fully developed, therefore, the judgment will be reversed and judgment here rendered that the plaintiff take nothing and pay all costs.

Reversed and rendered.


author: WALKER, Chief Justice.

text:
    SUMTER et al. v. HUMBLE OIL & REFINING CO.
    No. 3648.
    Court of Civil Appeals of Texas. Beaumont.
    April 18, 1940.
    Rehearing Denied May 1, 1940.

      J. R. Beck and J. R. McDougald, both of Beaumont, for appellants.
    R. E. Seagler and K. 'W. Gilmore, both ox Houston, for appellee.
   WALKER, Chief Justice.

This appeal was prosecuted by appellants, M. D. Sumter et al., plaintiffs below, from the judgment of the 58th district court of Jefferson county, sustaining the plea in abatement filed by appellee, Humble Oil & Refining Company, defendant below, against their petition. The parties were the same, and. in the same capacity, as in cause No. 51236 on the docket of the 58th district court of Jefferson county, wherein judgment was rendered sustaining appellee’s general demurrer against appellants’ petition. The judgment in the case at bar sustaining the plea in abatement recites: “After hearing said amended plea in abatement and the evidence introduced thereon, all of which was a matter of record and proceedings previously had in this Court, and counsel having stated in open court that the matters raised by the plea in abatement was uncontradict-ed and all a matter of record, and the Court being of the opinion.that all matters raised by the plea were proceedings previously had in Cause No. 51236 in this court, and the Court having taken judicial knowledge of all such proceedings in addition to same being introduced in evidence, finds that as a matter of law the matters and things raised in this case have been previously adjudicated in said Cause No. 51236 and that said plea should and is in all things sustained and said cause abated and dismissed.”

Since the judgment was rendered on the “record and proceedings held,” being the record in cause No. 51236, for statement and nature of the cause of action we quote as follows from appellee’s brief:

“Appellants were plaintiffs in the trial court in both causes of action, and appel-lee was defendant in the trial court in both causes of action, and, for convenience and brevity and clearness, at times they may be referred to as such in this brief.
“Plaintiffs first filed suit against this defendant in the Fifty-Eighth Judicial District Court of Jefferson County in Cause No. 51236, and the pleadings and actions taken in said cause will be briefly enumerated and set out here as follows:
“(1) Plaintiffs’ original petition filed September 28, 1937, represented by attorneys chosen and selected by them, alleged that the Linscoms were the owners of Lot 36, Block ‘B’ and the Sumters were the owners of Lots 17, 18 and 19, Block ‘E’; that the defendant Humble Company, on cr about May 23, 1937, owned, as as-signee, oil, gas and mineral lease on Lots 35 to 38, inclusive, of Block ‘B’ and Lots 14, 15, 17, 18 and 19, Block ‘E’; that plaintiffs Linscom are the original lessors in the original lease on Lot 36, and plaintiffs Sumter are the original lessors in two leases on Lots 17 and 18, and further alleged the ownership of the balance of the lots and the leases comprising approximately 10 acres and also comprising the property covered by the pooling agreement hereinafter mentioned.
“Plaintiffs further alleged the rule promulgated by the Railroad Commission authorizing the drilling of an oil well on not less than 5 acres and alleged the execution of the pooling agreement between plaintiffs and other lot owners and the defendant, and sued for an additional consideration which they alleged was promised by the defendant, and also further alleged that without the lot owned by one W. C. Couch, the defendant had elected to declare the pooling agreement complete, and, in the alternative, plaintiffs asked that they be paid under the pooling agreement an additional royalty which would result by leaving out the lot owned by W. C. Couch, specifically relying upon and declaring upon the pooling agreement.
“In this petition plaintiffs further declared upon and relied upon the lease which they alleged was owned -by the defendant, in asking damages for the violation of the terms of the lease by the defendant drilling a well nearer than 200 feet of the residence. . >• r
“(2) Defendant filed its original answer on November 1, 1937, consisting of general demurrer, special exceptions and special answer, and attached the pooling agreement as an exhibit to such answer.
“(3) On January 27, 1938, plaintiffs filed their first amended original petition, again alleging the ownership of the lots as in their original petition, and containing Paragraph (3) as follows:
“ ‘That the defendant, Humble Company, at and during all the time hereinafter mentioned, owned and held either as original lessee or assignee, oil and gas leases on Lots Nos. 35, 36, 37 and 38, of Block “B” and Lots 14, 15, 17, 18 and 19 of Block “E” and. the Gulf Oil Corporation owned oil and gas leases on Lots 33 and 34 of Block “B,” and Lot 16 of Block “E.” ’
“Plaintiff further alleged the execution of the pooling agreement by all lot owners except W. C. Couch, and further alleged that the defendant promised to pay plaintiffs- as much for the execution of such agreement as it paid any other lot owner, and alleged that they were informed and believed that the defendant had paid the said W. C. Couch $4000 and that, therefore, the defendant owed them, the plaintiffs, $4-000 each. Plaintiffs again declared upon the terms and provisions of the lease and sued the defendant for damages for violation of such terms in drilling a well nearer than 200 feet of the dwelling houses of the plaintiffs Sumter.
“(4) Defendant filed its first amended original answer containing general demurrer, special exception, and in Paragraph XII thereof specifically pleaded a written release executed by the plaintiff Sumter authorizing the drilling of a well nearer than 200 feet and releasing the defendant from any damages as a result thereof.
“(5) Plaintiffs then filed their second amended original petition on March. 21, 1938 again alleging the ownership of the lots in question and alleging that the Humble Company, during all the time herein mentioned, owned and held, either as original lessee or assignee, oil and gas leases on the lots in question, and in the last part of Paragraph (4) of said petition specifically declared upon and referred to the pooling agreement in the following language: ‘That a copy of said pooling agreement is attached to this petition and marked Exhibit “A,” and made a part hereof, and is specifically referred to for an understanding of ,its terms and provisions.’, and again sued for the additional consideration which they alleged was promised as consideration of the pooling agreement.
• “And in Paragraph (9) of such petition, plaintiffs again declared upon the terms and provisions of the lease which they said was in force and sued for damages for the violation of the term providing that no well be drilled nearer than 200 feet of a house or barn. Such pooling ágreement, attached to said petition as Exhibit ‘A’ above referred to, is shown in Statement of Facts, pages 50-62.
“(6) Defendant filed its second amended original answer March 21, 1938, containing demurrer, various special exceptions and special answer, again pleading the written release for damages in drilling the well nearer than 200 feet of the buildings on said property and again attached ■the pooling agreement as ah exhibit.
“(7) Plaintiffs then filed their first supplemental petition September 6, 1938, containing general demurrer and special exceptions, in reply to defendant’s second 'amended original answer, and prayed for the recovery of $4000 each which they alleged they were informed the defendant had paid W. C. Couch.
, “(8) Defendant filed its third amended original’ ’ answer September 15, 1938, admitting the execution of the pooling agreement, as alleged in plaintiffs' petition, and alleged its performance of same, and further- pleaded the pooling agreements contained in the leases executed by plaintiffs which covered all the lots except one belonging to - plaintiffs Sumter and one belonging to plaintiffs Linscom, and again pleaded the release by plaintiffs Sumter of any damages caused by the drilling of a well nearer than 200 feet to their buildings.
“(9) Plaintiffs then, on the same day, September 15, -1938, filed their motion to strike defendant’s third amended original answer, for the reason that on March 25, 1938, Judge George C. O’Brien, then judge •of said court, had overruled such special exceptions and demurrers.
“(10) On the 15th day of September, 1938, Honorable W. S. Nichols, Special Judge presiding in the absence of Judge George C. O’Brien, entered an order to the effect that it was the opinion of such Special Judge that the Honorable George C. O’Brien would have the authority to change his rulings on said exceptions and that it was within the discretion of the "court whether such exceptions should be considered or not, and overruled the motion to strike and sustained the defendant’s general demurrer, whereupon plaintiffs refused to amend and elected to abide by their pleadings and gave notice of appeal to the Court of Civil Appeals for the Ninth Supreme Judicial District of Texas, at Beaumont, Texas.
“Although plaintiffs refused to amend and gave notice of appeal to the Court of Civil Appeals on the action of the court in sustaining the demurrer, no appeal was perfected within the time prescribed by law.
“(11) Thereafter, on November 12, 1938, through a second set of attorneys, plaintiffs filed their third amended original petition in said cause, and for the third time again alleged ■
“ ‘That the defendant Humble Company, at and during all the times herein mentioned, owned and held, either as original lessee, or assignee, oil and gas leases on Lots 35, 36, 37 and 38 of Block “B”, above referred to, and Lots 14, 15, 17, 18 and 19 of Block “E” above referred to, and the Gulf Oil Corporation owned oil and gas leases on Lots 33 and 34 of Block “B” and Lot 16 of Block “E”. ’
“In this petition, plaintiffs again made the pooling agreement a part of their petition at the bottom of Paragraph (4), in the following language:
“ ‘That a copy of said pooling agreement is attached to this petition and marked Exhibit “A” and made a part hereof, and is specifically referred to for an understanding of its terms and provisions, except only for the omission from said writing of that part of the consideration hereinafter shown.’
“In this petition plaintiffs further alleged that the promises made by the defendants’ agents were false and fraudulent and made for the purpose of inducing them, to execute the contract, and that they did not intend to live up to the promises or carry out their agreements with reference to the payment of the additional consideration, and prayed for a reformation of the contract so as to include the consideration of $4000 which they alleged that the defendant had promised to pay.
“(12) Defendant filed its plea to the jurisdiction on December 19, 1938, alleging that this case had been finally terminated when defendant failed to appeal or failed to amend, after the order of the court sustaining the general demurrer, and dismissing the case.
“(13) On March 20, 1939, the same Fifty-Eighth Judicial District Court entered its order sustaining the plea to the jurisdiction.
“For the sake of brevity, the allegations contained in the various petitions filed by plaintiffs in said Cause No. 51236 have not been set out in detail but appellee invites the Court to read all of said pleadings and observe the similarity of same with plaintiffs’ petition to this cause.
“(14) On July 11, 1939, plaintiffs, through a third set of attorneys, filed their original petition in Cause No. 54930 in the same Fifty-Eighth Judicial District Court of Jefferson County, Texas, alleging the ownership of the same property involved in Cause No. 51236, and after the judgment in Cause No. 51236, in which plaintiffs had alleged that the defendant was the owner of a lease on this property and had declared upon the pooling agreement, and defendant, by its general demurrer, had admitted all the material allegations in plaintiffs’ petition to be true, and the judgment on the demurrer was in fact a finding that such allegations were true, then plaintiffs alleged in Cause No. 54930 for the first time that a prior lease on Lots 18 and 19, Block ‘E’ was a forgery, and for the first time alleged that the subsequent lease had been secured by fraud, and alleged that the pooling agreement which they had declared upon was secured by fraud, and the reason given for making the allegations was that the plaintiffs had no adequate remedy at law for securing what they contended was additional consideration.
“(15) Defendant filed a plea in abatement and an amended plea in abatement, and plaintiffs’ attorneys agreed that in view of the fact that all the pleadings were had in the same court and all were a matter of record, that if a plea in bar and a plea of estoppel, after the introduction of the record evidence, would be good as matter of law, then the same could be reached by a plea in abatement and have briefed the case upon this theory. The plea in abatement was sustained by the trial court by judgment entered on the 22nd-day of September, 1939, after a jury had been waived to try the facts involved.”

