author: RAINEY, C. J.

text:
    JOHNSTON et al. v. ROCKHOLD.
    (No. 7226.)
    (Court of Civil Appeals of Texas. Dallas.
    Nov. 28, 1914.)
    Husband and Wife (§ 274) — Community Property — Rights of Surviving Chil-deen — Liability foe Debts.
    Where a widow continued to live on community property, which was the homestead, after the death of her husband, the interest of the children therein was subject to her homestead, and so long as that existed the children could claim no homestead rights, and their interests were therefore subject to sale on execution.
    [Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. §§ 1026-1031; Dec. Dig. § 274.]
    Appeal from District Court, Dallas County; Kenneth Foree, Judge.
    Action by Hammon Johnston and others against Alfred Rockhold. Judgment for defendant and plaintiffs appeal.
    Affirmed.
    J. C. Patton and Lee Richardson, both of Dallas, for appellants. Cockrell, Gray & McBride and Tarlton Morrow, all of Dallas, for appellee.

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

   RAINEY, C. J.

This is an action of trespass to try title, brought by appellants against appellee for V12 of 117% acres of land situated in Dallas county, Tex. Defendant answered by general demurrer and plea of not guilty. A trial resulted in a verdict and judgment for appellee, and 'appellants appeal.

The appellants claim the land as their homestead. Appellee claims the land under sheriff deeds in pursuance of execution sales of said 3/12 interest by virtue of judgments against .the appellants. The facts are that in October, 1904, T. J. Johnston died, leaving a wife and six children; the appellants being three of them. Said T. J. Johnston owned 117% acres of land, which was the homestead of himself and wife. At his death the appellants were living on the land with him. One of them had rented the place for 1904, and moved off at the end of the year. The other two of the appellants lived on the place one or two years as tenants of their mother, who occupied it as her homestead. In 1910 the First National Bank of Mesquite, Tex., recovered judgment against each of the appellants, they being of age, executions issued thereon, and levied on the interest of each appellant. Same was sold, and deeds made to said .bank; said bank conveying to ap-pellee. The mother of appellants, Sarah Johnston, would not let appellants stay on the land, and they never occupied it after their father died, except as above stated. They each testify that their mother would not permit them to live on the land is the reason they did not occupy it, and that as soon as they could .they intended to move on it and occupy it as their homestead; that they each had that intention since they left the place, which intention had never been abandoned.

The 117% acres of land was community property of T. J. Johnston and wife. At his death the title to his one-half of the land vested in his children, subject to the homestead interest of the wife, so long as she might live and so long as she saw proper to use it as such. She did uáe it as a homestead until after the interest of appellants was sold under execution. No homestead right ever attached to appellants in the land, for the reason that they could not claim such homestead right so long as their mother continued to use and occupy i.t for homestead purposes. Their interest in the land under the circumstances was liable to execution and sale for the payment of their debts, subject to the homestead rights of Sarah Johnston, the mother, and the sales made of their interests by virtue of the bank’s judgment against them divested them of any title to the land. Hampton v. Gilliland, 23 Tex. Civ. App. 87, 56 S. W. 572; Loessin v. Washington, 23 Tex. Civ. App. 515, 57 S. W. 990.

The judgment is affirmed.


source: Caselaw Access Project

author: FLY, C. J.

license: Public Domain

text:
    SAN ANTONIO & A. P. RY. CO. v. SMITH.
    (No. 5329.)
    (Court of Civil Appeals of Texas. San Antonio.
    Nov. 11, 1914.
    Rehearing Denied Dec. 16, 1914.)
    1. Trover and Conversion (§ 8) — Acts Constituting Conversion.
    Where possession of personalty was lawfully obtained by defendant, and no demand was made by plaintiff for the property, there was no conversion, unless possession was obtained on condition that payment would be made for it.
    [Ed. Note. — For other cases, see Trover and Conversion, Dec. Dig. § 8.]
    2. Trover and Conversion (§ 44) — Measure of Damages.
    The measure of damages for conversion is the market value of the property at the time and place of conversion, with interest thereon to the time of trial.
    [Ed. Note. — For other cases, see Trover and Conversion, Cent. Dig. §§ 260, 261; Dec. Dig. § 44.]
    3. Carriers (§ 94) — Delivery of Freight-Conversion by Buyer — Damages.
    Where an article, shipped by a seller to himself with directions to notify the buyer, came into possession of the buyer, without the consent of the carrier, the buyer appropriating the article was liable to the carrier for its market value at the time and place of the appropriation, the price not having been paid by the buyer.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 367-395, 456; Dec. Dig. § 94.]
    4. Carriers (§ 94) — Delivery of Freight-Conversion by Buyer — Damages.
    Where a buyer obtained from a carrier with its consent article shipped by the seller to himself with directions to notify the buyer, and no demand was made for a return thereof, and possession- was not obtained on a promise to pay the charges on it, he was not liable for conversion, and the carrier could not pay a draft drawn by the seller and make the buyer liable therefor.
    [Ed. Note. — For other cases, see Carriers, Cent. I>ig. §§ 367-395, 456; Dec. Dig. § 94.]
    Appeal from Bexar County Court for Civil Cases; John H. Clark, Judge.
    Action by the San Antonio & Aransas Pass Railway Company against Zay Smith. From a judgment for defendant, plaintiff appeals.
    Reversed and remanded.
    Taliaferro, Cunningham & Birkhead and F. R. Williams, all of San Antonio, for appellant. McFarland & Lewright, of San Antonio, for appellee.

