text:
    KIRBY v. SOUTH TEXAS NAT. BANK OF SAN ANTONIO.
    No. 10705.
    Court of Civil Appeals of Texas. San Antonio.
    Feb. 14, 1940.
    Clarence R. Boatwright and Dodson, Ezell & Duke, all of San Antonio, for plaintiff in error.
    Charles M. Dickson and Henry F. Holland, both of San Antonio, for defendant in error. . .
   MURRAY, Justice.

This is a suit in the nature of a bill of 'discovery instituted by defendant in error, South Texas- National , Bank of San Antonio, against E. L. Kirby, plaintiff in error, seeking to discover the assets belonging to E. L. Kirby, in order that they might be applied to the satisfaction of a judgment theretofore obtained by the bank against Kirby in the 57th District Court of Bexar County, Texas; said cause being styled The South Texas National Bank v. E. L. Kirby and being No. B-91,402.

The petition for “Bill of Discovery” was filed under the same style and number and in the same court in which the judgment had been rendered.

The trial judge endorsed his fiat on the petition on January 21, 1939, requiring E. L. Kirby to appear on the 2nd day of February, 1939, and show cause why an order should not be entered as prayed for in the petition.

In keeping with the fiat, the clerk of the court did not issue a regular citation, but only a notice to appear and show cause, which notice was served upon Kirby. Kirby did not appear and judgment was entered by default requiring him to answer the interrogatories contained in the bank’s petition. From this judgment Kirby has prosecuted this appeal by means of a writ of error;

Kirby contends that where a petition is filed by a' judgment creditor against a judgment debtor in the nature of a “Bill of Discovery,” such a petition presents a new and separate cause of action, requiring- the issuance and service of a regular citation, such as is provided for by Articles' 2021, 2022 and 2036, R.C.S. 1925.

It has been definitely decided in this state that 'where a petition is filed in the nature of a “Bill of Discovery” after final judgment and for the purpose of discovering assets of the defendant out of which the judgment may be satisfied, a new and - separate cause of action is thereby begun.

In Blocker v. Commercial National Bank of Uvalde, Tex.Civ.App., 295 S.W. 341, 342, this court, speaking through Justice Smith, now Chief Justice, in holding that a plea of privilege would lie to such a suit, had this to say: “It is true, as appellee contends, that in the original suit the venue as to the defendants was fixed in Uvalde county by virtue of the contractual obligation of appellants to pay the note in that county, and this action is collateral to the original action. But it is not an ancillary proceeding in that suit; it is a separate, distinct action, instituted, under special procedure provided by a statute which is silent upon the subject of venue, three years after the determination of 'the original action. It was not brought to enforce appellants’ obligation to pay a note or perform any other obligation in Uvalde county or to determine the liability of appellants for any purpose. It was a distinct suit to require them to disclose their resources, so as to enable appellee to have those resources subjected to the satisfaction of its judgment obtained in a former suit. No reason exists under the statute, nor in equity, for depriving appellants of their valuable right to have the matter tried in the county of their domicile where, also, appellee alleges, the property sought to be discovered is situated.” See also B. F. Avery & Sons Plow Co. v. Mayfield, Tex.Civ.App., 111 S.W.2d 1134.

We therefore conclude that such a suit being a separate and distinct suit from the original suit in which judgment was obtained, a regular citation should have been issued and served as is required by Arts. 2021, 2022 and 2036, supra, and that the notice to show cause was insufficient to give the court jurisdiction over the person of the defendant.

It is true that Art. 2002, which provides for “Bills of Discovery,” says that the court shall grant relief in accordance with the usages of courts of -equity, but this provision is insufficient to supersede the provision of Art. 2050, requiring a regular citation in all causes, except where there is waiver, appearance or expressed provisions of the statutes to the contrary.

Article 2050, R.C.S. 1925, reads as follows : “In no case shall judgment be rendered against any defendant unless upon service, or acceptance or waiver of process, or upon an appearance by the defendant, as prescribed in this chapter, except where otherwise expressly provided by law.”

Article 2002, supra, does not expressly provide that citation need not issue, therefore, under the provisions of Art. 2050, supra, citation is necessary. McCanless v. Gray, Tex.Civ.App., 153 S.W. 174.

The judgment is reversed and the cause remanded.


source: Caselaw Access Project

author: SMITH, Chief Justice.

license: Public Domain

text:
    R. A. RICHEY, Plaintiff in Error, v. CENTRAL SECURITIES COMPANY, Defendant in Error.
    No. 10706.
    Court of Civil Appeals of Texas. San Antonio.
    Feb. 14, 1940.
    Clarence R. Boatwright and Dodson, Ezell & Duke, all of San Antonio, for plaintiff in error.
    Charles M. Dickson and Henry F. Holland, both of San Antonio, for defendant in error.
   SMITH, Chief Justice.

This is a companion case with E. L. Kirby v. South Texas National Bank of San Antonio, this day decided by this court. 137 S.W.2d 98.

The issues of law and of fact in the two cases are identical, and for the reasons given in the opinion in the companion case, the- judgment in this cause will be reversed and the cause remanded.

Reversed and remanded.


author: COMBS, Justice.

text:
    FEDERAL UNDERWRITERS EXCHANGE v. DORMAN.
    No. 3555.
    Court of Civil Appeals of Texas. Beaumont.
    Jan. 31, 1940.
    Rehearing Denied Pel). 21, 1940.
    Gordon, Sharfstein, Bell & Weinert, of Beaumont, for appellant.
    Howth, Adams &’ Hart, of Beaumont, and J. T. Adams and D. C. Bennett, both of Orange, for appellee.
   COMBS, Justice.

On September 22, 1938, appellee, an' employee of Levingston Shipbuilding Co. of Orange, Texas, was injured when hot metal scales from an electric welding machine rebounded into his eyes. Plaintiff alleged a general injury and total permanent incapacity 'on the theory that the injury to' his eyes caused' retinites “and' almost total loss of vision of both eyes” which-produced continuous, headaches, extreme nervousness, sleeplessness, dizzy spells, and pains which extend back from the eyes into the neck and shoulder. In their briefs, the parties argue at considerable length, the question of whether or not the plaintiff also plead specific injury to the eyes alone. In view of the holding announced below we do not discuss the point.

The jury found that the injury to plaintiff has not caused pain in his eyes extending backward through his head and shoulders and affecting his body generally and also that plaintiff’s disability is limited to loss of sight. Thus the issue of general injury was eliminated. However, in response to other issues, the jury found that plaintiff’s injury resulted in total incapacity for 100 weeks from the date of the injury, and in response to still other issues, they found plaintiff partially disabled to the extent of 25% for 100 weeks from the date of the injury. As to specific injury, the jury found that plaintiff has lost “a portion of the vision of his eyes”. But the issues inquiring as to the percentage of the loss of vision were not answered.

The trial court entered judgment for plaintiff for compensation for 401 weeks, at the agreed rate of $12.12 per week, reciting in the judgment that plaintiff has sustained the loss of the sight, of both eyes.

Opinion

The judgment will have to be reversed. As stated above the jury made findings which eliminated any question of general injury. There were no findings whatever fixing the extent of plaintiff’s loss of vision. The finding that his disability is limited solely to loss of sight did not amount to a finding of total loss of vision. And if it had, it would have been without support in the evidence. The medical testimony placed plaintiff’s loss of vision at not exceeding forty-five .to fifty percent and he admitted that he drives his automobile.

Counsel contend that defendant was entitled to judgment in the trial court and that this court should render this case because, as they contend, plaintiff pleaded only a general injury and consequently the jury’s finding against plaintiff on that issue disposed of the only ground of recovery pleaded favorably to defendant. We overrule the assignment. True, the plaintiff’s principal effort,' by pleading and proof, was' to establish a general injury. But he pleaded the nature of- the injury to his eyes. That he did receive such injury cannot be seriously questioned. We therefore remand the case for a new trial. The plead-, ings can be amended so as to more clearly and fully allege the specific injury to plaintiff’s eyes. The other grounds of error urged by appellant can also be obviated on another trial and we do not deem it necessary to discuss them.

Reversed and remanded.


author: TIREY, Justice.

text:
    RENKEN v. J. M. RADFORD GROCERY CO.
    No. 2230.
    Court of Civil Appeals of Texas. Waco.
    Feb. 1, 1940.
    Rebearing Denied Feb. 29, 1940.
    Allen & Allen, of Hamilton, for appellant.
    W. E. Lessing, of Abilene, for appellee.
   TIREY, Justice.

This is an appeal from a ruling of the trial court sustaining the defendant J. M. Radford Grocery Company’s plea of privilege to be sued in the county of its residence, to-wit, Taylor county, Texas. The plaintiff C. J. Renken sued J. M. Radford Grocery Company, a corporation, and Houston White, sheriff of Hamilton county, Texas, jointly for damages in the amount of $5,000, and substantially alleged that the defendant J. M. Radford Grocery Company had wrongfully and unlawfully caused the said White to levy on part of a stock of groceries of the plaintiff to satisfy an execution placed in the sheriff’s hands, said writ of execution being .issued against W. J. Everett, and had caused said sheriff to take into his physical possession merchandise from plaintiff’s store to satisfy said execution in the sum of $186.-50. Plaintiff prayed for a mandatory injunction against said sheriff restraining the sheriff from selling the property under said writ of execution, and further set out in his pleading that the acts of the sheriff in executing the writ were done at the instance and request of J. M. Radford Grocery Company and that same were done knowingly, without authority, maliciously and without probable cause and with intent to destroy the credit standing of the plaintiff as a merchant and his reputation as a ma-n and to oppress and harass him. He further alleged that said acts of trespass occurred in Hamilton County.

The defendant J. M. Radford Grocery Company filed plea of privilege in due form asserting its right to be sued in Taylor county, Texas. Plaintiff seasonably filed controverting affidavit in which he alleged that said defendant Grocery Company and Houston White jointly committed a trespass upon his property in Hamilton county, Texas, whereby the said sheriff seized his property under writ of execution issued against a third party, to-wit, W. J. Everett; that said acts of the sheriff in seizing his‘ property under said writ were done at the instance of said defendant Grocery Company and that said acts were done knowingly and without authority in Hamilton county, Texas, and that said acts constituted a trespass against plaintiff’s .property committed in Hamilton county, Texas, and that Houston White, sheriff, was a proper and necessary party to the action.