Opinion.

By its general demurrer to appellants’ petition in cause No. 51236, ap-pellee admitted the truth of every fact alleged therein constituting an element of appellants’ cause of action. Thus, appel-lee by its general demurrer admitted the execution and delivery of the leases, and every fact allegation made in the petition in relation to the, proration agreement. Had appellants tried cause No. 51236 on its facts, their proof would have been limited to the allegations of the petition; they would have proved the pooling agreement as alleged, appellee’s ownership of the oil and gas lease on the property described in the petition, and facts supporting the additional consideration which, on, the allegations of the petition, was due them under the pooling agreement, and facts supporting the damages claimed by them in their petition, proximately resulting from the alleged breach of the terms of the oil and gas lease and of the pooling agreement. While no proof was offered in cause No. 51236, a general demurrer conceded to appellants all facts alleged; the judgment on the general demurrer was a conclusion of law on the facts that they did not constitute a cause of action. The judgment 'in cause. No. 51236, sustaining the general demurrer, was res judicata against appellants of all issues made by their petition in that suit, and by reason of that judgment- appellants are foreclosed from litigating any issue made in that suit, in a subsequent suit. Scherff v. M. P. Ry. Co., 81 Tex. 471, 17 S.W. 39, 26 Am.St.Rep. 828; Bomar v. Parker et al., 68 Tex. 435, 4 S.W. 599.

The judgment sustaining the general demurrer in cause No. 51236 was conclusive on appellants, “not only as to the subject matter determined, but also as to every other matter which the parties might have litigated in the case and which they might have had decided.” Balcom et ux. v. Cain et al., Tex.Civ.App., 81 S.W.2d 827. We recognize that the general proposition announced in the case cited is limited by the proposition announced by our Supreme Court in Moore v. Snowball, 98 Tex. 16, 81 S.W. 5, 8, 66 L.R.A. 745, 107 Am.St.Rep. 596, that “what is really meant by this expression is that a judgment is conclusive upon the issues tendered by the plaintiff’s complaint.”

The judgment sustaining the plea in abatement, under Moore v. Snowball, must rest upon the legal conclusion that the issues tendered in the case at bar were involved in and necessarily adjudicated'by the judgment in cause No. 51236. That conclusion necessarily follows on a construction of the records in the two cases. The pooling agreement in issue in cause No. 51236 and in the case at bar is indivisible. Originally, appellants had -a cause of action to set aside the lease executed by them to appellee and the pooling agreement; or to sue for their due performance and for ' the additional consideration which they claimed for its execution. When they sued, as they did in cause No. 51236, for the additional consideration, they merged all their rights involved in the pooling agreement and the execution of the lease, and the final judgment therein was conclusive against them on all rights that could have been asserted by them on the pooling agreement and the lease. The following proposition announced by 26 Tex.Jur. 31, sustains this conclusion:

“There are two situations in which a judgment rendered in a previous suit between the parties may be pleaded as res adjudicata. These are: (1) When the first suit was based upon the Same claim or demand as the second; and (2) when the suit was not" based upon the same claim or demand as the second but nevertheless involved the determination of some matter that is in issue therein.
“Thus when a contract of an indivisible character, giving rise to only a single cause of action, a judgment thereon merges and concludes all the rights involved therein.”

As against the final judgment in cause No. 51236, appellants will not be permitted in the case at bar to sue, praying for cancellation of the lease executed by them to appellee and of the pooling agreement on allegations of fraud; the fraud in issue proximately causing the damages sued for in cause No. 51236.

It follows that the judgment of the lower court should be in all things affirmed, and it is accordingly so ordered.

Affirmed.


text:
    HYDE v. ENGLISH.
    No. 3639.
    Court of Civil Appeals of Texas. Beaumont.
    April 10, 1940.
    Rehearing Denied April 24, 1940.
    Shivers & Keith, of Port Arthur, for appellant.
    Willie T. Briggs and A. W. Dycus, Jr., both of Port Arthur, for appellee.
   WALKER, Chief Justice.

