author: SPEER, J. R. C.

text:
    KIRKLAND v. RUTHERFORD et al.
    (No. 8013.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    Oct. 17, 1914.
    Rehearing Denied Dec. 5, 1914.)
    1. Principal and Agent (§ 189) — Action-Evidence. Admissible under Pleadings— Representations by Agent.
    In a suit in effect to rescind an exchange of property because of false representations, where the petition specifically alleged that the false representations were made by defendants, and nowhere alleged that they were made througb agents, evidence as to representations by alleged agents was not admissible, especially where there was no evidence justifying the inference that such persons were defendants’ agents.
    [Ed. Note. — For other cases, see Principal and Agent, Cent. Dig. §§ 713-717; Dec. Dig. § 189.]
    2. Principal and Agent (§ 23) — Evidence of Agency.
    In a suit to rescind an exchange of property, evidence that certain persons who made false representations approached plaintiff with reference to a trade of the property was' not sufficient evidence that such persons were defendants’ agents, since agency cannot be proved by the mere declarations or acts of the agent alone.
    [Ed. Note. — For other cases, see Principal and Agent, Cent. Dig. § 41; Dec. Dig. § 23.]
    3. Exchange oe Property (§ 8) — Suits for Rescission — Evidence Admissible under Pleadings.
    In a suit to rescind an exchange of land for corporate stock for false representations as to the condition of the corporation, where there was no issue of laches or limitations, evidence that plaintiff had no knowledge of the true condition of the corporation prior to the time of filing his petition was not admissible.
    [Ed. Note. — For other cases, see Exchange of Property, Cent. Dig. §§ 14-18; Dec. Dig. § 8.]
    4. Exchange of Property (§ 8) — Rescission —Evidence.
    In a suit to rescind an exchange of land for corporate stock for false representations as to the condition of the corporation, where the jury found that defendant neither made nor authorized any false representations, evidence that plaintiff had no knowledge of the true condition of the corporation prior to the filing of the petition, and'that the property was of less value than had been represented, was immaterial.
    [Ed. Note. — For other cas.es, see Exchange of Property, Cent. Dig. §§ 14-18; Dec. Dig. § 8.]
    5. Appeal and Error (§ 1046) — Record-Prejudice prom Error.
    No harm from the holding of a night session of the court when plaintiff’s leading counsel was unable to be present from illness appeared, where the bill of exceptions failed to show what transpired at the night session, but did show that plaintiff was represented by two other attorneys.
    [Ed. Note. — For other eases, see Appeal and Error, Cent. Dig. §§ 4128-4131, 4134; Dee. Dig. § 1046.]
    6. Exchange op Property (§ 8) — Rescission —Grounds—Fraud.
    Where, though on an exchange of land for corporate stock defendant’s husband made false representations as to the condition of the corporation, defendant made no misrepresentations, and did not authorize her husband to represent her, and the exchange resulted from negotiations between plaintiff and defendant, plaintiff could not rescind and recover the land, especially where there was no finding that plaintiff relied on the misrepresentations made by the husband.
    [Ed. Note. — For other cases, see Exchange of Property, Cent. Dig. §§ 14-18; Dec. Dig. § 8.]
    Appeal from District Court, Nolan County; Thomas L. Blanton, Special Judge.
    Action by R. C. Kirkland against Mabel M. Rutherford and another. From a judgment for defendants, plaintiff appeals.
    Affirmed.
    Beall, Smith & Spencer, of Sweetwater, for appellant. H. S. Garrett, of San Angelo, for appellees.

      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rop’r Indexes

   SPEER, J. R. C.

Kirkland instituted this

suit against Mabel M. Rutherford and her husband, J. M. Rutherford, in trespass to try title to recover 320 acres of .land in Nolan county, being in effect an action for the rescission of a sale or exchange of such land for $7,100 of the capital stock of the Rutherford Mill & Elevator Company, a private corporation doing business at Chillicothe, the grounds for rescission being the fraudulent representations of the defendants concerning the value of the mill and elevator property. After issues duly joined the court submitted the case on the following special issues, which issues the jury answered or failed to answer as indicated:

“Q. 1. Did Mrs. Mabel M. Rutherford authorize J. M. Rutherford to negotiate a trade for her mill stock with the plaintiff for the land in controversy? A. No.
“Q. 2. Did the consummation of the deal for the exchange of properties result from negotiations had between the plaintiff and J. M. Rutherford, or between the plaintiff and Mrs. Mabel M. Rutherford, or between the plaintiff and both J. M. Rutherford and his wife, Mrs. Mabel M. Rutherford? A. Mrs. Mabel M. Rutherford and R. O'. Kirkland.
“Q. 3. Did J. M. Rutherford, prior to the consummation of the deal for the exchange of properties, represent to the plaintiff that the Rutherford Mill & Elevator Company was entirely solvent and a going concern, that it was capitalized at $45,000 in stock, all of which was paid up, and that said concern was worth upon the market in Ohillicothe par, or 100 cents on the dollar? A. Yes.
“Q. 4. If you should answer the above question 3 in the affirmative, then answer, Did Mrs. Mabel M. Rutherford, at the time she executed such contract with the plaintiff, know that such representations, if any, had theretofore been made by her said husband, J. M. Rutherford, to the said plaintiff? A. No.
“Q. 5. If you should answer question 3 in the affirmative, then answer, Were said representations, if any, made by said J. M. Rutherford to said plaintiff true or false? A. False.
“Q. 6. If you should answer question 3 in the •affirmative, then answer, Were the representations made by said J. M. Rutherford, if any, relied upon by plaintiff, and did same induce the plaintiff to consummate said deal? (No answer.)
“Q. 7. Did Mrs. Mabel M. Rutherford, prior to the consummation of the deal for the exchange of properties, represent to the plaintiff that the Rutherford Mill & Elevator Company was entirely solvent and a going concern, that it was capitalized at $45,000 in stock, all of which was paid up, and that said concern was not in any wise indebted or incumbered, and that such stock was worth upon the market at Ohillicothe par, or 100 cents on the dollar? A. No.
“Q. 8. If you should answer question 7 in the affirmative, then answer, Were said representations, if any, made by said Mabel M. Rutherford to said plaintiff true or false? (No answer.)
“Q. 9. If you should answer question 7 in the affirmative, then answer, Were the representations made by the said Mrs. Mabel M. Rutherford, if any, relied upon by the plaintiff, and did same induce the plaintiff to consummate said deal? (No answer.)
“Q. 10. Was the mill stock which was traded for the land in controversy the separate property of Mrs. Mabel- M. Rutherford? In connection with the above I instruct you that if when said deal was made J. M. Rutherford then voluntarily gave to his wife $2,100 of stock theretofore held in his own name for the purpose of enabling her to acquire said land as-her separate property, then such stock would be her separate property. A. Yes.
“Q. 11. Did Mrs. Mabel M. Rutherford and her husband, J. M. Rutherford, fraudulently conspire together for the purpose of making false representations to plaintiff concerning the mill stock and to thereby induce plaintiff to consummate said deal? (No answer.)
“Q. 12. In consummating said deal for the exchange of properties, did plaintiff rely upon his own business judgment? A. No.
“Q. 13. In addition to representations, if any, made by either J. M. Rutherford or Mrs. Mabel M. Rutherford, did the plaintiff make any investigation himself concerning the nature and probable value of the stock he was negotiating for? A. Yes.
“Q. 14. If you should answer question 13 in the affirmative, then answer, Did the plaintiff in consummating said deal rely upon his own investigation, if any? A. No.”

Upon the answers thus returned the trial court entered judgment for the defendants, and the plaintiff has appealed.

First we hold that the 'evidence is sufficient to support the findings of the jury in response to the special issues submitted to them. While on the material issues they are contrary to appellant’s testimony, they nevertheless are supported by Mrs. Rutherford’s testimony, stating specifically that she informed appellant of the existence of the debt and lien for which the mill property was afterward sold out.

Most of appellant’s assignments-complain of the court’s rulings in admitting or rejecting evidence, but these rulings become immaterial in view of the issues under the pleadings and of the findings above set out. To be more specific, the first and second assignments complain that the court erred in excluding certain testimony which would have tended to show that G. F. Wright and H. M. Scarbrough were agents of Mrs. Rutherford, and as such made certain advances and representations to appellant. Appellant’s petition, however, nowhere charges that appellees’ representations were made through agents, but specifically alleges that the false representations were made by the defendants. Moreover, there is no evidence in the record to justify the inference that the persons named were- agents of Mrs. Rutherford. Such agency cannot, of course, be proved by the mere fact that these persons approached appellant with reference to the trade. Such conduct proves nothing. Agency cannot be proved by the mere declarations or acts of the agent alone.