The case was tried by the court without the intervention of a jury and the court sustained the plea of privilege. At the request of the plaintiff, the court prepared and filed its findings of fact, and conclusions of law. The court in his findings of fact found substantially as follows: that ■plaintiff, Renken went into the grocery business at Hamilton, Hamilton county, Texas, about April, 1931; that thereafter about March, 1937, he formed a partnership with W. J. Everett and operated said business as a. partnership until about the 15th day of May, 1938, at which time Everett- became the sole owner of the, business and so conducted it until January 15, 1939; that on said date last named C. J. Renken, purchased the stock of merchandise and fixtures pertaining to said business conducted by Everett and took possession - of the same without complying with the statute with reference to a. sale or transfer in bulk of a stock of merchandise and fixtures commonly known as the Bulk Sales law. Vernon’s Ann.Civ.St. art. 4001 et seq. The court found that said Grocery Company had a valid judgment against W. J. Everett and further found that it caused'-writ of execution to be issued on said judgment, and that the writ was executed by the sheriff by levying upon and taking into his possession certain merchandise; that the merchandise levied upon by the sheriff was the identical merchandise purchased by C. J. Renken from W. J. Everett on January 15, 1939, and was a part of the merchandise used m connection with the mercantile business conducted by the said' W. J. Everett, and the court concluded as a matter of law that the' plaintiff'failed to allege and prove a trespass committed against him in Hamilton - county. Error is assigned to this ruling.'

We sustain the action of the trial court. Our courts have uniformly held that “ ‘trespass,’ within the meaning of the statute under consideration is any intentional wrong or injury to the person or property of another. Hubbard v. Lord, 59 Tex. 384; Armendiaz v. Stillman, 54 Tex. 623.” See London v. Miller, 19 Tex. Civ.App. 446, 47 S.W. 734, 737. Our Supreme Court, in the case of A. H. Belo Corporation v. Blanton, 129 S.W.2d 619, 621, said: “To deprive a defendant of the right of trial in the county of his domicile, the case filed against him ■ must clearly come within one of the- exceptions found in this statute, and the burden rests upon the plaintiff to allege and prove that the case comes within the exception.”

The plaintiff wholly failed to prove that a trespass was committed against him and the court properly sustained defendant’s plea , of privilege.

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


author: O’QUINN, Justice.

text:
    HICKS v. SHIVELY.
    No. 3586.
    Court of Civil Appeals of Texas. Beaumont.
    Feb. 15, 1940.
    Rehearing Denied Feb. 28, 1940.

      Grover C. Lowe, of Woodville, for appellant.
    B. F. Pye, of Beaumont, for appellee.
   O’QUINN, Justice.

Originally H. M. Shively filed this suit in the County Court of Tyler County, Texas, as administrator of the. estate of John H. Shively, against C. C. Hicks to recover on a promissory note in the sum of $300, executed by said Hicks, dated February 1, 1933, and payable to the order of J. H. Shively twelve months after date, bearing interest at the rafe of seven per cent from date, and its payment secured by a chattel mortgage executed by Hicks covering certain personal property. Shively alleged that he was the duly appointed administrator of the estate of J. H. Shively, haying been appointed by the “district and probate court of Dallas County, Iowa”, and that he had duly qualified as such administrator, and sued in such capacity. He prayed for judgment on the note and for a foreclosure of the chattel mortgage.

On September 28, 1938, Shively filed a third amended original petition beginning:' “Now comes H. M. Shively, individually and personally and does not further prosecute this suit as administrator of the estate of J. H. Shively, but prosecutes this suit solely in his individual and personal capacity as plaintiff, with leave of the court, files this his third amended original petition and complaining of C. C. Hicks, defendant, plaintiff represents to the court”, and alleged as before the execution of the note and mortgage by Hicks, the death of J. H. Shively, and that after the bringing of this suit (his suit as administrator) C. H. Shiv-ely and Mrs. Zoe French, they being, with plaintiff, the only heirs of J. H. Shively, deceased, had for a valuable consideration sold, assigned and transferred to him, H. M. Shively all of their right and interest in said note and the mortgage securing ■ the payment of same, that he was the-owner and holder of said note and mortgage, and prayed for judgment oh the note and foreclosure of the mortgage, alleging the value of the property on which foreclosure was sought to be $400.

On April 24, 1939, appellant Hicks' filed his second amended original answer consisting, in effect, of a general demurrer, a special exception to the effect that the suit having been originally brought by appellee as the administrator of the estate of J. H. Shively, deceased, and that on September 28, 1938, appellee filed his third amended original petition in which he stated that he did not-further prosecute the suit as the administrator of the estate of J. H: Shively, deceased, but that he was the owner and holder of the note sued on and would further prosecute the suit in his individual and personal capacity, was the bringing of a new suit, and that recovery on the note as thus sought was barred by the four years’ statute of limitation. Vernon’s Ann.Civ.St. art. 5527. He further answered by general denial, and special plea of payment. This answer in whole was duly verified by appellant;

The case was- tried to the court without a jury and judgment rendered for appellee for the amount due on the note, and for foreclosure of the chattel mortgage. This appeal is, from that judgment.

No letters of administration having been obtained in this state by appellee, he could not maintain the suit as administrator of the estate of J. H. Shively. He was a foreign administrator, his petition showing that he was appointed administrator and qualified under the laws of the state of Iowa. It is an accepted doctrine in all of the states that an executor or administrator cannot maintain a suit in his fiduciary or official character out of the local jurisdiction in which his letters as such were granted. 14 Tex.Jur. pp. 636, 637, Section 796. Faulkner v. Reed, Tex. Com.App., 241 S.W. 1002. It is insisted that as appellant filed no plea in abatement to the action, he, cannot now be heard to question the right of appellee to maintain the suit. The question is fundamental, going to the jurisdiction of the court to entertain the action as thus brought,, and so should be considered by the court on its own motion. Hynes v. Winston, Tex.Civ. App., 54 S.W. 1069;

And, too, the suit filed by appellee to recover in his own right, being filed on September 28, 1938, was barred by the four years’ statute of limitation, which was specially plead by appellant in bar of the suit. The note was due February 1, 1934. Being a foreign administrator appellee was without authority to bring the suit as the administrator of the estate of J. H. Shively, deceased, and so the filing of the suit as such administrator was as if no suit was filed, and so the statute of limitation was not tolled until the suit of September 28, 1938, was filed by appellee seeking to recover in his own right. That was more than four years after the note fell due on February 1, 1934.

From what we have said it follows that the judgment must be reversed and judgment here rendered for appellant, and- it is. so ordered.

Reversed and rendered.


text:
    JEFFERSON AMUSEMENT CO. v. EAVES et al.
    No. 3535.
    Court of Civil Appeals of Texas. Beaumont.
    Feb. 2, 1940.
    Rehearing Denied Feb. 21, 1940.
    King & Rienstra, of Beaumont, for appellant.
    Elton Cruse, of Beaumont, for appellees.
   COMBS, Justice.

Appellant, defendant in the court below, operates the Rio Theater, in the city of Beaumont. For the convenience of its patrons it maintains a ladies lounge or rest room, which is reached by a flight of stairs extending up from one side of the lobby. On September 16, 1937, appellee, Mrs. Bertha Eaves, while descending said stairs, with her one year old baby in her arms, tripped and fell receiving certain personal injuries, for which she and her husband sought damages in this suit. The suit was predicated on allegations of several acts of negligence:

(1) That a piece, about six inches long and two inches wide, was broken out of one of the steps on said stairway, which caused Mrs. Eaves to slip and fall.

(2) That the carpet covering said steps where plaintiff fell was wrinkled so as to catch plaintiff’s heel or shoe.

(3) That the carpet covering said steps was not tacked down and was thus allowed to become loose and wrinkled so as to catch the heel or shoe of Mrs. Eaves.

(4) That said flight of steps were not lighted or were inadequately lighted or illuminated.

(5) That the defendant failed to provide any handrail for the use of its patrons in coming down said flight of stairs. In answer to special issues the jury found said issues of negligence in favor of the defendant, except the following: (a) The carpet covering the steps was wrinkled so as to catch the heel of Mrs. Eaves’ shoe; (b) That such wrinkled condition of the carpet was negligence; (c) That such wrinkled condition of the carpet was a direct and proximate cause of her injuries; (d) That defendant knew of such condition of the carpet; (e) That by the exercise of ordinary care defendant would have known of such wrinkled condition of the carpet in time to have avoided the injury. And also that the carpet on the stairs was not tacked down, that defendant’s failure to have it tacked down was negligence directly and proximately causing Mrs. Eaves’ injuries, and that the defendant knew that the carpet was not tacked down, or by the exercise of ordinary care would have known of it in time to have prevented her injuries. The jury resolved the issues of contributory negligence in favor of the plaintiffs and fixed damages in the amount of $5,000, for which the trial court entered judgment.

Opinion.

From a careful examination of the statement of facts, we conclude that the evidence was insufficient to sustain the jury’s findings convicting the defendant of negligence proximately causing the injuries to Mrs. Eaves.

With respect to the wrinkle in the carpet causing Mrs. Eaves to fall, the testimony was very brief. Mrs. Eaves simply testified:

“Q. Now just tell the jury in your own words how that fall came about. A. Well, when I entered the show I went and sat down for a few minutes and the baby started crying. I got up and went up stairs and stayed up there all through the show, and when I started down stairs I hung my heel in the wrinkle in the carpet and fell.”

• She further testified that the place from which she fell was about the third or fourth step from the bottom. The above quotation is her entire testimony concerning the condition of the carpet on the stairway. •She did not testify to having observed any defect in the carpet when she ascended the stairs to the rest room. Mr. Eaves testified that he was standing in the lobby nearby when Mrs. Eaves fell, although he did not see her fall. After her fall he viewed the stairway from the distance of a few feet and later in the day he returned and looked at the stairs again. He testified there was a piece gone out of the tread of the third step about one and a half inch wide and eight inches long and that the carpet was depressed down into the depression. His testimony that there was a defect in the tread of the stairs was strongly controverted and was found against the plaintiffs by the jury. In respect to the carpet being wrinkled, he said:

“Q. Just tell the jury what condition you found those stairs in. A. There was a piece gone out of the step, about that long and about that wide (indicating) and there was a roll-up there, I would say about that high (indicating) where the carpet had worked up, people going up and down, I guess is what caused it to work loose; and it was plenty high to trip anybody up.”

On further examination, he testified that the wrinkle in the carpet was about two inches high.

