author: SMITH, Chief Justice.

text:
    PAGE et al. v. ESTES et al.
    No. 10755.
    Court of Civil Appeals of Texas. San Antonio.
    May 22, 1940.
    Rehearing Denied July 10, 1940.
    Sidney P. Chandler, of Corpus Christi, for appellants.

      C. O. Hamlin and Chas. H. Clark, both of 'Corpus Christi, for appellees.
   SMITH, Chief Justice.

J. H. Page and others for whom he acted were joint owners of a tract of 36.17 acres of land in Nueces County, which they proposed to lease' for oil and gas purposes. According to the effect of jury findings Page listed the property, for lease, with George Estes and Robert Pinson, at a stipulated money price, to which Page was to add $200 per acre, to be paid in oil by the lessee, as broker’s commission to Estes and Pinson. The jury further found that Estes and Pinson procured a purchaser of the lease, which was consummated upon the stipulated terms, including the added consideration of $200 per acre. When Estes and Pinson demanded their commission, Page and his co-owners, for whom Page acted under power of attorney, refused payment, whereupon the brokers brought this suit and recovered judgment against Page and his associates, for $2,880, which the jury found to be the reasonable value of the services rendered. Estes and Pinson will be referred to as plaintiffs and Page and his associates as defendants, as in the court below.

None of the negotiations between the parties were in writing; the transactions were wholly in parol.

Plaintiffs based their suit upon allegations of an express contract by which, it was alleged, defendant agreed to include in the sale price of the lease the sum of $200 per acre to be paid in oil by the lessee, which defendant was to assign to plaintiffs as commission for procuring the sale. But, in the alternative, plaintiffs also alleged a cause of action, as upon the quantum meru-it, for the reasonable value of their services. On demurrer the trial judge struck plaintiffs’ allegations of express contract,- and submitted the case solely on the theory of quantum meruit, the issues of which the jury resolved in favor of plaintiffs, a)S follows: (1) That plaintiffs were the procuring cause of the sale of the Page lease; (2) that defendants knowingly accepted the services plaintiff rendered them; (3) that defendants knew plaintiff would expect compensation if the sale was made; (4) that they notified defendants before the sale that they would expect compensation, and that the services rendered by plaintiffs were of the reasonable value of $2,880.

Defendants contend that plaintiffs failed in both pleading and evidence to show that defendants actually employed plaintiffs to procure a purchaser for the lease; that this was an independent and controlling issue on which a jury finding was essential as a basis for judgment for plaintiffs. We overrule these related contentions. In a suit for commission, such as in this case, it is not necessary that the broker allege, prove and elicit a finding that the seller expressly employed him to effect a sale; it is sufficient if he pleads, .proves and elicits findings that he procured the sale through services performed by him with the knowledge and acquiescence of the seller, and with . the expectation, known to the seller, of a commission from the latter. In such case the contract of employment will be implied as a matter of law. We think plaintiffs’ case was well pleaded and established by efficient findings, on sufficient evidence. Bond v. Hancock, Tex.Civ.App., 163 S.W. 660; Lane v. Davidson, Tex.Civ.App., 31 S.W.2d 1094; Pryor & Wilson v. Moody, Tex.Civ.App., 49 S.W.2d 506; Marr Piper Co. v. Bullis, Tex.Com.App., 1 S.W.2d 572; Stevens v. Karr, 119 Tex. 479, 33 S.W.2d 725; Colbert v. Dallas Joint Stock Land Bank, 129 Tex. 235, 102 S.W.2d 1031.

The measure of damages, to-wit, the reasonable value of the services rendered by plaintiffs, was established primarily by the testimony of plaintiff Estes and his witness Perkins. Defendants contend that the evidence upon that issue was incompetent and insufficient. We overrule those contentions. On the question of competency each of the witnesses testified unequivocally that he knew the customary broker’s commission paid in that vicinity for- procuring sales of oil leases, as well as the market value of such leases. This was sufficient, prima facie, to qualify these witnesses to testify upon the issue of reasonable commission. City of Waco v. Roberts, Tex.Civ.App., 12 S.W.2d 263; Id., 121 Tex. 217, 48 S.W.2d 577. Defendants’ objections to the qualification of those witnesses went rather to their credibility and the weight of their testimony than to its admissibility. Defendants had- the privilege of exploiting those, objections in the cross-examination of the witnesses. Wilson v. Barbour, Tex.Civ.App., 135 S.W.2d 169. Moreover, we think other testimony by those witnesses fully qualified them to give their opinions on the issue of reasonable value of services in such matters, and we conclude that their testimony supports the jury finding on that issue. 7 Tex.Jur. p. 527, § 126; Pryor & Wilson v. Moody, Tex.Civ.App., 49 S.W.2d 506.

Testimony oí the customary broker’s charge, of the value of the lease to the landowner, of the benefits he derives therefrom, and of the amount promised by the seller, may all be Considered by the jury in determining the reasonable value of the broker’s services. 7 Tex.Jur. 527, § 126; Bond v. Hancock, Tex.Civ.App., 163 S.W. 660.

Testimony of customary commission, -where pleaded, can be introduced, and it need not be shown that the principal knew of it in order to render it admissible upon the issue of reasonable value of broker’s services. McNabb v. Woolfolk, Tex.Civ.App., 240 S.W. 1043.

Defendants complain of the admission of the testimony of plaintiff Estes that he knew the customary charge for broker’s commission in Brooks County and South Texas, and that it was the same as in Nueces County, where the sale involved was effected. The testimony was admissible, at least in the absence of evidence of a different custom in those places. Floore v. J. T. Burgher & Co., Tex.Civ.App., 128 S.W. 1152.

Defendants contend that testimony of Estes and Perkins as to the value of the lease to the landowners was mere speculation and as such should have been ex- ■ eluded. In view of testimony as to their previous dealings and experience and familiarity with the sale of oil and gas leases in the vicinity, and their unequivocal statement that they knew the market value and the benefits to the owners of the lease, we hold that the trial court properly admitted such testimony. Bond v. Hancock, Tex.Civ.App., 163 S.W. 660; Pryor & Wilson v. Moody, Tex.Civ.App., 49 S.W.2d 506.

Defendant J. H. Page acted for himself and his co-owners in the negotiations with plaintiffs, under written power of attorney constituting him a general agent, for the owners, to effect sale of an oil and gas lease on the land involved. Defendants objected to the admission of this power of attorney in evidence, upon the ground that the instrument did not authorize' Page, as agent, to employ brokers to effect or aid in the sale. The trial judge admitted the evidence over that objection, however, and defendants have assigned error on that ruling. We overrule defendants’ contention. The power expressly delegated to Page to sell the lease carried with it the incidental and implied authority to employ brokers to effect the general purpose. Barker v. Mosby, Tex.Civ.App., 118 S.W.2d 946; Republic Nat. Bank & Trust Co. v. Asbury, Tex.Civ.App., 91 S.W.2d 824.

The conclusions stated have the effect of overruling all of defendants’ propositions. The case appears to have been fairly tried, no reversible error is shown, and the judgment must be affirmed.


source: Caselaw Access Project

author: PRICE, Chief Justice.

license: Public Domain

text:
    ELLIS v. LEWIS.
    No. 3961.
    Court of Civil Appeals of Texas. El Paso.
    June 20, 1940.

      James D. Willis, Pf Pecos, for appellant.
    John G. Renken, of Pecos, for appellee.
   PRICE, Chief Justice.

This suit was filed in the Justice’s Court in and for Precinct No. 1, Reeves County, Texas, by Bob Lewis, as plaintiff, against R. E. Ellis, trading under the name of M System Grocery & Market, as defendant. Plaintiff sought to recover damages by reason of the alleged negligence of defendant’s employee in running into a horse of plaintiff’s. In the Justice’s Court the judgment was in favor of the plaintiff in the sum of $100. Appeal was perfected by the defendant to the County Court. A trial was there had before a jury, the cause submitted on special issues, and, on the answers returned, the court entered judgment against the defendant in the sum of $100. From this judgment the defendant perfected this appeal.

The parties will be designated here in accordance with the designation they bore in the County Court.

In substance, plaintiff alleged that on the 29th day of August, 1938, he was loading two of his horses into a “pickup” truck, and had left one of said horses standing with the reins to the bridle down; the horse had been trained to stand in such manner; that another horse neighed, and plaintiff’s said horse ran onto State Highway No. 27, where he was struck' by defendant’s delivery truck. Several grounds of negligence were averred as to the manner in which said truck was being driven; injury to the horse by the collision to such an extent that it was necessary to have same destroyed was averred. The reasonáble cash market value of the horse was alleged • to be $150.

Defendant’s answer consisted of a general denial, special denial; among other defenses specially pleaded was an ordinance of the City of Pecos forbidding animals running at large and a violation of this ordinance by the plaintiff; detailed pleas of contributory negligence on the part of the plaintiff; and a cross-action alleging that defendant was damaged by the negligence of plaintiff in the sum of $50 due to injuries caused to his delivery truck by reason of such tiegligence.

Defendant urged some ninety odd grounds in his motion for a new trial, filing twenty-eight assignments of error in his brief.

A brief recital, of the facts may aid in the discussion of the issues tendéred by this appeal.

Plaintiff lived on Oak Street in the City of Pecos, a street running north and south, we presume; his house was one-half block west from Highway 27, known as the Fort Stockton Highway; there was an open space between his house and Highway No. 27; on the morning in question he was engaged in loading two horses in' a “pickup” truck for the purpose of transportation to his ranch; one of these horses was evidently saddled and bridled; this horse was standing in proximity to the truck with the bridle reins hanging down in the usual and customary manner, the horse having been customarily controlled in this manner; somewhere in the neighborhood across Highway No. 27 another horse neighed; ■plaintiff’s horse started in the direction of that animal, and in so doing went onto Highway 27, where he was either struck by, or ran into, the truck then operated by defendant’s employee in defendant’s business; at the time of the accident defendant’s truck was being driven southerly on Highway No'. 27; the accident occurred within the city limits of Pecos; at the time of the occurrence the City of Pecos had in force an ordinance relative to livestock, Article 1 of which is as follows: “The running at large within the limits of the Town of Pecos, Texas, of any cattle, horses, mules, sheep, goats, jacks, jennets, or hogs, shall be and is hereby prohibited.”

The testimony is conflicting throughout as to the speed at which the defendant’s truck was driven, and as to whether the truck ran into plaintiff’s horse, or plaintiff’s horse ran into or on the truck.

The verdict established that defendant’s truck was operated at a rate of speed in excess of twenty miles per hour, and that same was the proximate cause of the accident ; that defendant’s driver failed to keep a lookout; such failure was negligence; and such negligence a proximate cause of the injury to plaintiff’s horse.