This was an action by appellee, Steve English, by next friend, against appellant Jack Hyde, for damages, actual and.exemplary, for assault and battery. Appellant’s defense was an alibi. The case was submitted to the jury on the following issues:

“Special Issue No. 1. Do you find from a preponderance of the evidence that the defendant Jack Hyde struck the plaintiff, Steve English, on the occasion in question?
“Answer ‘yes’ or ‘no’.
“If you have answered the foregoing Special Issue No. 1 ‘yes’, and only in that event, answer the following special issue:
“Special Issue No. 2. Do you find from a preponderance of the evidence that the plaintiff, Steve English, sustained "injuries by reason of being so struck, if you have found that he was struck, on the occasion in question?
“Answer ‘yes’ or ‘no’.
“If you have answered ‘yes’ to each of the foregoing special issues No. 1 and No. 2, and only in that event, then answer the following Special Issue:
“Special Issue No. 3. What sum of money, if any, do you find from a preponderance of the evidence, if paid now, will fairly and reasonably compensate the plaintiff for the injuries, if any, he has sustained.
“Answer by stating the amount, if any, in dollars and cents.
“In answering this issue, you are instructed that you may take into consideration the following elements and no other: Physical pain, if any, and humiliation, embarrassment, and outraged feelings, if you have found that any such elements were sustained.
“If you have answered ‘yes’ to each of Special Issues No. 1 and No. 2, and have answered Special Issue No. 3 by stating some sum of money, and only in that event, then answer the following special issue:
“Special Issue No. 4. What sum of money, if any, do you find as exemplary damages for the plaintiff herein?
“Answer by stating the amount if any, in dollars and cents.
“In this connnection you are instructed that by the term ‘exemplary- damages’, is meant, such sum, of money, if any, as in your judgment should be awarded solely as a punishment for intentional wrong inflicted, if any -you have found, and must not include indignities suffered if any, and outraged feelings, if any, and must be reasonably proportioned to the actual damages sustained, if any were sustained.”

The jury returned the following answers to the special issues:

“To Special Issue No. 1 Yes
“To Special Issue No. 2 Yes
“To Special Issue No. 3 Fifty Dollars and no cents
“To Special Issue No. 4 Two Hundred Dollars and no cents.”

After overruling appellant’s motion for judgment non obstante veredicto, judgment was rendered in appellee’s favor against appellant for the damages, actual and exemplary, found by the jury. Appellant has duly prosecuted his appeal to this court.

The facts were as follows, the testimony of .the witnesses, Q and A, reduced -.to narrative.

Appellee testified: “My name is Steve English. I am now twenty years old; was 19 last September. I know Mr. Jack Hyde. In connection with the bridge celebration at Port Arthur on the 3rd, 4th, and Sth of last September, 1938, there was a rodeo on the Orange-Port Arthur highway outside of Port Arthur. I visited this rodeo on the Sth day of September, 1938. I arrived at the rodeo about 7:15 p.m. I went out there on my motorcycle which I parked about twenty feet from the rodeo fence, .and was sitting on my motorcycle, waiting for the rodeo to start. There was a fence around the rodeo grounds. Well, about— after I had sat there a while, I heard a loud noise of a horse running, and I got up off of my motorcycle and walked back a few steps, where I could see down the fence and see what it was. Mr. Hyde came riding on his horse right towards me, and got off and said ‘Get the hell out of here’, and when I went to get on my motorcycle, he hit me and knocked me back over my motorcycle. In going out there it was my purpose to go to the rodeo. I had not spoken with Mr. Hyde. I had not had any trouble with Mr. Hyde or with anyone else. He hit me on the jaw and knocked me over my motorcycle. It bruised my back, kind of strained my back, my hip and my ankle. My jaw was sore for a long time. I couldn’t eat anything solid. My ears rang for quite a while afterward. I had other bruises that gave me pain. After Mr. Hyde knocked me down, I asked him to give me time to start my motorcycle so I could get out; he said ‘Get the damn thing out of here before I whip you with a wet rope.’ Mr. Hyde came out of the rodeo on a horse and there was a man with him on another horse. This man rode right up behind Mr. Hyde, was riding behind him. Both'of them rode out of the rodeo. When Mr. Hyde struck ■me, many people were around there; lots of people waiting to go to the rodeo. Lots of people were out there on the road, going to the rodeo, going down to get their tickets. I was outside the walls, and the people were around there where this happened. I was humiliated. I felt like I would like to crawl off in a hole where nobody could see me.”

Appellee’s testimony as to what happened at the time and place in issue, and that he was struck by appellant, was corroborated in every essential particular by Jimmie Fant, Frank Perio, William Kirby Richards, Harley Nance, and J. C. Jones.

In support of his alibi, appellant testified: “I never at any time struck Mr. English, either on September 5 or at any other time. I never saw Mr. English in my life to know him until I got in that chair this morning. I don’t even know where he lives, never saw him in my life. I did not knock Mr.' English over his motorcycle at that time nor at any other time. During the time that Mr. English testified about, I was inside the rodeo and hung around the chute, and stayed up in the judges stand. During the time of the rodeo I did not ride around outside the arena. I hardly ever got to the arena until eight o’clock at night. The first time I knew that Steve English was claiming that I struck him was when they served the papers on me. I know nothing about this transaction, nothing whatever. They had lots of trouble outside the arena on the road, fights and such things as that outside, but I wasn’t out there. I know nothing about such things except by hearsay, what somebody told me. It is my testimony that I did not have anything whatever to do with Steve English on the 5th day of September. I say again that I was never outside the arena on a horse while the show was going on — I don’t believe I was.”

Opinion.

By his first, second and third propositions appellant assigns error against the submission of the issue of exemplary damages : (a) That issue No. 4 submitting exemplary damages, “did not place the burden of proof upon the plaintiff”; (b) that the conditional submission of issue No. 4, predicating the answer on the answers to be returned to issues No. 1, 2, and 3 was calculated to and undoubtedly did “inform the jury as to the effect of their answers, in that it informs the jury that if they do not find all of the issues favorably to the plaintiff that he can not recover, and the trial court erred.in overruling defendant’s motion for new trial setting up such fact”; (c) that issue No. 4 permitted “the jury to consider and to allow exemplary damages without first having found that the acts, if any, of the defendant amounted in terms of law to malice or gross negligence, and the same as written assumes that the acts of the defendant in the premises were malicious when the same is a disputed fact question.”

These propositions are all overruled. The court did not commit reversible error in not instructing the jury to find exemplary damages “from a preponderance of the evidence”; a charge on burden of proof is not necessary in every case, but its propriety depends upon the state of the evidence. St. Louis, Southwestern R. Co. v. Preston, Tex.Com.App., 228 S.W. 928; Texas & N. O. R. Co. v. Syfan, Tex.Civ.App., 43 S.W. 551; 24 Tex.Juris. 612. There was no element of question No. 4 by which the jury could have been confused or mislead by the omission of the instruction demanded by appellant’s assignment. We say further that, as submitted, issue No. 4, with the accompanying instruction, put appellee under the burden of sustaining the issue by a preponderance of the evidence.

Issue No. 4 was not on the weight of the evidence, in that it did not advise the jury of the effect of its answers to issues 1, 2, and 3. By question No. 1, the jury found that appellant struck appel-lee; by question No. 2, that appellee was injured as the result of being struck by appellant; and by question No. 3 that, as the result of his injuries, appellee suffered damage in the sum of $50. That appellee was struck by someone and that he suffered damages were established by the undisputed testimony. The identity of the one who committed the assault and battery was in issue, and sent to the jury unconditionally.

Appellant waived the right to have submitted to the jury issues on “malice” and “gross negligence” by failing to prepare such issues and to submit them to the court, with the request that they be submitted. Wichita Falls & Oklahoma R. Co. et al. v. Pepper, Tex.Sup., 135 S.W.2d 79.

The conditional submission of issues 2 and 3 was not error. As stated above, that appellee was struck and sustained injury was established by the uncontradicted testimony; the identity of Jack Hyde, as-the one who committed the assault and' battery, was submitted unconditionally.

The court did not err in instructing, the jury in estimating appellee’s damages,, that they “could consider physical pain,, humiliation, embarrassment and outraged' feelings” over the objection timely made that “the same submitted various elements of damage not supported by either the pleadings or the evidence.” These issues were raised by appellant’s petition wherein. he alleged: “That defendant’s intentional, willful, forceful and violent, assault upon plaintiff caused him to suffer great physical pain and mental anguish; that as a direct and proximate result of such attack plaintiff sustained a wrenched back, strained ligaments around the jaw, large bruises on his right hip, right shoulder, left hip and ■on the calf of his left leg, together with great pain and soreness over the body generally ; that the muscles and ligaments of plaintiff’s jaw were injured to such an extent that plaintiff was unable to partake of any food except liquids for two days after such injuries were inflicted; that as a result of such attack plaintiff has suffered and continues to suffer from violent headaches and nervousness by reason of which he is unable to sleep and is on the verge of a nervous breakdown.” No special exceptions were urged against these allegations.