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

   FLY, C. J.

This suit was instituted in the justice’s court on the following pleading:

Zay Smith Dr.
Or.
To San Antonio & Aransas Pass Ry. Co., Zay Smith bought of the White Company
1 Model F repaired generator.$225 09
Less 25 per cent... 56 25
$168 75

Shipment was made 10/30/09 to the “White Company, San Antonio, Texas, notify Zay Smith. 1Ó8 Crockett St.,” and surrendered to the said Zay Smith without bill of lading being surrendered by defendant Zay Smith, and that the above amount of $168.75 was paid to the White Co. by the plaintiff, San Antonio & Aransas Pass Ry. Co.

On that pleading the justice of the peace rendered judgment against appellant for the full amount of the claim. There could not be, under that plea, any pretense that the generator was not delivered to appellee by appellant. The case was appealed to the county court, and there, for the first time, in an oral plea, it was alleged that Smith in some manner got possession of the generator without paying a draft or receiving bill of lading, that Smith refused to return the generator on demand, that it was worth $168.75, and that Smith was guilty of conversion of the generator. In other words, the suit was changed in the county court from one on an account to one of conversion, and that, too, without objection upon the part of any one. Appellee filed a cross-action against the White Company, alleging that the company had agreed to send him the generator in exchange for his old generator and not exceeding $50 in cash, and that he had sent the generator and the money to the White Company. The cause was tried without a jury, and judgment rendered in favor of appellees.

The facts in this case are very unsatisfactory, leaving the matters in controversy in grave doubt. It may be inferred, perhaps, that the generator disappeared from the warehouse of appellant without its knowledge or consent, and was delivered by some unknown person to appellee without his knowledge or consent. As soon as appellee discovered that in some mysterious manner he had come into possession of a generator, and that there was a draft on him for $126.-75 at a local bank, he repaired to his attorney, and after consultation with him took his old generator from his automobile and put the new one therein. He then sent the White Company $50 and the old generator. He swore that the old generator was as good as the one sent him by the White Company. No demand was made by appellant for the return of the generator. Johnson, the agent of appellant, swore that he did not ask ap-pellee to return the generator, but asked him to pay for it. There is no testimony that the amount of the draft was ever paid to the White Company, and it can only be surmised that appellant paid the money to the connecting carrier, which paid it to the White Company.

The case was considered in our former opinion as based on the pleading in the justice’s court, and not as one for conversion, as the oral pleading escaped the notice of the court. From the pleading in the justice’s court, it can be inferred that appellant surrendered the generator to appellee, and, from the' fact that no demand was made for its return, it could be inferred that appellant did not question appellee’s right to the possession of the property. Under the facts of this ease, if appellee came into possession of the generator with the consent of appellant, he was not guilty of conversion. Under, some conditions, where a person comes into possession of property lawfully, he may be after-wards guilty of conversion — for instance, where he hires or borrows it, and afterwards appropriates it. In this case, however, if the possession was lawfully obtained, and no demand was made for the property, there was no conversion, unless possession was obtained upon condition that appellee was to pay for it. It is the rule, where the defendant has come into the possession of property lawfully or without fault, that it is necessary to make demand of possession of him before suit will lie. Cooley on Torts, p. 870; Moore v. Monroe Ref. Co., 128 Ala. 621, 29 South. 447; Phelps v. Halsell, 11 Okl. 1, 65 Pac. 340.