Special Issue No. 21 read as follows: “What sum of money, if any, if paid now in cash do you find from a preponderance of the evidence will fairly and reasonably compensate the plaintiff for his damages, if any, by reason of the loss of his horse?”

On the defensive issues and the issues submitting the cross-action the findings were all against the defendant. Summarized, these are: that plaintiff’s horse was not running at large at the time of the collision; plaintiff was not guilty of negligence in permitting his horse to stand with its reins down.

Special Issue No. 6 submitted as to whether, at the time and place in question, defendant’s truck was driven at a rate of speed in excess of twenty miles per hour. Special Issues No. 12 and No. 27 submit the identical issue. The issue of the failure of defendant to keep a lookout is submitted in almost the identical form in Special Issues IS, 19 and 30. Complaint is made as to these duplications on the ground that it gives undue emphasis to such issues. We can conceive of no good reason for submitting any single issue more than once, and it is unquestionably error to do so.

Speer, Special Issues, Sec. 188, p. 245.

Complaint is made' of the court’s failure to define the term “ordinary care” used in the definition of proximate cause, the term “lookout,” and the phrase “running at large.”

We think the term “ordinary care” should have been defined by the court.

We do not deem the word “lookout” as used in the court’s charge requires definition. The next succeeding question submits the issue of negligence. In a measure, at least, the duty as to “lookout” is measured and declared by the definition of negligence. As the question is presented we do not believe error is shown. If the term “proper lookout” had been used, an entirely different question would have been presented. It seems when the term “proper lookout” is used it should be defined. Wichita Falls & S. R. Co. v. Hamilton, Tex.Civ.App., 37 S.W.2d 755; Lander v. Jordan, Tex.Civ.App., 87 S.W.2d 1109; Fort Worth & Denver City Ry. Co. v. Rogers, Tex.Civ.App., 62 S.W.2d 151.

Was it error for the court to fail to define the phrase “running at large,” used in several of the issues ? This involves a construction of the ordinance of the city pleaded and introduced in evidence by defendant.

Beyond a doubt, in a sense, the horse, just before and at the time of the accident, had freed itself from the control of the plaintiff. If the presence of the horse in the street under these'circumstances constituted “running at large,” then there was no issue relative thereto, and same should not have been submitted.

Article 1 of the ordinance, which we have herein before set forth, was relied upon by defendant.

We think an animal is “running at large,” within the meaning of the ordinance, when off the premises of its custodian within the city limits with the consent or acquiescence of such custodian, or by. reason of such custodian's negligence, when it is not under the immediate control of anyone.

Under the case here made by the evidence, we do not think the issue as to this animal “running at large” is an .issue, unless plaintiff was guilty of negligence in permitting it to escape from his control.

In the case of Presnail v. Raley, Tex.Civ.App., 27 S.W. 200, 201, opinion by Judge Neill, this proposition'is announced: “A horse which, while being driven, becomes frightened, and escapes from the control of the driver, without his fault, and runs away, is not ‘running at large,’ within the meaning of ordinances of a city prohibiting animals from running at large.” See, also, Briscoe v. Alfrey, 61 Ark. 196, 32 S.W. 505, 30 L.R.A. 607, 54 Am.St.Rep. 203; Ft. Worth & D. C. Ry. Co. v. Decatur Cotton Seed Oil Co., Tex.Civ.App., 179 S.W. 1104.

We do not mean to hold that the issue of negligence as to plaintiff’s management of the horse in question is not in the case. It is in the case. If there was negligence, and 'same was the proximate cause of the injury to the horse, it is a defense. This latter statement is made with the qualification that if the issue of discovered peril be presented, another question arises. The doctrine of discovered peril was enunciated in early times in relation to an injury to an animal. If this animal escaped through the negligence of plaintiff, then the issue of “running at large” is in the case. In case it be established that this animal was running at large, within the meaning of the ordinance, we think that the case of Dillon v. Stewart, Tex.Civ.App., 180 S.W. 648, measures the duty of defendant.

The proposition laid down in that case is that the mere driving in excess of the statutory speed does not, in and of itself, constitute gross negligence. Nor do we think that case in any way qualifies the limits of the law as to discovered peril.

We have'herein before copied Special Issue 21 relating to the measure of damages. Defendant excepted to this issue on the ground it gave the jury no direction as to how the damages were to be estimated. Plaintiff pleaded the market value of his horse as his measure of damages. This should’ have been the issue submitted, if there was evidence relative thereto, or there should have been appropriate explanation that this was the measure of damages. St. Louis, S. W. Ry. Co. v. Hill Bros., Tex.Civ.App., 58 S.W.2d 861.

Even though it does -somewhat prolong this opinion, one .other matter should be mentioned.

We deem the argument complained of improper, and hold that same presents reversible error. There was no evidence in the record to show that other delivery boys in the town. drove fast and when they violated the law in this respect pleaded guilty and paid fines. If evidence as to such matter had been tendered it would, upon objection, no doubt, have been rejected. Gulf Casualty Co. v. Archer, Tex.Civ.App., 118 S.W.2d 976; 41 Tex.Jur. p. 74, Secs. 57-58.

The case is reversed and remanded.


author: DUNKLIN, Chief Justice.

text:
    SOUTHERN UNDERWRITERS et al. v. WRIGHT.
    No, 14094.
    Court of Civil Appeals of Texas. Fort Worth.
    May 24, 1940.
    Rehearing Denied July 12, 1940.

      Will R. Saunders and Claude Williams, both o,f Dallas, for plaintiffs in error.
    Nolan Queen, of Weatherford, for defendant in error.
   DUNKLIN, Chief Justice.

This suit involves a claim for compensation under provisions of the Workmen’s Compensation Act, Vernon’s Ann.Civ.St. art. 8306 et seq.

Frank R. Wright filed with the Industrial Accident Board his claim for compensation for disability, resulting .from injuries he alleged he received in the course of his employment by the Standard Paving Company, a carrier of insurance with the Southern Underwriters, which was assumed by the United Employers Casualty Company. That claim was heard by the Board in the due course of all statutory requirements pertaining thereto, and Wright was awarded compensation to be paid by the Insurance Companies in the sum of $11.08 per week for a period not exceeding 20 consecutive weeks. From that award Wright prosecuted his appeal, in statutory form, to the District Court, in which he recovered a judgment against the two insurance companies, jointly and severally, for compensation for a period of 401 weeks, at the rate of $9.60 per week. From that judgment the two insurance companies have brought the case to this court by writ of error.

For convenience the parties will be designated here as in the trial court, viz., Frank R. Wright as plaintiff, and the two insurance companies as defendants.

By their first four propositions, defendants complain of error in the refusal of the court to grant their motion for an instructed verdict in their favor, by reason of alleged failure of plaintiff to introduce proof of the issuance by defendants of the insurance policy, as alleged by plaintiff, and on which his suit was predicated.

The record shows that after the jury was empaneled, counsel for plaintiff, in the absence of the jury, .introduced in evidence before the trial judge a duly certified transcript of all the documents and proceedings of record pertaining to the claim made by Wright before the Industrial Accident Board; and the same was offered and admitted by the court “for all purposes” without objection from defendants to its admission out of hearing of the jury, but was never read in evidence before the jury. There were ten of those documents, including all those required by the statutes to confer jurisdiction in the Industrial Accident Board to pass on plaintiff’s claim fo'r compensation, including a photostatic copy of the policy of reinsurance as between the two defendant insurance companies. All those records were duly certified by the Secretary of the Board, and in the absence of a verified plea of denial by defendants, they constituted prima facie proof of all facts stated therein, including issuance of the policies by defendants, under provisions of Art. 8307, sec. 5 and Art. 8307b, as amended by the 45th Legislature, § 2, Chapter 261, Vernon’s Ann.Civ.St. It is a matter of no importance that such proof was not read to the jury, since their admissibility and weight to be given the same as evidence were questions exclusively to be determined by the court as questions of law, and not by the jury. Traders & General Ins. Co. v. Jaques, Tex.Civ.App., 131 S.W.2d 133, writ dismissed, correct judgment.

Decisions are cited by defendants, such as Stallings v. Federal Underwriters Exchange, Tex.Civ.App., 108 S.W.2d 449, Traders & General Ins. Co. v. Milliken, Tex.Civ.App., 87 S.W.2d 503, to the effect that evidence showing issuance of policies of insurance to an employer, introduced “for jurisdictional purposes only”, was insufficient to discharge the claimants’ burden to prove the issuance by the insurance companies of the policies under which compensation was claimed. But those decisions are not in point here for the reason that the proof in question in this case was ad-initted “for all purposes”, and not for the restricted purpose of only showing jurisdiction qf the district 'court to determine the merits.of.Wright’s claim.

Special issue No. 1, submitted by the court in the instant case, with the finding of the jury thereon, reads: “Do you find from a preponderance of the evidence that the plaintiff, Frank R. Wright, sustained a personal injury, as that term is hereinbe-fore defined, on the 8th day of June, 1938? Answer: Yes.”

Defendants objected to that issue on the ground that it was too general and speculative and does not confine the jury to a consideration of the character of injury or injuries pleaded and relied on by the plaintiff for a recovery; and error is assigned to the action of the court in overruling that objection.

In plaintiff’s petition it was alleged that while standing on the top of a large truck loaded with cement sacks weighing one hundred pounds, he bent over and lifted one of the sacks from a level below the level of the one of which he was standing, and in so doing he strained and injured the muscles and tendons of his back and legs, as a result of which he has been totally and permanently incapacitated to perform the usual tasks of a workman. There were further allegations of several specific injuries resulting from the strain, such as partial dislocation of the third, fourth and fifth lumbar vertebrae of the spinal column, which caused paralysis of his legs and feet, etc., all alleged in much detail.

Plaintiff testified that while engaged in performance of his work he bent over to lift a sack of cement from a point below the level of his feet, and in making that lift:

“A. Something caught in my back or hip and I had hard pains.
“Q. Where were the pains at the time ? A. Just below my belt line in my backbone.
“Q. How high did you have the sack when that happened? A. I judge I lifted it about six inches when that catch came in my back.
“Q. When that catch came in your back did you feel any pain at that time? A. Yes, a very hard pain.
“Q. What did you do? A. I fell over.
“Q. Did you lay down or fall? A. I fell.
“Q. Why did you fall? A. From the pain in by back I couldn’t stand up.
“Q. . Why .didn’t you stand? A. My back was hprting in here and in my hips, and my legs were paralyzed and felt numb. I didn’t have any use for my legs.
“Q. Did you-try to stand on your legs? A. Yes.
“Q. Could you use your legs ? A. No.”

And further that he had- lost about 32 pounds in weight; is unable now to sleep; still suffers pain; and his legs are now partially paralyzed. On cross examination by defendants, he further testified that his kidneys were affected since the accident, and that statement was admitted over objection of counsel for plaintiff that injury to his kidneys was not alleged in his pleadings. According to his further testimony, he still suffers pain in his back, legs, hips and kidneys, by reason of all of which he is now unable to work; and he never had any of those pains or injuries before the accident.