The award of two-hundred dollars as exemplary damages was not “grossly disproportionate” to the actual damages sustained from the injury. Nor was the award excessive. On the undisputed testimony, the assault and battery committed upon appellee was unprovoked, by a man upon a boy, was cruel, vicious, and accompanied by humiliating threats. The jury found that appellant committed these wrongs.

The judgment of the lower court should be in all things affirmed, and it is accordingly so ordered.

Affirmed.


text:
    MARYLAND CASUALTY CO. v. JACKSON.
    No. 3616.
    Court of Civil Appeals of Texas. Beaumont.
    Feb. 29, 1940.
    Rehearing Denied April 3, 1940.

      George W. Brown, Jr., and Smith, Smith & Boyd, all of Beaumont, for appellant.
    John T. Lindsey, of Port Arthur, for ap-pellee.
   WALKER, Chief Justice.

This is a workmen’s compensation case, with appellant, Maryland Casualty Company, the compensation insurance carrier; appellee, Joe Jackson, the employee; and the Lummus Company, the employer. On the verdict of the jury in the district court of Jefferson County, on appellee’s appeal from the award of Industrial Accident Board, judgment was rendered in his favor against appellant for the sum of $3,000, as for total permanent disability. Appellant •makes the following points against the judgment:

Error is assigned against , the overruling of the plea in abatement; tlm theory of this-plea was that the trial court “was without jurisdiction” of appellee’s causé of.action. The facts were as follows: Appellee filed two claims with the Industrial Accident Board. The first, dated 5-17-3&, receiyed by the Board 5-20-38, stated that appellee was injured at 10:30 o’clock A.M. 10-8-37, in the following manner: “While myself,, and several others were engaged in pulling a piece of sheet iron weighing several hundred pounds, the bolt to which the pulley-was attached came out causing me to fall with all the weight of the body on the right arm.” The second dated 10-3-38, received' by the Board 10-6-38, stated that appellee was injured at 2:45 o’clock P. M. 11-10-37,. in the following manner: “I was carrying steel and the, steel fell on my right, arm and wrist.” Appellee received only one injury. All the evidence was to the effect that he-was injured on the 10th day of November,. 1937, in the manner set out in the first claim. The Board rendered • and entered its final award 12 — 1—’38, and after due notice appellee filed his original petition iff the district court of Jefferson County, ap-' pealing from the award. In his original» petition appellee pleaded that, on Óctobér 10, 1937, while engaged in carrying steel rods fourteen feet long and weighing approximately fifty pounds, he stumbled and fell, causing the steel rods to fall upon and injure his right wrist, hand, and arm; and that he filed his claim for compensation with the board on or about November IS, 1937. That petition confined appellee’s disability to a total loss of the use of- the right hand, for which he sought compensation for a period of one hundred fifty weeks. On 2-9-’39, he filed his first amended original petition, and on 5 — 25—’39, his second amended original petition upon which he went to trial. In both his amended petitions appellee' pleaded that on November 10, 1937, while he and other workmen were engaged in lifting and moving a large piece of sheet boiler iron into position by means of a block and tackle, the rope of the block and tackle upon which appellee was pulling and exerting all his strength in some manner gave way, and as a result of the sudden release and slackening of the rope he was caused to fall upon the concrete foundation on which he was standing, injuring his right hand, wrist and arm. Claim for compensation for these injuries was alleged to have been filed with the Board on May 27, 1938. In the first amendment appellee sought compensation for two hundred weeks’ disability, and in the second for total and permanent disability, with recovery limited to three thousand dollars; and in the alternative, for recovery for a specific injury.

The theory of the plea in abatement is that, by his amended petitions, ap-pellee pleaded a new cause of action, separate, distinct, independent of, and not related to the cause of action plead in the original petition. Appellant concedes that the original petition was duly filed under section 5 of Art. 8307, R.S.1925, Vernon’s Ann.Civ.St. art. 8307, § 5, but it contends that, by filing the amended petition, appellee abandoned his original plea, and pleaded a new cause of action which was not filed within the twenty days allowed by section 5, Art. 8307. Therefore appellant says that the trial court did not have jurisdiction to review the award of the Board on the cause of action plead in the amended petitions— the theory advanced by the plea in abatement. Appellant supports its proposition of “a new cause of action” by Phoenix Lumber Company v. Houston Water Company, 94 Tex. 456, 61 S.W. 707; 7 Texas Law Review, 144; Hollis v. Chapman, 36 Tex. 1. These authorities are not in point; the tests,of “a new cause of action” as laid down by our Supreme Court in the cases cited have no relation to an amended plea on appeal from an adverse award of the Industrial Accident Board. In Booth v. Texas Employers Insurance Association 132 Tex. 237, 123 S.W.2d 322, 324, the following proposition was announced by Judge Smedley writing the opinion for the commission of appeals: “The only essential jurisdictional connection between the claim for compensation before the board and the suit to set aside the award being the identity of the injury of which complaint is made.” Indemnity Insurance Company v. Harris, Tex.Civ.App., 53 S.W.2d 631, is in point in principle. In that case the claim before the Board was an injury to the spine and leg; in his petition on appeal, in addition to the injury claimed before the Board, the employee also claimed an injury to the sacroiliac joint. This court held that the pleading did not state a new cause of action. Appellant cites as controlling Stratton v. Gulf Casualty Co., 53 S.W.2d 518; that case was decided by the El Paso Court of Civil Appeals long before the Booth case by the Commission of Appeals.

We overrule the contention that the jury’s answers to the several issues submitted on the theory of a general injury were without support in the evidence. The evidence so satisfactorily raised these issues that it would serve no useful purpose to bring it forward in the opinion. Appellant has made a full and fair statement of the evidence on this point in its brief, which we have carefully examined. On the evidence brought forward by appellant, we also overrule the assignments that the findings of the jury in favor of appellee on the issues of total permanent disability, and of partial disability, and of “specific injury” are against the great weight and preponderance of the evidence.

Appellant makes the following assignments ' of conflict in the jury’s answers to the questions submitted by the charge: (a) The jury returned the answer “He did” to question No. 3: “Do you find from a preponderance of the evidence that Joe Jackson suffered total disability, as that term has been herein-above defined to you, as a result of such accidental injury, if any you have found?” This answer does not conflict with the answer “It is permanent” to question No. 20: “How many weeks of disability limited to his right hand, if any, do you find from a preponderance of the evidence that Joe Jackson has suffered as a .result of his injury, if any, of November 10, 1937”; nor the answer “100%” to question 21: “What percentage of disability limited to the right hand, if any, do you find from a preponderance of the evidence Joe Jackson has suffered as a result of his injury, if any, of November 10, 1937”; nor to the answer “It is permanent” to question No. 22: “How many weeks of disability limited to the right hand, if any, do you find from a preponderance of the evidence Joe Jackson will suffer in the future as a result of his injury, if any, of November 10, 1937”. (b) The answer to question No. 20 given in section (a), supra, does not conflict with the answer “May 16, ’38”, to question No. 4: “When, if at any time, do you find from a preponderance of the evidence such total disability, if any you have found, commenced”; nor with the answer “It is permanent” to question No. 5: “Do you find from a preponderance of the evidence that such total disability, if any you have found, is permanent, as permanent disability has been hereinbe-fore defined to you”; nor with the answer “It is not limited to his right hand” to question No. 19: “How long, if for any time, do you find from a preponderance of the evidence, such total disability, if any you have found, to exist”, (c) The answer to question No. 20, supra, does not conflict with the answer to question No. 21, supra, (d) The answer to question No. 21 does not conflict with the answer of question No. 5. (e) The answer to question No. 21 does not conflict with the question No. 6, nor with the answer to question No. 19.

