author: CODY, Justice.

text:
    CITY OF HOUSTON et al. v. CHAPMAN.
    No. 11069.
    Court of Civil Appeals of Texas. Galveston.
    Nov. 14, 1940.
    Rehearing Denied Dec. 12, 1940.
    Will Sears and Spurgeon E. Bell, Asst. City Attys., both of Houston, for appellants.

      Sam Neathery, Williams,- Lee, Sears & Kennerly, and Fred W. Moore, all of Houston, for appellee.
   CODY, Justice.

This is the second appeal of this cause. On the former appeal it was made to appear that when the plaintiff below, Chapman, had rested, the Court, upon a motion which was made by. defendants before they had introduced any evidence in support of the defense which they had pled, granted them an instructed verdict, and rendered judgment for defendants; upon appeal the Court of Civil Appeals, finding that plaintiff had made out a prima facie case, reversed the judgment of the trial court, but, instead of remanding the cause for a new trial to afford defendants an opportunity to prove their pled defense, rendered judgment in favor of plaintiff (i. e., appellant on said appeal), and against defendants. 101 S.W.2d 348. The Supreme Court, acting through the Commission of Appeals, reversed so much of the judgment of the Court of Civil Appeals as rendered judgment for plaintiff, and remanded the cause for a new trial to afford defendants an opportunity to prove their pled defense. 132 Tex. 443, 123 S.W.2d 652.

Upon the new trial the parties filed new pleadings. These pleadings are very extended. Plaintiff below who is appellee this time,- -pled in substance, so far as is material, as follows: That on June 26, 1929, a Miss Enla Atwood, a feme sole, had a claim and account against the City of Houston for more than $6,300; and on said date the city, acting .through its then Mayor and Council, recognized and confirmed said account and claim, and agreed to pay her in settlement thereof (which claim and account had been duly presented) the sum of $6,300, which agreement is evidenced by the following ordinance, which was duly enacted:

“Now, therefore, be it ordained by the -City Council of the City of Houston:
“Section 1. That there is hereby appropriated out of the Paving Bond Fund the sum of $6300.00 to compensate Miss Enla Atwood for repaving a portion of Bonnie Brae Avenue and Norfolk Street, ■each from Mandell to Dunlavy, and the Mayor and City Controller are hereby authorized to draw warrant in said amount against said fund to pay and discharge the obligations of the City of Houston chargeable thereto.
“Section 2. There being a public emergency requiring that this ordinance be passed finally on the date of its introduction, and the Mayor having in writing declared the existence of such emergency and requested such passage, this ordinance shall be passed finally on the date of its introduction, this the 26th day of June, 1929, and shall take effect immediately upon its passage and approval by the Mayor.
“Passed this 26th day of June, 1929.
“Approved this 26th day of June, 1929.
“W. E. Monteith
“Mayor of the City of Houston.”

Appellee pled that he had acquired the rights of Miss Atwood in the claim and under the agreement for a valuable consideration. He further pled the origin and history of such claim and-its presentation for allowance to the Mayor and Council in 1926, in great detail.

Appellee pled that Miss Atwood filed data with the City which supported said claim and that the City duly considered said claim, and accepted it as duly filed; and that she was assured as late as November 13, 1928, by letter of an Assistant City Attorney, written at the instance of the then Mayor, that there was no need to fret about the time that might elapse while her claim was being investigated, as no attempt would be made to plead limitation against said claim. It was alleged that Miss Atwood had acquired the rights of her associates in the claim, and had assigned the entire claim to appellee (i. e., plaintiff). The claim, as appears from the ordinance, was for damages which it was claimed were caused by the Engineering Department of the City mislocating a street and for the cost of paving such street as so mislocated.

In addition to a general demurrer, a general denial, and the two and four year statutes of limitation, the appellants (defendants) pled that the damages caused Miss Atwood and her associates resulting from the error in paving what was not the true location of the street, were not caused by the Engineering Department of the city, but by the error of N. B. Davidson, who was an employee of said Department; but that in making the location and staking the line complained of he was in the private and personal employment of Miss Atwood and associates, and did said work after office hours, and was paid $75 individually for his services, and that the city received no remuneration for said services. That the claim that Davidson did stake out the lines in the capacity of a city employee was falsely and fraudulently made. That the ordinance sued on was void because Miss Atwood did not, within 90 days from the date of the alleged injury, give notice of her claim for damages to the Mayor and City Council as required by Art. IX, Sec. 11, of the Charter of the City of Houston. That the ordinance is void because it is an attempt to divert a portion of the bond fund to another purpose than that for which it was voted. That, in August, 1932, the City duly repealed said ordinance, etc.

Both parties moved for an instructed verdict, which motions the court refused. The case was submitted to the jury upon a single special issue, which is as follows:

“Special Issue No. 1. Do you find from a preponderance of the evidence, that at the time N. B. Davidson performed the engineering work of staking the lines and grades for the original paving of Norfolk Street, he was acting under an agreement with Enla Atwood to do such work for pay to him in his individual capacity?”
“Answer ‘He was’ or ‘He was not’.”
To which the jury answered: “He was not”.

Thereafter the defendants duly moved for judgment notwithstanding the verdict, which was refused; and perfected their appeal.

Appellants urge as grounds for reversal:

1. That the undisputed evidence shows that on June 26, 1929 (the date of the ordinance sued on), Miss Atwood, appellee’s assignor, did not have a claim based on a valid subsisting contract, but at most possessed a mere action for a tort liability of the City; and that at the date the ordinance was passed the action was barred by limitation and that no admission of liability made after the claim had been barred can serve to revive it.

2. That when a tort action has been barred, it cannot be revived by an acknowledgment in writing and promise to pay, since Art. 5539, R.S.1925, relating to such acknowledgments and promises to pay, applies only to debts arising out of contract.

3 and 4. That the governing body of the City had no power to waive the bar of the statute of limitation.

5. That the Paving Bond Fund out of which the appropriation was made, was a special fund, and could not be diverted to the payment of this claim.

6 and 7. That the jury’s finding was. without support in the evidence; and that the special issue submitted to the jury a question of law which the court should have determined.

8 and 9. That the ordinance of August,. 1932, destroyed and repealed the ordinance sued on; and the court should not have excluded the ordinance of August, 1932, from the evidence.

10. That the court erred in not admitting in evidence the sworn pleading of Miss Atwood which was filed in another suit to the effect that the damages were caused by the paving contractor (not the Engineering Department of the City of Houston).

11. That the court erred to the prejudice of appellants in admitting the letter of November 13, 1928, assuring Miss Atwood that the statute of limitations would not be pled against her claim.

The first four grounds of appellants for reversal, which we have enumerated here-inabove, do not apply in this case. It was held by the Supreme Court [132 Tex. 443, 123 S.W.2d 654], through the Commission, on the former appeal: “The ordinance [of June 26, 1929] with its recitals of fact might properly be construed as an audit by the governing body of the City of a claim based upon a valid and subsisting contract, rather than a mere acknowledgment of liability for a tort. Without further evidence it cannot be determined whether the claim was barred by limitation. That being a defensive plea, the burden was upon the City to establish it. We indulge the presumption that the officials acted lawfully within their powers, and that the ordinance establishes prima facie a validly existing contractual liability not barred by limitation.”

Now a claim for damages against a municipality for damages such as sued for here cannot be sued on at all unless notice thereof is first given to the governing body in accordance with the requirements of the Charter of the municipality involved, or unless such notice be waived. Appellants pled Section 11 of Article IX of the Charter of the City of Houston in bar of appellee’s suit, by way of defense, the provisions of which are as follows: “Sec. 11. Notice of Claim for Damages.— Before the City of Houston shall be liable for damages for personal injuries of any kind, or for injuries to or destruction of property of any kind, the person injured, or the owner of the property injured or destroyed, or some one in his behalf, shall give the Mayor and City Council notice in writing of such injury or destruction, duly verified, within 90 days after the same has been sustained, stating in such written notice, when where and how the injury or destruction occurred, and the apparent extent thereof, the amount of damage sustained, the amount for which 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 injuries or destruction, and the name and addresses of the witnesses upon whom he relies to establish his claim, and a failure to so notify the Mayor and City Council within the time and manner specified herein shall exonerate, excuse and exempt the city from any liability whatsoever, provided that nothing here shall be construed to effect or repeal Section 12 of Article IX of this Charter. (As amended, 1913).”