It is next complained the court erred in refusing to permit appellant to testify in regard to investigations made by him into the condition of the affairs of the Rutherford Mill & Elevator Company after the filing of this suit because his testimony would have shown that he had no knowledge of the true condition of the company prior to the time of filing his petition. But there was no issue of laches or limitation, and, besides, it is immaterial if appellant was deceived in regard to the property if appellee Mrs. Rutherford was in no manner responsible for his being deceived.

A number of other assignments, namely, the fourth, fifth, and seventh, also relate to rulings in excluding evidence, the purpose of which was to show that the mill and elevator property was of less value than had been represented to appellant. These, .too, become immaterial in the absence of a finding that Mrs. Rutherford misrepresented its value.

There is no merit in the eighth assignment complaining of the court’s action in holding anight session when appellant’s .leading counsel through illness was unable to be present and conduct his suit. The bill fails to show what, if anything, transpired at the night session, but does show that appellant was represented by two other attorneys, and it is impossible for ns to say that any harm could have resulted to his interests by the course pursued. Our conclusion that the evidence supports the findings of the jury virtually disposes of every question raised on the appeal. Under those findings no other judgment than one for appellees could have been rendered. The very gist of appellant’s cause of action was false and fraudulent representations concerning the value of the mill and elevator property exchanged to him for his land, upon which he relied to his damage. While the findings do shdw that this property was misrepresented to him by appellee J. M. Rutherford, they further show that he was not authorized to represent Mrs. Rutherford, and that the exchange in fact resulted from negotiations between Mrs. Rutherford and appellant, and that Mrs. Rutherford made no false representations concerning the mill property. The jury having found that Mrs. Rutherford made no false representations, and having failed to find that the false representations made by her husband were authorized by her, necessarily there could be no judgment rendered against her. Moreover, the jury find that J. M. Rutherford made false representations concerning the value of the mill property, yet they fail to find that appellant ever relied upon these representations. A judgment for appellant would have found no support in the verdict.

We find no error in the judgment, and it is affirmed.


source: Caselaw Access Project

author: CONNER, C. J.

license: Public Domain

text:
    McMANUS v. SOUTHERN FRUIT JULEP CO.
    (No. 8030.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    Nov. 7, 1914.)
    Process (§ 31) — Name of Plaintiff — Trade - Name,
    Where a petition alleges that plaintiff was doing business in a trade-name, giving both his individual and the trade name, a citation issued only in the trade-name is not invalid, especially where a certified copy of the petition is served on the defendant, and hence a default judgment against defendant is properly entered on the petition.
    [Ed. Note. — For other cases, see Process, Cent. Dig. § 25; Dec. Dig. § 31.]
    Error from Tarrant County Court; Charles T. Prewitt, Judge.
    Action by the Southern Fruit Julep Company against J. W. McManus. From a judgment for plaintiff, defendant brings error.
    Affirmed.
    Short & Feild, of Dallas, for plaintiff in error. McGown, Murphy & McGown, of Ft. Worth, for defendant in error.

      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   CONNER, C. J.

This suit was instituted on the 17th day of December, 1913, by the Southern Fruit Julep Company, alleged to be entirely owned by A. M. Luckett, against the Crown Manufacturing & Bottling Company, alleged to have been owned entirely by J. W. McManus, residing in Dallas county, Tex., upon a verified account for goods, wares, and merchandise of the alleged value of $290. Citation was duly issued commanding the sheriff or constable of Dallas county to summon “Crown Manufacturing & Bottling Company, J. W. McManus, proprietor, to appear before the county court * * * to answer the petition of Southern Fruit Julep Company, plaintiff, filed in said court on the 17th day of December, .1913, against the said Crown Manufacturing & Bottling Company, J. W. McManus, proprietor, for suit, said suit being No. 13586, the nature of which demand is as follows,” etc.' The return was by a constable of Dallas county certifying that the citation had come into his hands on the “17th day of December, 1913, at 10 o’clock, and executed the 18th day of December, 1913, by delivering to J. W. McManus, the within-named defendants, each in person a true copy of this citation, together with the accompanying certified copy of plaintiff’s original petition.” On the 7th day of January following a judgment by default was entered, reading, so far as necessary to be stated:

“This cause coming regularly on to be heard, plaintiff, represented by its attorney, and defendant, though having been duly cited to appear and defend this action, appearing not, but wholly making default, the court having heard the testimony, being-fully advised in the premises, finds that defendant, J. W. McManus, doing business under the name and style of Crown Manufacturing & Bottling Company, is indebted to plaintiff upon an open account in the sum of $290.13, and that said defendant agreed in writing to pay 10 per cent, of said amount as attorney’s fees if placed in the hands of an attorney for collection, and that said defendant is further indebted to plaintiff in the sum of $29.01, attorney’s fees, making a total of $319.14, and that plaintiff ought to recover of said defendant the said amount. It is therefore ordered, considered, and adjudged by the court that plaintiff do have and recover of and from said defendant, J. W. McManus, the sum of $319.14, with interest from this date at the rate of 6 per cent, per annum and its costs in this behalf expended, for which let execution issue.”

J. W. McManus prosecutes this writ of error from the judgment above described and presents two questions only. It is first insisted, in effect, that the judgment is unauthorized in that the citation “omits the name of the plaintiff.” A scrutiny of that part of the citation we have quoted renders it quite evident that the citation does contain the name “Southern Fruit Julep Company, plaintiff.” The petition was. so entitled, the suit was so docketed, and the judgment so entered. The fact that A. M. Luckett’s name did not appear in the citation cannot nullify the judgment, for it is quite evident, from the averments of the petition, that Luckett was doing business under the name of Southern Fruit Julep Company, and we know of no rule of law which prevents a person from doing business under any name that he may choose, and, in giving the name “Southern Fruit Julep Company,” the citation did give the trade-name of Luckett. Moreover, the omission of A. M!. Luckett’s name from the citation, if in any event it could be said to be material, was entirely cured by the fact that a certified copy of the original petition was served upon the plaintiff in error in Dallas county, and this petition contained, not only the trade-name, but the individual name of the plaintiff, in whose real interest and for whose real benefit the suit was instituted.

What we have said in disposing of the objection to the citation substantially answers the only other question raised on the appeal. This is embodied in plaintiff in error’s second proposition, which reads:

“To authorize a judgment by default, the petition upon which it was rendered must show a cause of action existing in favor of the plaintiff. Where such cause of action is shown to exist in the name of another person, no recovery can be had by the plaintiff.”

As already indicated, we do not think it oan be said that the cause of action declared upon appears from the plaintiff’s allegations “to exist in the name of another person.” Under the allegations of the petition, the “Southern Fruit Julep Company” and “A. M. Duckett” identify the same person; one being the trade-name and the other the surname of the plaintiff, which the petition sufficiently discloses.

We are of the opinion that the judgment must be sustained, and it is accordingly in all things affirmed.


author: RAINEY, C. J.

text:
    MOORE v. COOPER MFG. CO.
    (No. 7236.)
    (Court of Civil Appeals of Texas. Dallas.
    Dec. 19, 1914.)
    1. Appeal and Error (§ 731) — Assignments of Error — Sufficiency.
    An assignment of error in that the verdict was contrary to the law and the evidence, because it should have been for the full amount of plaintiff’s claim, was too general, and violated the rules of practice, and would be considered as waived.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3017-3021; Dec. Dig. § 731.]
    2. Appeal and Error (§ 1068) — Harmless Error — Instructions.
    In an action for services as a salesman and collector, error, if any, in charge on the question of damages raised by the defendant was without prejudice to plaintiff, where the verdict found against defendant on its plea for damages.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig..§§ 4225-4228, 4230; Uec. Dig. § 1068.]
    3. Appeal and Error (§ 272) — Instructions ■--Objection.
    Under Rev. St. 1911, §§ 1971-1973, 2061, as amended by Acts 33d Leg. c. 59, providing that, where a party fails to object to the charge before it is given, it is to b.e regarded as approved by him, plaintiff, who did not except to the refusal of his requested special charges, and whose only objection to the charge was filed after judgment, without any showing that it was ever known to the court, will be held to have approved the charge.
    [Ed. Note. — For other cases, Appeal and Error, Cent. Dig. §§ 1611-1619; Dec. Dig. § 272.]
    4. Appeal and Error (§ 742) — Assignments of Error — Indefiniteness.
    An assignment of error in that “the court erred in overruling plaintiff’s motion for a new trial, because said errors were pointed out in said motion,” submitted as a proposition, was too general to be considered.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. § 742.]
    Appeal from Navarro County Court; R. R. Owen,' Judge.
    Action by R. S. Moore against the Cooper Manufacturing Company. Judgment for defendant, and plaintiff appeals.
    Affirmed.
    Jack & Jack, of Corsicana, for appellant. Callicutt & Call, of Corsicana, and Seay & Simon and Theodore Mack, all of Ft. Worth, for appellee.