We overrule the assignment against the following argument by appel-lee’s counsel in his address to the jury: “We say that Joe Jackson, due to his poverty—and they haven’t paid him any of this compensation—that he will suffer manifest hardship and injustice if they are not required to redeem it in a lump sum. He is as poor as a church mouse, and his wife and daughter are having to make the living for the family. Dr. Matthews who examined him tells you he didn’t expect to get any pay and that it was mostly a charity case”. This argument was not excepted to; its injurious effect, if any, could have been removed by an instruction by the court. Again appellee plead “lump sum” settlement, and by his evidence strongly raised the issue in his favor. Through an oversight—he makes that point in his brief— the issue was not submitted to the jury; he made his argument, believing that it was a part of the court’s charge.

The following argument was not error: “I think when he was let out there and his wage-earning capacity ceased on May 16, I think he immediately filed claim because the undisputed evidence shows it was filed on the 20th and mighty few come any faster than that.”

Appellee was not discharged at the time he was injured, but was given lighter work at the same wage. He continued in his employment until 5-16-’38, when he was discharged. Immediately—within two days—he prepared and forwarded to the Industrial Accident Board his claim for compensation, which was received and filed by the Board 5-20-38. On this statement, as a matter of law, appellee established “good cause” -for the delay in filing his claim. In Jones v. Texas Employers Ins. Ass’n, 128 Tex. 437, 99 S.W.2d 903, 904, appellant was injured 3-8-30; within thirty days he gave notice to his employer; on 3—8—’32, as a result of his injury, he became totally incapacitated for work, and such incapacity was permanent; on 7-11-32, he filed his claim for compensation with the Industrial Accident Board. Writing the opinion for the Commission of Appeals, Judge Harvey said: “The plaintiff in error insists that since the jury has found that the total incapacity for work which he suffers began on May 8, 1932, no cause of action in that respect accrued to him before then, therefore he was not required to file a claim with the board before said date. This is true for the reason that the state of facts thus established shows good cause for his failure to file a claim with the board prior to said date, but it does not show good cause extending up to the time he filed his claim sojne two months later.” (Italics ours.) That “good cause” may exist as a matter of law was held by this court in Maryland Casualty Company v. Landry, 129 S.W.2d 755.

Question No. 19 copied above submitted the issue whether appellee’s incapacity was limited to his right hand. In connection with that issue the court gave the following charge: “In answering the above special issue, you are instructed that all injuries below the elbow are designated as injuries tt> the hand. You are further instructed that an injury is not limited to the hand if it is continuing and extends to and affects other members of the body.” This charge was not subject to the following exceptions urged by appellant :

(a) “The court by said instruction gave no guide or form to the jury of what is meant by the use of the terms ‘continuing’ and ‘extending to’ ‘and affect,’ and the jury was left to speculate and base their answer to said special issue on their own idea or ideas of what constitutes a ‘continuing’ and ‘extending to’ or ‘affecting’ other members of the body”;

(b) “Because an injury to the hand, a specific injury, might to some extent continue and extend to and affect other members of the body, but in such a way, or for such a limited time, or in such a manner as that in law the injury or disability would not be to more than the hand, and it was reversible error for the trial court to. submit such instruction over appellant’s objection on such ground”;

(c) “Said instruction was prejudicial to appellant and incorrect, in that if the injury to the hand did extend to the wrist or forearm it would still in law be an injury to the hand, and said instruction was patently erroneous on its face, and it was reversible error for the trial court to submit such instruction over appellant’s objection on such grounds”;

(d) “It was apparent in this cause that any injury Joe Jackson received to his right hand did not continue and extend to any other portion of the body to such an extent as to constitute same a general injury, and it was reversible error for the trial court to submit such instruction over appellant’s objection on such ground.”

On authority of the Parker case, Southern Underwriters v. Parker, Tex.Civ.App., 129 S.W.2d 738, and the Thomas case, Southern Underwriters v. Thomas, Tex.Civ.App., 131 S.W.2d 409, we overrule appellee’s exceptions to the following issue: “Do you find from a preponderance of the evidence that Joe Jackson suffered an accidental injury on November 10, 1937, as the term accidental injury has been hereinbefore defined to you?” This question submitted the issue plead by ap-pellee and sustained by his proof.

Every element of “total permanent disability” and of “partial disability,” raised by the evidence, was submitted to the jury, and answered in appellee’s favor. The jury also found that his disability was not “limited to his right hand” — answering the issue of disability as it related to “the right hand” the jury found that it was “permanent,” and was “100%”. The jury also found that appellee’s injury was not “limited to his right arm”. The questions carried to the jury all issues of “specific injury” raised by the evidence. Therefore the court did not err in refusing to submit the other issues of “specific injury” requested by appellant.

Appellee pleaded that the injury to his hand' or wrist affected other parts of his body, and resulted in total, permanent disability. On this statement we overrule the proposition: “Having failed to request or have submitted to the jury proper issue or issues as to whether said specific injury had extended to or affected other portions of his body (as would authorize recovery as for a general injury) plaintiff waived such issues and necessary grounds and basis of recovery as for a general injury and judgment as for total permanent incapacity as for a general injury should not be permitted to stand.”

Appellant requested the court to submit the following issue: “Do you find from a preponderance of the evidence that plaintiff, Joe Jackson, has fully recovered from any disability sustained by him as a result of his alleged injury?” This issue was submitted substantially by the questions copied above. On every issue submitted, the jury found that appellee’s disability was total and permanent; it was also found that he had not recovered from his injury. In view of the answers given by the jury to the questions submitted by the charge, there is no ground for the presumption, reasonable or otherwise, that the jury would have answered appellant’s requested issue in its favor. Guzman v. Maryland Casualty Co. 130 Tex. 62, 107 S.W.2d 356.

Appellee limited his recovery to $3,000, thereby excluding compensation from the date he was injured to the date he filed his compensation. So, on this point the facts do not invoke the principle of law announced by the Commission of Appeals in the Jones case, supra, and in the Guidry case, Texas Employers Ins. Ass’n v. Guidry, 128 Tex. 433, 99 S.W.2d 901.

The judgment of the lower court is in all things affirmed.

Affirmed.


author: O’QUINN, Justice.

text:
    McFADDIN et al. v. OAKWOOD REALTY CO.
    No. 3611.
    Court of Civil Appeals of Texas. Beaumont.
    April 11, 1940.
    Rehearing Denied May 1, 1940.
    Sonfield & Taylor and Fahey & Cooper, all of Houston,' for appellants.
    Strong, Moore & Strong, of Beaumont, for appellee.
   O’QUINN, Justice.

This suit, an-action in trespass to- try title on certain land in Jefferson County,, was filed by appellants against appellee, Oakwood Realty Company," and certain other defendants, on the 5'th day of January, 1938. Without being served with citation, on the 13th day of January, 1939, appellee filed its answer, and by cross-action prayed for judgment against appellants for title to its interest in the land in controversy. In May, 1939, on agreement with appellants’ attorneys, who filed the suit and who at that time represented them,the case was set for trial on the '25th of May, 1939. More than two months before the date thus agreed upon for the trial, these attorneys withdrew from the case, and appellants employed new. counsel— the record does not show the date of their employment. The case was called for trial on the day set, and áfter their motion for continuance was overruled, appellants took a non-suit, and as between them and ap-pellee, the case preceded to trial on appel-lee’s cross-action, and judgment was rendered in its favor for the title to the land put in issue by the cross-action. From the judgment appellants have duly prosecuted their appeal to this court. The only point presented by the appeal is the assignment of error against the judgment of the lower court overruling the motion for continuance.