The requirements just quoted from the charter are requirements made as a condition precedent to suit- on a claim for damages that said claim be submitted to “an audit by the governing body of the city” of said claim. And it was held in Williams v. Tompkins, Tex.Civ.App., 42 S.W.2d 106, 110 (reversed on other grounds, Tex.Com.App., 62 S.W.2d 70): “ * * * to audit is to hear, determine, and in its proper sense includes the adjustment or allowance, disallowance or rejection of a claim * * *. In City of Syracuse v. Roscoe, supra [66 Misc. 317, 123 N.Y.S. 403, 408], it was held: ‘The meaning of the phrase “to audit,” when applied to claims against towns, cities, or counties, means to hear, to éxamine an account, and, in its broader sense includes its adjustment or allowance, disallowance, or rejection; and the verb “audit,” as so used, means simply to examine, to adjust, and clearly implies the exercise of judicial discretion.’ ”

The purpose of requiring notice to a municipality of a claim, and an opportunity to “audit” it, is for the protection of the municipality, to prevent the bringing of actions on fictitious claims; City of Fort Worth v. Shero, 16 Tex.Civ.App. 487, 41 S.W. 704, 706. “‘Such requirements are enacted in furtherance of the public policy, and their object and purpose is to protect the municipality from the expense of needless litigation, and give it the opportunity for investigation, and allow it to adjust differences and settle claims without suit.’ ” Cawthorn v. City of Houston, Tex.Com.App., 231 S.W. 701, 703. And certainly the requirement that such notice be given to the city is a requirement that the city shall have a reasonable time within which to have the claim investigated. In this case the City of Houston was shown to be continuing its investigation in November, 1928. It was held in Williams v. Tompkins, supra, 42 S.W.2d at page 113, that: “On the filing of appellant’s claim, the running of the statute of limitation ceased, and was held in abeyance until payment under the audit thereof was finally refused by the passing of the order by the new administration of date July 12, 1929 * * *.” Since a city has the power to require a claimant to submit his claim for “audit”, it certainly has no right to hold the same under consideration for a long period, and count the time so consumed as against the claimant when the claimant has no right to file suit before such audit. The holding of the Tompkins case, just referred to, is correct in principle. In any case, the burden was on appellants to prove their allegations as to limitation which contradicted the recitals of the ordinance. Such evidence as appellants offered was negative in character, and given by an employee of the City. We do not understand that evidence of this character establishes facts as a matter of law, even if it be not disputed; their negative character makes it impossible to dispute them. Appellants did not request that any issues be submitted on the question of limitation, whereas the passage of the ordinance, and its recitals, are themselves some evidence —enough to make out a prima facie case, as was held by the Supreme Court on the former appeal.

Appellants’ assignments to the effect that appellee’s rights are barred by the statute of limitation are overruled.

We are unable to say from the evidence adduced at the trial that it established as a matter of law that the provision in the certificate by the City Controller that there was in the hands of the Treasurer in the Paving Bond Fund available for appropriation a sufficient sum for appropriation was false. The recital does itself constitute prima facie proof of being true, and appellants asked no issue to be submitted thereon.

We have fully considered the assignment that the jury’s finding was without any support in the evidence. Appel-lee has fully detailed the evidence which was adduced which supports the finding. We find that the evidence is sufficient to support the finding.

We have considered the other grounds of a procedural nature urged by appellants as reversible error, and find them without merit. The case was re-tried under directions from the Supreme Court. Appellants have failed to establish the defense which they pled. The judgment of the trial court should be affirmed, and it is so ordered.

Affirmed.

MONTEITH, C. J., not sitting.


source: Caselaw Access Project

author: BAUGH, Justice.

license: Public Domain

text:
    BERRY v. WITTENBURG.
    No. 8984.
    Court of Civil Appeals of Texas. Austin.
    Nov. 20, 1940.
    Walker & Hammett, of Lampasas, for appellant.
    Anderson & Gilliam, of Goldthwaite, for appellee.
   BAUGH, Justice.

Berry, a real estate broker, sued Witten-burg for a broker’s commission on the sale of 687 acres of land in Mills County at $15 per acre to E. J. Ward. Trial was to the court without a jury and judgment rendered that Berry take nothing; hence this appeal.

Numerous assignments were filed but only two questions are presented: (1) Whether the trial court erred in finding that Conoley and not Berry was the procuring cause of the sale of said land; and (2) Whether certain testimony of Ward was admissible.

The material facts are not controverted. Wittenburg owned the land and had it listed for sale at $16 per acre with several real estate brokers, including Berry, who lived at Lampasas, and Conoley, who lived near Goldthwaite. He also reserved the right to sell it himself. About noon on April 27, 1939, Berry went to the home of E. J. Ward, told him about said land, that Wittenburg wanted $16 per acre for it, described it generally, and asked Ward to then go with him to inspect it. Ward declined to do so, but stated that he might go look at it some time. That afternoon, upon his return to Lampasas, Berry wrote Wittenburg that he had been to see Ward; that Ward had promised to look at the land; and that he might sell it to Ward. This letter did not reach Wittenburg until the afternoon of April 28th.

Meantime, Conoley who also had the place listed saw Ward in Goldthwaite early in the morning of April 28th, having his car greased or repaired, and induced Ward, while his car work was being done, to go with him to look at a place he had listed for sale. He did not tell Ward what place it was until they arrived there, and Con-oley then introduced Ward to Wittenburg. Neither Conoley nor Wittenburg knew at the time that Berry had mentioned the place to Ward, and Ward did not so inform them. Together they inspected the lands, agreed on a sale at $15 an acre, returned to Goldthwaite, entered into a written contract, and Ward deposited $1,000 as earnest money. All of this occurred before noon on April 28th; and not until after the sale was effected did Wittenburg get Berry’s letter.

Ward testified that he had sold his ranch in- Mills County and desired to purchase a place of about 700 acres for his grandson, and that numerous places had been offered him. That when Berry came to see him on April 27th he was busy preparing to shear his sheep, and had neither the time nor the desire to look at any property. That Berry mentioned the Wittenburg and other places listed with him for sale; that he was not interested at the time and merely told Berry that he might go look at it some time in order to “get rid of him.” That he had no intention at the time Berry talked to him of going to look at any of such places. That the fact that Berry had mentioned the Wittenburg place to him did not influence him to go look at it with Conoley. Further, that when he and Conoley left Goldthwaite in the early morning of April 28th, he did not know, nor did Conoley tell him, that they were going to look at the Wittenburg place.

It is not disputed that Conoley, the broker, and Wittenburg, the owner, both acted in good faith in the transaction, and that so far as they were concerned at the time the sale was actually made, neither knew that Berry had ever mentioned the matter to Ward, the purchaser. Under these facts, we think the trial court was clearly authorized to find that Conoley, and not Berry, was the procuring cause of the sale.

The case thus presents in effect but a controversy between two brokers who had the same property listed as to which of them is entitled to a commission for its sale. The owner, when he signed the contract for sale, did not know that Berry had done anything to earn a commission. Neither did Conoley, the agent. It is clear, we think, that regardless of Berry’s visit to Ward on April 27th, Conoley actually brought about a sale of the property to Ward. His efforts in bringing the seller and buyer together and closing the transaction were manifestly responsible for the sale of the land. He “had finally brought the negotiations to a close” resulting in the actual sale; and Wittenburg clearly had the right to recognize and accept his services. Where two brokers are involved, it is now settled that the one who negotiated the sale, and whose services constituted the procuring cause thereof, is entitled to the commission, even though another broker had formerly submitted the property to the buyer. Edwards v. Pike, 49 Tex.Civ.App. 30, 107 S.W. 586; Keener v. Cleveland, Tex.Com.App., 250 S.W. 151; Walker v. Van Valkenberg, Tex.Civ.App., 291 S.W. 936; Higdon v. Channel, Tex.Civ.App., 109 S.W.2d 254; 7 Tex.Jur. § 83, p. 480.

The other contention made is that the trial court erred in permitting Ward to testify over objection that the fact that Berry told him the Wittenburg place was for sale did not influence him in going to look at it. This on the ground that such question called for a conclusion of the witness.

The same character of testimony on the same issue here involved was held to be admissible in Brann v. Arbuthnot, Tex.Civ.App.,'274 S.W. 660. However, under the uncontroverted facts otherwise established, Berry’s information imparted to Ward on April 27th could not have influenced Ward to go with Conoley on the morning of April 28th. It is not controverted that Ward did not know when he left Goldthwaite that he was going to the Wittenburg place and Conoley did not inform him whose place it was until they got there.

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

Affirmed.


author: ALEXANDER, Justice.

text:
    R. E. COX DRY GOODS CO. et al. v. KELLOG et al.
    No. 2251.
    Court of Civil Appeals of Texas. Waco.
    Nov. 28, 1940.