      For other see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   RAINEY, C. J.

Appellant sued appellee to recover for services rendered as salesman of vehicles for appellee, and as collector, and sued out a writ of attachment; appellee being a nonresident. Appellee answered by the general issue, and specially that appellant was guilty of fraud in making sales, in that he made false reports as to the purchasers’ financial ability, as was his duty to do, which caused appellee to be damaged, etc. The writ of attachment was quashed. A trial on the merits was had, and verdict and judgment rendered for $10 in favor of appellee, and appellant prosecutes this appeal.

Conclusions of Law.

1. The first and second assignments of error are substantially that the ver.dict is contrary to the law and evidence; for, according to the evidence, the verdict should have been for the full amount of plaintiff’s claim. Appellees objected to the consideration of these assignments, because too general and violative of the rules of practice. This objection is sustained, and said assignments will be considered as waived. Jenkins v. American Co. (Sup.) 2 S. W. 726; Koepsel v. Allen, 68 Tex. 446, 4 S. W. 856; Cartmell v. Gammage, 64 S. W. 315.

2. The third and sixth assignments complain of the court’s charge in instructing the jury on the question of damages pleaded by appellee. The jury by their verdict found against appellee on their plea for damages, and hence appellant was not injured by said charge; therefore said assignments are overruled.

3. The seventh assignment of error will not be considered because in violation of the rules, in that it complains of the general charge of the court for not charging “the law applicable to the case,” and in not giving special charges asked by appellant. There are four special charges asked by appellant, shown by the. record, which were refused, hut there is uo exception shown to haye been taken to the refusal. There is only an objection shown, and that is to paragraph 7 of the main charge, which purports to have been filed January 30, 1914, two days after the judgment was rendered, and there is nothing to show that said objection was ever made known to the court. Acts 33d Leg. p. 113, arts. 1971-1973, 2061; Railway Co. v. Barnes, 168 S. W. 991; Compress Co. v. Saunders, 70 Tex. 699, 6 S. W. 134.

4. There was no error in quashing the writ of attachment as complained of in the eighth assignment.

5. The ninth assignment is:

“The court erred in overruling -plaintiff’s motion for a new trial, because said errors were pointed out in said motion.”

This assignment is submitted as a proposition. This assignment is too general and indefinite for us to consider, and the same will not be discussed.

6. The judgment is affirmed.


author: MOURSUND, J.

text:
    MARTINEZ v. MEDINA VALLEY IRR. CO.
    (No. 5357.)
    (Court of Civil Appeals of Texas. San Antonio.
    Dec. 5, 1914.
    Rehearing Denied Jan. 6, 1915.)
    1. Appeal ahd Error (§ 218) — Presentation Below — Instructions—Special Verdict.
    Where no objection was made to an instruction that, if the jury answered a certain question in the negative, they need not answer the questions which followed, error could not be predicated on the jury’s failure, after returning a negative answer, to answer such other questions.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1315-1321,1323 ; Dec. Dig. § 218.]
    2. Trial (§ 356) — Special Verdict — Negligence.
    Where, in an action for negligent personal injuries, the jury specially found that defendant was not negligent, they need not answer other questions which relate solely to defenses pleaded.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 849-854; Dec. Dig. § 356.]
    3. Appeal and Error (§ 213) — Objections at Trial — Submission op Issues.
    Where, in an action for injuries to plaintiff’s wife from being thrown from defendant’s wagon, no objection was made to the submission of the issue of the driver’s negligence, and no request was made for the submission of any other theory of negligence pleaded by plaintiff, error could not be predicated on the fact that the judgment was based on the finding on the issue submitted.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1149, 1165, 1304-1308; Dec. Dig. § 213.]
    4. Appeal and Error (§ 707) — Presentation for Review — Submission op Issues.
    A contention, that the judgment for defendant was erroneous, because based on the jury’s finding on only one theory of negligence, could not be considered on appeal, where the absence of any statement of facts rendered it impossible to determine whether there was evidence to support any theory of negligence other than that submitted.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 2942; Dec. Dig. § 707.]
    5. Negligence (§ 142)— Special Verdict-Judgment.
    In an action for injuries to plaintiff’s wife from being thrown from defendant’s wagon, a negative reply by the jury to a question whether or not defendant’s driver was negligent, and such negligence was the proximate cause of the accident, authorized a judgment for defendant.
    [Ed. Note. — For other cases, -see Negligence, Cent. Dig. §§ 400-403; Dec. Dig. § 142.]
    Appeal from District Court, Bexar County; W. F. Ezell, Judge.
    Action by Antonio Martinez against the Medina Valley Irrigation Company. From judgment for defendant, plaintiff appeals.
    Affirmed.
    J. D. Childs and Jas. W. Brown, both of San' Antonio, for appellant. Wm. Aubrey and West & McMillan, all of San Antonio, for appellee.

      For other cases see same topic and section NUMBEB in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   MOURSUND, J.

Appellant sued appellee to recover damages for injuries sustained by his wife, who fell or was thrown from a wagon owned by appellee. It was alleged that Clarence Chipman was the driver of ap-pellee’s wagon, and that he had been sent by Walter Mitchell, the foreman or vice principal of appellee, to convey appellant’s wife, together with other women and children and household furniture, from the big dam to the little dam of appellee, a distance of about four or five miles; that in pursuance of said order Chipman permitted appellant’s wife and others to ride in a wagon from the big dam to the little dam of appellee; that the wagon started at nighttime, drawn by a pair of mules, and had no brake attached to it, nor any light, and while proceeding over a rough, hilly, and dangerous road, and going down a steep and curving hill, the mules started in a fast trot and became unmanageable; that the driver was unable to see the condition of the road; that a wheel or wheels of the wagon ran into a chug hole in the road or against a rock, which caused said wagon to upset or tilt or jolt with such violence that it threw out appellant’s wife, thereby inflicting upon her injuries which were fully set out in the petition; that appellee was guilty of negligence in improperly loading the wagon, in failing to have a brake on the wagon, in failing to have a light upon the wagon, in failing to have a safe and careful driver, in overloading the wagon,, in proceeding in the nighttime over a dangerous road without a light, in failing to route the wagon over another road which was comparatively safe, and in moving said people in the nighttime instead of the daytime.

Appellee, by its answer, joined issue upon all the- material allegations of the petition, and alleged that appellant’s-wife was a trespasser, riding in the wagon without right or authority, and in violation of express instructions given by appellee’s foreman. Appellee also pleaded assumed risk and contributory negligence. The case was submitted to the jury upon special issues; the first seven questions and answers thereto being as follows:

“(1) Was the plaintiff’s wife, Rosa Martinez, invited to ride on said wagon by any employé of the defendants? If so, by whom? Answer, stating name, if you find she was invited, and, if you find she was not, answer ‘No.’ Answer: Yes, by Chipman.
“(2) Was Clarence Chipman directed by Walter Mitchell to transport Rosa Martinez on said wagon? Answer ‘Yes’ or ‘No.’ Answer: Yes.
“(3) Did Walter Mitchell have authority to employ and discharge employés of defendant without first obtaining the consent of his superior officer? Answer ‘Yes’ or ‘No.’ Answer: No.
“(4) Was the transporting of plaintiff’s wife, Rosa Martinez, for the benefit of the defendant? Answer ‘Yes’ or ‘No.’ Answer: No.
“(5) Was Clarence Chipman acting within the scope of his employment and within the scope of his authority in transporting Rosa Martinez on said wagon? Answer ‘Yes’ or ‘No.’ If you answer question No. 5 ‘No,’ then you need answer no other question. Answer: Yes.
“(6) Did the wheel or wheels of said wagon run into a chug hole and thereby cause the wagon to tilt or jolt with such violence as to throw Rosa Martinez out of the wagon and injure her, substantially as alleged in plaintiff’s petition? Answer ‘Yes’ or ‘No.’ Answer: Yes.
“(7) If you answer question No. 6 ‘Yes,’ then state whether or not Clarence Chipman was guilty of negligence in permitting said wagon to run into such chug hole, if he did permit it, in the manner you may find it did, and was such negligence, if any, the proximate cause of the accident? Answer ‘Yes’ or ‘No.’ Answer: No.”