Where there is a complete conversion of property, the measure of damages is the market value at the time and place of conversion, with interest thereon to time of trial. It would not be the amount that some person might claim was due on it.

If the generator came into the possession of appellee without the consent of appellant, and it was appropriated by him, he would be liable for the market value of the generator in San Antonio at the time he converted it, and if he obtained the generator with the consent of appellant, and no demand was made upon him for the property, and he liad not obtained possession upon a promise, express or implied, to pay the charges on it, he would not be liable for conversion. Under those circumstances appellant could not pay off a draft drawn by the seller of the property and make appellee liable for a debt he had not contracted to pay.

It can scarcely be credited that the generator could have been taken from appellant’s warehouse without its consent, and by some one unknown to appellant or appellee, who only took the generator to deliver it to appel-lee. An air of mystery surrounds the whole affair, which could be dispelled by a proper investigation of the facts. In a case of conversion the circumstances under which the property is taken are very important, and yet very little effort was exerted in'this case to inquire into such circumstances. The case has been poorly developed, and will be, remanded for a full investigation.

Our former opinion is withdrawn, and our former judgment set aside, and the judgment will be reversed, and the cause remanded.


author: HUFF, C. J.

text:
    MEMPHIS COTTON OIL CO. v. GOODE.
    (No. 651.)
    (Court of Civil Appeals of Texas. Amarillo.
    Oct. 31, 1914.
    On Motion for Rehearing, Dec. 5, 1914.)
    1. Evidence (§ 119) — Competency — “Res Gestas.”
    In a action to recover an amount paid under a contract to furnish feeding pens for stock, where the issue was whether the contract price was to be paid per month, or for the feeding-term of three months, evidence that when plaintiff contracted he knew the price for feed at other oil mills, and in particular one in Oklahoma, and that he then gave defendant a telegram from that place, showing the feeding price there, offered to show plaintiff’s knowledge and his representation to defendant, was admissible as original evidence, part of the transaction, or “res gestae.”
    [Ed. Note. — For other eases, see Evidence, Cent. Dig. §§ 303-306; Dec. Dig. § 119.

    For other definitions, see Words and Phrases, First and Second Series, Res Gestae.]
    2. Appeal and Error (§ 8S2) — Party Entitled to Allege Error — Party Inviting Error.
    Where plaintiff, on his direct examination, did not testify as to the contents of a telegram, but that was brought out by defendant on cross-examination, error, if any, in admitting the evidence was one of which defendant could not complain on appeal.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3591-3610; Dec. Dig. §
    On Motion for Rehearing.
    3. Witnesses (§ 393) — Impeachment—Depositions.
    In an action to recover money paid under a contract for feeding cattle, where a witness for plaintiff deposed that he had heard a conversation between plaintiff and defendant as to the contract for the feeding of stock, and stat-' ing the agreed price, his former deposition that he had heard “the latter part” of the conversation, stating the same agreed price, was not to impeach the witness, since in both questions the matter sought was the conversation or agreement as to the price, and since there was no-contradiction in the answers.
    [IOd. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1252-1257; Dec. Dig. § 393.]
    4. Appeal and Error (§ 1033) — Harmless Error — Admission or Exclusion oe Evidence.
    Error, if any, in the admission of impeaching evidence, which tended to strengthen the theory'of the appellant, held not reversible error on his complaint.
    [Ed. Note. — For other cases, see Appeal and Eri'or,^ Cent. Dig. §§ 4052-4002; Dec. Dig. §
    Appeal from District Court, Hall County; J. A. Nabers, Judge.
    Action by Wallace Goode against the Memphis Cotton Oil Company. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Taylor & Humphrey, of Henrietta, and Presler & Thorne, of Memphis, for appellant. Madden, Trulove &. Kimbrough and R. E. Underwood, all of Amarillo, and J. M. Elliott, of Memphis, for appellee.

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

   HUFF, C. J.

The appellee, Goode, brought suit against appellant, Memphis Cotton Oil Company, upon an alleged contract, to the effect that appellant agreed to furnish feeding pens for 1,000 head of steers at 60 cents per head, for the feeding term, which is alleged to be about 90 days. He alleges further, after the cattle had remained on feed for about that term, he attempted to ship them out, but that appellant refused to permit him to do so unless he would pay 60 cents per month, which they claim was the contract price for the use of the pens, amounting to the sum of $1,892.44; that, in order to get possession of his cattle, he entered into an agreement with appellant to deposit that sum in the bank to abide a settlement and adjustment of the controversy, but they had failed or refused to adjust it, and hence the suit.