Disregarding the defendant’s evidence, which strongly controverted the plaintiffs’ proof of any defect in the carpet, and viewing the plaintiffs’ evidence in a light favorable to the jury’s findings, we think the evidence insufficient to support any findings to the effect that the defendant knew, or by the exercise of ordinary care would have known, pf the wrinkled condition of the carpet. There was no evidence from any source that the carpet on the stairs had not been properly tacked down, that is to say there was no evidence of any structural defect. There was no evidence to show that the wrinkled condition of the carpet had existed for any sufficient length of time to raise an inference that the defendant knew of it, or by the exercise of ordinary care would have known of it. No one testified to having observed the wrinkled condition of the carpet prior to the time Mrs. Eaves fell. For aught the record shows, the loosening and wrinkling of the carpet may have been occasioned by the heel of Mrs. Eaves’ shoe slipping from-the edge of the step.

We recognize that under the circumstances it may be somewhat difficult for plaintiffs to produce proof that the defect in .the carpet had existed for sufficient time to raise a reasonable inference that the defendant knew of it, or by the exercise of ordinary care should have known of it. • But even so,.the burden was upon the plaintiffs to establish their cause of action and offer proof to support the findings in their favor. See Osborne v. Loew’s Houston Co., Tex.Civ.App. 120 S.W.2d 947, and authorities cited.

For the reasons above discussed, we deem it necessary to reverse the judgment of the trial court. We do not render judgment for the defendant but will remand the case for a new trial.

Reversed and remanded.


author: WALKER, Chief Justice.

text:
    FEDERAL UNDERWRITERS EXCHANGE v. THOMPSON.
    No. 3595.
    Court of Civil Appeals of Texas. Beaumont.
    Jan. 25, 1940.
    Rehearing Denied Eeb. 7, 1940.
    Gordon, Sharfstein, Bell &-Weinert, of Beaumont, and James F. Parker, of Kount-ze, for appellant. ’ •
    D. F. Sanders and John Veillon, both of Beaumont, and R. A. Richardson, of Kountze, for appellee.
   WALKER, Chief Justice.

This is a Workmen’s Compensation case, with appellee, D. A. Thompson, the employee; appellant, Federal Underwriters Exchange, the compensation insurance carrier; and Peavy-Moore Lumber Company the employer. On the verdict of the jury, appellant on the 22nd day of July, 1938, suffered an inguinal hernia under the conditions prescribed by Sec. 12b of Art. 8306, Vernon’s Ann.Civ.St., which resulted in his total, permanent disability; and he was an employee of Peavy-Moore Lumber Company, and not the employee of an independent contractor, at the time he suffered the ■injury. The jury fixed appellee’s average weekly wage at $12.50, and found facts entitling him to a lump sum settlement. On the verdict, judgment was entered in ap-pellee’s favor against appellant for the sum of $2,540.45, to be paid in a lump sum, with interest at the rate of six per cent per an-num from the 7th day of June, 1939, the date of the judgment, together with all costs, from which appellant has duly prosecuted its appeal to this court.

On the pleadings and evidence, appellant contends that appellee’s compensation should he limited to 52 weeks under the provisions of Sec. 12b, Art. 8306. On the pleadings, appellant contends that ap-pellee did not allege that the Industrial Accident Board made a final ruling on the issue of “operation” as prescribed by Sec. 12b, supra, of the Workmen’s Compensation Act. This contention is denied. Appellee alleged that the Board “made its final award and ruling refusing to order an operation and denying plaintiff any relief in this cause.” There was no exception to this allegation. Giving the petition the benefit of all reasonable intendments, we think it clear that appellee alleged a final ruling on all issues on appellant’s right to demand and appellee’s duty to submit to an operation.

On appellant’s point that appellee did not prove facts entitling him to compensation generally as distinguished from compensation for the hernia, the contention is made that the Board did not make a final ruling on the issue of operation. That-contention is denied. We give the final award of the Board:

“On this 14th day of February, 1939, after due notice to all parties, came on to be considered by Industrial Accident Board claim for compensation by D. A. Thompson on review against Federal Underwriters Exchange, and Board finds and orders:
“That evidence filed at the hearing of this claim on review convinces the Board that mistake and error was committed in entering award of December 23rd, 1938, in which an operation for hernia was awarded. Therefore, said award is set aside, can-celled and held of no binding force or effect, and the following is entered as the award of the Board, to-wit: ■
“D. A. Thompson, Employee, vs. Peavy-Moore Lumber Company, Employer. Federal Underwriters Exchange, Insurer. X-24864
“On this 14th day of February, 1939, after due notice to all parties, came on to be considered by Industrial Accident Board claim for compensation by D. A. Thompson against Federal Underwriters Exchange, and Board finds and orders:
“That said D. A. Thompson, and his attorney of record in this claim, have 'failed to sustain the burden imposed upon him by law to establish by proof that he was an employee of the subscribing employer Here in as- alleged, but to the contrary it appears he was working for an independent contractor. Therefore, his said claim for compensation is denied and Federal Underwriters Exchange is finally discharged from all liability by reason of this claim for compensation.”

It appears from the .final award that the Board first found.in appellee’s favor on the issue of operation. Appellant failed and refused to comply with that award but, on its motion, convinced the Board that appel-lee was - the employee of. an - independent contractor and not of Peavy-Moore Lumber Company, and, therefore, that it was not liable for the compensation. The jury found against appellant on the issue of independent contractor.

The issue of the “operation” was not justiciable in the district court, but was finally determined by the ruling of the Board. In Tally v. Texas Employers’ Ins. Ass’n, 129 Tex. 134, 102 S.W.2d 180, 183, our Supreme Court said: “In this regard, when a hernia case reaches a court, the rights of the parties have already become fixed by the events previously transpiring, and the court only has the power and jurisdiction to finally try the case and enter one final judgment. The court in this case has no power to require a hernia operation.” Appellee was not required to plead a willingness on his part to submit to the operation, nor did appellant have the right to demand the operation. In Federal Underwriters Exchange v. Bobbitt, Tex.Civ.App., 125 S.W.2d 1084, 1087, it-was said: “The second award set the first one aside for the failure of plaintiff in error to furnish and provide the operation for hernia, and fixed defendant in error’s compensation the same as in the first award for. an indet.erminate period not to exceed 401 weeks. This action by the Industrial Accident Board concluded the question of an operation for hernia. The Board and not the court had-authority to require an operation.” This authority is directly in point on the proposition that, when appellant refused to perform the operation under the first award and secured' an amended award relieving it of liability, it was concluded on the question of an operation for the hernia.

On the authorities cited, having refused to comply with the first order, awarding the operation, appellant was liable to appellee under the general provisions, of our Workmen’s Compensation Act, Sec. 10 of Art. 8306, R.C.S., and not under the hernia provisions, Sec. 12b, supra.

From what we have said, it clearly follows that the court did not err in entering judgment in appellee’s favor on the finding of total, permanent disability.

The evidence did not raise in appellant’s favor the issue that appellee was doing, and was able to perform, “the same character of work he was doing when injured”; and, therefore, the court did not err in refusing to submit to the jury appellant’s requested charge on that issue.

The judgment of the lower court is affirmed.


text:
    SOCONY-VACUUM OIL CO., Inc., v. WEST.
    No. 3600.
    Court of Civil Appeals of Texas. Beaumont.
    Feb. 9, 1940.
    Rehearing Denied Feb. 21, 1940.
    Lipscomb & Lipscomb, of Beaumont, for appellant.
    Elton Cruse, of Beaumont, for appellee.
   WALKER, Chief Justice.

This was an attion by appellee, Jasper West, against appellant, Socony-Vacuum Oil Company, Inc., for damages for personal injuries. On the testimony of appellee and the verdict of the jury, while in the course of his employment with appellant on the S/S Altair, on the day before Thanksgiving, 1936, he was caused to “slip” down a “stairway” on the ship, and, as a result of his fall, suffered'serious bodily injuries. The jury assessed his damages for his injuries at the sum of $3,500 and for “maintenance and care” at the sum of $3,000. From the judgment in appellee’s favor for the damages assessed by the jury, appellant has duly prosecuted its appeal to this court.

In defense, appellant plead a written release executed to it by appellee, on a valuable consideration, of all damages suffered by appellee in his petition. By his supplemental petition, appellee plead that appellant’s agents induced him to sign the release by representing “that he was only signing a receipt for the time that he was off from work.” All questions submitted to the jury on the issue of the execution of the release were found in appellee’s favor, and on the verdict of the jury the lower court held that the release was not a bar to judgment in appellee’s favor. Appellant’s principal point is that, on the undisputed evidence, it was entitled to an instructed verdict, on the theory that the release'plead by it constituted a settlement by an accord and satisfaction.

The facts are as follows:

(1) Appellee was 25 years old when he was injured; he quit school in the eighth grade; he was able to read intelligently, demonstrated by reading to the jury when testifying as a witness; his work for appellant was the first work he had done on a ship, and he had been working only a short while when he was injured. ■

(2) On January 15, 1937, after he was injured, appellee wrote to T. D-. Cousins, one of appellant’s representatives, the following letter:

“New York, N. Y.
“January 18, 1937.
“Mr. T. D. Cousins,
“Agent — Socony Vacuum.
“Dear Mr. Cousins:
“I am writing to you now in regards to injury that I had on the ‘Altair’ on November 25th last. Captain Beck also made and filed a report of same.- I was thoroughly examined by Dr. East of Port Arthur a few days after the accident and he told me to take it easy for a while as I had had a bad back and he strapped me all up. This has caused me a lot of pain and lost of work and up to now it still bothers me now and then.
'“Dr. English told me that I could report for light duty about two weeks ago and being without funds I joined the ‘Ario’ Now I wonder Mr. Cousins if you could arrange it for my compensation in this case as I sure know I should be entitled to something and I believe the company will make a just settlement with me the next time I am in Beaumont, that will be around January 28th or 29th.
“I have worked faithfully and hard for this company and expect to keep on doing so without any trouble.
“May I suggest that a settlement of about $150 would be agreeable to me at this time as I believe and know that I shall have to have 'further treatment and Xrays taken by my Doctor.
“Trusting that I may be able to see you or hear from you on this matter.
“I remain,
“Yours very truly,
“Jasper J. West,
“S/S Ario.”