In' addition to the above questions, the court submitted questions Nos. 8, 9, ,10> and 11, the first three of which related solely to the defenses pleaded by appellee, while the last related to the amount to be found by the jury, provided they answered the questions favorably to appellant. The court instructed the jury that if, they answered No. 7 ‘‘No,” they need answer no further questions. Pursuant to such instruction, they did not answer Nos. 8, 9, 10, and 11. Judgment was rendered in favor of appellee.

The only paragraph of appellant’s motion for a new trial relating to the verdict contains the following statement of the grounds upon which appellant claimed to be entitled to a new trial, viz.:

“Because all the issues as made in the pleadings have not been answered by the jury in response to the special issues submitted by the court on the trial hereof; the jury having answered in favor of plaintiff all questions submitted to them up to No. 7, which said No. 7 was submitted in such a way as to confuse the jury and was not the only issue in the case, and questions Nos. 8, 9, 10, and 11 were not answered, but should have been, and said answers do not dispose of the case and do not authorize a judgment for defendant in said cause.”

No request was made by appellant for the submission of any other theory of negligence than the one submitted by the court in question No. 7, and no objection was made to the form of said question No, 7, nor any other question submitted by the court; nor was any objection made to the charge of the court in that it instructed the jury not to answer questions Nos. 8, 9, 10, and 11, if No. 7 was answered in the negative. It can hardly be said that the paragraph of the motion for new trial, above quoted from, contains any objection to the verdict based upon the ground that the verdict was uncertain or contradictory. However, appellant, by six assignments of error, contends that the court committed error in rendering judgment upon the verdict, and that such error is fundamental.

One contention is- that the court should have, required the jury to answer questions Nos. 8, 9, 10, and 11. Aside from the fact that no objection was made to that part of the charge instructing the jury not to answer said questions if No. 7 was answered in the negative, no harm was sustained by appellant by the failure of the jury to answer said questions, as they related to defenses pleaded by appellee and the amount of the recovery if all questions had been answered favorably to appellant. If, in answering question No. 7, it was determined that appellee’s employé was not guilty of negligence, or, if guilty of negligence, the same was not the proximate cause of the injuries, then it would certainly be unnecessary for the jury to go further and consider the defenses pleaded by appellee.

Another contention is that the court committed fundamental error in basing its judgment upon the negligence of Chipman, as he was the mere driver or teamster acting under the direction of Walter Mitchell, the authorized agent of appellee. It is a sufficient answer to this contention to say that no objection was made to the submission of the issue of Chipman’s negligence, and no request was made for the submission of any other theory of negligence pleaded by appellant. Besides, there being no statement of facts in the record, it is impossible to determine whether there was any evidence to support any other theory of negligence than the one submitted by the court.

The only other contention made by appellant which we will consider is the one that the verdict is insufficient to support the judgment, on the ground of being uncertain and conflicting. Appellant contends that question No. 7 contains three distinct questions, viz.: Whether Clarence Chipman was guilty of negligence; whether Clarence Chip-man was not guilty of negligence; and, if guilty of negligence, whether same was the proximate cause of the injuries. This contention is without merit. By asking the jury to state whether or not Clarence Chipman was guilty of negligence, the jury was given plainly to understand that an affirmative answer would be a finding that he was guilty of negligence, while a negative answer would be a finding that he was not guilty of negligence. It is true that two questions were contained in.this interrogatory: One whether Chipman was guilty of negligence, and the other whether such negligence, if any, was the proximate cause of the accident. However, no objection was made to the question on this ground, nor to the instruction of the court to answer same “Yes” or. “No,” and we doubt not that, had the jury answered it “Yes,” appellant would have strenuously contended that such answer amounted to a finding that Chipman was guilty of negligence and that such negligence was the proximate cause of the accident, but the jury answered in the negative, and, if it be contended that such answer should not be construed as a, finding that there was no negligence, then it is evident that it must be a finding that the negligence was not the proximate cause of the accident. Taking it either way, appellant was not entitled to a recovery. The answer to question No. 6 does not make a conflict with .the answer to No. 7. In answering No. 6 in the affirmative, the jury determined that the wagon was caused to tilt by reason of the wheels running into a chug hole, and thereby appellant’s wife was thrown out of the wagon and injured, substantially as alleged in iflain-tiff’s petition. The manner in which the accident occurred was thus determined and the fact established that appellant’s wife was injured substantially as alleged in the petition. The issue of negligence was not submitted in said question, nor whether the fact that the wagon ran into the chug hole was the proximate cause of the injuries. Appellant admitted in his brief that the answer to question No. 6 merely fixed what was the immediate cause of the injuries inflicted upon his wife, and that it did not determine whether the failure to have a brake or light upon the wagon, or some one of the other grounds of negligence alleged in plaintiff’s petition, was the proximate cause of the injuries in question. The jury evidently found that while the /wheels of the wagon ran into a chug hole, causing the wagon to tilt or jolt with such violence as to throw appellant’s wife out of the wagon and injure her, yet that Chipman was not guilty of negligence in permitting the wagon to run into the chug hole, or, if he was guilty of negligence, that such negligence was not the proximate cause of the injuries.

We conclude that the verdict of the jury amounts to a finding that appellant had no ■cause of action, and that, upon such verdict being returned into court, it was the duty of the court to enter judgment thereon in favor of appellee.

The assignments of error are overruled, and the judgment is affirmed.


author: HENDRICKS, J.

text:
    JAMESON v. BOARD.
    (No. 688.)
    (Court of Civil Appeals of Texas. Amarillo.
    Dec. 12, 1914.)
    1. Fences (§ 27) — Damages by Stock — Opening a Eence — Liability.
    Where defendant removed a portion of his fence to which plaintiff had attached a string of fence completing his inclosure and in consequence thereof defendant’s cattle were allowed free access to plaintiff’s pasture, and it appeared that' defendant knew what would be the consequence, defendant was liable in an action in trespass for the consequential damages, regardless of whether his act was a violation of the “fence statute,” though defendant was a lessee of a section of land within plaintiff’s inclosure.
    [Ed. Note. — For other cases, see Fences, Cent. Dig. §§ 40-44, 52-61; Dec. Dig. § 27.]'
    2. Fences (§ 27) — Pleading—Common-Law Liability — Recovery.
    That plaintiff alleged in “support of his allegations as to exemplary damages” that defendant, in removing his fence and allowing his cattle access to plaintiff’s pasture, violated the “fence statute” did not preclude him from recovering for the trespass, where his allegations were sufficiently broad to comprehend an action of trespass as at common law.
    [Ed. Note. — For other cases, see Fences, Cent. Dig. §§ 40-44, 52-61; Dec. Dig. § 27.)
    Appeal from District Court, Hutchinson County; F. P. Greever, Judge.
    Action by S. J. Board against W. F. Jame-son. From judgment for plaintiff, defendant appeals.
    Affirmed.
    Crudgington & Works, of Amarillo, for appellant. Newton P. Willis, of Canadian, for appellee.

      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   HENDRICKS, J.

The appellee, Board, sued the appellant, Jameson, for damages on account of the removal by appellant .of a certain fence and permitting cattle owned by the appellant to go upon the inclosed land of ap-pellee, claiming the destruction of his grass and also alleging the willful removal of said fence, praying for $200 exemplary damages. The cause was tried to a jury upon a submission by the trial court of special issues, the jury finding that appellant’s removal of said fence was a willful act, however, denying exemplary damages, but returning a verdict for actual damages.