The appellant' answered that the contract price to be paid for the use of the pens was the sum of 60 cents per head per month while said steers remained in said pens. The case was submitted to a jury upon special issue, which was as follows:

“What agreement, if any, was made between the parties hereto as to what plaintiff should pay for the use of the pens and water and other facilities testified about? That is to say: Was it understood between plaintiff, Goode, and A. C. Hall that plaintiff would pay 60 cents per head per month for the use of said pens and water and'yard facilities testified about; or was it the understanding between said parties that plaintiff would pay 60 cents per head for the term for the use of said pens, water, and facilities?”

The jury answered:

“We, the jury, find that the price to be paid for the pens, etc., was 60 cents per head for the term.”

Upon this finding the court entered judgment in favor of plaintiff, appellee herein, against the defendant, appellant, for the sum of §1,261.62, and from this judgment the appeal is prosecuted.

The first assignment of error is substantially that the court erred in overruling and in not sustaining the defendant’s objections to the testimony of the plaintiff, Wallace Goode, which is hereinafter set out by us. Goode had testified that he went to Memphis to see about procuring pens and making the contract, and that while there he called upon A. C. Hall, the manager of the company, and entered into the contract as claimed by him. The testimony objected to is set out in the bill of exceptions as follows:

“Q. Did you know, at the time you contracted for the feed at Memphis, what you could get feed pens for at other oil mills in this country? A. Yes, sir. Q. Did you know at that time what you could get feed pens for at Chickasha, Old.? A. Yes, sir. Q. What could you get feed pens for there?”

And thereupon the defendant objected to the last question and the answer thereto for the reason that it was bound to be based on hearsay — was not tending to prove any issue in the case. It was not shown that the same conditions existed at Chickasha that existed at Memphis, and it was wholly irrelevant and immaterial, and the proper predicate had not been laid lor the introduction of such testimony, and the court overruled all such objections, to which ruling the defendant then and there excepted, and thereupon plaintiff’s counsel asked the said plaintiff, Goode, the following question:

“Did you inform Mr. Hall what you could get feed pens for at Chickasha? A. Yes, sir; and showed him a telegram from there. Q. What could you have gotten pens for at that season at Chickasha, Okl.?”

And thereupon defendant’s counsel objected to said last question and the answer thereto for the reasons heretofore stated, and the court overruled said objection and permitted the witness to answer as follows:

“A. Fifty cents per feeding term. Q. Did you know at what price .you could get feeding pens for at other places?”

And thereupon defendant objected to the said question and the answer thereto for the reason heretofore stated in this bill, and the court overruled said objection and permitted the witness to answer said question as follows:

“Yes, sir; two or three other places. Al-tus, Okl., was one, and Hobart another. I did not tell Hall what I could get the pens for at these places so much as I did the one I got the telegram from. I let him have the telegram. I asked him to retain the telegram and show his company.”

To which questions and answers the appellant reserved its bill of exceptions.

It appears upon cross-examination by appellant the witness testified as follows:

“The only information I gave Mr. Hall about what I could get the pens at Chickasha was based upon that telegram and nothing else. It was purely information I received by a telegraph message signed by some one else; signed by the mill company — somebody over there at Chickasha. That telegram stated that I could have the pens for fifty cents per head for the term, 1 think.”

Upon redirect examination the witness testified substantially the same as he did upon his direct examination, but there appears to have been, no bill of exceptions taken to his testimony upon redirect examination.

The issue in this case was, not the value of the use of the feed pens per head, but what was the contract per head? Was the contract price to be paid per month or per term? This was the issue. Perhaps if the issue had been its value, the objection might then be tenable that the statement was hearsay. We think if what others paid or offered to pay was considered by the parties at the time and entered into the negotiations of the parol contract, it would be original testimony. It is not every declaration made by others that is hearsay. As for instance: Parents suing for damages for the death of their son, his statement before his death that he would remain and take care of them is admissible, as showing a desire and the intent to support the parents, and hence probable pecuniary aid which he would have given. Railway Co. v. Knight, 45 S. W. 167; Railway Co. v. White, 23 Tex. Civ. App. 280, 56 S. W. 206; Railway Co. v. Van Belle, 26 Tex. Civ. App. 511, 64 S. W. 397.