(3)On February 15, 1937, he wrote J. M. Nugent, of appellant’s claim department, the following letter:

“Beaumont, Texas,
“February 15, 1937.
“Mr. J. M. Nugent,
“Claim Department.
“Dear Mr. Nugent:.
“I have a letter from T. D. Cousins the Agent in Beaumont saying that he had written you about my claim and as I am anxious to get this matter cleaned up, would you be kind enough to let me know what you are going to do. I am still working for the company and I dislike to leave my job in New York to go into your offiae to collect my claim or perhaps It might be better for me to retain an attorney in the matter.
“Trusting that you will let me hear from you in the matter. My ship will be in Port Socony around February 24th and would appreciate very much in seeing one of your representatives.
“Very truly yours,
“Jasper J. West
“S/S Ario.”

(4) On April 10, 1937, he wrote Mr. Nugent, the claim agent, the following let-

“ April 10, 1937.
“Mr. J. M. Nugent:
“Dear Sir:
“In regards of my claim with you. I am sory to say i could’ent get in to see you. this last trip in New York.
“But own. the account-of getting those Discharge Books. I couldent get in Before your office douse.. But if posible will see you own our next arrival in New York, whitch will Be about April. 19th.
“Yours Truly,
“Jasper West.”

(5) On the 19th day of April, 1937, ap-pellee gave to appellant, in its office in New York, the following statement:

“State of New York
“County of New York
“Jasper West being duly sworn deposes and states as follows. I am 25 years of age, reside at Kirbyville Tex. I have been in the employ of the Socony Vacuum Oil Co. for the past 4 months, and at all times hereinafter mentioned was employed as Utility man aboard the S/S Altair.
“On Nov. 11, 1936, I joined the S/S Altair at Beaumpnt, Texas, and served aboard that vessel in the capacity of utility man until Nov. 29, 1936, at which time I was paid off in Lockport, and sent to the Marine Hospital in Galveston for treatment because of an injury to my back which I sustained on Nov. 25, 1936.
“On Nov. 25, 1936 at about 2.00 P. M. I was engaged in carrying some turkeys that had been prepared for cooking on the following day, to the icebox — from the galley. I was going down the ladder that leads from the steering engine room to the icebox. I had just started down when I suddenly slipped on one of the steps near the top and fell to the 'bottom of the ladder landing on the side of it and thus injuring the lower part of my back as I fell.
“I managed to get on my feet again, and as my back hurt me I reported my fall to the Captain who gave me first aid treatment. He dressed the laceration on the lower part of my back and also supplied me with liniment.
“I then endeavored to return to duty and did my work as best I could until two days before arrival at Lockport at which time I had to lay up. Upon arrival at Lockport I was paid off and sent to Dr. English at Beaumont for treatment.
“I remained ashore in Beaumont and reported to Dr. English daily and also at the Public Health Service at Port Arthur where I was treated for my injured back.
“I was finally fit for duty and on Dec. 22, 1936, I joined the S/S Ario, as utility man, and have been aboard that vessel ever since. I was only advanced $10.00 by Mr. Cousins at Beaumont during the time I was' ashore. I was treated by Dr. English up to a few days before I joined the S/S Ario.
“The steps on which I slipped and fell were quite steep and as I had my both hands occupied at the time I was unable to use the hand rails when I lost my balance and fell. The steps of the ladder were slightly greasy, due to the fact that some of the engine dept, men use them frequently-
“Jasper West.
“Sworn to before me this 19 day of April, 1937.
“(Seal) R. V. Roland, N. Y. C. #873.”

We quote from appellee’s testimony the following explanation of the execution of this statement:

“Q. Now, did you sign that statement? A. Yes, sir.
“Q. Now where did you sign it? A. I don’t remember.
“Q. Isn’t it a fact that you signed that statement in Mr. Roland’s office in New York City the very day that you got your money? A. I don’t remember.
“Q. What is the date of it? A. 19th day of April, 1937.
“Q. You don’t have any recollection about that statement at all? Where did the man get the information which he put in that statement? A. I suppose he got it from me.
“Q. You suppose he did, but don’t you know he did, Mr. West?- Didn’t you give him that statement? Didn’t you give him the information from which to make this statement up? A. I don’t remember it.
“Q. But you wouldn’t deny that you signed it on the day that it purports to have been signed, would you? A. I wouldn’t deny I didn’t sign it; for that is my signature.
“Q. That’s your signature, and you did sign it? A. I don’t remember what day.
“Q. But if it appears to be ‘Sworn to before me the 19th day of April. R. V. Roland, New York No. 873,’ with the notary’s seal on it, you wouldn’t deny that, would you, Mr. West? A. I don’t remember signing it.
“Q. You know that you gave him that information? You know that you gave the man who gave you the order for the money, that you talked long enough to give him this information? A. I sure don’t remember it.”

(6) On the 19th day of April, 1937, ap-pellee executed to appellant the following release contract:

“General Release
“DO NOT SIGN WITHOUT UNDERSTANDING
“I, Jasper West residing at Kirbyville Texas For and in consideration of the sum of Ninety-one and 66/100 ($91.66) Dollars paid to me by Socony-Vacuum Oil' Company, Incorporated, the receipt whereof is hereby acknowledged and other good and valuable considerations, have remised, released and forever discharged, and by these presents do for myself, my heirs,, executors and administrators, remise, release and forever discharge the said So-cony-Vacuum Oil Company Incorporated,. Standard-Vacuum Transportation Company, General Petroleum Corporation of California, Standard Transportation Company, Ltd. their several subsidiary corporations, the S/S Altair their successors, and assigns, the several vessels of the said companies, their officers and crews, of and from any and all claims and demands of whatsoever nature and kind, actions,, causes of action, suits, sums of money, accounts, reckonings, covenants, contracts,, agreements, promises, in law, admiralty, or in equity, which against them or any of them, I ever had, now have or which my heirs, executors or administrators, hereinafter, can, shall or may have for, upon, or by reason of any matter, cause or thing whatsoever, howsoever and whensoever arising-; and particularly, but without limiting the generality of the foregoing, for all losses, illness, injuries or damages, wages, maintenance and cure arising from any injuries and/or illness, known or unknown to me, and alleged sustained and/or contracted while employed as Utilityman aboard the S/S Altair from 11/11/36 to 11/29/36, which claim is disputed both as to liability and amount of damage and said payment is not an admission of liability by the aforesaid Companies or any of them and in full settlement and satisfaction of any and all other claims and demands arising from my service on said S/S Altair howsoever arising.
“This Release Contains All the Agreements between the Parties.
“In witness whereof, I have hereunto set my hand and affixed my seal the 19th day of April in the year one thousand nine hundred and thirty seven
“On the 19 day of April 1937, before me personally appeared Jasper West to me known, and known to me to be the person •described in and who executed the within instrument and he acknowledged to me that he executed the same.
“R. V. Roland,
“N. Y. C. #873 Notary Public
“This release was read by him and signed by the said Jasper West on the 19 day of -April 1937.
“R. V. Roland
“James J. Walsh.”

The words at the end of the contract, -“This is a general release and is in full and complete settlement,” were written by appellee in his own -handwriting. His testimony was that, after executing the release, he wrote these words as- a part'of the release at the request of appellant’s representatives with whom he was making the settlement.

(7) On the 19th day of April, 1937, appellant issued to appellee the following voucher, which appellee presented for payment and which was paid to him; he accepted the money and appropriated it to his own use and benefit.

“The above is in full settlement of any and/or all claims arising out of injuries alleged sustained while employed as Util-ityman aboard the S/S Altair on or about 11/25/36.
“Paid without prejudice to our rights
“RVS :AG
Received payment,'
“Jasper West”

Explaining the cashing of the voucher, appellee testified:

“Q. You remember getting the money, Mr. West? A.- Yes, sir.
“Q. How did you get the money? A. They gave me a slip and I had to go up to some other office.
“Q. Wasn’t it a piece of paper as large as this? A. I don’t remember. I didn’t pay that much attention to it.
“Q. What was it? Wasn’t it an order on somebody or a draft? A. Something on that order, yes, sir.
“Q. And you took that to another place in the building and got- your money ? A. Yes, sir.
“Q. These men were working on the first floor of the building weren’t they? A. I don’t remember.
“Q. But you did go into the elevator and go up to’ the cashier’s office and get your money and surrender your receipt? A. Yes, sir.
“Q. That was another document, not, the release, but the slip that you surrender-, ed to the man when he paid the money over to you? A. Yes, sir, I gave him that.
' “Q. And he gave you the cash and you put it in your pocket and walked out of the office? A. Yes, sir.”

(8) In rebuttal to appellant’s testimony on the issue of release, appellee testified, in support of his plea, that he signed the release believing that it was simply a receipt for his wages and for expenses incurred by him; that appellant’s representatives so stated to him; that he did not read the release but could have read it and that no one kept him from reading it; that appellant’s representatives read it to him but did not read it as it was written; ■that appellant’s representative Mr. Cousins advised him while he was on the ship to go to appellant’s office in New York for a settlement for his wages and expenses; that he would not have signed the release except that he believed it was for wages and expenses, and he would not have signed it if he had known it was in full settlement of his claim.' As stated above, appellee admitted on the witness stand that he wrote the letters and executed the release, all' ás indicated above, in the form and manner as above stated.

The release and the voucher prima facie constituted an accord and satisfaction of the claim asserted by appellee against appellant. These instruments could be set aside only by an affirmative showing by appellee that they were executed by him through fraud, accident .or mistake. , Neither the pleadings nor the evidence raised the issues of mistake and accident. While appellee plead .the issue of “fraud” by which he was induced to execute the release and to accept and .cash the' voucher, it is our conclusion that the evidence did not raise this issue in his favor.' On his own statement, he was anxious for-a settlement of his claitíi against appellant. He had written to 'appellant, offering to accept $150. He had an opportunity to read the release and was able to read it. During his negotiations with appellant’s agents, he gave them a detailed history of his accident, which he would not have been called for on a mere settlement of wages. With the release in front .of him, immediately under his hand, he wrote on it in his own hand writing, “This is a general release and is in full and complete settlement.” The release itself in capital letters advised him, “Do Not Sign Without Understanding.” The draft which he accepted on the execution of the release carried bn its face this statement: “The above is in full settlement of any and/or all claims arising out of injuries alleged sustained while employed as Utilityman aboard the S/S Altair on or about 11/25/36.” On his own statement, he knew that the draft was payable to him — so testified; he testified to facts in relation to the draft that he, could have known only by reading it. It is clear to our minds beyond reasonable doubt that appellee with knowledge of their contents, purposes, and consideration, executed the release, and accepted and cashed the voucher, in full discharge of all claims he had against appellant. The facts of this case are controlled by Texas & P. Ry. Co. v. Poe, 131 Tex. 337, 115 S. W.2d 591, an opinion by our Supreme Court by Judge Sharp. Also see The Adonis, 3 Cir., 38 F.2d 743; Goodson v. Texas & P. Ry. Co., Tex.Civ.App., 34 S.W.2d 348; Panhandle & Santa Fe Ry. Co. v. O’Neal, Tex.Civ.App., 119 S.W.2d 1077.