      Jos. W. Hale, Sleeper, Boynton & Kendall, and Ñaman, Howell & Boswell, all of Waco, for appellants.
    Bryan & Maxwell and Orville Jobe, all of Waco, for appellees.
   ALEXANDER, Justice.

This is an action for damages for personal injuries. There was evidence that W. IT. Radebaugh, a traveling salesman, while in R. E. Cox Dry Goods Company store in Waco soliciting an order for products manufactured by Harriet Hubbard Ayer, Inc., set his sample cases in the aisle and that Mrs. Kellog stumbled over-one of them and was severely injured. Mrs. Kellog sued Radebaugh and his alleged employer, Harriet Hubbard Ayer, Inc., hereinafter referred to as “Ayer,” and R. E. Cox Dry Goods Company, hereinafter referred to as “Cox,” for damages. Cox asked for judgment over and against Rade-baugh and Ayer for any amount which it should be required to pay and Ayer likewise prayed for judgment over against Cox. Radebaugh filed a plea of privilege to be sued in Dallas county, the county of his residence. The plea of privilege was tried along with the main case and at the conclusion of the evidence, the plea was sustained and the suit as to Radebaugh was transferred to Dallas county. As to the other defendants, the case was submitted to the jury under special issues, and, in response thereto, the jury found, in substance, that one Joe Brown was an agent of Ayer for the sale of its products in Texas; that the nature of his agency was such as to make the employment of sub-agents necessary; that Radebaugh was Brown’s sub-agent; and Ayer knew that he had been so employed; that a contractual relation existed between Radebaugh and Ayer; that Radebaugh, acting in the course of his employment and as sub-agent for the sale of the goods of Ayer, negligently placed his sample cases in the aisle of Cox’s store and thereby created an unsafe condition; that while Mrs. Kellog was using the aisle of the store as a customer, she struck her leg against one of said sample case's and was severely injured as a proximate result of such negligence; that Ayer, in the sale of its goods, negligently failed to warn salesmen engaged in the sale of its products against placing sample cases in the aisles of stores, which negligence proximately caused the injury complained of; that Cox designated the place where Radebaugh should éxhibit his samples of goods; that the use of such place for such purpose was reasonably calculated to create a dangerous condition; that Cox was negligent in designating the place which it did so designate and such negligence was the proximate cause of plaintiff’s injuries; that Cox negligently permitted Radebaugh to place his sample cases in the aisle; and such negligence was the proximate cause of the injury; that prior to the accident Cox did not have notice of the presence of said cases in the aisle; that Cox failed to exercise ordinary care to discover the cases in the aisle prior to the injury; that except for such failure said defendant would have discovered the cases in the aisle in time to have removed same prior to the accident; and that such failure was the proximate cause of Mrs. Kellog’s injuries. The jury further found that the relation existing between Radebaugh and Ayer was not that of an independent contractor. The same finding was made as to the relation existing between Joe Brown and Ayer. The jury fixed the amount of plaintiff’s damages at $9,800. Accordingly, a joint and several judgment was rendered in favor of Mrs. Kellog against Cox and Ayer, and a judgment was rendered in favor of Cox over against Ayer for a like amount. Both Cox and Ayer have' appealed.

Cox’s .first major contention is that the evidence was insufficient to show any negligence on its part, and, for that reason, the court should have instructed a verdict for it. It should be noted at the outset that Radebaugh was not an agent or employee of Cox and that if Cox is to be held liable at all, it is' not because of Radebaugh’s negligente in putting the cases in the aisle but because of Cox’s failure to discover and remove them prior to the injury. The court submitted to the jury an issue as to whether, prior to the accident, Cox had notice of the cases in the aisle. The jury answered the issue in the negative. In connection with said issue, the court instructed the jury that by the term “notice” was meant “knowledge of such fact or facts as would put an ordinarily prudent person on inquiry, which inquiry, if followed with reasonable diligence, would lead to the discovery of the main fact, that is, the fact in question.” . We must presume therefore that Cox not only had no actual knowledge of the existence of the cases in the aisle but that said defendant did not have actual knowledge of any fact which would have put a reasonably prudent person on inquiry, but even though Cox had no such knowledge or notice, said defendant would be liable if the dangerous situation had existed long enough that a 'reasonably prudent person, in the exercise of ordinary care in looking after a store such as is here under consideration, would have discovered and removed the dangerous situation, for while a storekeeper is not an insurer of the safety of his customers while in his store, he is obligated to exercise ordinary care to keep the premises in a reasonably safe condition for their protection. 30 Tex. Jur. 871; 45 C.J. 837; Graham v. F. W. Woolworth Co., Tex.Civ.App., 277 S.W. 223; Texas-Louisiana Power Company v. Webster, 127 Tex. 126, 91 S.W.2d 302, 306; Bustillos v. Southwestern Portland Cement Company, Tex.Com.App., 211 S.W. 929. The mere finding that Cox had no knowledge of any- fact which, if reasonably pursued, would have led to a discovery of the defective condition does not acquit said defendant of negligence in failing to exercise ordinary care ' to discover such facts. A storekeeper must exercise some care to see that his store is kept in a reasonably safe condition for his customers, even though he has no actual knowledge of any fact that would lead him to believe that a dangerous situation existed. Consequently, we must determine whether there was sufficient evidence to show that the sample cases had been in the aisle in such position as to create a dangerous situation long enough that, by the exercise of ordinary care, Cox should have discovered and removed same prior to the accident. The evidence shows that the aisle where the accident, occurred was not a very wide one. Two people could walk down it abreast, bpt when someone was standing in the aisle, other customers had to pass down the aisle, single file. In fact, Radebaugh testified that when he was standing in the aisle, stooping over the counter writing out his order, no one could get through the aisle unless he straightened up. There was a show case on the east side of the aisle and a table on the west side. Rade-baiigh went to the show case to exhibit his samples and secure an order for his goods. He was in the store somewhere between forty minutes' and an hour. There is a dispute as to whether he had four or five sample cases. The witnesses described the cases as being from 7 to 10 inches wide. They were from 12 to 14 inches high. Radebaugh testified that he set some of the cases in the aisle, end to end, flat up against the panel of the table on the west side of the aisle and put the others on the show case and removed his samples therefrom. From time to time, after he finished with one case, he would replace the samples in it and place it in the aisle, flat against the table, and take up another one for the display of his samples. The sides of the table appear to have been boxed up approximately flush with the outside edge of the top of the table so that the cases could not be pushed back under the table. From this' it appears that during the whole of the one hour period that Radebaugh was engaged in exhibiting his samples, some of the cases were in the aisle commonly used by the customers of the store. According to the testimony of Radebaugh, he had finished his work prior to the accident, and all of his cases were in the aisle. Mrs. Kellog -and her sister, who was with her at the time of the accident, testified that immediately after the accident they looked back to see what had caused Mrs. Kellog to fall and that they saw two of the sample cases sitting in the aisle; that they were then turned out in the aisle at an angle; and that the one which Mrs. Kellog struck with her leg was about 14 inches high, 8 or 10 inches wide and 30 inches long. In view of the narrowness of the aisle and the width of the sample cases, we think the evidence was sufficient to justify the conclusion that = the presence of the sample cases in the aisle created a dangerous situation and that such condition existed for the whole of the hour prior to the accident. It is true that the sample cases, were being moved and replaced from time to time and that there was no evidence as to how. long the particular sample case which Mrs. Kellog struck had been in the aisle, nor how long it had been sitting at an angle across the aisle, but we do not think this alters the case. Radebaugh had used the aisle continuously for an hour. There were at least two of the cases in the aisle at all times. The presence of any one of them created a dangerous situation. Consequently, if a representative of Cox had passed down the aisle at any time during the period in .question, he would have discovered a dangerous situation. While the matter is not free from doubt, we have reached the conclusion that the jury was justified in concluding as it did that in view of the size of the store, the amount of trade carried on therein, and the frequency with which the aisle was used, together with all of the other circumstances in evidence, Cox did not exercise ordinary care to discover and remove the dangerous situation prior to Mrs. Kellog’s injury. This assignment is overruled.