Dr. Roan, a witness for plaintiff, testified that he had examined plaintiff eight or ten times since his alleged accident, and found a partial paralysis of his legs and feet; evidences of a traumatic injury to his spinal cord and nerves leading therefrom, mostly in the lumbar region of the cord and back, and ankylosis of the spinal vertebrae— all of which, in his opinion, was caused by traumatic injury; and in his opinion plaintiff is now suffering from partial paralysis.

Dr. Roan’s testimony was corroborated in the main by the testimony of Drs. Fyke and McNelly, introduced by plaintiff, who likewise examined plaintiff, and Dr. McNelly testified further that ankylosis, evidence of which he found, was a permanent condition which incapacitates a laboring man from performing the usual tasks of a workman.

But two other physicians, Drs. Webb and Trigg, witnesses for defendants, who examined the plaintiff, testified they did not find evidences of these conditions testified by plaintiff’s doctor witnesses. Dr. Trigg’s examination was in August, 1938, and Dr. Webb’s examination on November 28th, 1938.

In defendants’ briefs filed here in support-of their objections to issue No. 1, the point is stressed that there was no evidence to prove several of the resulting injuries specified in plaintiff’s petition, and that statement from the record will be accepted as correct in the absence of challenge, by plaintiff. Rule No. 31 for Courts of Civil Appeals.

But since issue No. 1 was not objected to on that ground, defendants have waived the right to urge it here. Article 2185, Vernon’s Ann.Civ.St. And for the further reason the injuries so specified were alleged as the results of the injuries for which compensation was sought and not the primary injuries themselves, as hereinafter pointed out.

The further ground of objection that issue No. 1 was vague and indefinite and permitted the jury to indulge in speculation and take into consideration other injuries not alleged, was meritorious and the assignment to issue No. 1, based on that ground, is sustained. Federal Underwriters Exchange v. Arnold, Tex.Civ.App., 127 S.W.2d 972, error dismissed, correct judgment; Casualty Underwriters v. Lemons, Tex.Civ.App., 114 S.W.2d 333; Security Mutual Casualty Co. v. Bolton, Tex.Civ.App., 84 S.W.2d 552; Southern Underwriters v. West, Tex.Civ.App., 126 S.W.2d 510, writ refused; Fidelity & Casualty Co. v. Van Arsdale, Tex.Civ.App., 108 S.W.2d 550, error dismissed; Southern Underwriters v. Kelly, Tex.Civ.App., 110 S.W.2d 153; New Amsterdam Casualty Co. v. Rutherford, Tex.Civ.App., 26 S.W.2d 377, error dismissed; Gamer v. Winchester, Tex.Civ.App., 110 S.W.2d 1190, error dismissed; Texas Indemnity Ins. Co. v. Pemberton, Tex.Civ.App., 9 S.W.2d 65; Traders’ & Gen. Ins. Co. v. Low, Tex.Civ.App., 74 S.W.2d 122, writ refused; Texas Employers Ins. Ass’n v. Pierson, Tex.Civ.App., 135 S.W.2d 550; Petroleum Casualty Co. v. Schooley, Tex.Civ.App., 131 S.W.2d 291; Traders’ & Gen. Ins. Co. v. Watson, Tex.Civ.App., 131 S.W.2d 1103, error dismissed, correct judgment; San Antonio Amusement Co. v. Easterling, Tex.Civ.App., 71 S.W.2d 350, error dismissed.

In view of another trial, we deem it proper to add that the injuries that should have been designated in issue No. 1 as the ones plaintiff had the burden of proving, were injuries alleged in his petition as injuries to the muscles and tendons in his back, and legs. The allegations of specific injuries to the spine and other portions of plaintiff’s anatomy should be construed as allegations that as a result of the primary injuries designated above, plaintiff was incapacitated to perform the usual tasks of a workman, and it was not the duty of the court to include them in issue No. 1, as the injuries which plaintiff was required to prove as a basis for recovery, as insisted by defendants in their briefs filed here.

In answer to several special issues, the jury found that plaintiff had suffered total permanent incapacity to work; and since answer to special issue No. 12 was a specific finding that such.incapacity was not partial, there is no merit in defendants’ complaint that since they had specially pleaded that if plaintiff sustained injuries álleged, incapacity, if any, resulting therefrom was partial only and not total, they were entitled to an affirmative submission of that 'defense.

Since the judgment must be reversed for the error in submitting issue No. 1, pointed out above, it is unnecessary to determine the merits of another assignment to alleged improper argument to the jury by plaintiff’s counsel, which may.not occur on another trial.

Accordingly, the judgment of the trial court is reversed and the cause is remanded.


author: MONTEITH, Chief Justice.

text:
    KELLY v. LOBIT et al.
    No. 10994.
    Court of Civil Appeals of Texas. Galveston.
    May 30, 1940.

      A. D. Dyess and Franklin & Blanken-becker, both of Houston, for appellant.
    Albert J. DeLange, Robert P. Beman, Jr., and Emory T. Carl, all of Houston, for appellees.
   MONTEITH, Chief Justice.

This is an appeal from an order sustaining a pie of privilege in an action originally brought in the district court of Harris County by appellants, Myrtle E. Lobit Kelly et al., against appellees, Louis Lobit and Paul Lobit, to compel an accounting and to recover judgment for whatever sum there might be found to be due appellants.

After the institution of the suit Mrs. Kelly died and her husband, Donald S. Kelly, intervened as administrator of her estate and as guardian of the estate of Joseph Lobit, Jr., a minor, and was substituted in said capacities in place of the original plaintiff.

Appellee Paul Lobit filed his plea of privilege to be sued in Galveston County. Subject to his plea of privilege, Louis Lo-bit and Paul Lobit filed their original answer. Later appellee Louis Lobit filed what he characterized as an amended plea of privilege, in which he for the first time prayed that the suit be transferred to Galveston County.

In due time Myrtle E. Lobit Kelly, individually and as guardian, filed her controverting affidavit in which she claimed venue in Plarris County under subdivisions 4 and 29a of Art. 1995, Revised Statutes of 1925, Vernon’s Ann.Civ.St. art. 1995, subds. 4, 29a.

Upon hearing before the court an order was entered sustaining the pleas of privilege and directing the transfer of the cause to Galveston County. Appellant appeals from this order.-

It was agreed that Louis Lobit was a resident of Harris County and that Paul Lobit was a resident of Galveston County.

The record shows that Joseph Lobit, Sr., died in 1912, leaving a will, by the terms' of which Louis Lobit and Paul Lobit were named independent executors without bond. The will was admitted to probate in Galveston County and they duly qualified as such executors. No inventory, appraisement, or list of claims has been filed by them as executors in the probate court and they have filed no resignation as such executors in the probate court. After administering the affairs of said estate for approximately three years, appellees filed what they termed a resignation as executors of said estate in the deed records of Galveston County. Thereafter both Louis and Paul Lobit continued to act in certain matters pertaining to said estate, Louis Lobit under a power of attorney from his sister, and Paul Lobit under a power of attorney from his brother, Joseph Lobit. The record shows that there are numerous tracts of land in various counties in Texas belonging to said estate which have not been distributed among the beneficiaries under said will.

Joseph' Lobit, the brother of Louis and Paul Lobit, and the husband of Myrtle E. , Lobit Kelly, died in 1933. Myrtle E. Lobit Kelly died on December 15, 1938.

The only question presented in this appeal is whether the venue of this action was properly laid in Harris County.

Appellee Paul Lobit, in his plea of privilege, prays “that the above suit be transferred to the district co.urt of Galveston County, Texas, and for such other orders herein as may be necessary and proper for said purpose.”

No proper plea of privilege to be sued in Galveston County was filed by Louis Lo-bit.

In his original petition appellant prays that appellees be required to prepare and file a complete inventory, appraisement, and list of claims of the estate of their father, Joseph Lobit, deceased, which came into their hands as independent executors; and to show the disposition, if any, made by them of said property and the proceeds of the sale thereof, since the death of their said father; that they be required to file a statement of all sums and a description of all property, real and personal, which they as such executors, or as individuals, of acting under any power of attorney from their brother, Joseph Lobit, have at any time paid and delivered to Joseph Lobit, and to produce a receipt from Joseph Lobit of all sums paid to him during his lifetime. Appellant prays for judgment against said appellees, and each of them, for such sums as it may be made to appear that they were indebted to their said brother at the time of his death, or to the plaintiffs thereafter.

To fix venue of this action in Harris County, appellant relies upon subdivisions 4 and 29a of Article 1995, Revised Civil Statutes.

. The material parts of said Article 1995 read:

“No person who is an inhabitant of this State shall be sued out of the county in which he has his domicile except in the following cases: * * *
“4. Defendants in different counties.— If two or more defendants reside in different counties, suit may he brought in any county where one of the defendants resides. }{< ⅜ * H
“29a. (Two or more defendants.) Whenever there are two or more defendants in any suit brought in any county in this State and such suit is- lawfully maintainable therein under the provisions of Article 1995 as to any of such defendants, then such suit may be maintained in such county against any and all necessary parties thereto.”

In construing Subdivisions 4 and 29a of said Article 1995, our courts have held that under said Subdivision 4 it is. necessary that there be as to the resident defendant a bona fide cause of action and that the non-resident defendant must either be a necessary or a proper party, and that under said Subdivision 29a the venue of an action is determined by reason of the nature or the character of the action. It is now the settled law that Subdivision 29a merely operates to add another exception to Article 1995, and leaves Subdivision 4 unrepealed and wholly unamended. Henderson Grain Co. v. Russ, 122 Tex. 620, 64 S.W.2d 347.

The record shows' that Paul Lobit and Louis Lobit were joint executors of the estate of Joseph Lobit, deceased. They were jointly and severally required under the terms of said will to file an inventory' and a list of claims due said estate, and the beneficiaries under said will had a right to demand an accounting from each of them of their administration of said estate as such executors. Each of said executors could legally act without the joinder of the other in matters pertaining to said estate, except in the sale of land, and the act of each in connection with said estate was binding upon the other.

Appellant’s action is a suit against appellees, both as executors and in their individual capacities, growing out of alleged malfeasance done in their official capacities and for an accounting as such, and is in no sense a suit to either partition said estate or to establish a money demand against it.

Under the pleadings of the parties and the facts adduced on the hearing on the plea of privilege and the controverting affidavit, Paul Lobit was not only a proper but a necessary party to the action, and since Louis Lobit is suable in Harris County, the county of his residence, his co-defendant, Paul Lobit, is likewise suable there.

The judgment of the trial court is therefore reversed and the cause remanded, with instructions to the trial court to retain venue of the suit in Harris County.