It follows that the judgment of the lower court must be reversed and judgment here rendered for appellant, and it is accordingly so ordered.

Reversed and rendered.


text:
    SOUTH TEXAS LLOYDS v. BRYANT.
    No. 3610.
    Court of Civil Appeals of Texas. Beaumont.
    Feb. 13, 1940.
    Rebearing Denied Feb. 21, 1940.

      Pitts & Liles, of Conroe, for appellant.
    McComb & Davis, of Conroe, for ap-pellee.
   WALKER, Chief Justice.

This is a case of county court jurisdiction. Interest should have been awarded appellee on his recovery from the 14th day of April, 1939, instead of from the 19th day of October, 1938. This error was not called to the attention of the lower court. Reformed as to interest and affirmed without written opinion, with costs taxed against appellant. Texas & N. O. R. R. Co. v. Futch, Tex.Civ.App., 127 S.W.2d 1040.


author: WÁLKER, Chief Justice.

text:
    McLEAN v. MORROW.
    No. 3556.
    Court of Civil Appeals of Texas. Beaumont.
    Jan. 31, 1940.
    Rehearing Denied Peb. 7, 1940.

      E. E. Easterling, and W. D. Gordon, both of Beaumont, for appellant.
    John H. Land, Chas. F. Heidrick, and Orgain, Carroll & Bell, all of Beaumont, for appellee.
   WÁLKER, Chief Justice.

This suit was instituted in the district court of Jefferson County by W. M. Morrow, receiver of Lumbermen’s Reciprocal Association, praying for judgment against appellant, Marrs McLean, for $1,652.60,' with interest, on allegations that appellant was due that amount under an assessment made against him as a policyholder in Lumbermen’s Reciprocal Association, by one of the district courts of Travis County. Pendente lite, the receiver executed to ap-pellee C. P. Bordages, on the recited consideration “of the premises and the sum of Ten Dollars and other good and valuable considerations to me in hand paid by C. P. Bordages,” a written, assignment of his claim against appellant McLean, authorizing him “in his own name and right and at his own cost, to prosecute said suit to judgment, to collect and receive, or to sell, transfer, settle and discharge the said account, debt, suit and cause of action aforesaid.” In the written contract of assignment, the receiver made the following description of his claim against Marrs McLean : “That certain account and debt due and owing to the undersigned as Receiver aforesaid by Marrs McLean of Beaumont, Jefferson County, Texas, in the sum of $1,652.60, pltts interest thereon at six per cent from May 1, 1933, being the amount of the assessment levied in cause No. 51,-867 styled Wright Morrow, Receiver for Lumbermen’s Reciprocal Association, v. Trinity Portland Cement Company, et al., in the 126th Judicial District Court of Texas, together with the cause of action and suit on said account filed on behalf of the undersigned by John H. Land, Attorney of Beaumont, Texas, in the District Court of Jefferson County, Texas, and being cause No. 48003 now pending on the docket of said court, together with the court costs deposited in said suit.”

It was recited further in the written contract of assignment: “It is understood and agreed, however, that this transfer and assignment is made subject to the agreement of the undersigned as Receiver heretofore made with the said John IT. Land, Attorney, to pay the said attorney one-half of any amount collected on said account and debt or- in said suit.”

After receiving the assignment from the receiver, appellee, with permission of the court, filed an amended pleading, whereby h& was substituted as plaintiff, and in his own name prosecuted the suit to judgment. Appellant answered only by general demurrer, general denial, and by pleas of the two and four years’ statutes of limitations. Vernon’s Ann.Civ.St. arts. 5526, 5527. On trial to the court without a jury, judgment was in favor of appellee against appellant for the relief prayed for, from which appellant has duly prosecuted his appeal to this court. We shall discuss only the proposition that appellee was without title to the cause of action.

The assignment was executed by the receiver without authority from the court which appointed him receiver, and without authority from any other court. The order appointing him authorized him only to collect and adjust the claim, and in no way to sell and assign it. On this statement, the written assignment by the receiver to appellee was void and vested him with no justiciable interest in the claim asserted by the receiver against appellant. 53 C.J. — Receivers, Secs. 175, 315, 316, 321. As we understand appellee’s brief, he concedes this point; we quote from his counter proposition: “Wright Morrow, Receiver, acting under direction of the court which appointed him and deriving f^om said court' all of his power and authority, could not divest himself of title to a debt, claim or chose in action by an act of transfer or assignment done without direction or order of the court.”

But in support of his judgment, appellee advances the following counter propositions:

(1) It is insisted that appellant’s general demurrer and general denial did not put in issue the alleged assignment of the claim by the receiver to appellee. On the issue of the execution and delivery of the written assignment, appellee advances a sound legal proposition. 5 Tex.Jur. 53; McCormick v. Rainey, 101 Tex. 320, 107 S.W. 45. But the proposition does not control the facts of this case. Appellant does not controvert the due execution and delivery of the written assignment -plead by appellee and. offered by him in evidence; his proposition simply invokes a legal construction of the written contract of assignment. His contention is that the assignment did not vest appellee with title to the cause of action originally asserted against him by the receiver, and that contention must be sustained. Aulanier v. Governor, 1 Tex. 653, does not hold contrary to this conclusion; it was there said: “It is, however, a well settled rule, that when a good cause of action is shown, and exception only to the person of the plaintiff, it can only be sustained by a plea showing who is the person really entitled to be plaintiff.”

The amended petition disclosed all the facts of the cause of action; the basis of its assertion by the receiver against appellant and the nature of appellee’s claim; that, on the facts alleged, appellee had no justiciable right in the cause of action; and that the receiver, and not appellee, was “the person really entitled to be plaintiff.” A plea by appellant, denying appellee’s right to prosecute the suit, and naming the “person entitled to be plaintiff,” would not have given any fact not ¡disclosed on the face of appellee’s amended pleading.

(2) By his amended petition, ap-pellee insists that he made his appearance only as “a” plaintiff, and not as “the sole” plaintiff. The facts deny that contention. We give the following quotation from his amended petition:

“Now comes C. P. Bordages, a resident of Jefferson County,. Texas and suggests to the Court that since the institution of this suit he has become the successor in interest to Wright Morrow, Receiver and Trustee of the Lumbermen’s Reciprocal Association, Plaintiff in the above style and numbered cause, to and in the chose of action made the basis of this suit against Marrs McLean, hereinafter referred to as the defendant and/or subscriber and for cause of 'action respectfully shows the Court the following:

“I. That the said C. P. Bordages did on the 16th- day of July,. 1937, for a valuable consideration, purchase of and from Wright Morrow, the duly appointed, qualified and acting Receiver and Trustee of the Lumbermen’s Reciprocal Association, a reciprocal insurance association created under and by virtue of Chapter 20 of Title 78 of the Revised Civil Statutes for 1925, all of his right, title and interest as such Receiver and' Trustee in and to the account, claim, debt and chose in action of the said Lumbermen’s Reciprocal Association against the said Marrs McLean, as evidenced by an instrument in writing dated the 16th day of July, A.D., 1937, being the identical and same claim, account, debt and chose in action sued upon the instant case and the said C. P. Bordages being now the legal owner and holder thereof, begs leave of the Court to be substituted as party plaintiff to this suit and now by leave of Court having become a party plaintiff to this suit adopts the pleadings of the original plaintiff as filed in this cause and leave of Court first having been had and obtained, files this his First Amendment to the Original Petition as filed herein, alleging as follows:

“II. That Wright Morrow was appointed Receiver and Trustee of the Lumbermen’s Reciprocal Association in suit No. 48596, entitled The State of Texas, et al. v. Lumbermen’s Reciprocal Association, filed in the 98 District Court of Travis County, Texas, by an order of said Court dated July 31st, 1930 and by virtue of the said appointment and qualification and the further orders of said Court, the said Wright Morrow, Receiver and Trustee of the Lumbermen’s Reciprocal Association, became entitled to bring and maintain this suit and to collect the assessments owing to said Lumbermen’s Reciprocal Association.

“Defendant is an individual, operating under the name of Marrs McLean, who was, at the time of the institution of this suit and prior thereto, a resident of Beaumont, Jefferson County, Texas, where service of process was had.”

His prayer was: “Wherefore, premises considered, C. P. Bordages prays that the defendant having, been cited in terms of law to appear and answer herein, that upon a trial hereof he have judgment against the defendant for said sum .of $1,652.60, together with interest thereon from May 1, 1933, at 6% per annum, and for all costs of court, and for such other and further relief, special and general, at law and in equity, as to which he may show himself entitled.”

Appellee Bordages filed his amended petition under authority of the following docket order by the trial court:

“10 27 38 C. P. Bordages substituted as party plaintiff and has leave to amend.
“R. L. Murray Judge.”

After appellee filed his amended petition, the receiver made no further appearance in the case; no judgment-was entered for or against him; the issues were tried between appellee, as the sole plaintiff, and appellant. While there is no order in the record dismissing the receiver from the case, the effect of the orders made by the court, on his docket and as recited by ap-pellee in his amended pleading and in the judgment, was to dismiss him by implication. The clear intent of the assignment by the receiver to appellee was that appel-lee should be the sole plaintiff in the amended pleading.

(3) Appellee contends that “his place in the proceedings was as substitute for Wright Morrow) Receiver, and going to Vol. 3 of Bouvier’s Law Dictionary, Rawle’s Third Revision, we find that a ‘substitute’ is ‘One placed under another to transact business for him.’ ” This contention must be overruled. Appellee was “substituted” as sole plaintiff, and not simply to prosecute the suit in his name for the benefit of the receiver. As 'stated above, on the filing of the amended petition, the receiver was dropped from the litigation, and after the filing of the amended pleading, no longer asserted any interest in the cause of action.