Ayer contends that there was no such contractual relation existing between it and Radebaugh as to make it responsible for his negligence. The evidence shows, without dispute, that Radebaugh was working as an agent of one Joe Brown at the time of the accident in question. Brown testified that for many years prior to 1934, he was engaged in selling Ayer products on a commission basis; that he had the exclusive agency in Texas and several other southern states; that he sold the goods exclusively on a commission basis; that he was in nowise under the control or direction of Ayer as to how he carried on the business, except as to the terms of sale and prices to be received for the goods; and that otherwise it was left entirely to his discretion as to how he would carry on the business. In 1934, Brown became the vice-president and general sales manager of Ayer, but at that time, as an inducement to him to accept the management of the company, it-was specifically'agreed that he would be allowed to retain his southern territory, including the state of Texas, with the right to the exclusive agency for the sale of such products on a commission basis in said territory on the same terms and conditions as had previously existed; that said contractual relation continued up to and including the month of October, 1936, when the accident in question occurred. He further testified that he owned no stock in the Ayer Company. Brown was corroborated in his testimony by Mrs. Lillian S. Dodge, president of Harriet Hubbard Ayer, Inc. Both Mrs. Dodge and Brown testified that the company furnished samples of goods to be used in making sales, supplied the blanks on which the orders were to be taken, and fixed the prices and terms at which the products were to be sold, but that otherwise the company exercised no control whatever over Brown and his employees in the carrying out of the contract in the territory allotted to Brown. Mrs. Dodge also testified that the contract was terminable at will and that the company would have discharged Brown if he had not produced a satisfactory business, but that the company did not undertake to exercise any control whatever over him and his employees as to how the contract should be carried out, except as above indicated. The above testimony was not materially contradicted in any respect. Both Brown and Rade-baugh testified that Radebaugh was first employed by Brown in 1932 to sell Ayer products for Brown on a salary basis in the state of Texas; that said relation continued up to the time of the accident; that the company never paid Radebaugh any salary or commission; but his salary was paid exclusively by Brown as an individual, and that all orders taken by Radebaugh were first sent to Brown, and, after being checked by him, were sent to the company to be filled; that Ayer did not employ Radebaugh and did not undertake to exercise any control whatever over him in the carrying out of his contract with Brown.

We think this evidence was wholly insufficient to show such contractual relation between Radebaugh and Ayer as to make Ayer liable for his negligence. If Ayer is liable at all, it must be because of the doctrine of respondeat superior, growing out of the relation of master and servant. It appears without dispute that Radebaugh was not employed by Ayer but by Brown. We must therefore ascertain whether Brown was a servant of Ayer or an independent contractor. Restatement of the Law of Agency, ch. 1, par. 2, thus defines “master,” “servant,” and “independent contractor”: “(1) A master is a principal who employs another to perform service in his affairs and who controls or has the right to control the physical conduct of the other in the performance of the service. (2) A servant -is a person employed by a master to perform service in his affairs whose physical conduct in the performance of'the service is controlled or is subject to the right to control by the master. (3) An independent contractor is a person who contracts with another to do something for him but who is not controlled by the other nor subject to the other’s right to control'with respect to his physical conduct in the performance of the undertaking.” The above definitions are substantially in accord with those adopted and applied by the courts of this state. See Carter Publications v. Davis, Tex.Civ.App., 68 S.W.2d 640, 642, and authorities therein cited.

Under the rules above announced and the facts shown by this record, Brown was clearly an independent contractor and not a servant within the meaning of the law that makes the master liable for the negligence of the servant. Ayer did not exercise any control over the physical conduct of Brown or his employees in performance of the contract. The fact- that Ayer’s contract with Brown was terminable at will and that Ayer would have terminated it if Brown had not produced satisfactory results, and the further fact that Ayer fixed the prices and terms upon which the goods were to be sold, does not evidence such control over Brown as to Tender him a servant of Ayer. Such evidence merely shows that the employer was exercising control to see that the work was being performed and results accomplished according to the terms of the contract. As we understand, an employer has a right to exercise such control over an independent contractor as is necessary to secure, performance of the contract according to its terms and to accomplish the results contemplated thereby without thereby creating the relationship of master and servant, so .long as the employer does not destroy the employee’s power of initiation nor undertake to control the employee in'the means and manner of the performance of the work. See Carter Publications v. Davis, Tex.Civ.App., 68 S.W.2d 640, pars. 2, 3; 14 R.C.L. 68; 23 Tex.Jur. 547; Lone Star Gas Co. v. Kelly, Tex.Com.App., 46 S.W.2d 656; Davis v. General Acc. Fire & Life Assur. Corp., Tex.Civ.App., 127 S.W.2d 526, par. 6; Lehr, Inc., v. Brown, 127 Tex. 236, 91 S.W.2d 693, par. 1.

It is true that at the time of the accident, Brown was the vice-president and sales manager of Ayer and that Radebaugh was employed by Brown and was under his control; but he was the employee and under the control of Brown as an individual and not as vice-president and sales manager of Ayer. It was undisputed that before Brown became vice-president of Ayer, he was engaged as an independent contractor in the sale of Ayer’s products in the state of Texas on a commission basis. At the time he became vice-president of the company, as an inducement to him to accept the position, it was agreed by all parties that he could continue to operate such commission business as his individual project, separate and apart from the company’s business. We see no reason why such a contract should not be observed by the courts, where it is fairly entered into by all parties. Zorn v. Brooks, 125 Tex. 614, 83 S.W.2d 949. If Brown continued to operate the commission business as his own separate project, as he had a contractual right to do and as all the evidence shows that he did, then his employees in such commission business were not the servants of Ayer.

Cox’s contention that Ayer, by its course of dealings, is estopped to deny that Radebaugh was its agent and representative cannot be sustained, because a person seeking to avail himself of the benefit of the doctrine of agency by estoppel must show that he has been induced to act to his prejudice on the implied representations of agency. 2 Tex.Jur. 424. No such showing was made in this case. We sustain the appellant Ayer’s contention that the evidence is insufficient to show liability on its part.

Mrs. Kellog makes no complaint of the ruling-of the court in sustaining the defendant Radebaugh’s plea of privilege as to her suit, but Cox does complain of the sustaining of such plea as to the defendant Cox’s cross-action. Cox sought judgment over against both Radebaugh an£ Ayer. The venue of such cross-action cannot be maintained in McLennan county under section 4 of Revised Statutes, art. 1995, Vernon’s Ann.Civ.St. art. 1995, because neither of the defendants as to such cross-action resides in McLennan county. Cox asserts, however, that since it had the right to maintain its suit against Ayer, a foreign corporation, in McLennan county, it had a right to hold Radebaugh in the same suit as a necessary party defendant under section 29a of the same article. It has been held that when it is sought to maintain a suit against two or more defendants in the county of the residence of one of them under section 4, the plaintiff must prove a valid cause of action against the resident defendant. Stockyards National Bank v. Maples, 127 Tex. 633, 95 S.W.2d 1300; Caprito v. Weaver, Tex.Civ.App., 77 S.W.2d 595; Lipscomb v. Rankin, Tex.Civ.App., 139 S.W.2d 367. It would seem that the same rule should prevail in suits brought under section 29a — that is, that plaintiff should be required to prove a valid cause of action against the other defendant rightfully sued in the county where the suit was filed. As hereinbefore held, plaintiff failed to establish a valid case against Ayer and hence did not have the right to hold Rade-baugh in the same suit on the ground that he was a necessary party. Radebaugh did not commit a trespass in McLennan county within the meaning of section 9 of Article 1995, and hence the venue could not be maintained in said county under said section. No reversible error is presented because of the sustaining of the plea of privilege.

It appears that the suits of the plaintiff against Harriet Hubbard Ayer, Inc., and the cross-action of R. E. Cox Dry Goods Company against the same defendant have been fully developed and that the evidence is insufficient to show any liability on the part of Harriet Hubbard Ayer, Inc. Consequently, the judgment in favor of the plaintiff against Harriet Hubbard Ayer, Inc., is set aside and judgment is here rendered that plaintiff take nothing against said defendant. Likewise, the judgment of R. E. Cox Dry Goods Company against the same defendant is reversed and judgment here rendered that said R. E. Cox Dry Goods Company take nothing as against said defendant on its cross-action. The judgment of the trial court is in all other respects affirmed.


author: STOKES, Justice.

text:
    JONES v. FIRST STATE BANK OF DUMAS.
    No. 5120.
    Court of Civil Appeals of Texas. Amarillo.
    Dec. 2, 1940.
    James E. Anderson and Henry L. Ford, both of Amarillo, for appellant.
    Tatum & Tatum, of Dalhart, for appel-lee.
   STOKES, Justice.