•Reversed and remanded with instructions.


author: CODY, Justice.

text:
    BARTON v. WARNER et al.
    No. 10945.
    Court of Civil Appeals of Texas. Galveston.
    May 9, 1940.

      Kennedy ’& Gr.anberry, of Crockett, for appellant.
    Earle P. Adams, of Crockett, and J. D. Pickett, of Palestine, for appellees.
   CODY, Justice.

This is a' suit by appellees to set aside a mineral deed dated April 2, 1938, purporting to.convey to appellant an undivided 9-acre royalty interest in the Jim Burns place in Houston County, which consists of two tracts — one 132 acres, and one of 91 acres. The ground relied upon by appel-lees is false representations of the respective rights of appellees and appellant in the properties exchanged between the parties.

Jim Burns and his wife are the common source of title. They had several children, among them a daughter named Vina. On April 11, 1933, after the death of Jim Burns and wife, their children,' including the daughter, Vina (who was joined by her husband, Riley Smith), executed an oil and gas lease to W. D. Nixon, covering the aforesaid two tracts. This lease was later, assigned to the Humble Qil •& Refining Company and is still in force. Vina Burns had an illegitimate daughter, named Rebecca, before she married Riley Smith. Vina had no children by Riley Smith, and her daughter married Oliver Warner. On October 30, 1933, Vina died intestate, and, as stated by appellant in his original brief, her daughter, Rebecca, succeeded to her mother’s share in the Burns’ place, the two tracts aforesaid, subject, of course, to the one-third life estate therein to which Riley Smith, Vina’s surviving husband, succeeded according to the laws of descent and distribution. Appellant purchased such life estate, or at least the major portion of it, from Riley. Appellant then "exchanged such life estate, or portion acquired from Riley with appellees for 9 acres of minerals in fee. And this exchange is the transaction which appellees’ suit was brought to set aside. The interest of Vina (to which her daughter and husband succeeded as above indicated) consisted of an undivided 37 acres in the Jim Burns place in Houston County, Texas.

Appellees alleged that appellant fraudulently induced them to execute and deliver the ' mineral deed (of April 2,. 1938) by falsely making representations to appellees, in substance, that he, appellant, owned a 12-acre interest in the land and minerals; and that Riley Smith (whose rights appellant acquired, at least as to 9 acres thereof) had a right to one-third of the money which he, appellant, had paid appellees for the mineral deed of March 31, 1938, as the' vendee of Riley Smith; and that if the 37 acres ever produced oil, he (appellant) would be entitled to receive one-third of the royalty produced from the wells on said 37 acres.

In response to special issues the jury found: (1) That appellant represented to appellees that Riley Smith had a right to one-third of the money that appellant paid appellees for the mineral deed of March 31, 1938, and that appellant had bought Riley Smith out and now had the right to one-third of such money; and that if said 37 acres ever produced oil appellant would be entitled to one-third of the royalty; (2) that such representations were made to induce appellee Rebecca Warner to execute her mineral deed of April 2, 193S. The jury also found the other supporting elements of fraudulent representations, inclusive of the finding that appellant did not himself believe such representations. The jury found that the cash value of the Riley Smith life estate was $60 on April 2, 1938, and its intrinsic valúe’ on that date was $239. The jury found that both the cash market value per acre of the’ 9 acres of minerals conveyed by appellees to appellant on April 2, 1938, and the intrinsic value thereof was $25 per acre.

It is appellant’s principal contentions: (1) That, as a matter of law, appellant, as the vendee of Riley Smith, the life tenant, was entitled’to 'one-third of the royalties produced from the 37 .acres by the operation of the lease executed thereon by the life tenant’s wife, Vina, in her lifetime, now owned by the Humble Oil & Refining Company, and that appellant’s representation was therefore true; (2) that the jury having found that the life estate acquired by Riley Smith was of the value of $239, and that the 9 acres'which Rebecca exchanged with appellant was of'the value of $225, that Rebecca" had therefore suffered no loss. (It should here be added, to avoid confusion, that it is appellees’ contention, which is apparently supported by the record that appellant acquired only about 9 acres of Riley’s life estate, and it was only such 9 acres that appellant exchanged with Rebecca.) " '

It may be conceded that it is true as a matter of law that Riley Smith, the life tenant, was entitled to one-third of the royalties produced from the 37 acres by the operation of the covering lease now owned by the Humble Company, which was executed by the,mother of appellee in her lifetime. “* * * a tenant for life, being entitled -to' the profits of the land is entitled * * * to the royalties of wells that were open and'in operation when the life estate .commenced, and not merely to the income from .such royalties.” Again, “The life tenant, in the absence of a contrary intention manifested by the person who created the life estate * * * is entitled to the rentals or royalties (not only the interest thereon) from wells opened after the commencement of the life estate under authority granted, through lease or otherwise by the person who created the life estate.” (Citing authorities.) 43 A.L.R. pp. 811, 813, 814. An.d, see 3 Summers Oil and Gas, Permanent Edition, § 613, p. 547. But even so, as 'we understand the facts in this case, the representation by appellant was not so limited to comply with said rule of law; for he did not state that he (as the vendee of Riley) was entitled only to one-third of the royalties which would be produced by operating the Humble Company lease executed by appellee Rebecca’s mother — and at the time the representation was made there was no production under said lease, but stated his ownership without such limitation. Furthermore, his representation as to his right to the money (which was the purchase price of a portion of the Riley Smith life estate which Riley had contributed to another sale, along with the other Burns heirs.) ■ is not, we believe, defended by appellant. The falsity of that representation alone, so it seems to us, is sufficient ground to warrant-the rescission. But however that may be, the statement actually made by appellant relative to his royalty interest was not true as a matter of law as he contends, and the' fact that, had he limited such statement which he did make (and which he confessed he believed to be untrue at the time it was "made,' but made to induce the trade) ' to ’ comply with a correct statement of law, cannot now avail appellant, as it was not in fact correct. The contention of appellant that his representation aforesaid, which induced the transfer to him from appellee Rebecca, is true as a matter of law is overruled. The representation could therefore form the basis for rescinding the exchange, and appellant’s assignment to the contrary is overruled. , ■ ‘

It is the settled law in Texas that a plaintiff must show that he has suffered a pecuniary loss in exchange of properties, induced by false statements, before, he is entitled to rescission. Moore v. Cross, 87 Tex. 557, 29 S.W. 1051; Russell v. Industrial Transportation, 113 Tex. 441, 251 S.W. 1034, 51 A.L.R. 1; Bryant v. Vaughn, Tex.Sup., 33 S.W.2d 729; Nance v. McClellan, 126 Tex. 580, 89 S.W.2d 774, 106 A.L.R. 117. But we cannot sustain appellant’s contention to the effect that appellees failed to show that Rebecca did not suffer any pecuniary damages by reason of the exchange. While it is true that the jury found that the intrinsic valué of the life estate' of Riley Smith in the land on April 2, 1938, was $239, Riley Smith owned no life estate in the land on April 2, 1938, and we are at a loss to understand just what quantity of minerals the jury was placing this value of $239 on. Now a third of 37 acres is 12⅝ acres, and Riley had sold off 3 acres of his life estate before conveying to appellant. As the jury found both the cash and intrinsic value of the minerals was $25 per acre, it is quite evident that in assessing the valuation of the life estate of Riley Smith that they were not passing upon the value of his life estate in the 9 acres which Riley had transferred to appellant. There is no jury finding as to what the value of the life estate in 9 acr.es of minerals belonging to appellant was on the day he transferred them to Rebecca for 9 acres of minerals in fee. In view of the fact that the life estate in the 9 acres which appellant transferred to Rebecca was for the life, of Riley, a negro man then 65 years old, the life estate in said 9 acres was necessarily less valuable than the estate in fee in 9 acres. We must therefore accordingly overrule appellant’s contention that Rebecca was not shown to have suffered any pecuniary loss by reason of the transaction.

By supplemental brief, filed after appel-lees had answered his original brief, appellant raises the point that, since Rebecca has sought in this action to recover an interest in real estate as the heir of her deceased mother, who in turn had owned same as heir of her deceased parents, it is necessary that Rebecca allege and prove that each of her said ancestors died intestate, that no administration was had upon their several estates, and that there was no necessity therefor, and in the absence of such pleadings and proof the trial court should not have awarded appellee Rebecca title to the lands sued for. In support of this contention appellant cites Pure Oil Co. v. Tunnell, 126 Tex. 57, 86 S.W.2d 207; Olsan Bros. v. Miller, Tex.Civ.App., 108 S.W.2d 856.

Now it is the general rule in this state that where an heir brings suit, as such, for title and possession of property, whether real or personal, belonging to the estate of his ancestor, he must both allege and prove that there is no administration pending on such estate, and no necessity for one. See the Tunnell and Miller cases mentioned above as cited by appellant. But we do not understand how appellant can raise this point at this late date. Had he urged a general demurrer to appellees’ petition and insisted at the time he should have urged such demurrer in due order of pleading, we must assume that appellees would have then amended their pleadings to the effect that there was no administration pending and no necessity therefor, and have proved such pleading as so amended. We do not see why, if appellant should choose to waive such pleading and proof, appel-lees could not accept such waiver. But, however that may be, we do not believe the rule referred to applies here. This suit is in effect simply one to cancel a deed from Rebecca to appellant, so as to restore the parties to their situation as it existed before said deed was executed. What Judge Critz said in Youngs v. Youngs, Tex.Com.App., 26 S.W.2d 191, 194, in distinguishing that case from the Groesbeck case, Groesbeck v. Groesbeck, 78 Tex. 664, 14 S.W. 792, applies here: “The post-nuptial agreement sought to be set aside did not affect the estate of the deceased husband, as by its terms it was merely an agreement that in case the husband died without issue of the marriage his property was to descend and be distributed among his heirs as if no marriage had ever taken place between him and his said wife. In other words, the contract sought to be annulled merely deprived the wife of her rights as an heir of her husband if he died without a child of such marriage. The suit to cancel this instrument, no matter which way it went, did not affect the size, property, or value of the estate, nor any creditor thereof. It merely affected those .who should take as heirs when the estate was finally partitioned.”

In the same way, in the instant case, the suit to cancel the deed to appellant cannot affect the size, property or value of the several estates, nor any creditor thereof, it will merely determine as between appellee Rebecca and appellant whether he or she shall take the 9 acres in fee, subject to, or after administration had on said estates, were there any necessity for administration thereon.

There being no reversible error shown, the judgment of the court below should be affirmed; it is accordingly so ordered.

Affirmed.


author: GRAVES, Justice.

text:
    MELLINGER et al. v. NICHOLSON.
    No. 11100.
    Court of Civil Appeals of Texas. Galveston.
    June 20, 1940.
    Motion for Rehearing and to Certify Refused July 11, 1940.
    Ansel M. Kahn, of Houston, for appellants.
    David Weintraub and Homer Mabry, both of Houston (Andrews, Kelley, Kurth & Campbell, of Houston, of counsel), for appellee.
   GRAVES, Justice.