The motion for continuance was predicated on the ground that appellants’ new counsel had not had time after their employment to prepare the case for trial. As. stated above, the motion did not give the date that these attorneys were employed; the record shows that appellants had been notified more than two months before the case was called for trial that their first counsel had withdrawn. A Mr. Fall represented appellants in the employment of the first counsel, in the filing' of the suit, and in the employment of the new counsel; the record shows that Mr. Fall was thoroughly acquainted with appellants’ title, and was able to have given the new counsel all data essential for the preparation of the case for trial and for the presentation of its defense against appellee’s cross-action. The record does not show that any diligence was exercised in securing this essential information from Mr. Fall. Though the first counsel filed the suit, and represented appellants from January, 1938, until they withdrew about March, 1939, the motion contains no statement that the new counsel made any effort to secure any information from the attorneys who filed the suit. On oral argument, the statement was made to the court, that, in fact, no diligence was exercised to get any information from the first counsel. Though the suit was filed on the 5th day of May, 1938, appellee was never served with citation, but made its voluntary appearance on the 13th day of January, 1939. The record offers no explanation for this laches on the part of the appellants in the prosecution of their suit. The record fails to show that appellants made any effort whatever from the day the suit was filed until the day the case was called for trial — more than sixteen months — to prepare the case for trial. On the hearing on the motion for continuance, a distinguished member of the Beaumont Bar testified that he was thoroughly familiar with the record, and that if appellants had brought their case to him, he could have prepared it for trial in three weeks; that appellants’ agent who directed the filing of the suit was familiar with all the facts of the case and could have, in three weeks, furnished new counsel with all the essential facts in the case; that he was familiar with the facts and the law of the case and not one of the propositions of law in the case required extended research.

Motions for continuance as a general proposition, and the case at bar falls within this rule, are addressed to the sound discretion of the trial court, and the exercise of such discretion will not be revised, unless, on an affirmative showing, it has been abused. Hutson v. Cade, Tex.Civ.App., 217 S.W. 438. It is also the law that on appeal, the presumption must be indulged when not rebutted by the facts in the record, that the motion for continuance was properly overruled. Commercial Standard Ins. Co. v. McKnight Chevrolet Co., Tex.Civ.App., 43 S.W.2d 636. On the undisputed facts in this case, appellants exercised no diligence whatever to prepare their case for trial, but, on the contrary, were guilty of .inexcusable negligence. The motion for continuance was properly overruled.

Certain of the defendants in the lower court filed no cross-action, and appellants’ assignment in no way challenges the judgment in so far as these parties are concerned.

It follows that the judgment of the lower court should be in all things affirmed and it is accordingly so ordered.

Affirmed.


author: COMBS, Justice.

text:
    TEXAS STATE LIFE INS. CO. v. NEWMAN.
    No. 3654.
    Court of Civil Appeals of Texas. Beaumont.
    April 4, 1940.
    O. M. Street, of Dallas, for plaintiff in error.
    Burris & Benton and Tom Sanders, all of Houston, for defendant in error.
   COMBS, Justice.

This appeal is from a judgment entered in the District Court of Liberty County, on the 27th day of June, 1939, wherein the defendant in error, Willie Newman, recovered judgment against the plaintiff in error on a policy of insurance for the face amount of $1,000, plus attorney’s fee, penalty, and interest. The plaintiff in error prosecuted its appeal by writ of error and filed a transcript, but has filed no statement of facts or brief, although on December 13, 1939, it was granted an extension of time for the filing of the statement of facts. Defendant in error has filed a brief wherein she seeks affirmance of the judgment. We have examined the record for fundamental error and finding none, the judgment of the trial court is in all things affirmed.

Affirmed.


author: FUNDERBURK, Justice.

text:
    STATE v. DAVIS et al.
    No. 2003.
    Court of Civil Appeals of Texas. Eastland.
    April 5, 1940.
    Rehearing Denied May 3, 1940.

      Karl Cayton and Carl Rountree, both of Lamesa, for appellant.
    Thomas & Thomas, of Big Spring, for appellees.
   FUNDERBURK, Justice.

The State of Texas, acting by and through the Commissioners’ Court of Dawson County, on October 4, 1938, filed a petition (as shown by indorsement thereon) in the office of the County Clerk of Dawson County. It described a 3.43-acre tract of land, alleging its ownership by Mrs. Ruby Davis, whose husband was Ben F. Davis, in which land the Federal Land Bank of Houston was alleged to have some interest, and sought to have the land condemned as right-of-way for a state highway. On October 5, 1938, the county judge of Dawson County made a .written order appointing J. E. DuBose and C. E. Martin as commissioners to appraise the property. In the order a place for the name of a third commissioner was left blank. On the same day said J. E. DuBose and C. E. Martin, and also J. R. Farley, made oath as commissioners which, with said order of appointment (according to indorsement thereon), was filed, on the same day, in the office of the county clerk.

The three commissioners on the same day (October 5, 1938) executed a notice directed to the land owners, describing the land only as “certain real estate described in plaintiff’s petition, reference to which is here made, to which real estate the fee simple title is in the said defendants as is more fully set out in said petition of the State of Texas, acting by and through the commissioners’ court of Dawson County, Texas, v. Mrs. Ruby Davis, et al, filed with the Honorable County Judge of Dawson County, Texas, on the 4th day of October, A. D. 1938 * * Under the heading “Service of Notice” appears the following: “Came to hand the 6th day of October, A. D. 1938, and executed the 7th day of October, A. D. 1938, by delivering a copy of the above notice to Mrs.' Ruby Davis and Ben F. Davis 4 o’clock p. m. in Dawson County, Texas. Gus White, Sheriff, Dawson County, Texas, by' A. N. Randle Deputy.”

An indorsement upon said notice and' return reads: “Filed for record 8 day of Oct. 1938 at 8:30 o’clock a. m. Viola Thruston, County Clerk, Dawson County, Texas by Edna Merrick, Deputy.”

On October 17, 1938, the commissioners reported an award of $85.75 damages, with costs assessed against the defendants. The award described the land only as a “right-of-way fully described in petitioner’s petition on file herein, which land is owned by the said Ruby Davis, Ben F. Davis and The Federal Land Bank of Houston, defendants herein.” An indorsement upon said award reads: “Condemnation # 47 — Filed 17 day of Oct. 1938. Viola Thruston, Co. Clerk.”

On October 22, 1938, the defendants filed objections to the award. According to indorsements thereon the instrument embodying the objections was filed in the office of the County Judge, and also, on the same day, in the office of the County Clerk. (This is the only instrument which purports to have been filed with the County Judge as distinct from a filing in the office of the County Clerk.)

The record shows no service of notice upon the Federal Land Bank. There is shown a purported “Original Answer” of said defendant indorsed “Filed for Record 13 day of Oct. 1938 at 11:40 o’clock a. m., Viola Thruston, County Clerk Dawson County, Texas, by Beulah Tillman, Dep>-uty.”

The defendant Ruby Davis, joined by her husband, Ben F. Davis, on February 9, 1939, filed in the County Court five separate pleadings, the first two, each denominated “Defendants’ First Motion and Plea in Abatement”; the third to fifth, inclusive, each denominated, respectively, Defendants’ Second, Third and Fourth “Motion and Plea in Abatement.” The final judgment, from which the appeal is prosecuted, sustained said “Motions and Pleas in Abatement” and declared “that these proceedings be and they are hereby set aside and this suit abated.”

We construe the judgment to be one dismissing the suit. The evident basis of such action was the conclusion of the court that it was without jurisdiction for one or more of the several reasons urged in one or more of the so-called motions and pleas in abatement.

-Until the objections to the award of the commissioners were duly filed in the office of the county clerk the proceeding was special. Hardy v. City of Throckmorton, Tex.Civ.App., 62 S.W.2d 1104. “Inasmuch as condemnation proceedings are special in their character and involve a summary taking of property from its owner, it is the settled rule that they must be conducted in strict accordance with the governing statutes. It follows that condemnation proceedings in which the statutes have been ignored are wholly void, and, when the occasion therefor arises, the court will hold them to be void of its own motion.” 16 Tex.Jur. 700 sec. 95.

The relevant statutes are R.S.1925, Arts. 3264 to 3271, inclusive, Vernon’s Ann.Civ.St. Arts. 3264 to 3271 and Vernon’s Ann. Civil Statutes, Art. 6674n.