“So where proof is to be made of a parol contract, or where, for other reasons, the statements of a person are relevant, such statements may be proved by third persons, who were present, the same as by the one who used the language.” Elliott on Evidence, § 328, vol. 1.

Mr. Jones on Evidence says:

“It is hardly necessary to cite authorities to the obvious proposition that when proof is to be made of a parol contract, or when, for other reasons, the statements of a person are relevant, such statements may be proved by third persons who were present as well as by one who used the language. In such case the statements are not hearsay but substantive evidence.” Jones on Evidence, § 300.
“When declarations or acts accompany the-fact in controversy, and tend to illustrate or explain it, they are treated, not as hearsay, but as original evidence; in other words, as part of the res gestee. * * * It is hardly necessary to add that when the declarations form part of the contract, or the performance of a contract, they are relevant and will be received.” Jones on Evidence, §§ 344 and 235.

In Goldman v. Blum, 58 Tex. 630, 641, the court said:

“What was said and done by the parties while the business was being arranged, and while the transaction was then depending et dum fervet opus, is admissible in evidence as part of the res gestae, and is considered as well calculated, in the absence of direct evidence, to shed light on the real character of the transaction.”

We cite the following cases as illustrating the rule: Ft. Worth Publishing Co. v. Hitson, 80 Tex. 216, 14 S. W. 843, 16 S. W. 551; Sparks v. De Bord, 110 S. W. 757; Fellman v. Smith, 20 Tex. 99; Britt v. Burghart, 16 Tex. Civ. App. 78, 41 S. W. 389.

It will be observed from the bill of exceptions that the witness did not answer what he could get feed pens for at Chickasha until fie testified he informed Hall, who made the contract with Goode, of that fact. Pie testified he showed and gave Hall the telegram, who kept it to show his company; but the witness did not testify as to its contents on direct examination. On cross-examination, in order to show the witness had no knowledge of the price for the use of tens at Chickasha, and that what he knew was based upon the telegram, appellant sought to show that such knowledge was based alone upon the telegram, and it was then he stated, in answer to appellant’s cross-examination, the contents of the telegram.

If the witness could not have testified under the predicate lain to the contents of the telegram upon his direct examination, which we do not at this time decide, he did not testify on direct examination thereto, but such testimony was brought out by the appellant upon cross-examination, of which we do not think it can complain at this time.

Eacts happening just before and after the principal transaction, and tending to show knowledge or intent of the party, are relevant. Horton v. Reynolds, 8 Tex. 284. The testimony was not offered, as we understand, to prove the value for the use of the pens at Chickasha, but to show at that time Goode knew and represented to Hall that he did. This representation to Hall was not hearsay but was part of the transaction — the inducement to the contract part of the res gestse. It is a circumstance incident to and connected with the contract, explaining why the price was fixed at 60 cents per head for the term, instead of 60 cents per head per month. The declarations or statements were not made by others out of hearing of appellant, but were made to appellant, which induced the making of the contract for the term, instead of by the month. We overrule the first assignment of error.

The second assignment of error is also overruled. If there was error in the particulars complained of, which we do not now decide, it was immaterial and could not have affected the case.

The case will be affirmed.

On Motion for Rehearing.

It is earnestly insisted that we were in error in holding that the trial court properly admitted the testimony set out in the original opinion. Appellant cites us to the case of Ohilson v. Oheim, 171 S. W. 1074, the opinion in which was rendered by the Court of Civil Appeals, Second Supreme Judicial District, October 31, 1914. A copy of that opinion has been furnished us by appellant. We do not think that case in point on the issues here involved. That court held certain checks not admissible, which had been given by Chil-' son to one Moore, who was the tenant of Ohilson, and who had been furnished the item sued for by O’Heim, which Chilson had promised to pay. The cheeks were held not admissible because falling under the rule excluding testimony res inter alios acta. Such is not the nature of the testimony here. The declarations here admitted were facts or statements between the parties to the contract. True one of the parties purported to quote the price for which feed pens could be had elsewhere, but he used this price as a means to procure the agreement as he contended it was; at least it was a circumstance tending to show that fact.