These two statements, from the respective briefs of the parties, are thought to comprehensively and clearly reflect the nature and result of this suit:

(1) “This proceeding in certiorari was filed in the District Court of Harris County, Texas, by George J. Mellinger et al., as appellants, against H. L. Nicholson; hereinafter referred to as appellee, seeking to review and set aside an order of the County Court of Harris County, Texas, sitting in probate, appointing H. L. Nicholson administrator de bonis non— with the will annexed — of the estate of R. E. Brooks, deceased. From the judgment rendered by the District Court sustaining and confirming said appointment of H. L. Nicholson, the appellants appeal.
“The facts, in epitome, may be stated as follows:
“On December 5, 1933, Sewall Myer was, by order of the County Court of Harris County, Texas, sitting in probate, appointed administrator de bonis non with the will annexed of the estate of R. E. Brooks, deceased, and qualified as such administrator on December 21, 1933. On December 2, 1936, Sewall Myer filed, in said County court, his written application toJ resign as administrator de bonis non with the will annexed of the estate of R. E. Brooks, deceased, accompanied by an exhibit purporting to show the condition of said estate, together with his final account as such administrator, duly verified. Citation duly issued on said application to resign, exhibit and account, and was served and returned in the manner- and for the length of time required by law. On December 3, 1936, the county court entered an order accepting said resignation of Sewall Myer, as of that date, subject however, to the approval of the final account, aforesaid, theretofore filed by the said Sewall Myer, as administrator. On December 14, 1936, at a hearing on said application to resign, exhibit and account of said Sewall Myer, the county court entered its judgment (1) approving the exhibit and final account of Sewall Myer; (2) directing Sewall Myer to ' deliver the estate of R. E. Brooks, deceased, remaining in -his possession, unto C. E. Gates of Harris County, Texas; (3) ‘that upon delivery to the said- C. E. Gates,- of all such estate, and after filing with the clerk of said county court a receipt, executed by said C. E. Gates, reflecting that Sewall Myer had'delivered all of said estate, remaining in his possession,' unto C. E. Gates, the resignation of said Sewall Myer is finally accepted and said Sewall Myer and his bondsmen1 were released and -discharged from any and all liability and responsibility by reason of his administration of such estate; to all of which action of the court Mrs. R. E. Brooks, Jr., joined pro forma by her husband, R. E. Brooks, Jr., (Federal Trust Company and Mrs. R. E. Brooks, Sr., excepted and gave notice of appeal to the District Court of Harris County, Texas. That s.uch appeal was duly perfected by Mrs. R. E. Brooks, Sr., by filing an affidavit in the county court on December 29, 1936, declaring she had made diligent efforts to give an appeal bond required by the court, and was unable to do so by reason of her poverty, and the clerk of said county court was directed to deliver and transmit the transcript of said proceedings appealed from to the District Court of Harris County, Texas, and such transcript was thereafter filed in said district court and such appeal was placed on the docket of said district court, being numbered 233989, and said appealed case is now pending undisposed of in the District Court of Harris County, has not been tried, and no order has ever been entered therein affecting the rights and claims of the parties thereto.
“On December 14, 1936, the county court, by order of that date, appointed C. E. Gates administrator de bonis non with the will annexed of the estate of R. E. Brooks, deceased, and said order recited, among , other things, that the court, on December 14, 1936, accepted the resignation of Sewall Myer, to which action of the court Mrs. R. E. Brooks, Sr., Mrs. R. E. Brooks, Jr., R. E. Brooks, Jr., Guy McFarland, and Federal Trust Company in open court excepted and gave notice of appeal to the District Court of Harris County. Such appeal was perfected by Mrs. R. E. Brooks, Sr., by filing her affidavit in said county court declaring she had made diligent effort to give the appeal bond required by the court and was unable to do so by reason of her poverty, and the clerk of the county court was directed to deliver the transcript of the proceedings appealed from to the District Court of Harris County, Texas, and such transcript was thereafter filed in said District Court and such appeal was placed on the docket of said district court and numbered 233989, being the same number as the appeal taken by Mrs. Brooks from the county court’s order, dated December 14, 1936, approving Sewall Myer’s exhibit and final account and accepting his resignation, supra.
“On December 22, 1936, Sewall Myer filed in said county court a written receipt, signed by C. E. Gates, reflecting that he had delivered all of the estate of R. E. Brooks, deceased, remaining in his possession, unto C. E. Gates, and on December 24, 1936, said county court entered its order reciting, among other things, that ‘the resignation of said Sewall Myer, as administrator of R. E. Brooks, deceased, having been heretofore accepted, the said Sewall Myer * * * and his bondsmen are hereby forever released and discharged from any and all liability and responsibility by reason of his .administration of such estate.’ On January 21, 1937, by agreement with Mrs. R. E. Brooks, Sr., and C. E. Gates, the District Court of Harris County, in said cause No. 233989, confirmed the appointment of C. E. Gates as administrator dc bonis non with the will annexed of the estate of R. E. Brooks, deceased, without' prejudice and without in any manner affecting the later adjudication of, and action upon, the appeal by Mrs. Brooks from the order of the county court approving Sewall Myer’s final account, accepting his resignation, and discharging him as such administrator, and on the same date (January 21, 1937), by agreement of the same parties, C. E. Gates resigned in the county court, as administrator of said estate, and the county court on said date (January 21, 1937), appointed H. L. Nicholson temporary administrator of said estate. Said appointment of II. L. Nicholson, as temporary administrator of said estate, was continued until October 30, 1939, at which time the county court, sitting in probate, appointed H. L. Nicholson administrator de bonis non with the will annexed of the estate of R. E. Brooks, deceased.
“The appointment of Sewall Myer as administrator de bonis non with the will annexed of the estate of R. E. Brooks, deceased, has never been revoked by an order of any court and Sewall Myer, as such administrator, has never been removed by an order of any court and no removal or revocation proceedings have ever been instituted against Sewall Myer, as such administrator, and Sewall Myer is living.
“The appellants herein are persons vitally interested in said estate in that they are creditors of said estate, being the legal arid equitable holders and owners of unpaid and unsatisfied claims against said estate amounting to in excess of $375,-000.00, which claims have been duly allowed, approved and classified as matured secured claims, and are secured by 2,750 acres of land, more or less, in Harris County, Texas, and as reflected herein, two years have not elapsed since the proceeding, sought to be revised by said writ .of certiorari, was had.”
(2) “1. The appeal by Mrs. Brooks from the County Court’s order of December 14, 1936, was to the action of such court in overruling her contest to the exhibit and final account of Sewall Myer, and in approving such exhibit and account and discharging Myer from liability •on his bond, but did not relate to the right of Myer to resign the representation of the Estate. On the contrary, Mrs. Brooks has at all times since the filing of Myer’s resignation from the trust, on December 2, 1936, recognized that the estate was left without a representative and, on numerous occasions, has requested the County Court to appoint appellee administrator de bonis non with the will annexed of the Estate.
“2. From and after .December 2, 1936, up to the trial of this cause in the district court on April 10, 1940, Sewall Myer did not undertake to represent the Estate in any manner. Said Myer turned over to his successor, 'C. E. Gates, on or about December 23, 1936, all funds, books, records, files and other properties of the estate remaining in his possession. C. E. Gates, the subsequent permanent administrator, undertook the administration of •the Estate from and after December 14, .1936, up to the filing of his resignation on or about January 21, 1937. Appellee herein undertook the administration of the Estate, as temporary administrator, from and after his appointment as temporary administrator on or about January 21, 1937, up to and including his appointment and qualification as administrator de bonis non with the will annexed of said Estate on or about .November 18, 1939; and. ap-pellee has undertaken the administration of the Estate as permanent administrator, from and after his said appointment and qualification up to and including the trial had im the district court on April 10, 1940, and including the present time.
“There has been a necessity for administration upon the Estate since the death of R. E. Brooks on December 28, 1929. The Estate owns properties situated in more than sixteen counties in Texas, and in six other states in the United States. At the time of Myer’s resignation on December 2, 1936, there were outstanding and unpaid approved claims against the Estate aggregating more than $500,000.00, consisting of second; third, fourth and fifth class claims; more than thirty lawsuits were then pending against the Estate, in-' volving potential liabilities of several hundred thousand dollars.”

As the quoted statements disclose, the material facts are undisputed. The single question of law the appeal presents is whether or not, under those facts and our applicable statutes, the district court and the county court possessed the authority, power, and jurisdiction to appoint the ap-pellee administrator de bonis non — with the will annexed — of the estate of R. E. Brooks, deceased.

This court, after careful consideration of the record, inclusive of the able briefs and oral arguments of both sides, concludes the learned trial Judge’s action correctly answered that inquiry — in the affirmative.

It is not thought' that statutory provisions and interpretative holdings thereon from other states throw any controlling light upon this controversy as so arising under our own system, because, it is believed, our own statutory provisions and judicial decisions — being distinctive inter sese — settle it in favor of the judgment rendered.

There seems to this court to be a clear distinction in policy, under our statutes, with reference to when, under what conditions, and with what resulting consequences, such an administrator may resign, as against when, under what conditions, and with what consequences, he may be discharged—the two procedures apparently being referable to distinctly separate and different individual enactments; that is, (1) since R.S.Art. 3470 confers upon an administrator the affirmative privilege of resigning under the conditions therein prescribed, Article 3367 thereupon, in the entailed conditions, the estate being unrepresented by reason of such resignation, empowers the county court to appoint a subsequent permanent administrator; whereas (2) in contradistinction, the group of Articles, 3470 to 3475,'inclusive, relate solely to the procedure and resulting effects in instances where a discharge of the administrator is to be dealt with.

Around what this court considers to be such a distinction this controversy has revolved; the appellants, on their part (they not having cited R.S.Art. 3367 at all), relying wholly upon stated Articles 3471 to 3475, inclusive, which, as just suggested, have to do exclusively with the procedure in obtaining a discharge of an administrator, contend, in ultimate effect, through many persuasively presented propositions, that an administrator cannot resign the administration of an estate until his exhibit and account has been finally approved, his resignation accepted, and he has delivered the estate remaining in his hands unto some one “qualified by law to receive it”. They rely, in addition to the statutes thus invoked, in the main, upon such Texas authorities as these: Callaghan v. Grenet’s Estate, 66 Tex. 236, 237, 18 S.W. 507; Grande v. Chaves, 15 Tex. 550; Ingram v. Maynard, 6 Tex. 130; Roy v. Whitaker, 92 Tex. 346, 48 S.W. 892, 49 S.W. 367; Id., Tex.Civ.App., 50 S.W. 491, 498; Wiren v. Nesbitt, 85 Tex. 286, 20 S.W. 128.