The record fails to show that the petition for condemnation which Art, 3264 required to be “a statement in writing” and to be filed “with the county judge”, was ever filed with the county judge in compliance with said requirement. It was shown to have been filed in the office of the county clerk; but that far.t, we think, does not, in a proceeding of this nature, authorize the presumption that it was filed with the county judge.

According to the record, two commissioners, and not three as required, were appointed. The statute having provided for the appointment of three, and only two being shown to have been appointed', it cannot be presumed from the fact that three purported to act that more than the two were appointed.

Although not urged, it appears there may be other grounds sufficient to support the action of the court in dismissing the suit. If so, they, involving questions of jurisdiction, are, of course, equally effective to support such action as the grounds particularly relied upon.

The record shows no service of notice upon the defendant The Federal Land Bank. Even if the bank could waive the service of notice, a question we find it unnecessary to determine, it is clear, we think, that it did not do so by filing its so-called answer, since at the time it was filed in the county court the suit as such was not pending.

It was not shown that notice was duly served upon the Other defendants, Mrs. Ruby Davis and her husband, Ben F. Davis. The only proof of such service disclosed by the record was the return by the sheriff showing that same was made “by delivering a copy of the above notice to Mrs. Ruby Davis and Ben F. Davis 4 o’clock p. m. in Dawson County, Texas.” (Italics ours.) Was one copy delivered to both of them, or one to each? The law required one to be delivered to each. The language of the return fails to show that one was delivered to each. In a special proceeding like this, the rule would be, at least, as strict as in a case of a citation in a suit to support a default judgment. In Covington v. Burleson, 28 Tex. 368, it was held that a return of service upon a husband and wife to the effect that the officer delivered a copy of the petition and citation to them both was insufficient in that it did not show delivery to each. 33 Tex.Jur. 884, sec. 70, and authorities there cited.

We think it doubtful, although we deem it unnecessary to express an authoritative opinion upon the point, that the land was insufficiently described in the notice and in the award. The award of the commissioners, when uncontested, as required by law itself, becomes the judgment of the court. Manifestly the award itself in this case would not identify the land.

Being of the opinion that the appellant has not demonstrated error in the action of the trial court, and that, therefore, the judgment should be affirmed it is accordingly so ordered.


text:
    CARTER et al. v. TOWNSEND et al.
    No. 3605.
    Court of Civil Appeals of Texas. Beaumont.
    March 14, 1940.
    Rehearing Denied April 10, 1940.
    Coleman & Coleman, of Lufkin, for appellants.
    W. J. Townsend, of Lufkin, for appel-lees.
   WALKER, Chief Justice.

On the 7th day of October, 1938, appellants, Carrie B. Carter et al., filed this suit in the district court of Angelina county against appellees, H. J. Townsend et al., as an action in trespass to try title to 840 acres of land out of the Stanley league in Angelina county. Appellees answered by pleas of not guilty, and by pleading the several years statutes of limitation claimed by specific metes and bounds 160 acres of the land in controversy and a second tract of' 19 acres; as to both these tracts, ap-pellees plead that they constituted portions of the 840 acres described by metes and bounds by appellants in their petition. The case was tried to a jury on one single issue, which was answered in the affirmative.

“Special Issue No. 1.
“Do you find from a preponderance of the evidence that B. T. Townsend, and those under whom he claims, has been in continuous, actual, peaceable and adverse possession of the 160 acres of land in controversy as described in Defendants’ answer using, cultivating or enjoying the same, for ten continuous and consecutive years next before the filing of this suit, to-wit: October 7, 1938 ?
“You will answer this ‘yes’ or ‘no’.”

On the verdict of the jury and the independent finding by the court that appellants owned the record title, judgment was entered in their favor for all of the 840 acres except the 160 acres claimed by ap-pellees in their pleas of limitation, and the second tract of 19 acres. As to these two tracts, judgment was entered in favor of appellees for the 160 acres on the verdict of the jury, and for the 19 acres on the following' independent finding by the court: “In view of the fact, that the evidence adduced upon the trial of this case, disclosed that the 19 acres of land, more or less, hereinafter described, was outside of the boundaries, of the land sued for herein by the plaintiffs and was not a part thereof, it is the opinion of the Court that the said defendants, H. J. Townsend, Forrest Campbell and Fannie Campbell, ought to have judgment against the said plaintiffs for the title and possession of the said 19 acres of land.”

We sustain appellants’ assignment that the judgment of the lower court is without support in the record. (1) As to the 19 acres: The court found, and entered its judgment on that finding, that the 19 acres did not constitute a part of the 840 acres in controversy. Therefore, since ap-pellees claimed the 19 acres as a part of the 840 acres, the judgment in favor of ap-pellees for this tract of land is without support in the pleadings.

(2) The judgment in favor of appellees for the 160 acres is without support on the admitted facts. Appellees contended that they entered upon the 160 acres of land about 1926, and marked out the boundaries in 1927' as claimed in their answer, and fenced from 60 to 80 acres of the land during 1927. For the purpose of this opinion, we concede appellees’ proposition that they were continuously in possession of their improvemerjts, claiming, using, occupying and enjoying the 160 acres of land in all respects submitted .to the jury by the special issue. But .this conclusion does not support' the-judgment. In. 1928 appellants, owning-the record title to the 840 acres of land, sold- the timber thereon to Jones and Parker, who entered upon the land in 1928, 1929, and 1930, and cut and removed the timber up to the boundaries of the 160 acres, as marked by appellees on the ground. Jones and" Parker made no attempt to cut the timber on the 160 acres claimed by appellees, acquiescing in' the claim to this timber asserted to them by appellees. The entry upon 'the 840 acres of land by Jones and Parker, claiming through appellants, and the cutting and removal by them of the timber from this land, constituted a re-entry by appellants and interrupted appellees’ limitation claim to all portions of the 160 acres not under fence; that is to say, the re-entry by appellants through Jones and Parker restricted ap-pellees to their enclosures. Tyler v. Houston Oil Co., Tex.Civ.App., 135 S.W.2d 307. Appellees concede this general proposition of law, but say that it has no application to this case. It is their proposition that the affirmative recognition of their title by Jones and Parker restricted the re-entry of appellants to the lines of the 160 acres of land as marked on the ground, excluding the 160 acres from appellants’ re-entry. This proposition is denied. Jones and Parker held under appellants and bought from them all the timber on the 840 acres of land in controversy. Holding under appellants, they could not, simply on their own authority and without authority from appellants, make an admission prejudicial to appellants’ title. The entry by Jones and Parker constituted a re-entry by appellants on all the 840 acres of land in controversy, not held under enclosures by appellees. Powell Lumber Co. v. Medley, Tex.Civ.App., 127 S.W.2d 520. The relation between appellants and Jones and Parker was, in its nature, that of landlord and tenant. The following proposition from 16 R.C.L. 654, is in point: “The at-tornment of a tenant to a stranger is, as a general rule, void unless it be made with the consent of the landlord, or pursuant to or in consequence of the judgment of a court of law or the order or decree of a court of equity, ahd will not enable the tenant to set up the title of such third person, in opposition to the title of his landlord. So where a tenant wrongfully at-torns to a third person it is ineffectual in itself to render the continued possession adverse to the landlord, or to affect the continuity of the landlord’s possession.”

Appéllees did not have 10 years’ possession after the timber was cut and removed in 1930, prior to the filing of this suit in 1938'.

There is no data in the record on which judgment can be entered for appellees for their enclosures as established and fixed upon the ground in 1927.

Judgment reversed and cause, remanded for a new trial.


text:
    BREWSTER et al. v. BAKER et al.
    No. 3646.
    Court of Civil Appeals of Texas. Beaumont.
    March 21, 1940.
    Baldwin & Jernigan and W. J. Baldwin, all of Beaumont, for appellants.
    B. T. McWhorter and Shivers & Keith, all of Port Arthur, for appellees.
   WALKER, Chief Justice.