On the 13th of January, 1936, appellant, Fred W. Jones, purchased from Fox-Harvey Motor Company at Dumas an automobile, agreeing to pay therefor the total sum of $475. Of this amount $125 was paid by delivering to the Motor Company an old car owned by appellant and, in order to pay the balance in cash, he negotiated a loan from appellee, First State Bank of Dumas, in the sum of $350. The negotiations for the loan resulted in an agreement that appellant would execute his note payable to the bank in the sum of $373.95 and secure the same by a chattel mortgage on the automobile being purchased by him. It was also agreed that an insurance policy indemnifying- appellant against loss by fire, theft, collision and other contingencies would be obtained, containing provision for the loss, if any, to be payable to appellee as its interest may appear. The note and chattel mortgage were executed on the date above mentioned and the insurance policy procured from a local agency by the cashier of ap-pellee bank on the same day for the amount and containing the provisions agreed upon. The note was dated January 17, 1936, which s'eem$ -torhave' t>een 'a. mistake, but it is immaterial! to iaiiy- issue-in the case. The principal-.- amount -specified in the note was. $373.95, which included $20 estimated premium necessary to obtain the insurance policy, together with advance interest and-sbrhd '&lailer" items, and it also contained the prbVisión that- it was to be paid $31.17 óií'tüé 10th of each month, beginning Feb-rúáry Í0,1936. -'In the lower left-hand cor-' her"'of'the note is the provision that the July,-August and September payments are suspended. The insurance policy, covered the period from the 13th of January, 1936, to the 13th of January, 1937, and expired on t}ie last named date. Appellant made payr merits óf $31.17 on of near the 10th of each succeeding month except the months of July, August and September, 1936, which were-- suspended- by the specific provision of the note,'and in'the month of April, 1937, before- the-last--payment was made by appellant,: the automobile was involved in a collision- which in some manner caused it to catch fire and it was practically destroyed, having thereafter a value of only $75 as jupk.: ,

After making the last payment on April 28,-- 1937⅛- appellant filed, this suit, alleging that at the time he executed the note to the bank it was agreed between him and the cashier that $20 would be added to the note and used by the bank to pay the premium for .the insurance policy which would be procured by the' cashier and retained by the bank as additional security to' appellant’s noté,. He alleged substantially that, while the noté on its face provided that it should' mature'on January 17, 1937, yet it also provided that it should be 'payable in installments of $31.17 each and the July, August and September payments were suspended, which automatically and by agreement between him and,the cashier extended the period of the loan to the 10th of April, 1937,. a period of fifteen months instead of tsyelve months as provided in the preceding portion of,-the note. He alleged that the failure gi the bank to carry out its agreement, and. procure an insurance policy covering the entire period of the loan resulted in depriving him, without his knowledge, of insurance. on the automobile from the 13⅛, of January,, 1937, until the 10th of April-, 1937, and that the automobile having been-,destroyed by fire within that period, he.had been damaged in the sum of $350 for .vyhich, he sued.

Appellee answered by general demurrer and numerous special exceptions, one of which vyas that the allegations of the petition concerning any agreement on its part to procure an insurance policy on behalf of appellant,' even if true, would’ be ultra vires; beyond its legal power or authority to make, and was,, therefore, void and unen.-forcible. It also pleaded a general denial and set up other defenses not necessary to detail here.

A jury was empaneled to try the case, but at the close of the testimony, upon motion of appellee, the court instructed the jury to return a verdict in favor of appellee and such verdict being returned in response to the charge of the court, judgment was en-. tered that appellant take nothing by his suit.

Appellant duly excepted to the judgment, and his exception being overruled, he gave notice of appeal and has perfected an appeal to this court in which he assigns as error the action of the court in giving to the jury a peremptory instruction in favor of appellee and in entering judgment upon the verdict returned in response thereto.

The . controlling issues presented by the assignments of error urged by appellant- and the contentions made in response thereto by appellee are, first, whether or not the agreement which appellant alleges that ap-pellee through its cashier made with him to procure the insurance policy covering a period of fifteen months was ultra vires and, secondly, whether the court erred in giving to the jury the peremptory instruction in favor of appellee, thus, in effect, depriving appellant of a jury trial.

Appellee contends that no error was committed by the court in giving the peremptory instruction because appellant is a state banking corporation, organized, existing and doing business under and by virtue of the laws of the State of Texas, having such powers only as are given to it by Art. 392, R.C.S., 1925, Vernon’s Ann.Civ.St. art. 392, which does not include the power to make such a contract or in any manner to bind itself by such a contract as that which is alleged by appellant concerning its agreement to procure for him a policy of insurance on his automobile.

Generally speaking, . the article of the statute referred to encompasses the entire field of operation in which a bank organized under the laws of this state- is entitled to engage. Like other corporations it is forbidden by the law to exceed the limits of authority specified in the statute and attempts on the part of its officers to enter into contracts or engagements not contemplated by the statute are ultra vires and, therefore, unenforcible. Such contracts are void and cannot serve to hind the corporation or subject it to liability for failure or refusal to comply with its provisions. Sound public policy demands that agreements or undertakings attempted to be entered into by the officers of such a corporation not included within the expressed statutory powers should be closely scrutinized and that those in charge of such an institution should not be permitted to bind it to speculative undertakings in which the corporation has no direct interest or to contracts which can have no purpose other than the accommodation of its customers. First State Bank v. Sanford, Tex.Civ.App., 255 S.W. 644; First Nat. Bank v. Crespi, Tex.Civ.App., 217 S.W. 705.

This does not mean, however, that engagements, contracts or agreements of banks not specifically incorporated in the statute are illegal and cannot be enforced if they come within the purposes for which the bank has been created or are characterized by a tendency to aid in the accomplishment of those purposes. If a bank, or other corporation, performs an act or enters into an. engagement for its own protection, if it be incidental to the’ powers granted to it by law, its act in doing so is valid and its contract so made will be enforced. First Nat. Bank v. Greenville Oil & Cotton Co., 24 Tex.Civ.App. 645, 60 S.W. 828; James McCord Co. v. Citizens’ Hotel Co., Tex.Civ.App., 287 S.W. 906; Desdemona State Bank & Trust Co. v. Streety, Tex.Civ.App., 250 S.W. 286; Exchange Bank v. Hensley & Roland, Tex.Civ.App., 240 S.W. 679; Richardson v. Burmuda Land & Live Stock Co., Tex.Com.App., 231 S.W. 337.

The record shows without dispute that, when the loan was made, it was mutually agreed that the insurance policy would be procured from a local insurance agency by the cashier of appellee and, to pay the premium thereon, the sum of $20.00 was added to the note and ultimately paid by appellant. The cashier testified that he' told appellant that appellant would have to take out insurance on the automobile and it was agreed the policy would be retained, and it was retained, by appellee as additional security of the note. The matter was handled in this'way and appellant never, saw' the policy or had it in his possession but it remained with appellee during the entire time. Thus' it will be seen that the agreement entered! into by appellee to procure the insurance-policy and the act of its cashier in carrying out the agreement was incidental tO' the security for the loan and- Was 'for the benefit of appellee as well as appéllaint. It was therefore calculated to 'accomplish a power expressly grantéd to-•'appellee by the statute, that is, lending money upon personal property and -taking • security therefor. Such ' contract' and the act- of procuring the insurance was; therefore, not ultra vires and this' contention of' ap-pellee is without merit. • '

The alleged contract or agreement of the ' cashier of appellee. to procure the insurance not being ultra vires, but one which appellee h,ad power a,nd authority to make, it then becomes pertinent to ascertain whether . orf not .the trial court committed error in giving to the jury a peremptory instruction to return a verdict in favor of appellée. The rule is well established in this and practically all other jurisdictions that if there is any material issue of fact arising from .the evidence it must be.submitted to the jury where a jury has been empaneled to try the case. Stevens v. Karr, 119 Tex. 479, 33 S.W.2d 725. If, therefore, there was an issue of fact raised by the evidence and material to the controversy, it was the duty of the court to submit the case to the jury and his refusal to do so was. reversible error. Both appellant and L. G. Daugherty, the cashier of appellee bank, testified that it was agreed between them, when the loan was made, that the insurance policy would be for the amount of .the 'note and that it would cover the period of the loan. The policy was written to cover a period of only twelve months following the date of the loan áiid expired on January 13,' 1937. The-pertinent inquiry is, therefore, what period of time was covered by the note executed by appellant as agreed by them at the time the loan was made? Daugherty testified that it was his intention to make 'the loan for only twelve months, while' appellant testified that his understanding -was it would cover a period of fifteen months'; be payable in installments of $31.17 each, with the July, August and September installments suspended.- This necessarily would extend the period covered by the note to fifteen months, making the last payment fall due on the 10th of April, 1937. Ordinarily the note would settle this question. If it specified for only one due date, in the absence of allegations of fraud, accident or mistake, the provision of the note would be conclusive and parol testimony would not be admissible to change its provisions. Hendrick v. Chase Furniture Co., Tex.Civ.App., 186 S.W. 277. Such is not the case, however, in the note executed by appellant. While in one place it provides that it is payable January 17, 1937, yet in another place it provides that it is to be paid $31.17 on the 10th of each month beginning February 10, 1936, and it also contains the provision that the July, August and September payments were suspended. Manifestly, this last provision would extend the period covered by the note to fifteen months and cause the final installment to fall due April 10, 1937. The record does not show that appellee demanded payment of the entire balance on January 17, 1937, but acquiesced in appellant’s interpretation of the contract by permitting the entire note to be paid in installments which extended it to April 10, 1937. This would suggest that the parties interpreted the contract in accordance with the contentions of appellant. It is obvious that, standing alone, the note is ambiguous. Its language is uncertain and doubtful. It is susceptible of more than one meaning and it is a famijiar rule of evidence that in such cases parol evidence is admissible to explain its meaning and make clear the ambiguity in order to arrive at the real intention of the parties when the contract was made. Jarecki Mfg. Co. v. Hinds, Tex.Civ.App., 295 S.W. 274; Leonard v. Prater, Tex.Com.App., 36 S.W.2d 216, 86 A.L.R. 499; Tom v. Roberson, Tex.Civ.App., 182 S.W. 698.