(4) We quote the following argument from appellee’s brief: “The Appellant does not even contend that the whole beneficial interest in this cause of action was assigned, therefore it goes without saying that there could be no complete elimination of Wright Morrow from the suit ‘without an actual transfer or devolution of his interest.’ ”

Appellant’s point is that the contract of assignment was absolutely void, but holding the assignment, appellee had himself “substituted” as sole plaintiff, .thereby dismissing the receiver as a party plaintiff. We sustain that contention.

(5) As sound law, we concede appellee’s proposition that the assignment of the claim by the receiver did not divest him of the right to remain in the suit. Williamson v. Pulliam, Tex.Civ.App., 89 S.W.2d 799. It is also the law that appel-lee, claiming under the written assignment, had the right to have the cause prosecuted to judgment in the name of the receiver, and that the assignment alone did not ipso facto displace the .receiver as plaintiff. Duke v. Trabue, Tex.Civ.App., 180 S.W. 910. Under the facts of a particular case it may happen that the original plaintiff should be retained in the suit. Ford v. Oliphant, Tex.Civ.App., 32 S.W. 437; Hearne v. Erhard, 33 Tex. 60, 67. But these authorities, cited by appellee, do not support his judgment. The simple fact is that the receiver did not remain in the suit. He was dismissed without exception by him, and at the request of appellee. Since the receiver was dropped from the litigation at the request of appellee, appel-lee cannot now complain.

(6) Appellee’s last contention is that the receiver, by the void assignment, did not “prejudice the rights of the receivership to recover or collect a debt of the receivership.” In the event it should be held that appellee has no justiciable interest in the cause of action, under this proposition he prays that we reform the judgment of the lower court and enter judgment in favor of the receiver against appellant. Answering this contention it is sufficient to say that the receiver was not a party to this suit when it was tried, nor is he a party to this appeal. He has made no appearance, in person or by attorney, and has no prayer for any character of relief. Since appellee has no justiciable interest in'the cause of action, we could not, even if the receiver was still a party to the record, enter judgment in his name for appellee’s benefit. If the receiver were a party to the record, the judgment would he interlocutory, and would not support the appeal. It is immaterial on this point that the contract of assignment was void; appellee accepted it and had the court make the order substituting him as sole plaintiff.

From what we have said, it follows that the judgment of the -lower court must be reversed and judgment here rendered in favor of appellant.

Reversed and rendered.

On Rehearing.

On his motion for rehearing, appellee ■“questions the correctness of the opinion in this case on the ground that a mere general denial was not sufficient to raise any issue as to the validity of the assignment.” In support of his proposition, he cites the following statement from 4 Am. Jur. 331: “Likewise, in an action by .the assignee the capacity of an assignor cannot be tried under a general denial but must be raised by a plea in abatement before the hearing on the merits.”

The text cites Multorpor Co. v. Reed, 122 Or. 605, 260 P. 203, 205, 55 A.L.R. 504, where the court said: “There was no want of capacity in plaintiff to sue.” Ap-pellee’s “capacity” to sue was not in issue in the case at bar; the point decided by the original opinion was that he failed by his evidence to maintain his title. We quote the following proposition from 4 Am.Jur. 331 — part of the same paragraph cited by appellee: “A general denial will, however, under the practice in most states, put in issue all of the facts necessary to make out the plaintiff’s alleged cause of action. Thus, a general denial puts the -averment of assignment in issue, that being an essential element .of the plaintiff’s case.”

Johnson v. Vickers, 139 Wis. 145, 120 N.W. 837, 838, 21 L.R.A.,N.S., 359, 131 Am.St.Rep. 1046, is .cited in support of the text; in that case the court said: “It is urged that the question of assignment is not before the court because it is not put in issue by the pleadings. The -complaint alleged the assignment of the contract sued upon. This -was a necessary allegation because the plaintiffs depended on such assignment for their right to recover. The answer put this allegation in issue by a general denial. Since the plaintiffs relied upon the fact of assignment to prove any cause of action at all, the general denial put the averment of assignment in issue.”

■ In our judgment, these authorities fully support our conclusion that, having plead an assignment, as against appellee’s general denial the burden rested upon appellee to prove title under his assignment.

We note the following additional authorities cited by appellee in support of his proposition:

(a) 6 C.J.S., Assignments, § 138: “In order for defendant to rely on-a defense, his pleadings must put in issue the fact or facts relied' on. If the plea or answer does not raise the defense it is waived. Accordingly, a defect in plaintiff’s title must be taken advantage of by a proper pleading and in proper time:”

The text cites in support of this proposition Chalfont v. Johnston, 3 Yéates, Pa., 16. The following quotation from that authority illustrates the point made by the text:

“Mr. Hemphill for the defendant insist1 ed, that the present suit could not be supported by the plaintiff as assignee, Caleb Johnston one of the executors' of the obligee not having joined in the assignment. It was the folly of Mrs. Goodwin to .nominate him her executor, who was one of the executors of her obligor, and known by her to be such.
“Per Cur. The testatrix might not have known this fact, but at any rate, if this technical nicety was intended to be insisted on, it should have been pleaded in abatement, like the case of part owners not sued. [Rice v. Shute] 2 Bl. Wm. [695] 696; [Abbot v. Smith, 2 Bl. Wm.] 947. [Rice v. Shute] 5 Burr. [2611] 2613. [Mitchell v. Tarbutt] 5 Term Rep. [649] 651. Perhaps it wduld be difficult, if not impracticable, to have given the plaintiff á better writ. Caleb Johnston was not com-pellable to join in the assignment, nor could he be reasonably expected to join in a suit against himself. Under such circumstances, a bill would certainly be supportable in Chancery against the now defendant. Courts in this state adopt the rules of equity, which form a part of our law. We are not necessarily called on to say in the present instance, how far we should feel ourselves obliged to follow the practice of a Court of Chancery, to prevent injustice, if even a plea in abatement had been put in to the form of the assignment.”

Thus, an examination of the authority relied upon by appellee demonstrates that it is not in point.

(b) Appellee cites Cunningham v. Buel, Tex.Civ.App., 287 S.W. 683, 685, where the Court said: “The authority by which the substituted parties came into the case, the capacity in which they appeared, and their apparent right to recover, were fully shown in their first pleadings, and we are of the opinion that due and orderly procedure required the complaining party to raise his objection by verified pleadings, setting out the specific grounds of his objection and by prayer- to abate the suit as to the. substitute parties. Article 2010, R. S.1925. . By failing to do so plaintiff in error waived his right to question the capacity of those parties.” (Italics ours.)

This case is not in point; we have before us no point on the capacity of appelr lee to maintain the suit.

(c) Appellee also .cites Lesh v. Meyer, 63 Kan. 524, 66 P. 245, 246, where the court said: “The execution of the written assignment of the several accounts to Meyer was admitted. Under this state of the pleading, the defense that Meyer was not the real party in interest, that the assignment was only colorable, and that he had no such beneficial interest as would entitle him to maintain the action, was new matter, and should have been pleaded, before evidence is admissible tending to prove such defense.”

The case is not in point; the assignment in issue in that case, on its face, conveyed title. The court simply held that the issue that the assignment was only colorable should have been plead. In the case at bar, the assignment, with its supporting evidence, did not establish title.

Appellee’s second point in his motion for rehearing is to the effect that under the evidence he established title to the cause of action in issue. On that point we take the following statement from his motion for rehearing:

“Appellee contends in his motion for rehearing that the findings made by the court in its. opinion, page 2, as follows : ‘The assignment was executed by the receiver without authority from the court which appointed him receiver, and without authority from any other court. The order appointing him authorized him only to collect and adjust the claim, and in no way to sell and assign it. On this- statement the written assignment by the receiver to appellee was void and vested him with no justiciable interest in the claim asserted by the receiver against appellant.’ — are wholly unsupported by the record in- this case and contrary thereto. -Out of fairness to the parties the court is respectfully urged to review the record and to correct such finding, and as shown hereinafter, the orders of the court in the receivership proceedings when taken in connection with the language in the -assignment, were fully sufficient to transfer the cause of action to C. P. Bordages and to justify the judgment which was entered in his favor.
“The entire evidence on'this point is as follows: First, there appears the order appointing Wright Morrow receiver, in which he is given authority ‘to do and to perform all things necessary with reference to-the affairs of the company pending the further orders of the court.’ There is a forther order in the record in the receivership proceedings wherein the court recites-that the powers gjven Wright Morrow,. Receiver, should be enlarged and extended, and, ‘It is now therefore Ordered, Adjudged and Decreed that the said Wright Morrow, Receiver, and Trustee aforesaid, be and lie is hereby fully authorized to take possession, control and custody of all of the said property, assets and effects of the Lumbermen’s Reciprocal Association, and to do all and anything and enter into any and all agreements, as may be deemed by him necessary or advisable to preserve said property, assets and effects of the said Lumbermen’s Reciprocal Association.’ Such order concludes, ‘It is further Ordered, Adjudged and Decreed that said Receiver shall have leave to apply for such other and further orders of this court as may to him from time to time seem advisable or necessary in the administration of this estate.’
“Such orders gave the receiver a wide range of powers to do any and all things necessary in his discretion with reference to the assets of said corporation.
“As directly authorized by the order of the court, he had instituted this suit. Having made an assignment of the cause of action to Bordages, the said Bordages, with leave of the court, became plaintiff therein, and Marrs McLean, defendant’below and here appellant, made no objection. Upon trial of the case the assignment was introduced in evidence. This assignment has been quoted in part by the court in its opinion. Out of fairness to the parties, certainly the full language thereof should have been set forth and particularly the following portion appearing in the Statement of Facts, pages 227-228:
“ ‘Now, therefore, I, Wright Morrow, as Receiver of said Lumbermen’s Reciprocal Association by virtue of the powers in me vested by law in such case made and provided, for and in consideration of the premises and the sum of Ten Dollars ($10.00) and other good and valuable consideration to me in hand' paid by C. P. Bordages, the receipt of which are hereby acknowledged, under and by virtue of the orders of said court, have bargained, sold, transferred and assigned, and by these presents do bargain, sell, transfer and assign unto C. P. Bordages, of- Jefferson County, Texas, his heirs and assigns forever, all the estate, title- and interest of the Lumbermen’s Reciprocal Association in and to the following described property, to-wit * * * ’
“Thereafter follows a description of the cause of action asserted in this case, and such assignment is duly signed by Wright Morrow as receiver and bears the usual Notary certificate. The above sets forth in full the record on this point.”