The appellee, Board, had connected a certain line of fence with that of appellant which, with other fencing, inclosed the former’s pasture. The fence constructed by appellee completing his inclosure was not disconnected from appellant’s fence; but a portion of appellant’s fence, to which appellee’s string of fence was tied, was removed, and on account of which appellant’s cattle were allowed free access to the grass of the appellee. It is true that within the inclosure of appellee the appellant was the lessee of a section of land, but considering the excessive number of cattle which were permitted to go within the Board inclosure, we are unable to say that the control of a section in appellee’s pasture derogated from the trespass, as an inherent wrong, for which recovery would be denied.

Appellee alleged a violation of the civil and criminal statutes of the state relative to the unlawful removal of fences, as the pleader expressed it, “in further support of his allegations as to exemplary damages”; and appellant, in attempting to make appellee’s action exclusive, says:

“ * * * This proceeding is a statutory one, and not an action in trespass generally, and must be controlled by the statute.”

Appellee’s allegations, however, are broad enough, as well as sufficiently specific, to comprehend an action .of trespass as at common law; and appellant’s proposition would be akin to an attempted denial of recovery by a plaintiff who sued upon a bond, alleging it as statutory, though the averments were sufficient for relief as a common-law obligation.

Jameson, the appellant, testified:

“I broke down the pasture fence, Mr. Board’s pasture. I did it upon purpose. * * * I knew at that time my cattle could go through this inclosure into Mr. Board’s pasture.”

Appellant, though testifying that he did not tear down the fence to injure Board, and simply did so to use the material for the purpose of fencing the section controlled by him in Board’s pasture, the jury, however, though failing to find exemplary damages, expressly found that Jameson’s actions were willful, and necessarily, as a cattleman of some experience, he not only knew that his cattle “could go through * * * into Board’s pasture,” but would do so. If the law as applied to Jameson’s acts would impress liability, irrespective of a violation of the “fence statute,” his acts in trespass, and the natural consequences of same, which he necessarily contemplated and must be charged with, are so undisputed as that his assignments, criticizing the action of the court in other respects, are immaterial.

On account of pastoral conditions, and the former method of conducting the cattle business in this state, or in a great portion of same, an inclosure being the exception, and the open range the rule, the courts have not adopted the rule of the common law in its strictness, applicable to the involuntary encroachment or trespass of live stock upon the uninclosed land of another. Davis v. Davis, 70 Tex. 124, 7 S. W. 826; Band Co. v. McClelland Bros., 86 Tex. 185, 23 S. W. 577, 1100, 22 L. R. A. 105.

Though the rule is relaxed, on account of our own policy in such matters, however, Justice Gaines, in the McClelland Case, supra, announced the well-recognized exception. He said:

“If, however, he drives his cattle upon the inclosed land of another, however imperfectly inclosed, he is guilty of a trespass, for which he is liable to answer in damages.”

Chief Justice James, in the case of Claunch v. Osborn, 23 S. W. 937, after recognizing the general rule, said:'

“ * * * Still, if one willfully causes stock to go upon another’s land, and to remain there, he makes himself liable for the damages that result. If defendant opened the division fence, even upon his own land, at a time and under circumstances that would naturally cause his stock to go into his neighbor’s pasture, and there remain, he becomes a trespasser, and is liable for the injury that resulted to his neighbor therefrom.”

While Chief Justice James used the language “division fence,” he specifically said that the act of March 17, 1887 (Acts 20th Leg. c. 43), did not apply — the same act which appellant says must cover this case, but which he contends does not do so on account of the insufficiency of proof; the statute also being excluded, so he says, on account of the finding of the jury that neither Jameson nor his landlord gave Board an express consent, or agreed that the latter could connect to the former’s fence, a portion of which was removed. As stated, we think this matter is entirely immaterial. The doctrine announced by Justice James, so pertinently applicable to this case, was also recognized by the Court of Civil Appeals of the Second District, in the case of St. Louis Cattle Co. v. Vaught, 1 Tex. Civ. App. 388, 20 S. W. 856, and by this court in the case of Tandy v. Fowler, 150 S. W. 484.

The judgment of the lower court is affirmed.


author: FLY, C. J.

text:
    PAUL STONE CO. v. SAUCEDO.
    (No. 5362.)
    Court of Civil Appeals of Texas. San Antonio.
    Dec. 5, 1914.
    Rehearing Denied Jan. 6, 1915.)
    1. Appeal and Error (§ 1001) — Credibility op Witnesses — Question por Jury.
    The jury must pass on the inconsistencies in the testimony and reconcile the same, if possible, and a verdict sustained by evidence will not be disturbed.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3922, 3928-3934; Dec. Dig. § 1001.]
    2. Master and Servant (§ 125) — Injury to Servant — Obligation op Master — Sape Place to Work.
    An employer using,’ from time to time, dynamite in loosening stone on which an employé is working at a place selected by the employer is chargeable with knowledge that parts of the ledge may drop on the employé, and is liable for injury to the employé by loose stone falling on him; as the employé may assume that any loose stone had been removed by the master.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 243-251; Dec. Dig. § 125.]
    3. Master and Servant (§§ 211, 241) — Injury to Servant — Contributory Negligence-Assumption op Risk.
    Where an employé working at a place fixed by the employer knew nothing of its unsafe condition by reason of the danger of loose stone falling on him, and the employer, using dynamite from time to time in loosening stone, did not exercise any care to prevent accidents to employés by falling stones, and the danger was not open and apparent, the employs did not, as á matter of law, assume the risk, and was not guilty of contributory negligence.
    [Ed. Note.—For other eases, see Master and Servant, Cent. Dig. §§ 557, 757; Dec. Dig. §§ 211, 241.]
    Appeal from District Court, Bexar County; S. G. Tayloe, Judge.
    Action by Reynaldo Saucedo against the Paul Stone Company. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    Andrews, Streetman, Burns & Logue, of Houston, Kampmann & Burney, of San Antonio, W. L. Cook, of Houston, and H. P. Burney, of San Antonio, for appellant. T. H. Ridgeway, of San Antonio, for appellee.

      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   FLY, C. J.

This is a suit for damages instituted by appellee, in which it was alleged that he had been injured through appellant, who was his employer, in not using ordinary care in providing him a safe place in which to perform his labor and not warning him of the danger. A trial by jury resulted in a verdict and judgment for appellee in the sum of $2,000.

Appellee was employed by appellant to break stone, and, while engaged in the place where he had been set to work by appellant, had his leg broken by a stone which fell from a ledge of stone near by. Appellant had 'been dynamiting the stone previous to the accident, and, although its president and manager was present just before the accident, no inspection was made to ascertain if there were any loose stone on the ledge that might fall. Appellee was ignorant of the fact that no inspection had been made, and appellant failed to warn him of the danger.

The first assignment of error assails the answer of the jury to the effect .that a loose rock fell from the side of a bluff or cliff and injured appellee, on the ground that the answer is not sustained by the evidence. The testimony of appellee and his witness Antonio Hurs, copied into the brief of appellant, showed that he was struck by á rock that fell from the ledge or cliff upon him. There are inconsistencies in the testimony of appel-lee and Hurs, but they were for the jury to pass upon and reconcile, and there is testimony to sustain their finding.

The second, third, fourth, and fifth assignments attack the answers of the jury to the effect that appellant was guilty of negligence in not providing a safe place in which appel-lee was to work, and in not warning him of the danger. All of the answers are sustained by the facts.

Appellánt from time to time used dynamite in loosening the stone on which appel-lee was working, and was charged with knowledge that parts of the ledge might at any time drop down on the workman, and should have had all loose stone removed. The employes could assume such duty had been performed by the master. If the loose stofie had been removed as it should have been, the accident would not have occurred.

This case is a different one from those in which persons were injured by cotton seed, sand, or earth under which they were working tumbling down. Common sense and reason would teach any human being that if he worked under such substances that they would probably drop down, but not so with stone so solid that it could be broken off only by the use of dynamite. The evidence does not show that appellee knew that there was any loose stone above, and he might, without an inspection, assume that there was none. The duty of inspection devolved upon appellant, and a proper inspection would have disclosed the loose rock, but no inspection was made. Ap-pellee was working where he was told to work, and knew nothing of the unsafe condition of the place. No care whatever was exercised to prevent accidents to the employés, as is freely admitted by the president and general manager of the company. The danger was not open and apparent, and appel-lee did not know of the danger.