If appellee had power and authority to make the contract with appellant to procure the insurance policy, which it undoubtedly did have, and it contracted with him to procure an insurance policy on the automobile that would effect insurance thereon for the entire period covered by the note, and it failed to do so, we can see no reason why it would not be liable to appellant for any damages suffered by him on account of such failure. Such a contract, would not be without consideration because the insurance fortified appellant’s security and appellant derived benefit from it. The ambiguity in the provisions of the note with reference to the date of its final maturity ;and the conflicting testimony of the witnesses with reference to that matter presented an issue of fact that should have been submitted to the jury and, in our opinion, the court below committed error in giving to the jury a peremptory instruction to return a verdict in favor of appellee. The effect of such instruction was to deprive appellant of his right of trial by jury and this necessitates a reversal of the judgment.

For the error pointed out, the judgment of the court below will be reversed and the cause remanded.


author: LOONEY, Justice. .YOUNG, Justice BOND, Chief Justice.

text:
    SHORT et al. v. NEHI BOTTLING CO. et al.
    No. 12927.
    Court of Civil Appeals of Texas. Dallas.
    Nov. 16, 1940.
    Rehearing Denied Dec. 14, 1940.

      Truett & Truett, of McKinney, and Haskell H. Cooper, of Dallas, for appellants.
    Lucian Touchstone and Strasburger, Price, Holland, Kelton & Miller, all of Dallas, and W. P. Abernathy, of McKinney, for appellees.
   LOONEY, Justice.

Frank A. and Lizzie E. Short, parents of Bobbie Jack Short, a boy six years of age at the time of his death, brought suit against appellees to recover damages for the death of their son, alleged to have resulted from the negligent operation of a truck by Vester Justice, one of the ap-pellees.

The jury exonerated defendants of negligence in the respects as submitted, found that, in running across the street, at the time and place in question, the little boy was negligent, and that such negligence was a proximate cause; also found that his-death was the result of an unavoidable accident. Based upon these findings, the court rendered judgment in favor of ap-pellees, that appellants take nothing, from which they appealed.

Appellants requested the submission of the issue of discovered peril, contending that same was clearly raised by both pleading and proof. The action of the court in refusing to submit the issue is assigned as error and ground for reversal.

The accident, resulting in the death of Bobbie, occurred in front of the Church of Christ building on South Wilcox Street in the City of McKinney. At the time, the truck was traveling about twelve miles per hour, north, on the right side of the street, four or five feet from the east curb. When first seen by the driver, the child was standing on the west side of the street, fifty to seventy-five feet north of where the truck was at the time, one foot on the curb and the other out in the street, back turned to the south, seemingly oblivious of the approaching truck. Evidently intending to join some children at play on the sidewalk in front of the church building, the little boy, running northeasterly across the street, ran into the pathway of the truck, was knocked down, and the right front and rear dual wheels of the truck passed over his body, inflicting injuries resulting in his death.

The material facts were furnished by the testimony of three witnesses, Vester Justice, appellee, driver of the truck, and two eyewitnesses, Cecil Funderburg and Jerome Stroup. Vester Justice stated that the truck was equipped with brakes, in good order, and a horn that- could be heard some distance away; that he was driving about twelve miles per hour, north, on the right or east side of South Wilcox Street in the City of McKinney, and about four feet from the curb; that he saw the little boy fifty or seventy-five feet away, standing on the opposite side of the street, one foot on the curb, the other out in the street, back turned south, facing north; had the appearance of being very young, not more than four, five or six years of age; witness stated that the street was clear of parked cars; admitted that he did not blodr the horn or apply the brakes of' the truck, between the time he saw the boy and the time he was struck and knocked down; stated further that he realized the child was partly in the street and might dart across at any time; knew from his experience as a driver that children do not realize danger as do their elders, and often dart right out into the street; that at no time while witness was approaching did the child turn around or look in the direction of the approaching truck, seemingly did not see or know the truck was approaching; that witness watched the child until reaching a point on the street eight or ten feet south of, the point where he was standing, then glanced just a moment at a man across the street (Funderburg), and, glancing back, saw the child three or- four feet from the truch, running rapidly in a northeasterly direction, when he was struck by the left front bumper of the truck. Witness testified that, if the child had been running straight east, he would have collided .with the side of the truck, .and further that, if the truck had been.', two or three feet further to the right (east), the child would not have been struck by the bumper, but would have run into the.side of the truck.

Cecil Funderburg, an eyewitness, was on the sidewalk on the east side of Wilcox Street, about facing the boy, when he left the curb and started to run — not straight but at an angle — out in front of the truck. When witness first saw the truck and boy, the truck was about eight or ten feet, on the street, from the boy, traveling north, the right side four or five feet from the east curb. The child seemingly did not realize the truck was coming. The truck was traveling about twelve miles per hour. The first foot or foot and half of the bumper struck the boy, knocking him down, and the right front wheel and rear dual wheels ran over his body. Witness did not see the truck swerve either to the right or to the left as it approached the child, nor did he hear the horn blow. The driver applied the brakes just as the child was'hit, they slid, and were released after the front right wheel passed over the child’s body, but before the rear wheels had passed over him. The truck traveled six or eight feet before the brakes were released and afterwards rolled fifteen or twenty feet and stopped. ...

Jerome Stroup, also an eyewitness, testified that the accident happened north of the, center of the Chtirch; ,sa'w the little boy as he came running from'the west side of- .the street, toward the east, in the direction of where some children were playing oh the'sidewalk around the front'of the church. At the time, the truck was about twenty feet away from the child, traveling about twelve miles per hour; did not think the child ever saw the truck before he was hit.

• The foregoing is a statement of the material evidence bearing upon the question of liability. The doctrine of discovered peril, we think, is correctly stated in appellees’ brief, as follows: “ * * ■ * discovered peril as we have it in Texas, requires an actual discovery of the perilous position, actual or potential, of the victim, in time for the defendant to avoid injury to the'victim by the exercise of ordinary care with the means at hand. * * * ” It will be observed that appellees admit that where the peril is either actual or potential, the doctrine applies. This principle was announced by our Supreme Court at quite an early day and has never been repudiated. In Houston & T. C. R. Co. v. Finn, 101 Tex. 511, 512; 109 S.W. 918, Chief Justice Gaines, speaking for the Court, applied the doctrine in the following language; he said: “* * * The case was submitted to the jury solely upon the ground of discovered peril, and, the jury having found that the servants of the company discovered that the plaintiff was in a perilous position, or about to enter into such position, in time to have avoided the injury by the means at their command, we cannot reverse the judg-. ment if there be any evidence to 'justify the verdict. Being now of the opinion that there was some evidence to justify the jury in finding that the servants of the company discovered that the plaintiff was about to go into a place where he would be in danger of being struck by the cars in time to have avoided the injury 'by means within their power, we deem it a profitless task to discuss the question. * * * ” Also, in Galveston, H. & S. A. Ry. Co. v. Wagner, Tex.Com.App., 298 S.W. 552, 553, the same principle was recognized in the following language; the court said: “In order for a person to be in peril, it is not necessary that bodily injury will certainly be suffered by him.- He is in peril whenever -he is pursuing a course which probably will terminate in serious bodily injury to him. Whenever it reasonably appears to a second .person, from facts and circumstances within his knowledge, that a person is pursuing ’ such a course and probably will pursue it to the end, then, in such event, the second person is held to have knowledge of the peril of the other. This doctrine, we think, is clearly deducible from the many decisions on the subject of discovered peril, among which are the following: [authorities cited.]” And, in the comparatively recent case of Panhandle & Santa Fe Ry. Co. v. Napier, 117 S.W.2d 826, 829, Judge Walthall, speaking for the El Paso Court of Civil Appeals, used the following language in point; he said: “Our courts have uniformly held that a person is in peril whenever he is pursuing a course which probably will terminate in serious bodily injury to him. In Galveston, H. & S. A. Ry. Co. v. Wagner, 298 S.W. 552, Judge Harvey, speaking for the Commission of Appeals, said (page 553): ‘Whenever it reasonably appears to a second person, from facts and circumstances within his knowledge, that a person is pursuing such a course and probably will pursue it to the end, * * * the second person is held to have knowledge of the peril of the other,’ and referred to a number of case? from the Supreme Court of this State as so holding, among them, Houston, E. & W. T. R. Co. v. Kopinitsch, 114 Tex. 367, 268 S.W. 923; Texas & Pacific R. Co. v. Breadow, 90 Tex. 26, 36 S.W. 410; Houston & T. C. R. Co. v. Finn, 101 Tex. 511, 109 S.W. 918, and other cases noted.” Many other authorities to the same effect could be cited, but would add nothing to the con-olusiveness of the authorities cited and the excerpts quoted.