The wealth of citations they also present from other jurisdictions is, for the reasons already stated, not further commented upon.

In other words, under the construction it gives to the first-cited group of Texas statutes and holdings thereunder, beginning witfi R.S.Art. 3367, this court reaches these legal deductions from the facts so presented here:

(1) Pursuant to the county court’s order of December 3, 1936, accepting Se-wall Myer’s resignation as permanent administrator and relieving him from further duties to the estate, from which order no appeal was taken by Mrs. Brooks or anyone else, that court was thereupon and thereby empowered to appoint another permanent administrator.

(2) On December 23 thereafter, when Myer delivered to Gates all assets of the estate, the county court, and, in its turn, the district court on appeal thereto by certiorari, were empowered to appoint the appellee as subsequent permanent administrator.

(3) Consequently, the county court’s action on December 14, of 1936 in so appointing Gates as permanent administrator in succession to Myer, together with the district court’s judgment on the appeal from that order of January 21 of 1937, constituted a final and legal removal of Myer from such office as permanent, administrator.

(4) The appeal of Mrs. Brooks from such order by the county court of December 14 of 1936, discharging Myer from further liability, by filing an affidavit under R.S.Art. 3701 in lieu of a bond for costs, neither superseded nor suspended the judgment so discharging Myer, since, by its express terms, her affidavit constituted a perfection of her appeal “in respect to the matter of costs” only.

(5) In the circumstances presented, Mrs. Brooks’ appeal must be held to have challenged only the county court’s action in approving his final account and discharging Myer from liability, and not the validity of his resignation from the administration ;

(6) It is therefore abortive, as affects the issue here, even if it should not be regarded as having been abandoned for lack of prosecution for over three years.

These several conclusions of law are thought to be supported, seriatim, by the authorities thus in succession cited, under the same numbers:

(1), (2), and (3): Article 3367, Revised Statutes, 1925; Articles 3470-3475, inclusive, Revised Statutes, 1925; Bopp v. Hansford, 18 Tex.Civ.App. 340, 45 S.W. 744, writ denied; 54 Corpus Juris, pp. 717, 718; Hogsett v. Dallas Mortgage Securities, Tex.Civ.App., 110 S.W.2d 135; Johnston v. Schwenck, 99 Ohio St. 59, 124 N.E. 61, 8 A.L.R. 170; Oldham v. Smith, 26 Tex. 530, 531; Roy v. Whitaker, 92 Tex. 346, 48 S.W. 892, 49 S.W. 367; Schouler on Wills, Vol. 3, 6th Ed., Section 1707; Sivley v. Summers, 57 Miss. 712; Slay v. Davidson, Tex.Civ.App., 88 S.W.2d 649; Id., Tex.Civ.App., 88 S.W.2d 650 and Id., Tex.Civ.App., 88 S.W.2d 653, writs refused; Stearns v. Waterland, 27 Cal.App.2d 253, 81 P.2d 181; 3 Tex.Jur., Sections 122 and 134.

(4) Articles 3698, 3699, R.S.1925; Articles 3701, 3702, R.S.1925; Articles 934-939, R.S.1925; Bryan v. Luhning, Tex.Civ.App., 106 S.W.2d 403; Spark v. Lasater, Tex.Civ.App., 232 S.W. 346; 3 Tex.Jur., Sections 259, 264, and 269; Green v. Martin, 43 Tex. 653.

(5) Levy v. W. L. Moody & Co., Tex.Civ.App., 87 S.W. 205, writ refused; Pearson v. Holland, Tex.Civ.App., 136 S.W.2d 920; Pierce v. Foreign Mission Board, Tex.Com.App., 235 S.W. 552; Slay v. Davidson, Tex.Civ.App., 88 S.W.2d 650, writ refused.

(6) Bogle v. Landa, 127 Tex. 317, 94 S.W.2d 154; Cox v. Gaines, Tex.Civ.App., 75 S.W.2d 172; Flanagan v. Smith, 21 Tex. 493; Nesbitt v. First National Bank, Tex.Civ.App., 108 S.W.2d 318; 14 Tex.Jur., Section 694; Trahan v. Roberts, Tex.Civ.App., 48 S.W.2d 503.

• The authorities depended upon by the appellants, on the other hand, are thought to be distinguishable on the facts from those ruling the cause at bar, in that, especially, did no one of them — upon, the legal equivalent of the same state of facts ■ — -involve the power and jurisdiction of the county court to grant further administration and appoint a successor to a re.signed permanent administrator of an estate, pending an appeal to the district -court, as was the situation in this instance.

Without further discussion, since these -conclusions determine the merits of the -appeal, an affirmance of the trial court’s judgment will be ordered.

Affirmed.

‘On Motion for Rehearing and'to Certify.

Appellants, through able counsel, earnestly contend that this statement in the -original opinion is not supported by the undisputed facts: “The appeal by Mrs. Brooks from the County Court’s order of December 14, 1936, was to the action of ■such court in overruling her contest to the exhibit and final account of Sewall Myer, and in approving such exhibit and .account and discharging Myer from liability on his bond, but did not relate to the right of Myer to resign the representation of the Estate.”

A re-examination of the statement of facts convinces this court that appellants are mistaken, and that what they .differ with this court upon is the meaning that should be given to, not the existence of, facts fully vindicating the challenged recitation. These may be recapitulated, with citations to the statement of facts, as follows:

“(a) The County Court, on December 3, 1936, accepted Myer’s resignation ‘as of this date’, and relieved him from all ‘future conduct of said estate’. (S.F. pp. 23, 24).
“(b) On December 14, 1936, the same day the County Court again accepted Myer’s resignation and approved his accounts, Mrs. Brooks filed her application in such court, in which she stated that said Myer had resigned the further administration of the estate on December 2, 1936; that there was a vacancy in the office by reason of Myer’s resignation; that there was need for further administration ; and that the applicant, Mrs. Brooks, petitioned that court to appoint appellee, FI. L. Nicholson, as permanent administrator of the .estate. (S,F. pp. 48-53).
- “(c) In her affidavit of December 29, 1936, given in lieu of an appeal bond, Mrs. Brooks recited that her appeal was to the action of the court in approving Myer’s account and in overruling her exception thereto. (S.F. pp. 54, 55).
“(d) In her motion of January 2, 1937, filed in the County Court, Mrs. Brooks stated that her appeal was to the order of December 14, 1936, wherein such court approved Myer’s account and overruled her exceptions thereto. (S.F. pp. 66-69).
“(e) In its order of January 2, 1937, the county court stated that Mrs. Brooks’ appeal was to the action of the court in approving Myer’s account. (S.F. pp. 69, 70).”

In the second place, appellants’ motion seems inept- in its failure to refer to Roy v. Whitaker, 92 Tex. 346, 48 S.W. 892, 49 S.W. 367, cited as supporting our original conclusions of law Nos. 1, 2, and 3.

Lastly, it is tbought the terms of R.S. Art. 3701 vindicate former conclusion of Law No. 4, wherein it is expressly stipulated that the affidavit there under discussion “* * * shall operate a perfection of the appeal in respect to the matter of .costs.”

Wherefore, it is concluded, the motion for rehearing, together with the alternative one for a certification of questions involved to the Supreme Court, should be refused; it will be so ordered.

The motion for rehearing and the motion to certify refused.


author: SPEER, Justice.

text:
    HARDWARE MUT. CASUALTY CO. v. RIDDLE et ux.
    No. 14107.
    Court of Civil Appeals of Texas. Fort Worth.
    June 21, 1940.
    King, Dawson & Jones, of Wichita Falls, for appellant.
    Napier & Napier, of Wichita Falls, for appellees.
   SPEER, Justice.

This is a workmen’s compensation case. Plaintiff Novella Riddle is the employee, defendant Plardware Mutual Casualty Company is the insurance carrier, and Great Western Garment Company is the employer. The parties will thus be designated in this opinion.

Plaintiff sued to recover compensation for the total and permanent loss of her right eye, resulting from an accidental injury sustained while in the course of her employment; in addition, she alleged that she had received a severe nervoiis shock to her entire. body, and that her health had been seriously impaired as a result of the injury to the eye.

Defendant contested the claim under a plea of general denial.

The case was tried on special issues to a jury. The verdict reflects that plaintiff suffered a total loss of vision in her eye on April 2, 1939, and that the total loss of vision in the eye is permanent. In response to other issues it was found that plaintiff suffered no other disability than the loss of vision in the injured eye.

Upon the verdict,' judgment was entered for plaintiff for compensation covering 75 weeks, at a weekly wage rate of $7. The amount accrued since the date of the injury was computed on that basis with accrued interest. New trial was denied the carrier; hence this appeal.

In more than one assignment of error and in different propositions, it is urged that there is no testimony in the case to support the verdict of total permanent loss of vision in the plaintiff’s eye.

It is unnecessary for us to review the testimony on that point. The injured employee, who is appellee here, has filed in this court, in lieu of a brief, a confession of error, saying: “The testimony is insuffi-. cient to show a total loss of vision from April 2nd, 1939”, and concludes by requesting that the judgment be reversed and the cause remanded.

Appellant, the insurance carrier, has asked that judgment be rendered for it. This we decline to do. It is obvious that plaintiff has sustained an accidental injury in the course of her employment, and is entitled to have the case remanded for another trial, at which time she will have an opportunity to amend her 'pleadings, if she so desires, develop the facts agreeable thereto and procure such jury verdict thereon as shall be supported by the evidence of the real facts as they exist. We are supported in our conclusion to remand rather than render by the following decisions: Williams v. Safety Casualty Co., 129 Tex. 184, 102 S.W.2d 178; Colbert v. Dallas Joint Stock Land Bank of Dallas, 129 Tex. 235, 102 S.W.2d 1031; Sun Oil Co v. Gunter, Tex.Civ.App., 125 S.W.2d 338; Federal Underwriters Exchange v. Dorman, Tex.Civ.App., 137 S.W.2d 100, writ dismissed, ,judgment correct; Jefferson Amusement Co. v. Eaves, Tex.Civ.App., 137 S.W.2d 104.

1 For the errors shown and confessed, which we find supported by the record, the judgment of the trial court is reversed and the cause remanded for another trial.


text:
    J. M. RADFORD GROCERY CO. v. WEDDLE et al.
    No. 3959.
    Court of Civil Appeals of Texas. El Paso.
    June 20, 1940.
    W. E. Lessing, of Abilene, for appellant.
    J. B. Cotten and John J. Watts, both of Crane, for appellees.
   PRICE, Chief Justice.

This suit was instituted in the County Court of Crane County by C. A. Weddle and others against J. M. Radford Grocery Company and another. Plaintiff sought to restrain the enforcement of a judgment of the Justice’s Court, Precinct No. 1, of Taylor County. Judgment was rendered permanently restraining the defendant Grocery Company (appellant here) from enforcing the judgment of the Taylor County Justice’s Court, which was in its favor and against appellees. . From this judgment the defendant Radford Grocery Company has duly perfected this appeal.