The questions as to whether appellee assumed the risk or was guilty of contributory negligence were submitted to the jury, and they found that he had not assumed the risk, and that he was not guilty of contributory negligence. Each of them was a question of fact, and the evidence sustains the findings of the jury. Even in a case where the rules of the master required the servant to examine the place in which he was working, it was held by this court that it is for a jury to say whether the failure of the servant to examine the place in which he works is negligence or not. Stag Canon Fuel Co. v. Rose, 145 S. W. 677. That was a case in which a stone fell on a servant while working in a coal mine. A writ of error was denied, by the Supreme Court.

The judgment is affirmed.


author: BUCK, J.

text:
    VICK et al. v. PARK et al.
    (No. 8066.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    Dec. 19, 1914.)
    1. Fraud (§ 25)—Misrepresentation—Dam-ages.
    Defendants, representing that the entire stock of a corporation was fully paid in, sold the whole of it to plaintiffs. Plaintiffs thereafter improved the property to an amount equal to the amount which was unpaid on the stock. Upon demand of the Secretary of State that they fully pay in the stock, they were allowed to set off the value of the improvements. Held that, as plaintiffs were not required to expend any moneys and received the benefit of such improvements, they could-not recover for the misrepresentations of defendants.
    [Ed. Note.—For other eases, see Fraud, Cent. Dig. § 24; Dec. Dig. § 25.*] 2. CORPORATIONS (§ 119) — STOCK—EFFECT OUT Acquisition.
    Where plaintiffs acquired the entire stock of a corporation, all of the physical properties of the corporation were conveyed to them.
    [Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 499-503; Dee. Dig. § 119.]
    Appeal from District Court, Young County; Edgar Scurry, Judge.
    Action by D. G. Vick and others against J. J. Park and another. From a judgment for defendants, plaintiffs appeal.
    Affirmed.
    Arnold & Arnold, of Graham, and Kay & Akin, of Wichita Falls, for appellants. Stephens & Miller, of Ft. Worth, for appellees.

      For other cases see same topic and section NUMBER in Deo. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

      KFor other cases see same topic and section NUMBER m Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   BUCK, J.

The appellants D. G. Vick, J. H. Vick, Mary L. Manning, and Lillian Manning, as plaintiffs, filed this action in the district court of Young County, Tex., against J. J. Park and John E. Dowdle, on May 20, 1913, alleging that on or about the 24th day of June, 1909, appellants for a valuable consideration purchased the entire capital stock of the- Graham Mill & Elevator Company, a corporation, from the appellees; that the capital stock consisted of 400 shares of the par value of $100 per share, and that the property of said corporation consisted of a flour mill and elevator, together with fixtures, machinery, furniture, etc., belonging to the same, situated in the town of Graham. In the petition it was further alleged that appellees were in full control of all of said property, having possession of the books and papers belonging to the same, and were charter members of said corporation, and were fully advised of the financial condition of said property and of said corporation; that appellees fraudulently, and for the purpose of swindling and deceiving appellants, knowingly, fraudulently, and falsely represented to appellants that the entire capital stock of said corporation, to wit, $40,000, had been fully subscribed and paid. The petition further alleged that appellants, believing such representations to be true, and relying on the same as true, paid the defendants in full for such entire capital stock of $40,000; that appellants did not learn of the fraud and deceit practiced on them by appellees, and did not learn the fact that such capital stock had not been fully paid until about the 15th day of January, 1913, when appellants learned from the Secretary of State that only the sum of $30,966.-93 of said capital stock had been paid into said, corporation prior to the purchase of said stock by appellants; that appellants did not discover and had no means of discovering such facts until said January 15, 1913; that on learning that the caxiital stock was not fully paid in, and for the purpose of preventing the charter from being forfeited, the appellants were compelled to pay into said corporation the sum of $9,033.07; that such payment became necessary in order that the charter of such corporation for $40,000 might be maintained; and .that appellants were compelled to make proof of such payment to the Secretary of State as aforesaid, and were damaged in the sum of $10,000. Appellants prayed'for damages and costs of suit and general and special relief.

The appellees on August 28, 1913, filed their answer, consisting of a general demurrer and general denial and the plea of the two years’ statute of limitations, and alleged that appellants knew, or could have known, by the exercise of proper diligence, more than two years before the institution of this suit, all of the facts in relation to the capital stock of said corporation, and as to how much had been paid in and as to the value of the assets of said company, and appellees prayed that they be released with their costs.

On March 18, 1914, the cause came on for trial before a jury on special issues, resulting in a verdict and judgment for appellees, from which judgment an appeal was perfected to this court.

It appears from the statement of facts that from September 1, 1909, to September 1, 1910, appellants made certain improvements, repairs, and necessary changes in the mill, which items aggregated the cost of $2,548.10, and from September 1, 1910, to September 1, 1911, made other improvements, the cost of which aggregated ■ $1,923.64, and from September 1, 1911, to September 1, 1912, other improvements were made aggregating the cost of $1,735.57, and from September 1, 1912, to September 1, 1913, further improvements were made in the sum of $3,037.79, being a total of $9,245.10; and that, upon proof of expenditures for these improvements by appellants, the demand of the Secretary of State for the payment into the treasury of the corporation of the $9,033.07 was complied with and satisfied.

It appears from the statement of facts that during the trial of the case evidence was admitted to show what was the fair market value of the property given by appellants to appellees in exchange for the mill and elevator property stock, said property consisting of lands, town property, and a note for $1$,500, and also evidence was introduced to l show what was the fair market value of thé physical properties belonging-to said Graham Mill & Elevator Company. Under the assignments of error, appellants complain of the admission of such testimony over their objection.

In response to the special issues of fact submitted, the jury found, first, that the ap-pellees had represented to the appellants in June, 1909, that the entire capital stock of the Graham Mill & Elevator Company, to wit, $40,000, had been fully subscribed and fully paid into said corporation; and, second-, that said entire capital stock had been subscribed on said date; and, third, that the reasonable market value of the improvements and additions made by appellees after September 22, 1008, when the application for a charter was made, and June 24, 1909, when the contract of sale between appellants and appellees was consummated, was $4,300; and, fourth, that the fair market value of the lands, town property, and notes given by appellants to appellees in the trade in controversy was $36,270; and, fifth, that the fair market value of the physical properties of the Mill & Elevator Company on .June 24, 1909, was $35,266.93; and, sixth, that “D. J. Yick, by the exercise of reasonable diligence, could have discovered the amount of the capital stock of the Graham Mill & Eievator Company which had been paid in prior to June 24, 1909, more than two years before May 20, 1913”; and, seventh, that “D. G. Yick, by the exercise of reasonable diligence, could have discovered how much, if any, of the capital stock of the Graham Mill & Elevator Company had been paid in prior to two years before May 20, 1913”; and, eighth, that, in making the contract in controversy, the parties to said contract had in mind a trade, by D. G. Vick for the properties owned by the corporation, and the capital stock of said corporation owned by the appellees.

From the foregoing statement of the case, and irrespective of whether or not the parties to this contract contemplated an exchange on the part of Yick and associates of certain properties, including lands, city property, and the note, for the physical properties of the Mill & Elevator Company, or whether it was contemplated that such contract involved the purchase and sale of the entire capital stock of the Mill & Elevator Company for a specified sum, we think that the appellants have utterly failed to slmw injury by reason of the verdict of the jury and the judgment of the court below. The evidence discloses that long prior to any demand by the Secretary of State upon Mr. Yick and associates for the payment into the treasury of the corporation the unpaid balance of the capital stock subscribed but not paid, to wit, $9,033.07, there had been made a large proportion of the improvements which Mr. Yick and his associate^ were permitted to prove and offer in lieu of, or in payment of, such.unpaid balancé, andothat, if the $4,300 worth of improvements made by appellees between September 22, 1908, to June 24, 1909, should be added to the amount of the improvements made by Vick and associates, the total sum would exceed said $9,033.07. But, in any event, it is evident that the corporation, and consequently Vick and associates, received the benefit directly of such improvements made after and before-the purchase of the capital stock by said Yick and associates, and we are unable to see how the appellants were injured. Moreover, it is apparent, by the purchase by Vick and associates of the entire capital stock of the corporation, all of the physical properties of said corporation were conveyed to them and must have been so contemplated in the contract of sale. In this view of the case, the errors complained of in appellant’s brief and the assignments predicated thereon become immaterial and are therefore overruled.