On his statement, appellee contends that he established title to the cause of action on the following grounds:

(I) Because the receiver recited in the assignment that it was executed “under and by virtue of the orders of said court.” Appellee introduced in evidence the orders of the appointing court .relied upon to establish his title. These orders show affirmatively that the receiver did not have the power to execute the assignment; on the contrary the court gave him leave “to apply for such order and further orders of this court as may to him from time to time seem advisable or necessary in the administration of this estate.” Since, under the authorities cited in the original opinion, the receiver could not divest himself of title to the cause of action • without authority from the court, and since, under the showing made by the,record the court did not give him that authority, it conclusively appears that appellee did not acquire title to the cause of action by his assignment from the receiver.

(2) But appellee contends that our conclusion “disregards the well recognized law in this state pertaining to the presumption of regularity of official acts and proceedings.” Appellee .cites in support of this proposition 17 Tex.Jur. 277; Stoker v. Stoker, Tex.Civ.App., 254 S.W. 398; Slaughter v. Cooper, 56 Tex.Civ.App. 169, 121 S.W. 173. The presumption invoked by appellee can be invoked only where the officer acts within the apparent scope of his authority; the presumption has no applicatipn where the officer is one with limited authority and can act only within the limits of his authority. So, where the evidence affirmatively shows that his limited authority did not extend to the act in issue, he could not act, and no presumption can be indulged to support his act. The receiver had no power from the appointing court “to sell”; it follows that there is no basis to presume the regularity of his sale.

A third point of law is involved: we quote the last sentence of Sec. 199, 53 C.J. 159: .'“When the receiver’s act is manifestly for the benefit of the estate, it will be presumed, until the contrary appears, to have- been done with the consent Of the court.”

It cannot be said, ón the record in this case, that it was manifestly for the benefit of the estate to assign the cause of action to appellee on the recited consideration “of the premises and the sum of $10.00 and other good and valid consideration." So, on that ground the presumption invoked by appellee cannot be indulged.

On the whole record, we cannot say affirmatively that the receiver did not have power to execute the assignment; we can only say that appellee did not establish title by the evidence introduced. For this reason, the motion for rehearing should be granted and the cause remanded for a new trial. On this conclusion, it is neces•sary that we discuss certain other points made by appellant in his brief.

On the 31st day of July, 1930, Wright Morrow was appointed receiver of the Lumbermen’s Reciprocal Association, hereinafter referred to as Association. Appellant, Marrs McLean, became a member of the Association by written contract signed by him on the 8th day of July, 1927, which contained the following stipulation: “There shall be no joint funds, but a separate individual account shall be kept by our Attorney for us and for each subscriber. Our liability under this agreement shall be our pro rata proportion of the indemnity granted by subscribers at the Association including all expenses incurred, but shall not exceed one additional annual premium deposit provided for in indemnity contracts issued under this authority, which amount we hereby subscribe subject to call by the Advisory Committee.”

Under the written contract of membership, appellant carried policies of insurance with the Association on which he paid the following premiums:

As a “class” suit, acting under orders of the appointing court for the purpose of fixing the assessment liability of all the policyholders — all of them had signed the same written contract of membership — the receiver instituted suit against the Trinity Portland Cement Company, a policyholder of the Association, and 27 other policyholders. Appellant was not named one of the defendants, was not served with notice of the pending suit, and did not know that it was pending until after the entry of the final order of the court in the “class” suit on the 1st day of May, 1933. By the final order, the court levied an assessment of 33% of the amount of the booked and earned premiums on all policies in force from the 1st day of July, 1929, to the 1st day of July, 1930, inclusive. The order was made by the 126th district court of Travis county, to which the “class” suit had been regularly transferred. The suit at bar was instituted by the receiver against appellant to recover the sum of $1,652.60, 33% of $5,007.88, the earned premiums carried by him with the Association. It was this cause of action the receiver purported to transfer to appellee.

Appellant presents the point that the judgment or order entered by the court in the “class” suit was not binding on him. The very point presented by appellant— that he was not bound by the order of assessment entered in the 126th district court of Travis county — was before the court in Southern Ornamental Iron Works v. Morrow, Tex.Civ.App., 101 S.W.2d 336, writ refused, and there decided against his contentions. So, under the order of assessment appellant was made liable to the receiver" for the sum of $1,652.60.

Appellant presents the second point that his assessment liability on the policies issued to him from the 15th day of July, 1928, to the 7th day of July, 1931, inclusive, under the quoted sections of his membership contract set out above, was barred by limitation when this suit was filed on the 10th day of June, 1936. The contention is denied. Limitation did not begin to run in appellant’s favor against his liability for assessment on his policies until the court entered the order of assessment on the 1st day of May, 1931, less than four years before the institution of this suit. Couch on Insurance, Vol. 7, page 5764, Sec. 668; Tardy’s Smith on Receivers, 2d Ed., Vol. 2, p. 1495, Sec. 507; Shaw, Banking Commissioner, et al. v. Bush, Tex.Civ.App., 61 S.W.2d 526; Geyer v. Jones, Tex.Civ.App., 93 S.W.2d 1192, 1193.

The cause of action was based upon the written contract signed by appellant by which he became a member of the Association, and, therefore, was within the statute of four years, and not the statute of limitation of two years.

Motion for rehearing granted, judgment of the lower court reversed and the cause remanded for a new trial.


author: CODY, Justice.

text:
    WILLIAMS et al. v. SMITH.
    No. 10920.
    Court of Civil Appeals of Texas. Galveston.
    Jan. 25, 1940.
    Rehearing Denied Feb. 29, 1940.
    S. A. McCall, of Conroe and Gammage, Gammage & Bauer, of Houston (Earl W. Gammage, of Houston, of counsel), for appellants.
    Fowler & Conn, of Houston, for appel-lee.
   CODY, Justice.

This is a county court case brought by appellee against appellants on the alleged promise of appellant Byron Williams to pay for the repairs to appellee’s automobile, which it is alleged was caused by the negligence of the said Williams. It was tried without a jury, and from a judgment in appellee’s favor, appellants appeal.

The undisputed facts in the case are: That appellee delivered his automobile to appellants, Byron Williams and wife, who ran a garage in Houston, under the name of Auto Service Company, for them to make certain repairs to it, While appellants had the automobile, appellant Byron Williams lost control of it while driving, and the car crashed into a telephone pole and was damaged.

Appellants contended that they refused to repair the automobile, and claimed that there was a mechanical defect in said automobile which caused Byron Williams to lose control of it. Appellants insist that the cause should have been tried on the theory of bailment. Appellee contended and as the court rendered judgment in his favor upon conflicting but sufficient evidence, it must be taken as true: that appellant Byron Williams admitted that the injury to the automobile was due to his fault, and stated that his shop was not equipped to make major repairs to automobiles, but stated he would be willing to pay such repairs and when informed that A. C. Burton & Co. would make the repairs for $385, and the costs of storage and towage would be $10, he told appellee’s agent to go ahead and have the repairs made and he would pay for them, and that he, appellee, agreed to this, and the repairs were so made.

We have carefully examined ap-pellee’s petition, and find that it sufficiently alleges a special contract on the part of appellants to pay the cost of damages caused appellee by the injury to his automobile in the sum of $395. Appellants contend, so it seems to us, that there could be no valid contract in law such as that which appellee contends to be a contract. This contention, as we understand it, is based on the theory that if appellants were liable for the damages to appellee’s automobile, then they were under the • legal obligation to have such automobile repaired, and being under such legal obligation, their promise to have done what they were already bound to have • done, could not constitute a consideration, and therefore such promise • was a nudum pactum. ■ ,

The vice in appellants’ argument is'that they admitted liability and agreed to pay for haying A. C. Burton & Co. make the repairs, and even approved the cost of such repairs, and appellee acted upon and accepted such offer. This was a valid contract. New York & Texas Steamship Company v. Island City Boating & Athletic Association, 2 Tex.Civ.App., 21 S.W. 1007.

Appellants also urge that errors occurred in the garnishment proceedings. We have examined such complaint and believe it is without merit.

Affirmed.


text:
    GULF STATES UTILITIES CO. v. SELMAN.
    No. 3525.
    Court of Civil Appeals of Texas. Beaumont.
    Jan. 17, 1940.
    Rehearing Denied Feb. 28, 1940.
    John G. Tucker, of Beaumont, and A. D. Dyess, of Houston, for appellant.
    Collins, Pate, Hatchell & Garrison, of Lufkin, for appellee.
   COMBS, Justice.

This is a personal injury damage suit filed by appellee, D. D. Selman, against appellant, Gulf States Utilities Company as defendant. Appellee received certain personal injuries when his automobile was run into from the rear, while parked on the highway, by a truck belonging to the appellant, and appellee received certain personal injuries for which he sought damages in the sum of $20,000.

So far as -necessary to the holding announced below, the facts were:

On the night of August 19, 1936, the plaintiff and his wife and daughter were returning from Minden, Louisiana, to their home in Houston, Texas, in their automobile. The wife was driving and plaintiff was riding on the front seat with her. When they reached a point between Sheppard and Cleveland on state highway thirty-five, plaintiff told his wife to stop the car as they had a flat tire." She'pulled the car to the right and stopped it with the two right hand wheels about two feet off the paved portion of the highway, leaving the left wheels and about three feet of the car on the pavement. The pavement was eighteen feet wide and consequently fifteen feet of pavement was left between the car and the opposite edge of the pavement. With the car standing in that position, plaintiff got out to examine his tires and shortly afterward a truck drove up, which plaintiff flagged. The driver stopped and backed his car up so that his lights shone on the rear of plaintiff’s car, when it was ascertained that both rear tires were flat. Plaintiff had only one spare tire, and as a consequence the truck driver was requested by plaintiff to stop in Cleveland and request a garage -to send out aid. The trück proceeded on its way and, according to plaintiff, he then walked out on the shoulders of the road to see if they were safe to drive upon as he had encountered rains along the road. After examining the shoulders he went back to the car to tell his wife to drive it off the pavement when defendant’s truck came up from the rear and collided with plaintiff’s car, shoving it about ten feet down the highway and injuring plaintiff. At the place of the collision the highway was straight and level for a long distance in either direction, and the shoulders of the road were broad and firm, there being at least fifteen feet qf the shoulder upon which plaintiff could have parked his car. The evidence is not entirely clear as to how long plaintiff’s car was parked on the pavement before the collision, but we think the plaintiff’s testimony shows that it was thus parked for at least ten or fifteen minutes. The car lights, front and rear, were burning. The jury convicted the defendant of several acts of negligence and assessed plaintiff’s damages at $6,000. The1 following issues of contributory negligence were submitted and answered as indicated:

“Special Issue No. 19.
“Do you find from a preponderance of the evidence that the plaintiff, D. D. Sel-man, or his agent, Mrs. Selman, parked or left plaintiff’s automobile standing upon the paved or improved or main- traveled portion of the highway, when it was possible to park or leave such vehicle standing off of the paved or improved or main traveled portion of the highway?
“Answer ‘Yes’ or ‘No’.” '
To this special issue the jury answered “Yes.”
“If you have answered special Issue No. 19 ‘Yes’, then, and then only, you will answer special Issue No. 20.
“Special Issue No. 20.
"Do you find from a preponderance of the evidence, that the parking and leaving of plaintiff’s automobile standing upon the paved or improved or main traveled portion of the highway, if you have so found, was negligence as that term as been hereinbe-fore defined for you?
“Answer ‘Yes’ -or ‘No’.”
To this special issue the jury answered “No.”
“If you have answered special issue No. 20 ‘Yes’, then, and then only, answer special issue No. 21.
“Special Issue No. 21.
“Do you find from a preponderance of the evidence that such negligence, if any you have found, was a proximate cause of the injuries, if any, sustained by the plaintiff?
“Answer ‘Yes’ or ‘No’.”