As tried in the lower court, this was an action by appellant, Mrs. W. H. Brewster, joined by her husband, against the City of Port Arthur, Jefferson County, Texas, H. F. Baker, Chief of Police of the City of Port Arthur, and Dr. George Sladczyk, for damages for libel, slander, false arrest, and false imprisonment. The action against Baker .and Dr. Sladczyk was predicated on a conspiracy between them which, on the allegations of the petition, culminated in the libel, slander, false arrest, and false imprisonment; it .was charged that Baker, as a result of this conspiracy, arrested and imprisoned appellant. The court sustained the plea in abatement of the City of Port Arthur, predicated upon Sec. 29, Chapt. 23 of its charter: “Notice of Claim of Damages as Prerequisite to Suit. — Before the City of Port Arthur shall become liable for damages for personal injury of any kind, the person injured or the owner of the property injured or destroyed, or some one in his behalf, shall give to the City Commission notice in writing of such injury or destruction duly verified, within sixty (60) days after the same has been sustained; stating in such written notice, when, where and how the injury or destruction occurred; the apparent extent thereof; the amount of damages sustained; the amount for which the claimant will settle; the actual residence of the claimant by street and number at the date the claim is presented, and the actual residence of such claimant for six months immediately preceding the occurrence of such injury or destruction; and the names and addresses of all witnesses upon whom he relies to establish his claim. No suit shall be maintainable on any of the causes of action herein set out for a period of sixty (60) days after the notice shall have been given to the City Commission, in compliance with this section, in order to enable the City Commission to investigate the merits of said claim and adjust same without suit if deemed advisable so to do.” Judgment was entered in favor of Dr. Slad-czyk on an instructed verdict. Judgment was for Baker on the verdict of the jury finding that he did not compel appellant to go to his office on the day in question; that he did not falsely restrain her at the police station against her will; and that she was not “falsely imprisoned” by him. From the final judgment entered against her, appellant has duly prosecuted her appeal to this court.

No assignment of error or proposition is brought forward against the judgment in favor of Baker; so it is in all things affirmed.

On the issues between appellant and Dr. Sladczyk, she advances the following proposition: “Where, in a suit against two defendants for slander and false a'r-rest and imprisonment and alleging a conspiracy between them to so slander and falsely arrest and imprison the Plaintiff, and where Plaintiffs plead such a conspiracy and there was evidence tending strongly to show the same, it was error for the Court to instruct the jury to return a verdict in favor of one of the defendants, after the evidence was in and both sides had rested, when this matter should have gone to the jury for their decision.”

On the fact issues under this proposition, appellant testified (Q. and A. reduced to narrative) : “In a telephone conversation with me Dr. Sladczyk said, ‘you are nothing more than a public nuisance. I don’t want you to bother me any more.’ I said, ‘I don’t know what the trouble is, Doctor.’ He says, ‘I am going to have you arrested,’ and he slammed up in my ear. That conversation was on Saturday evening. The next time I saw him was at his home on Sunday night following. I don’t know what he didn’t say to me at that time. I asked him why he done me like he did, why he cursed me out and all this. He said, repeated his sentence that he was going to have me arrested. I asked him why he was going to have me arrested. He said that was his damn business why he was going to have me arrested, and I got up and left. I went out to Dr. Sladczyk’s house that Sunday evening to see what he was going to have me arrested for. He said he was going to have me arrested, I wanted to know what for. I went into his living room and sat down and talked to him. He told me he was going to have me arrested. I asked him what for. He said, ‘None of your God damn business.’ Before I went out to his house I didn’t call him on the phone and tell him I was going to kill him. I never did threaten his life.” She also testified that on Monday morning following her Sunday night visit to the home of Dr. Sladczyk Baker called her on the phone and that at his request she went to his office. She testified to the facts upon which she predicated her action for false arrest and false imprisonment; all issues raised by her testimony on these points were found against her and in favor of Baker.

Dr. Sladczyk testified by deposition: “Thursday — or Saturday night — Mrs. Brewster called me and I talked to her from the Port Arthur Club. T hadn’t been at the club very long when she called me; I had just gotten there and I was out making some calls. That was when I told her she had better get another physician; she was quite hostile at the time and I told her if she wanted to get somebody else it would be all right. I talked to Baker about Mrs. Brewster, and I think it was on Monday. He came out to my house. I called him there to discuss Mrs. Brewster with him. He said he would talk to her about it. I told him the circumstances under which I was calling — that Mrs. Brewster had made threats on my life and things of that character, and it disturbed Mrs. Sladczyk quite a bit. I didn’t tell him to arrest her and put her under a peace bond. I didn’t know what to do myself, personally, and I told him the circumstances and that I just didn’t want any trouble with anybody and I didn’t know what to do. He didn’t tell me that he would arrest her and have her brought down to the city jail. Baker would never have known about the conversation Mrs. Brewster and I had over the telephone but for- the fact that I told him about it. I told him that she had threatened my life. I didn’t ‘particularly’ tell him that I wanted something done about it. I didn’t have anything in mind except‘that I didn’t want any trouble. That was the only thing.”

By finding in favor of Baker, the jury eliminated the theory of false arrest and false imprisonment advanced by appellant’s proposition, and the fact that the verdict was instructed in favor of Dr. Sladczyk contributed in no way to the jury’s findings on these, issues. It should also he said that there was not a scintilla of evidence raising the issue of conspiracy between Dr. Sladczyk and Baker to have appellant arrested.

The statements made by Dr. Slad-czyk to Baker, that appellant had threatened his life, were privileged and did not constitute a cause of action for slander; they were made to an officer of the law concerning a threatened crime. Hott v. Yarbrough, 112 Tex. 179, 245 S.W. 676; Meyer v. Viereck, Tex.Civ.App., 286 S.W. 894. The judgment in favor of Dr. Sladczyk is in all things affirmed.

The plea in abatement filed by the City of Port Arthur was correctly sustained. The alleged injury occurred on the 17th day of October, 1938, and on the allegations of the petition the notice was given on the 17th day of April, 1939, more than sixty days after the alleged injury. As a condition precedent to establish her cause of action, appellant was required by the city charter of the City of Port Arthur to give notice within sixty days after the alleged injury—the date of the alleged slander. The charter was not complied with, and, therefore, the plea in abatement was properly sustained. City of Beaumont v. Baker, Tex.Civ.App., 95 S.W.2d 1365; Parsons v. City of Fort Worth, 26 Tex.Civ.App. 273, 63 S.W. 889; Jones v. City of Fort Worth, Tex.Com.App., 267 S.W. 681; 30 Tex.Jur. 558.

We overrule appellant’s proposition that the alleged damages suffered by her as a proximate result of the alleged slander do not fall within the charter provision requiring notice “for damages for personal injuries of any kind.” Damage to character as the result of slander or libel is a personal injury. I. & G. N. Ry. Co. v. Edmundson, Tex.Civ.App., 185 S.W. 402; Houston Printing Co. v. Dement, 18 Tex.Civ.App. 30, 44 S.W. 558; Sanderson v. Hunt, 116 Ky. 435, 76 S.W. 179, 3 Ann. Cas. 168; Words & Phrases, First Series, vol. 6, p. 5341.

We give appellants’ third proposition : “That the provisions of the Charter of a Municipal Corporation, requiring a written notice of personal injuries be presented to the City Commissioners within sixty (60) days from the date ⅛ of sustaining same, does not apply to an action against such Municipal Corporation for Libel and the damages resultant therefrom, alleged to have been committed by the City Manager and the City Commissioners themselves, acting in their ca-' pacity as officers and agents of such city, and it was error for the Court to sustain a Plea in Abatement of such Municipal Corporation based upon the failure to give notice within the period of sixty (60) days.” As against the City of Port Arthur, appellant alleged that .the libel and slander were published by the City Manager and by the City Commissioners, “acting in their official capacity”; there was no allegation that they were acting as the City Commission. There was no allegation that the libel and slander were published by the City Commission or the May- or. The charter provision in issue requires that notice be given to the City Commission; there is no charter requirement that the notice be given to the city commissioners individually. So, appellants’ proposition has no support in the facts. City of Beaumont v. Baker, supra. Therefore, the judgment in favor of the City of Port Arthur is in all things affirmed.

It follows from what we have said that the judgment of the lower court should be in all things affirmed, and it is accordingly so ordered.

Affirmed.