We think the evidence clearly raised the issue of discovered peril. It tends to show, and the jury could have so found that, fully realizing the peril of the boy, the driver, in the exercise of ordinary care, could and should have blown the horn, which, if done, doubtless would have startled the child, caused him to discover the approaching truck, and abandon his evident purpose of crossing the street. We also think the evidence tends to show, and would have authorized the jury to find that, in the exercise of ordinary care, the driver should have so reduced the speed of the truck, as to enable him immediately to stop . on discovering the boy, if he attempted to cross the street, as later he was discovered, by the driver, in a position of actual peril.

Again, appellee testified that he kept his eye on the boy--until the truck reached a point on the street eight or ten feet-south' of the point where the boy was standing, then' glancing a- moment at the man across the street (Funderburg), immediately glancing back, discovered the-boy three or four feet' from the truck, rapidly running, in a northeast direction, when he was .struck by the left front bumper of the 'truck; inflicting injuries resulting in his death; :• The driver admitted that, if the truck had been turned’ two’ or three feet to the right (east), the child would not have been struck at all by’ the bumper, but would have run' into the side of the truck. This evidence, in connection with the admission of the driver that he neither turned the car to the right, nor applied the brakes until just as the collision occurred, strongly tended to show, and the jury could have so found, that, after discovering the boy running three or- four feet from the truck, the driver was negligent in failing to turn to the right, which he could have done without injury either to-himself or to the truck, and, admittedly, if done, the boy would not have been struck at all and, doubtless, would be alive today.

Appellants also contend that the findings of the jury to the effect that the driver of the truck did not fail to keep a proper lookout, and that his failure to sound the horn was not negligence, are so against the great preponderance of the evidence as to justify a reversal and remand of the cause.

In discussing the issue of discovered-' peril, supra, we set out the evidence bearing upon these findings, and, to some extent, discussed its probative value. In view of this evidence, which is practically undisputed, we think the findings under' consideration were so against the, preponderance of the evidence as to be clearly wrong, justifying reversal. See 3 T.J., pp. 1097, 1098, sec. 769, and the authorities cited.

Those who operate motor vehicles over .the streets and highways where children loiter or are wont to assemble are-charged with the duty of exercising -a high degree of vigilance and caution to avoid injuring them. This doctrine, recognized the country over, is well expressed in 45 C.J., pp. 702, 703, sec. 78, as follows ; “* * * The known characteristics of: children, should, however, be taken into' consideration in determining whether, or not sufficient care for the safety of a child has been exercised in a particular case; Accordingly, the fact that children cannot and do not ordinarily exercise the same degree of prudence and care for their own safety as adults imposes upon those by whose acts or omissions a child may be injured the obligation of exercising more vigilance and caution than might be sufficient with respect to an adult, and conduct which might reach the standard of ordinary care with respect to an adult might, in the case of a child, amount to negligence or even gross negligence.. As it is obvious that the ability of a child to exercise sufficient care and prudence for his own protection increases as he grows older, the care to be exercised toward a child must be proportionate to his maturity and capacity. The age of the particular child is, therefore, always a proper matter for consideration in determining whether proper care has been exercised to avoid injuring him, and conduct may be negligent with respect to a very young child, although it might reach the standard of ordinary care with respect to a child who had reached an age at which children are ordinarily more able to appreciate and avoid danger. Conversely, where one, although still a child, is able to exercise the care and discretion of an adult, he is entitled to no more care than would constitute ordinary care toward an adult.”

Although insisting that the judgment should be affirmed, yet appellees move the court to reverse the judgment and here render judgment in favor of appellants for $98, the amount of damages found by the jury, if the court should be of opinion that the evidence raised the issue of discovered peril.

The amount of damages, $98, found by the jury, is made up of $3 hospital bill, $10 doctor’s bill, and $85 funeral expenses. Nothing was allowed for the value, to the parents, of the child’s services during minority, or for any contributions the child might have made after attaining his majority, although the evidence showed the parents to be poor working people; that the boy was bright, intelligent, strong, healthy, obedient, attractive, and helpful. This evidence, in our opinion, justified a larger verdict, but, as damages are collectible only when liability is established, we are of opinion that appellants are entitled to have their damages assessed by a jury who believe they are entitled to recover something, rather than by a jury who do not so believe.

The other questions raised doubtless will not arise on another trial, hence are not adjudicated. For the reasons stated, the judgment below is reversed and the cause is remanded for retrial on all issues raised by pleading and proof.

Reversed and remanded.

YOUNG, J., dissents in part •

.YOUNG, Justice

(concurring in part).

I believe appellants’ assignments on discovered peril only should have been considered and sustained; and concur in the opinion of my Associate, Justice LOONEY, to that extent.

BOND, Chief Justice.

I concur in reversal and remand of this cause on all issues considered and sustained in our original opinion, but not to the extent that the probative value of the evidence bearing upon the questions of negligence and proximate cause shall, on another trial, be considered as the law of the case. Under Art. 2233, R.S., the trial court, to meet the ends of justice, and without stating grounds therefor, may grant two new trials under such conditions as exist in this case. A new trial should have been granted. I am in accord with the final disposition of this appeal.


author: MONTEITH, Chief Justice.

text:
    PENNINGTON v. PENNINGTON et al.
    No. 11058.
    Court of Civil Appeals of Texas. Galveston.
    Nov. 27, 1940.

      Walter M. Hilliard and R. S. Bowers, both of Caldwell, for appellant.
    Al. L. Crystal and W. M. Hilliard, both of Caldwell, for appellees.
   MONTEITH, Chief Justice.

This is an appeal from a judgment of the district court of Burleson County denying the application of appellant, O. P. Pennington, to probate the will of W. M. Pennington, who died in Burleson County, Texas, on May 19, 1937.

Said will was admitted to probate in the county court of Burleson County on October 3, 1939. The said O. P. Pennington, who was named independent executor therein, was appointed and duly qualified as such executor.

From the judgment of the county court admitting said will to probate, appellees, Mrs. Leila Hocutt Bailey et al., contestants therein, duly filed their petition contesting the validity of said will and giving notice of appeal to the district court of Burleson County, Texas. In their contest they alleged that they were heirs at law of the said W. M. Pennington, deceased, and were interested in his estate. They filed pleas of res adjudicata, former judgment and estoppel, and alleged that the testator did not have the mental capacity to execute said will and that undue influence had been exercised by appellant in securing its execution.

On the trial of said cause in the district court, after all the evidence had been introduced and both sides had rested, the 'court discharged the jury, entered an order sustaining the pleas of res adjudicata, former judgment and estoppel filed by ap-pellees, and entered judgment in favor of appellees denying the application of appellant to probate said will.

The record shows that on March 8, 1933, the county court of Burleson County appointed one J. E. Porter guardian of the person and.estate of W. M. Pennington, “a person of unsound mind”. The said J. E. Porter qualified as such guardian and later employed appellant, O. P. Pennington, to care for the said W. M. Pennington. Appellant acted in said capacity until May 11, 1936, when he was discharged.