To this special issue the jury made no answer.

On the answers of the jury, convicting the defendant of several acts of negligence proximately causing the plaintiff’s injuries, the trial court entered judgment for plaintiff for $6,000 for his personal injuries and $170 damages to his automobile.

Opinion.

It is our conclusion that the finding of the jury acquitting the plaintiff of negligence in parking his automobile upon the paved or main traveled portion of the highway is without support in the evidence. The parking of the automobile on the paved or main traveled portion of the highway, when there was ample room for it to be parked off. the pavement, violated the statute. Vernon’s Ann.P.C. art. 827a, § 10; Bilbrey v. Gentle, Tex.Civ.App., 107 S.W.2d 597, and authorities cited. It requires no citation of authority that an act committed in violation of a statute is generally held by the courts of this state to constitute negligence as a matter of- law. It is true, as contended by appellee-, that a technical violation of the law may occur under circumstances which justify or excuse it, or raise an issue of fact for the jury as to whether the act complained of under the attendant circumstances constituted negr ligence. See Taber v. Smith, Tex.Civ.App., 26 S.W.2d 722; Tarry Warehouse & Storage Co. v. Duvall, 131 Tex. 466, 115 S.W.2d 401; Hicks v. Morgan, Tex.Civ.App., 259 S.W. 263. But, as we view the evidence disclosed by the record before us, there was no sufficient justification or excuse for plaintiff parking his automobile on the pavement as was done. It appears without dispute that the shoulder of the road between the pavement and the drainage ditch was' some fifteen feet in width, affording ample, safe parking space for' plaintiff’s automobile. The pláintiff’s testimony "is not in all respects clear as' to how long his car remained parked on the pavement before it was- struck by defendant’s truck, but we believe .his testimony is subject to no other reasonable construction than that he was parked in that position at least ten to fifteen minutes. After stopping, he had flagged a passing truck which backed up -so that the headlights would shine on the rear of his car,, had examined his tires, held át least a brief conversation with the driver of the truck and the truck had proceeded on its way, before the defendant’s truck appeared on the scene. Everyone knows that the pavement of a main traveled highway is a dangerous place upon which to park an automobile, day or night, and particularly so at night when the vision of those driving upon the highway is necessarily limited. It is suggested that the plaintiff was unfamiliar with -the road and had a short time before driven through some heavy rains along the road before reaching the point where he stopped, and that he did not know Whether the shoulders of the road were sufficiently firm to make it safe to drive his automobile upon the shoulder of the road. But the evidence shows that from the position in which his automobile was standing, with its right wheels on the shoulder of the rOad and his wife driving, that he necessarily stepped off upon the' shoulder of the road when he first- got' out of the car and walked upon it' as he went back to examine his tires. So, as we have said, it is our conclusion that under the facts the issue of negligence of the plaintiff was established as a matter of law.

However, we overrule the appellant’s contention that the issue.of proximate cause was also established as a matter of law with reference to said issue. In parking his automobile in the position he did, the plaintiff left fifteen feet of the pavement upon his left, ample space for passing automobiles to pass by his automobile without danger. His car lights, front and rear, were burning. The defendant’s truck attempted to pass on the wrong, or right hand side. Defendant’s driver testified that his reason for doing so was that there was a car approaching from the opposite direction which made it. impossible for him to pass on the left hand side without danger of a collision with the approaching car. However, his testimony that there was a car approaching was disputed by the plaintiff and his wife. Under the facts shown, we think that the. question of whether or not the plaintiff’s negligence in parking his automobile upon the pavement was a proximate cause of his injury was one of fact.

In some jurisdictions it is held that where a statute or ordinance is violated, resulting in injury to another, proximate cause will be inferred as a matter of law. See Osborne v. Montgomery, 203 Wis. 223, 234 N.W. 372. But the rule is otherwise in this state. In this state it is generally held that the question whether’ a negligent act, committed in violation of a statute, was the proximate cause of the injury which followed is one of fact. Waterman Lbr. Co. v. Beatty, 110 Tex. 225, 218 S.W. 363; Wohlford v. Texas & N. O. Ry. Co., Tex.Civ. App., 128 S.W.2d 449. See, also, note to the latter case in 18 Texas Law Review, No. 1, page 104.

In the case before us the issue of proximate cause, as related to plaintiff’s negligence in parking his car upon the pavement, was submitted alternatively and was not answered by the jury. The failure of the jury to make a finding upon that issue of fact makes it necessary for us to reverse this case and remand, it for a new trial.

The other assignments presented by the appellant’s brief complain of matters which can be obviated upon another trial, and for that reason we do. not- pass upon- them.

'' Reversed and remanded.


author: NORVELL, Justice.

text:
    BENSON et al. v. DRUMMOND et al.
    No. 10641.
    Court of Civil Appeals of Texas. San Antonio.
    Jan. 31, 1940.
    Rehearing Denied Feb. 28, 1940.
    John T. Spann, of Crystal City, for plaintiffs in error.
    Perkins & Floyd, of Alice, Swearingen & Miller and John J. Cox, all of San Antonio, and Spafford & Spafford, of Dallas, for defendants in error.
   NORVELL, Justice.

On June 18, 1928, the District Court of Duval County entered judgment that plaintiffs take nothing in cause No. 3178, styled “Amye Benson et al. v. E. H. Drummond et al.,” involving certain lands in Duval County, Texas. This judgment was corrected by a nunc pro tunc order entered by the court ex mero motu on March 6, 1934, so as to include Otto Benson as a party defendant in the judgment.

This suit was brought by Amy Benson, widow of Tom Benson, joined by her children and Otto, Zachariah, Alvin and Joseph Benson, it being alleged that the last four parties named, together with Tom Benson, deceased, were children of C. O. Drummond and Mary Benson, both deceased, and that there had been a common-law marriage between C. O. Drummond and Mary Benson. The purpose of the suit was to set aside the judgment entered in cause No. 3178, and recover title and possession of the premises involved.

The defendants filed their motion in this suit to correct the judgment entered in cause No. 3178, as the trial court had held that the nunc pro tunc order of March 6, 1934, had been entered without proper notice, and such judgment was therefore interlocutory rather-than final.

On the 10th day of May, 1939, after due notice and upon consideration of evidence, the trial court entered another order nunc pro tunc, making Otto Benson a party defendant to the judgment rendered in cause No. 3178.

This case was tried to a jury and upon the completion of the testimony the trial court instructed the jury to return a verdict in favor of defendants and against plaintiffs Otto, Zachariah, Alvin and Joseph Benson. The case as to Amy Benson and her children was submitted to the jury upon special issues. In the judgment rendered, the' trial court “found that in the case of Benson v. Drummond, No. 3178, Duval County, judgment (was) rendered June 18, 1928, that same was corrected March 6, 1934, and again corrected * * on the 10th day of May, 1938, and * * * that this judgment as corrected * * * was a valid judgment as to plaintiffs Zacariah (sic) Benson, Otto Benson, Alvin Benson and Joseph Benson,” and the recovery prayed for by said parties was accordingly denied.

Judgment was entered, upon the jury's answers to the special issues involved, in favor of Amy Benson and her children for an undivided one-fifth interest in the lands involved. From this part of the judgment an appeal was taken to this court, with the result that the judgment in favor of Amy Benson and her children was reversed and judgment rendered in favor of defendants. Application for writ of error was refused by the Supreme Court. The opinion of this court in said case (Drummond v. Benson, 133 S.W.2d 154) fully sets out the issues of the case and further elaboration is not necessary here.

Otto, Zachariah, Alvin and Joseph Benson, by writ of error, seek a reversal -of that part of the trial court’s judgment adverse to them. The parties will be designated as in the trial court.

Plaintiffs’ first group of propositions assails the trial court’s action in holding that the judgment rendered in cause No. 3178, as corrected, was binding upon them. In view of the disposition hereinafter made of this case, it is unnecessary to discuss this contention, except to say that said judgment as corrected was not void, but was at most only voidable, and it was therefore necessary that plaintiffs show that they had a meritorious defense to the cause of action upon which the attacked judgment was based. Harris v. Musgrave, 72 Tex. 18, 9 S.W. 90; Jones v. Wootton, Tex.Com.App., 228 S.W. 142; 25 Tex.Jur. p. 665.

Plaintiffs seemingly recognize this fact, and by their remaining propositions assert that they have met such burden. The position of plaintiffs here is stated in their nineteenth proposition, as follows: “The merits of the suit of Otto Benson, Zachariah Benson, Alvin Benson and Joseph Benson in this cause was established by the findings of the jury conforming to their pleadings.”

This court held in the case of Drummond v. Benson, supra, that Amy Benson and children could not recover upon the findings of the jury in this case. The plaintiffs here joined with Amy Benson in the same petition and presented the same theory of recovery. The holding of the court in the Amy Benson appeal .was to the effect that an instructed verdict against Amy Benson and children would have been proper under the evidence. Such an instruction was given with reference to plaintiffs here, and, for the reasons set out in this court’s opinion in the Amy Benson case, we hold that the trial court’s action in this respect was correct.

That part of the judgment appealed-from, denying a recovery to plaintiffs in error, is affirmed.