The petition of the plaintiff shows that the judgment, the enforcement of which was sought to be restrained, was rendered on the 22d day of April, 1938, but does not allege the amount thereof. It purports -to have been rendered against appellees in a proceeding under Art. 3825, R.S., wherein appellant claimed that appellee Weddle, as Constable of Crane County, Precinct No. 1, failed to take proper steps as to an execution placed in his hands by appellant, which ran in favor of appellant. It might be added here that the appellees other than Weddle are sureties on Weddle’s official bond as Constable. The agreed statement of facts shows that the judgment was in the sum of $116.18.

This- case must be disposed of on the question of jurisdiction. In our opinion, under the Constitution, the County Court was without power to render the judgment appealed from.

The County Court of Crane County has no appellate jurisdiction over the judgment of a Justice’s Court of Taylor County. Plowever, the jurisdiction sought to be exercised here is original and not appellate.

A county court, independent of its appellate jurisdiction, is without power to enjoin the enforcement of the judgment of a Justice’s Court, whether same be void or voidable, unless the amount in controversy exceeds $200. Constitution, Section 16 of Article 5, Vernon’s Ann.St.; DeWitt County v. Wischkemper, 95 Tex. 435, 67 S.W. 882; U. O. Colson Co. v. Powell, Tex.Civ.App., 13 S.W.2d 405; Boyd v. Adcock, Tex.Civ.App., 21 S.W.2d 743; Dr. Le Gear Medicine Co. v. Hairston, Tex.Civ.App., 62 S.W.2d 385.

Here it is clear the amount in controversy is less than $200.

We have confined ourselves to a mere citation of the applicable provisions of the Constitution. There is in 12 Texas Law Review, p. 457, an interesting discussion of the power of the County Court to issue writs of mandamus and injunction.

It is ordered that the judgment of the County Court is in all things reversed, the injunction dissolved, and that the cause be dismissed.


author: MURRAY, Justice.

text:
    FERNANDEZ et al. v. SOVEREIGN CAMP, W. O. W.
    No. 10732.
    Court of Civil Appeals of Texas. San Antonio.
    June 12, 1940.
    Rehearing Denied July 10, 1940.
    G. Woodson Morris, of San Antonio, for appellants.,
    Henry, Bickett & Bickett, of San Antonio, for appellee.
   MURRAY, Justice.

This suit was instituted by Josefina G. Fernandez, joined herein pro forma by her husband, Cosme Fernandez, Sr., against Sovereign Camp of the Woodmen of the World, seeking to recover the sum of $1,000 allegedly due her on an. insurance policy issued upon the life of her son, Jose Angel Fernandez, now deceased.

The trial was originally to a jury, but upon the completion of the evidence the trial court instructed a verdict in favor of the Sovereign Camp of the Woodmen of the World, and Josefina G. Fernandez, joined by her husband, have prosecuted this appeal.

The policy of insurance and the constitution and by-laws of the' order (which are made a part of the policy) provide that premiums must be paid during the month for which they are due, and that failure to so pay the premiums when due would render the policy null and void. It is further provided that local camp officers have no authority to waive provisions of the policy or of the constitution and by-laws. It is also provided that the policy may be reinstated by payment of the past-due premiums and by the insured warranting that he will remain in good health for a period of thirty days.

The premium due on the policy involved herein for the month of June, 1938, was not paid during that month. Jose Angel Fernandez died on July 3, 1938. On July 8, 1938, his brother paid the June premium, some five days after the death of Jose Angel.

It is clear that when the June premium was not paid during that month the policy lapsed and became null and void. The payment of the premium five days after the insured’s death could have no effect. The fact that the local secretary customarily accepted the payments after the month for which they were due was not binding upon the Sovereign Camp, unless it was shown to have been acquiesed in by the general officers. This latter fact is not shown by the evidence.

Every question here presented 'has been decided heretofore, contrary to the contentions of appellants. Sovereign Camp, W. O. W., v. Cameron, Tex.Civ.App., 41 S.W.2d 283; Sovereign Camp, W. O. W., v. Oliva, Tex.Civ.App., 128 S.W.2d 101; McCurry v. The Praetorians, Tex.Civ.App., 90 S.W.2d 853; Sovereign Camp, W. O. W., v. Moraida, 131 Tex. 250, 113 S.W.2d 177.

The judgment is affirmed.

SMITH, C. J., disqualified, and not sitting.


author: O’QUINN, Justice.

text:
    ROBERTS et al. v. MAGNOLIA PETROLEUM CO. et al.
    No. 3676.
    Court of Civil Appeals of Texas. Beaumont.
    June 17, 1940.
    Rehearing Denied July 3, 1940.
    Leake, Henry & Young and H. M. Stan-field, all of Dallas, and Phillips, Williamson & Smith, of Tyler, for appellants.

      J. W. Hassell, Jr., Walace Hawkins, and Roy C. Ledbetter, all of Dallas, for appel-lees.
   O’QUINN, Justice.

This is an action to recover damages for personal injuries by Elizabeth Roberts, joined “pro forma” by her husband, Ham Roberts, residents of the State of Oklahoma, against the Magnolia Petroleum Company, a Texas corporation domiciled at Dallas, Texas, and J. R. Lanius, who resided at Dallas, Texas, filed in the 101st district court of Dallas County, Texas, arising out of an automobile collision which occurred in the State of Oklahoma on September 1, 1935, between an automobile in which Elizabeth Roberts was riding, operated by her, husband, Ham Roberts, and the automobile of J. R. Lanius, an employee of the Magnolia Petroleum Company, in which accident Elizabeth Roberts received personal injuries.

Plaintiffs’ original petition was filed August 19, 1937, naming Elizabeth Roberts plaintiff, joined “pro forma” by her husband, Ham Roberts. They filed their First Amended Original Petition on September 22, 1939, still designating Elizabeth Roberts as plaintiff, joined “pro forma” by her husband, Plam Roberts, and alleged that she received serious personal injuries in a collision between an automobile driven by J. R. Lanius and an automobile driven by her husband in which she was riding. That the collision was occasioned by the negligent acts of Lanius, who was at the time of the collision an agent and employee of the Magnolia Petroleum Company, and then in the discharge of the duties he. owed to his master. The negligent acts charged against Lanius were:

(1) Negligence in failing to keep a proper lookout;

(2) Negligence in failing to keep his ear under proper control;

(3) Negligence in operating his car on the wrong side of the highway, that is to the left of the center of the pavement;

(4) Negligence in operating his car while he was in a drowsy and sleepy condition, caused by having gone for an unreasonable time without rest and sleep thereby rendering himself and his car a dangerous instrumentality on a public highway ; ■

,(5) Negligence in operating his car at a.dangerous and excessive rate of speed.

She alleged that she suffered damages in the sum of $10,000 and prayed that she have judgment for said sum, and such other and further'relief, general and special, as “she may show herself justly entitled.”

Defendant Lanius answered by general demurrer, general denial, and specially that on September 3, 1935, he had compromised, adjusted and settled with Ham Roberts, husband of plaintiff Elizabeth Roberts, for all damages, claims, and demands whatever growing out of the collision, and had fully paid off and discharged same to and with said Ham Roberts, whereby he was fully acquitted and discharged from any and all liability whatsoever growing out of said collision, and. also plead the two and four years’ statutes of limitation in bar of plaintiff’s suit. .

The defendant Magnolia Petroleum Company answered by general demurrer, general denial, and specially that its co-defendant Lanius had on September 3, 1935, fully settled with and paid to Ham Roberts, husband of Elizabeth Roberts, the sum of $207 in full discharge of any and all claims growing put of said collision, and for which said Roberts executed to said Lanius his written release from any and all claims, or demands for damages arising out of or occasioned by said collision, wherefore plaintiff was not entitled to judgment. It also plead the two and four years’ statutes of limitation against plaintiff’s right to recover.

By supplemental petition, plaintiffs replied to the answers of the defendants, that they were residents of the State of Oklahoma, and that the release executed by Ham Roberts was executed in the State of Oklahoma and was signed only by Ham Roberts, and that under the laws of the State of Oklahoma the husband was without the power to. execute a release of a cause of action belonging to the wife, wherefore the release executed by Ham Roberts of any claim of Elizabeth Roberts' by reason of the collision was void and of no legal effect.

The case was tried to the court with a jury, but at the conclusion of the plain-, tiffs’ evidence, the court granted the motions of the defendants, and instructed a verdict in their favor, which was returned and judgment entered that plaintiffs take nothing by their suit and that the defend-ants go hence without day with their costs of suit. We have the case on appeal.

The collision occurred on Sunday, September 1, 1935, at about 4:30 in the afternoon, near Cedarvale, Oklahoma. The collision was between an automobile occupied by Ham Roberts and his wife, Elizabeth Roberts, driven by Ham Roberts, and a Ford V-8 automobile owned and operated by J. R. Lanius. At the time Lanius was on his way from his home in Dallas, Texas, to Sulphur, Oklahoma, to spend Sunday and Monday, it being Labor Day and a holiday, with friends. He was an employee of the Magnolia Petroleum Company. He had no business to be transacted for his employer at Sulphur, but was just finishing his summer vacation, and on his own initiative was making the trip to Sulphur for his individual pleasure. Lanius had been instructed by his employer, the Magnolia Petroleum Company, in Dallas, Texas, to go by railroad to Oklahoma City on Tuesday, September 3, 1935, to look after some business of his employer. Because Labor Day, Monday 2nd, had been declared a holiday by the Magnolia Petroleum Company, and having Sunday, making two holidays in succession, he decided to leave Dallas and go to Sulphur to spend these two days, and then to go in his automobile to Oklahoma City on Tuesday to resume work for his employer. For some time prior to this Lanius had travelled in his own car when visiting places in his work for his employer for which it allowed him compensation for the use of his car. This method of travel had been changed and by written instructions, he was directed by his employer to thereafter travel by train and not by automobile. That was his instructions on this occasion. That Lanius was not going to Sulphur on any business of his master, but was going wholly for his own pleasure, was not questioned. The facts above are without dispute.