On January 11, 1935, during the time appellant, O. P. Pennington, was employed to care for him, the said W. M. Pennington, by his mark, executed the will involved in this appeal in which he devised and bequeathed all of his property, both real and personal, to appellant, O. P. Pennington, and in which the said O. P. Pennington was named independent executor without bond. Thereafter, by deed dated September 14, 1935, the said W. M. Pennington conveyed his entire estate, both real and personal, to the said O. P. Pennington, reciting as the consideration therefor his love and affection for his said nephew and the fact that the said O. P. Pennington had cared for and looked after him and his property. Thereafter, by deed dated March 12, 1936, the said O. P. Pennington, joined by his wife, conveyed one-half of the property received by him in said deed from W. M. Pennington to Mrs. Della Cummings, the sister of the said W. M. Pennington.

Thereafter, by order entered on May 11, 1936, J. E. Porter was released from his appointment as guardian of the person and estate of W. M. Pennington, “a person of unsound mind”, and appellant, O. P. Pennington, was appointed as substitute guardian in his place.

W. M. Pennington died on May 19, 1937. The parties to this action are the heirs of W. M. Pennington, deceased, and, with the exception of appellant, O. P. Pennington, and Mrs. Della Cummings, were and are non-residents of Burleson County, Texas. They did not learn of the death of the said W. M. Pennington- until August, 1938. On October 10, 1938, suit was filed by certain of said heirs in the district court of Burleson County, Texas, numbered 14,025 on the docket of said court, and entitled Sophia Pennington et al. v. O. P. Pennington et al., wherein they sought recovery of their undivided interests in the estate of W. M. Pennington, deceased, as his heirs at law. They sought • the cancellation of said deeds of conveyance from W. M. Pennington to O. P. Pennington and from O. P. Pennington and wife to Mrs. Della Cummings, the removal of the cloud cast on their title to said property by virtue of said deeds, and for the partition thereof. Thereafter the other heirs at law of the said W. M. Pennington, with leave of the court, filed their plea of intervention in said cause. They joined the plaintiffs in said cause in their prayer for relief.

Defendants in said cause, appellant O. P. Pennington and Mrs. Della Cummings and her husband, answered by general denial and general demurrer, and, in the alternative, by a special plea of limitation. They alleged that they were entitled to the property in controversy by virtue of said deeds. By pleas of reconvention they set up certain claims for services, rendered and money advanced W. M. Pennington, deceased, and his estate.

During the trial of said cause No. 14,-025, evidence was introduced by defendants setting up the fact that the said W. M. Pennington had, prior to his. death, executed a will wherein he had devised all of his property to the said O. P. Pennington.

Appellant states in his brief that this testimony was introduced only as a circumstance to show the mental capacity of W. M. Pennington to execute the deed from him to O. P. Pennington. Said will was not introduced in evidence by defendants. Later it was. introduced in evidence by plaintiffs, over the objection of defendants.

In a trial before the court without a jury judgment was rendered cancelling said deeds, awarding the title and possession of all of the property of the said W. M. Pennington, deceased, .to his heirs, plaintiffs, intervenors and defendants in said suit, and appointing commissioners to partition said property among the parties at interest. During the trial of the case the court excluded from consideration the claims of the defendants against said estate for services rendered and money advanced by them, on the ground that the district court did not have jurisdiction thereof. Said judgment recited that said claims could only be adjudicated in the administration of said estate. No appeal was perfected from said judgment and no further action has been had therein, and, since said judgment is not void, it cannot be collaterally attacked .in this action.

Thereafter, on October 3, 1939, said will was admitted to probate by the county court of Burleson County,' and an appeal was taken by contestants therein, the plaintiffs and intervenors in said cause No. 14,025, to the district court of Burle-son County.

At the conclusion of the testimony in the trial of _ said cause in the district court, the court discharged the jury, sustáined appellees’ pleas of res adjudicata, former judgment, and estoppel, and refused the probate of said will, holding in effect that the judgment in said cause No. 14,025, was decisive of and settled all issues involved in this appeal, and that appellant, O. P. Pennington, was estopped by reason of said judgment and the pleadings therein from probating said will.

Appellant assigns error in the action of the trial court in admitting the judgment in cause No. 14,025 in evidence in this case, for the alleged reasons that said judgment was not a final judgment and was not res adjudicata as against the probate of said will, since the court in the trial of said cause and in the rendition of the judgment therein expressly excluded the claims of defendants against said estate, and for the additional reason that the commissioners appointed to partition the property involved in said action could not report until said claims had been settled and had not reported up to the time of the trial of this suit.

The contention that said judgment was not final cannot be sustained. The trial court having sustained plaintiff’s exceptions to that portion of defendants’ pleadings in which they sought recovery for moneys advanced and services rendered and defendants having failed to perfect their appeal, defendants, including appellant herein, cannot in the present action complain of the court’s ruling thereon.

Further, it is the established rule in this state that a judgment is final if it terminates the litigation of the parties thereto on the merits so that nothing remains to be done but to execute it according to its terms though further proceedings may be required to carry the judgment into effect. Ware v. Jones et al., Tex.Com.App., 250 S.W. 663. This rule applies even though the parties thereto are required to pay certain sums into court to await determination of conflicting claims in another court: Graham Refining Co. v. Graham Oil Syndicate, Tex.Civ.App., 262 S.W. 142.

As to appellant’s contention that the judgment in cause No. 14,025 was not res adjudicata as against the probate of said will, Article 7391, Revised Statutes of 1925, provides that: “Any final judgment rendered in any action for the recovery of real estate shall be conclusive as to the title or right of possession established 'in such action upon the party, against whom it is recovered, and upon all persons claiming from, through or under such party, by title arising after the commencement of such action.”

The case of Trigg et al. v. Whittenburg et al., Tex.Civ.App., 129 S.W.2d 472, 474, in which writ of error was refused, involved the title and possession of land in Hutchinson County. The identical land and the parties therein had been involved in a suit in the district court of Travis County. Defendants, by way of general demurrer, interposed the Travis County cause and the final decree therein as res adjudicata to the claim asserted by Trigg. The court in said cause, in holding that said Article 7391 merely enacted into law the equitable rule that there should be an end to all litigation, says: “The language of this article makes it incumbent upon a litigant to present in the first instance all the reasons he has to offer as a basis for recovery. No new and independent rights having accrued to him after such judgment he is not permitted to maintain another suit seeking to recover the same property upon some theory not advanced in the former action. To permit such a practice would be tantamount to the abolition of final judgments. * '* * The final judgment in the former suit denying the plaintiff any recovery necessarily adjudicated that the land in question was not unsurveyed school land, which is the very question that the plaintiff now seeks to-adjudicate in this action.”-

The court in its opinion cited the case of Freeman v. McAninch, 87 Tex. 132, 27 S.W. 97, 99, 47 Am.St.Rep. 79, wherein certain defendants in a former judgment sought in a new suit to avoid the effect of that judgment in a situation similar in some respects to that presented in the instant case. Chief Justice Stayton, speaking for the Supreme Court, in his opinion held that where it appears from the record of a court having jurisdiction over the parties and subject matter that an issue has been presented and decided, then the decision so made, so long as it is not set aside in some lawful manner, must be held conclusive upon the rights of the parties when the same issue is again presented, and in such case extrinsic evidence cannot be received to contradict the record by showing that an issue necessarily involved in the case was not presented and decided. Judge Stayton quotes with approval from the case of Foster v. Wells, 4 Tex. 101, 104, wherein the court held: “That the judgment or decree of a court possessing competent jurisdiction shall be final as to the matters determined, cannot be controverted. The principle, however, extends further. It is not only final as to the matters actually determined, but as to every other matter which the parties might litigate in the cause, and which they might have had decided.”

The will involved in this appeal was executed prior to the execution of the deeds on which cause No. 14,025 was based. By sitting silent and not seeking a postponement of the trial for the purpose of having said will probated and by electing in his pleadings to take under the judgment in cause No. 14,025, appellant in effect assumed the attitude that if he was unsuccessful in the litigation involved in said suit No. 14,025, he could and would thereafter litigate the question of the title and possession of the identical property involved therein' in another action involving the title thereto under said will in which the parties in said cause No. 14,025 would be interested.

The term estoppel implies that one who by his deed or conduct has induced another to act in a particular manner will not be permitted to adopt an inconsistent attitude or course of conduct and thereby cause loss or injury to such other. Appellant by his pleadings elected to take under the judgment in cause No. 14,025 in the event the deed of W. M. Pennington to him was can-celled or set aside. Said deed was cancelled and set aside and no appeal was perfected in said suit.

The trial court, in sustaining appellees’ plea of estoppel, held, in effect, that by such action, appellant had waived his right to probate said will and elected to hold under said deed from W. M. Pennington to him and is now estopped from repudiating said judgment and electing to take under said will.

The judgment of the trial court will be in all things affirmed.

Affirmed.