It is ordered that the judgment of the trial court be hereby affirmed.


author: TALBOT, J.

text:
    WILKERSON v. FT. WORTH & D. C. RY. CO.
    (No. 7227.)
    (Court of Civil Appeals of Texas. Dallas.
    Nov. 28, 1914.
    Rehearing Denied Jan. 2, 1915.)
    1. Abatement and Revival (§ 4) — Penden-cy oe Anotheb Action — Requiring Election.
    The doctrine that the pendency of a prior suit for the same cause is ground of abatement is not recognized in this state, and the utmost extent to which the court may go is to require plaintiff to elect which suit he will prosecute and to abandon the other and pay the costs of it.
    [Ed. Note. — For other cases, see Abatement and Revival, Gent. Dig. §§ 25-38; Dec. Dig. : 4.]
    2. Abatement and Revival (§ 4) — Penden-cy oe Anotheb Action — Requibins Election.
    A court’s authority to dismiss an action because of the pendency of a prior action for the same cause depends on plaintiff’s refusal to elect which suit he will prosecute and to pay the costs of the abandoned suit, and, where a plea in- abatement was determined upon the theory that the pendency of the prior suit ipso facto entitled defendant to a dismissal, and no opportunity to elect was given plaintiff, a dismissal of the suit was erroneous.
    [Ed. Note. — For other cases, see Abatement and Revival, Gent. Dig. §§ 25-38; Dec. Dig. § 4.]
    Error from District Court, Hunt County; A. P. Dohoney, Judge.
    Action by Mrs. Nellie Wilkerson against the Ft. Worth & Denver City Railway Company. Judgment dismissing the suit, and plaintiff brings error.
    Reversed and remanded.
    B. Q. Evans, of Greenville, for plaintiff in error. Thompson & Barwise and J. M. Chambers, all of Ft. Worth, and Yates, Sherrill & Starnes, of Greenville, for defendant in error.

      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   TALBOT, J.

On October 9, 1909, the plaintiff in error, Mrs. Nellie Wilkerson, who will hereinafter be referred to as plaintiff, instituted suit in the district court of Tarrant county, Tex., against the defendant in error, the Ft. Worth & Denver City Railway Company, hereinafter referred to as defendant, to recover damages for personal injuries charged to have been inflicted upon her through the negligence of defendant on the 4th day of July, 1908, while a passenger on one of defendant’s trains going from Memphis, Tex., to Childress, Tex. It was alleged, in substance,, in said suit that the train upon which plaintiff was traveling was so crowded she could not procure a seat, and was forced to stand on the platform of the coach; that the engine drawing the train was defective, and caused the engine and train to start and stop suddenly; and that because of such defect and sudden movement of the train, plaintiff was thrown against the door of the car and seriously and permanently injured. Plaintiff claimed damages in the sum of $25,000. The defendant answered, and upon a trial had January 16, 1912, before a jury, the plaintiff recovered judgment against defendant for the sum of $3,000. Prom this judgment the defendant appealed, and said judgment was reversed, and the cause remanded for a new trial. Thereafter, and while said cause was pending in the district court of Tarrant county, plaintiff instituted this suit in Hunt county, Tex., and alleged the same facts with respect to her injuries and the causes thereof as. were alleged in said suit pending in Tarrant county, and, in addition thereto, charged that, after the reversal of the judgment obtained by her in the district court of Tarrant county, the defendant, acting by and through its authorized agents, by false and fraudulent representations made in Hunt county, Tex., procured from plaintiff for the sum of $350 a compromise of said suit pending in Tarrant county, and a written release of the cause of action and damages set up and claimed in said suit. She further alleged that her cause of action set forth in said Tarrant county suit was of the value of $25,000, and prayed as follows:

“Wherefore, plaintiff prays that the defendant be cited to answer this petition; that on final hearing she have a judgment setting aside, canceling, and holding for naught the said written release; and that she he entitled to recover of and from the defendant the sum of $25,000, same being the reasonable, fair value of said cause of action, which plaintiff was caused and induced to release on account of the defendant’s false and fraudulent representations to her, and by reason of the facts alleged in this petition, setting forth her injuries caused by the negligence of the defendant, the same being the reasonable value of her said cause of action which she was fraudulently induced to surrender at the date and under the circumstances above set forth; and for costs of suit and relief both general and special, as in law and equity she may be entitled.”

The defendant appeared in this suit and pleaded in abatement thereof the pendency of plaintiff’s said suit in Tarrant county. This plea was heard February 9, 1914, and, upon the conclusion of the evidence offered in its support, was by the court sustained and plaintiff’s suit dismissed. From this order and judgment of the court plaintiff prosecutes this writ of error, and contends:

(1) That the court erred in sustaining the defendant’s plea in abatement, “because the undisputed evidence shows that the suit pending in Tarrant county was and is not the same as this suit pending in Hunt county, but was entirely different, in that the cause of action set up in the plaintiff’s petition in the suit pending in Tarrant county is a suit for damages for personal injuries sustained on the 4th day of July, 1908, while a passenger on one of the defendant’s passenger trains between Childress and Memphis, Tex., caused by the negligence of the defendant, its agents and servants, as alleged in said petition, claiming the sum of $25,000, while the cause of action set up in the petition in this cause is a suit to set aside, rescind, and cancel a certain written release and contract executed by plaintiff on the 17th day of December, 1912, in Hunt county, whereby, in consideration of the sum of $350, the plaintiff released and surrendered to the defendant in full the cause of action set up in the petition in the suit pending in Tarrant county, Tex., alleging that she was induced to sign and execute said release by the false and fraudulent representations of the duly authorized agents of the defendant, the Denver City Railway Company, which fraud was alleged to have been committed in Hunt county, and claiming the sum of $25,000, alleging the same to be the reasonable value of the cause of action which plaintiff was caused and induced to release on account of the defendant’s fraudulent and false representations, the plaintiff pleading in said petition the facts showing the value of the claim so released and transferred.”

(2) That “the doctrine of the common law that a suit pending between parties precludes them from maintaining between themselves another suit on the same cause of action in courts of the same jurisdiction is not enforced in Texas.”

There is force in the plaintiff’s first contention, but the defendant’s answer thereto is of equal force, and inclines us to the view expressed by its counsel in a well-prepared brief filed in this court. We do not, however, find it necessary to definitely pass upon and determine the question, for the reason that we believe plaintiff’s second proposition must be sustained.

The doctrine that the pendency of a prior suit for the same cause between the same parties in courts of the same jurisdiction is ground of abatement is not recognized in this state. The utmost extent to which the court may go upon the presentation of a plea setting up the pendency of such a suit is to put the plaintiff to his election of which suit he will prosecute and require him to abandon the other and pay the costs of it. This is the express holding of our Supreme Court in the cases of Payne v. Benham, 16 Tex. 364, and Trawick v. Martin, Brown Co., 74 Tex. 522, 12 S. W. 216. In Garza v. Jesse French Piano & Organ Co., 126 S. W. 906, this court, speaking through Mr. Justice Book•hout, said:

“The doctrine of the common law that a suit pending between parties precludes them from maintaining between themselves another suit on the same cause of action in courts of the same jurisdiction is not enforced in Texas.”

This holding has been followed by this court in the later cases of Liberty Milling Co. v. Continental Gin Co., 132 S. W. 856; Minchew v. Case, 143 S. W. 366; Hartzog v. Seeger Coal Co., 163 S. W. 1055. See, also, Insurance Co. v. Hargus, 99 S. W. 580; Ellis v. Tips, 16 Tex. Civ. App. 82, 40 S. W. 524; Olschewske v. King, 43 Tex. Civ. App. 474, 96 S. W. 665; Simmang v. Braunagel, 27 S. W. 1032. The defendant questions the correctness of our holding in Garza v. Jesse French Piano & Organ Co., supra, and, conceding the rule announced in the decisions of the Supreme Court cited above, argues that it was not error for the court to dismiss this suit, because the plaintiff stood silent, upon the presentation of the plea in abatement and the evidence conclusively establishing the pendency of the Tarrant county suit, and failed to elect which suit she would prosecute. In reply we say that we think the de-pision in Garza’s Case correct, and that no relief was asked in the plea in abatement, except the absolute abatement and dismissal of this (the Hunt county) ease. If it be true, as contended by defendant, that the only difference between the common law upon the subject and the rule enforced in this state is that the plaintiff may, upon the coming in of a plea setting up the pendency of a former suit, elect which case he will prosecute; still the authority of the court to dismiss, under the rule announced, depends upon the refusal of the plaintiff to elect which suit he will prosecute, arid to pay the costs of the abandoned suit. The record fails to show that the plaintiff was given an opportunity to elect which of her suits she would prosecute, and that she failed or refused to exercise such right of election. The plea in abatement was evidently presented and determined upon the theory that the pendency of the suit in Tarrant county ipso facto entitled the defendant to a dismissal of this suit.