It appearing by the undisputed evidence that at the time of the collision Lanius was not engaged in the performance of any business for his employer, the Magnolia Petroleum Company, but that he was going in his own car to Sulphur, Oklahoma, on a pleasure trip, and would spend Sunday and Monday, September 1st, and 2nd, visiting friends, and not until Tuesday, the 3rd, would he go to Oklahoma City to attend to the business of his employer, the Magnolia Petroleum Company was not liable for the negligent tort of Lanius in colliding with the automobile of appellants, and so the instructed verdict in favor of said company was correct. Murphy v. Gulf Production Co., Tex.Civ.App., 299 S.W. 295, writ dismissed; McCoy v. Beach-Wittman Co., Tex.Civ.App., 22 S.W.2d 714, writ dismissed. Moreover, if it could be said that Lanius was at the time of the collision in the performance of any duty he owed to his employer, still no liability attached to his employer because Lanius, against the positive written instructions of the Magnolia Petroleum Company, was using his own automobile in travelling when he had been instructed to go by train. An employer cannot be held liable under the doctrine of respondeat superior for personal injuries inflicted by an employee while engaged in unnecessarily driving his own automobile upon the'master’s business, without the latter’s knowledge or express or implied authorization. Kennedy v. American National Ins. Co., 130 Tex. 155, 107 S.W.2d 364, 112 A.L.R. 916; 5 Am. Jur., Sec. 393, pp. 728, 729.

We think the instructed verdict in favor of the defendant Lanius was also correct. Plaintiffs’ original petition sued for damages for alleged personal injuries to Elizabeth Roberts, the wife of Ham Roberts, joining her husband, Ham Roberts, as plaintiff “pro forma,” and closed her petition with a prayer that “she have judgment” for the damages alleged. Plaintiffs filed their first amended original petition on September 22, 1939, more than four years after the accident. This petition also joined Ham Roberts as “pro forma” plaintiff. Lanius filed his answer setting up settlement with and discharge by Ham Roberts of all damages, claims or demands growing out of the collision, on September 18, 1937, more than two' years before the amended petition was filed. In Texas, by well-settled law, damages to a married woman for personal injuries are community property. Teague v. Fairchild, Tex.Com.App., 15 S.W.2d 585, 588; Houston Gas & Fuel Co. v. Spradlin, Tex.Civ.App., 55 S.W.2d 1086; Northern Texas Traction Co. v. Hill, Tex.Civ.App., 297 S.W. 778, writ refused. For such damages the husband may sue alone. Here the suit was brought by Mrs. Elizabeth Roberts, the wife, making her husband, Ham Roberts, plaintiff “pro forma.” It is equally as well settled that a person merely joined “pro forma” is not a real party at interest in the litigation. Yellow Cab & Baggage Co. v. Smith, Tex.Civ.App., 30 S.W.2d 697, 698; Houston Gas & Fuel Co v. Spradlin, Tex.Civ.App., 55 S.W.2d 1086. Mrs. Roberts being a married woman could not maintain the suit without her husband being a real party plaintiff to the suit, merely being joined “pro forma” was not sufficient. She did 'not allege that her husband had refused to become a real litigant or party plaintiff — no allegation of why he was joined merely “pro forma” as plaintiff. Hill v. Kelsey, Tex.Civ.App., 89 S.W.2d 1017, writ dismissed; Rhodes v. Taliaferro, Tex.Civ.App., 119 S.W.2d 703; Houston Gas & Fuel Co. v. Spradlin, Tex.Civ.App., 55 S.W.2d 1086; Yellow Cab & Baggage Co. v. Smith, Tex.Civ.App., 30 S.W.2d 697; Avenel v. Iskovitz, Tex.Civ.App., 60 S.W.2d 895.

From what we have said it follows that the judgment should be affirmed,, and it is so ordered.

Affirmed.


author: COMBS, Justice.

text:
    NEWBERRY v. CAMPBELL.
    No. 3624.
    Court of Civil Appeals of Texas. Beaumont.
    June 13, 1940.
    Glenn Faver, of Jasper, for appellant.
    Adams & Hillin, of Jasper, for appellee.
   COMBS, Justice.

This was an action by appellant, C. A. Newberry, against appellee, J. W. Campbell, for damages for breach of the following contract:

“Lease Contract
September, 1938.
State of Texas "l County of Jasper J
To Whom This May Concern:
This is.to certify that J. W. Campbell, known as lessor and C. A. Newberry, known as lessee, have agreed on Thirty ($30.00) Dollars rent for twelve (12) consecutive months, payable in advance each month, on a said Gulf Filling Station and Building fronting on Main Street, of Jasper, Texas, north of corner known as Hancock Drug Store and South of Swann Hotel.
Said rent to begin as soon as Lessee has full possession of said property.
It is understood that Lessee is to use only Gulf Oil and Gas on Filling Station Front, and to have the right to repair said property as he sees fit as long as he improves property instead of damaging same. Property is to be turned back to Lessor at end of lease, if agreed, in- as good condition as when rented.
Lessee’s stock and fixtures stand for rent for the named Twelve (12) months, or for .the .sum of Three-Hundred-Sixty ($360.00) Dollars.
Lessor is to rent building and Filling Station to Lessee at the end of twelve (12) months, at a rent not to vary upward or downward more than Ten (10) Dollars per month, if agreed.
Lessee is not tó be held responsible for damages to said building caused by natural wear or from the elements.
Signed this the 8 day of - September, 1938, A.D.
(Signed) J. W. Campbell
Lessor
(Signed) C. A. Newberry
Lessee.”

. Appellant alleged the due execution of 'the contract; that upon its execution he took possession of the premises; that ap-pellee breached the contract at a time when he was in possession by entering without his permission and padlocking the doors against him. He- plead the damages suffered by him as a proximate result of the breach. Appellee answered by demurrers, general denial, etc. Judgment was for appellee on an instructed verdict, from which appellant has prosecuted his appeal to this court.

Judgment was correctly instructed for ap-pellee. On appellant’s direct testimony he testified that he, personally, was operating á business in the leased premises under the name Star Tire Company, at the time ap-pellee breached the contract, and that he, personally, had suffered the damages sued for.

Appellee offered in evidence the following certificate:

“State of Texas J County of Jasper J
This is to certify that Mrs. Nobie Jean Newberry of Jasper, Texas, and Mrs. Gertie Newberry of Lufkin, Texas, will own and operate a business in the City of Jasper, Texas, said business to be known as the Star Tire Company.
Witness my hand this the 25 day of January, 1938, A. D.
Mrs. Nobie Jean Newberry
Witness my hand and seal of office, this the 25 day of January, Í938, A. D.
J. W. Morgan, Notary Public in (L.S.) and for Jasper County, Texas.”

On the issues raised by this certificate, appellant testified (Q. & A. reduced to narrative) :

“This is the lease contract between Mr. Campbell and me. I have already stated that I was the owner and operator of Mr. Campbell’s premises. The name of my business was the Star Tire Company. That is the business that I say in this law suit is damaged. Practically all of it was mine; it just'operated under that name. It was the Star Tire Company business operating up there; that is the business that is the foundation of this law suit. This Star Tire Company is the business that had this credit out on those tires, but the shipment of tires that I testified about was coming to me. This Star Tire Company owns the merchandise up there and this Star Tire Company is the business that was making a net profit.
“Q. Mr. Newberry, as a matter of fact, isn’t it true that you- don’t own any interest in that business? A. Well, it is not any of it in my name; no.
“Q. Mr. Newberry, isn’t it a matter of fact, that your wife, Mrs. Nobie Jean Newberry, and Mrs. Gertie Newberry own the Star Tire Company here in Jasper? A. That is right.”

Though he testified that he owned “practically” all the business, he did not testify as to the extent of his ownership in the business, nor as' to his interest in the damages suffered, proximately caused by appelllee’s breach of the contract. ' It should also be said that appellant did not allege a partnership, nor his interest in a partnership, nor his interest in the damages suffered by the partnership. As stated above, he simply alleged that the -business was owned by him personally, and that he had suffered a personal loss.

The unlawful ouster was a tort committed against the partnership, Star Tire Company, and the members of the partnership should have joined in the action to recover the damages suffered as a proximate result of the ouster. Appellant, owning only the interest of a partner in the business, could not recover personally all the damages suffered by the partnership.

If there were special reasons why he should have been permitted to sue on behalf of himself and his partners, and recover the entire damages, such reasons should have been alleged and proved by him. If it be conceded that he had the right to sue in his own name for the damages suffered by his wife as a member of the partnership, there was no fact alleged, nor any evidence on the issue, authorizing him to sue for the damages suffered by the other member of the partnership, Mrs. Gertie Newberry.

Traweek v. Pecos & N. T. Ry. Co., Tex.Civ.App., 288 S.W. 843, is on all fours with the facts of this case, sustaining our conclusion that appellant could not recover, personally, all the damages sued for.

Appellant’s second point is that the following quotation from the statement of facts' reflects error:

“Q. Mr. Newberry, who owns and operates this business that you have been testifying about? A. Well—
“Q. Who is the actual bonafide owner of that property ?
“By Mr. Adams: We object to that, because the .instrument speaks for itself; it is on file in the Clerk’s office and sets up the ownership of the business.
“By Mr..Faver: Plaintiff here and now requests the Court the privilege of questioning the plaintiff, C. A. Newberry, further with respect to the ownership a.nd operation.of .the store in question, and as to who is owner, and operator of said store on or about june 16, 1939, and further, as to what parties or party was damaged by virtue of th.e acts of defendant herein.
“By Mr. Hillin: May I ask this question: Is this going to show what the witness would testify ?
“By Mr. Faver: I am doing this to make a complete record and to reflect what the witness would really testify to if given that privilege, and for the further purpose of reflecting definitely and specifically as to who is the actual owner of said premises on June 16, 1939, and as to the parties or party damaged by virtue of the acts of defendant herein and for that purpose only.
“By the Court: The Court is going to sustain the objection to go any further into it at this time, and I will give you a full bill on it.
“By Mr. Faver: To which action the Plaintiff excepts, and requests that the plaintiff be privileged to bring out further facts and circumstances relating to and pertaining to this issue, which, if presented, would reflect that the actual and true owner of the property in question- is in.the plaintiff, C. A. Newberry, ancl the. consequent damages were received by him.”

This excerpt from the record does not reflect the facts that appellant would have testified to had the court granted him leave to testify. On motion for new trial, appellant made no statement showing what facts appellant would have testified to had the court given him permission to testify. This court cannot speculate on the nature of the testimony that appellant would have given on these points. The record does not show error on the ruling of the court on the point in issue.

Appellant complains that the certificate under which appellant’s wife and Mrs. Gertie Newberry were doing business was .received in violation of Art. 3726, R.S. 1925, Vernon’s Ann.Civ.St. art. 3726. When the certificate was offered in evidence, appellant offered no objection to it. His objection was not made until after the jury had retired under the court’s orders, and had been brought back into court. When appellant made his objection, the court overruled it with the following statement: “By the Court: Your objection is overruled, for the reason that at the time the instrument was offered, there was no objection made and not until after the defendant had moved the Court for an instructed verdict upon the evidence of the plaintiff or his cross examination.”

We hold the court did not abuse his discretion in overruling the objection, without determining whether the certificate falls within the provisions of Art. 3726.

However, independent of the certificate, the judgment was properly instructed in favor of appellee.

For the reasons stated, the judgment of the lower court is affirmed.