This, we think, is not the law, and it follows that at all events the dismissal of plaintiff’s suit was error for which the judgment must be reversed, and the cause remanded, and it is accordingly so ordered.


author: CONNEB, C. J.

text:
    E. G. RALL GRAIN CO. v. BURKS-SIMMONS CO.
    (No. 8017.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    Oct. 17, 1914.
    Rehearing Denied Nov. 21, 1914.)
    Appeal and Eeeoe (§ 742*) — Questions Be-viewable — Assignments of Eeeoe.
    An assignment of error, complaining of the overruling of a plea of privilege, which does not contain a substantial copy of the only paragraph of the motion for new trial referring to the subject, must be disregarded under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1612, and Court Buies 23, 29 (142 S. W. xii).
    [Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig: § 742.*]
    Appeal from Comanche County Court; J. H. McMillan, Judge.
    Action by the Burks-Simmons Company against the E. G. Ball Grain Company. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    Crenshaw & Boykin, of Et. Worth, for appellant. Kearby & Kearby, of Comanche, for appellee.
   CONNEB, C. J.

This suit was instituted by the appellee company in the county court of Comanche county to recover a balance due upon a sale of 12,000 bushels of oats, and the only question presented for our consideration in appellant’s brief is whether the court erred in overruling appellant’s plea of privilege to be sued in Tarrant county, the place of its domicile.

An examination of the record discloses that the assignment presenting the question suggested cannot be said to be even a substantial copy of the only paragraph of appellant’s motion for new trial which refers to the subject. The assignment must therefore be disregarded in accordance with a well-settled rule of practice. See Vernon’s Sayles’ Tex. Civ. Stat. art. 1612; Gen. Laws 1913, p. 276; Rules 23 and 29 (142 S. W. xii); Edwards v. Youngblood, 160 S. W. 288; Bradshaw v. Kearby & Kearby, 168 S. W. 436.

No other question having been presented, it is ordered that the judgment be affirmed.


author: SPEER, J.

text:
    COMMONWEALTH BONDING & CASUALTY INS. CO. v. WEIGHT.
    (No. 8016.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    Oct. 17, 1914.
    Rehearing Denied Dec. 6, 1914.)
    1. Insurance (§ 670) — Actions on Policies —Verdict—Amount of Becoveey.
    Where, in an action on a health and accident insurance policy, the court told the jury that, if they found for plaintiff, they should find for him in a specified amount, with 12 per cent, damages thereon, a verdict for such amount, “with 12 p'er cent, interest,” justified a judgment for 12 per cent, damages, under Vernon’s Sayles’ Ann. C'iv. St. 1914, art. 4746, providing that, where an accident or health and accident insurance company fails to pay a loss within 30 days, it shall be liable, in addition to the amount of the loss, for 12 per cent, damages thereon, together with reasonable attorney’s fees; since the use of the word “interest” was evidently inadvertent, and the finding was intended to be responsive to the charge.
    [Ed. Note. — Eor other eases, see Insurance, Cent. Dig. §§ 1785-1787; Dec. Dig. § 670.]
    2. Insurance (§ 665) — Actions on Policies —Damages—Attorney's Pees.
    In an action on a health and accident insurance policy, evidence held sufficient to support a verdict for $100 as attorney’s fees under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 4746.
    [Ed. Note. — Eor other cases, see Insurance, Cent. Dig. §§ 1555, 1707-1728; Dee. Dig. § 665.]
    3. Insurance (§ 310) — Misrepresentation— Waiver— Statutory Provisions.
    Under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 4948, providing that in suits on insurance policies no defense based upon misrepresentations in the application or in obtaining or securing the contract shall be valid, unless defendant shall show that within a reasonable time after discovering the falsity of the misrepresentations it gave notice to the assured, if living, or, if dead, to the owners or beneficiaries of the contract, that it refused to be bound thereby, provided that 90 days shall be a reasonable time, the notice of refusal to be bound must be given in any event within 90 days; and hence, where such notice was not given within 90 days after the insurer had notice of the misrepresentations, it could not rely thereon as a defense.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 703, 761, 780, 826, 840, 904; Dec. Dig. § 310.“]
    Appeal from Nolan County Court; John H. Cochran, Jr., Judge.
    Action by Isham Wright against the Commonwealth Bonding & Casualty Insurance Company. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    F. H. I-Iaddix, of Ft. Worth, and A. B. Yan-tis, of Sweetwater, for appellant. H. R. Bondies, of Sweetwater, for appellee.

      For other eases see same topic and'section NUMBER in Dee. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   SPEER, J.

This is an action by Isham Wright to recover from the Commonwealth Bonding & Casualty Insurance Company upon a policy of accident and health insurance. There was a verdict and judgment for the plaintiff, and the defendant appeals.

The first and second assignments of error are based upon the action of the court in entering judgment for 12 per cent, upon the amount of the recovery under the policy; the contention being that the 12 per cent, is interest under the verdict of the jury, and not damages within article 4746, Vernon’s Sayles’ Texas Civil Statutes, allowing 12 per cent, damages on the amount of loss under such a policy when the same is not paid within 30 days after demand therefor. It is true the verdict of the jury is for the appellee in “the sum of $225, with 12 per cent, interest,” but the verdict must be construed in the light of the charge, which directs the jury, in the event they found for the plaintiff, to find for him “in the sum of $225, with 12 per cent, damages thereon,” and, as thus interpreted, it is evident the use of the word “interest” was inadvertent, and the finding was intended to be responsive to the charge.

Neither can we say the evidence does not support the verdict and judgment for $100 as attorney’s fees under the article of the statute referred to. The testimony of the attorney who conducted the litigation very clearly is sufficient to support the verdict for attorney’s fees in this amount. He testified:

“I have done all the work for the plaintiff in this case, out of court and in court, looking to collection under the policy sued upon. One hundred dollars would not compensate me for my work and labor done and the trouble I have been put to in a professional capacity trying to collect under the policy. The sum named would be a very reasonable fee for the prosecution of this proceeding'. The plaintiff has agreed to pay my firm the sum named contingent upon our making collection under the policy. This contingent fee contemplated our giving the matter any and all attention necessary in and out of court in the trial court, and through any appellate court, should an appeal be taken by either party.”

The principal question presented on the appeal, however, goes to the merit of appellant’s defense, and is based upon the contention that appellee made certain false representations in his application for insurance whereby, under the terms of the policy, the company was absolved from liability. It appears to be true that, as written in the application, the facts were misrepresented, in that it was not disclosed that appellee had previously suffered from an attack of chronic rheumatism, but appellee contends that he made a faithful disclosure in this respect to appellant’s agent who took the application, and this agent admits as much, and testified that it was his recollection a proper memorandum was indorsed on the application, but in this he appears to have been mistaken. Without deciding appellant’s liability upon this point, however, we find it necessary to hold that it cannot urge the defense relied on in view of article 4948, Vernon’s Sayles” Texas Civil Statutes, regulating the writing of insurance in this state. That article provides:

“In all suits brought upon insurance contracts or policies hereafter issued or contracted for in this state, no defense based upon misrepresentations made in the applications for, or in obtaining or securing the said contract, shall be valid, unless the defendant shall show on the trial that, within a reasonable time after discovering ' the falsity of the misrepresentations so made, it gave notice to the assured, if living, or, if dead, to the owners or beneficiaries of said contract, that it refused to be bound by the contract or policy: Provided, that 90 days shall be a reasonable time.”

It is undisputed that appellant had notice of the misrepresentations upon which it relies to avoid the policy in this case more than 90 days before it notified appellee that it refused to be bound on the policy. We construe the article of the statute to mean that the notice of refusal to be bound must be given within a reasonable time, not in any event to exceed 90 days. See Nat. Life Ass’n v. Hagelstein, 156 S. W. 353.

There is no error in the judgment, and it is affirmed.