Appellant apparently overlooks the fact that the price for which pens could be obtained elsewhere was made a part of the negotiations between the parties at the time of making the oral contract in question. Neither do we think our statements in the former opinion in conflict with the cases of Carver v. Power State Bank, 164 S. W. 892; Paine v. Argyle, etc., Co., 133 S. W. 895; Kocher v. Mayberry, 15 Tex. Civ. App. 342, 39 S. W. 604. We did not hold that in no case could the value of pens elsewhere be shown if the suit was one for the reasonable value of the pens, but we said that, if this had been a suit for its value instead of the contract price, the objection made might then have been tenable. We referred to the “objection” that the same conditions were not shown at the other places, and not to the fact that “value” under the proper predicate could be proven. We refer to this matter for the reason that appellant appears to misconstrue our views as we tried to express them, and to prevent a like construction by others. This identical testimony, the admission of which was assigned as error, was given by Goode upon his redirect examination, without exception thereto, and is in this record without objection. For this reason, as well as for the reasons heretofore given, we adhere to our former holding.

Appellant urgently insists on its second assignment of error in its motion for rehearing, and urges that we should hold the action of the court, in admitting the testimony complained of, as error. We saw no necessity for discussing or deciding the rule on the question of practice presented by the assignment, as we then found that no injury could have resulted to appellant therefrom. The matter complained of in the second assignment relates to the answer of the witness A. D. Wilson to the sixth interrogatory, in his deposition, taken the 2d day of August, 1913, and also his answer to the sixth interrogatory, taken July 17, 1912, both of which were offered by the plaintiff, appellee herein. The latter interrogatory and answer thereto had been therefore read in evidence by the defendant, appellant herein. It was stated by appellant’s counsel, at the time the two answers were offered, that they were offered for the purposes of impeaching the witness. The principal objection to such action was that a proper predicate had not been laid; that it was immaterial, etc. The question in the second. deposition asked the witness if he heard a conversation between appellee and A. C. Hall, the manager of appellant, at the house of Hall, in Memphis, Tex., with reference to appellant company furnishing pens for the cattle, etc., and, if so, state what it was. In answer to the question in the first deposition, “I heard such a conversation;” and then testified that the price agreed upon for the use of the pens, etc., was 60 cents per head per month. In the second deposition he answered, “Yes, I heard a portion of such conversation; I heard the latter part of this conversation;” and proceeded to give what each said with reference to the price, and gave the price as agreed upon for the pens the same as that stated in answer to the first deposition. The appellee claimed that the impeaching part of the statement, or the contradiction therein, was in saying in one that he heard such a conversation and in the other that he heard a part or the latter part of the conversation. When the interrogatories are considered in connection with the answer, there was no contradiction. In both questions the matter sought was to get at the conversation or agreement as to the price of the pens. The fact that appellee’s counsel contended that one impeached the other, and that he offered it for the purpose of impeachment, did not make it impeaching testimony. The evidence offered by appellee operated to the benefit of appellant. The jury could not have found that one impeached the other. The trial court doubtless regarded the evidence as being in the interest of appellant and as proving the issue contended for by appellant. The testimony, if considered by the jury, could not possibly have injured the appellant. The jury was not warranted in disregarding the evidence because of any contradictory statement in the two answers. There is none as is apparent when the questions and answers are read together. There was nothing in either of the answers that discredited the witness. Simply because a lawyer asserts black is white, we will not presume a jury accepted such a statement as true when the evidence is that it is black.

If, therefore, the court was in error in admitting the two interrogatories and the answers thereto, it was not necessarily a material one. Railway Co. v. Bath & Co., 17 Tex. Civ. App. 697, 44 S. W. 595; Brewster v. State, 40 Tex. Civ. App. 1, 88 S. W. 858; Railway Co. v. Fitzpatrick, 91 S. W. 855, 359. The admission or exclusion of evidence tending to strengthen the theory of the complaining party should not reverse the case upon the complaint of appellant. Ingalls v. Orange Lumber Co., 56 Tex. Civ. App. 543, 122 S. W. 53. We cannot believe the admission of the testimony, of which complaint is here made, could possibly have injured the appellant. The testimony in this case we think amply sufficient to sustain the verdict of the jury, aside from Goode’s testimony of the terms of _ the contract made with Hall for appellant. Appellant, after Hall had made the contract, sent to appellee a telegram confirming the contract, and, as we interpret the message, it recognized the contract as sworn to by the appellee, especially so when interpreted in the light of the facts proven surrounding the transaction.

The motion for rehearing is overruled.


text:
    JONES v. VELTMANN et al.
    (No. 5353.)
    (Court of Civil Appeals of Texas. San Antonio.
    Nov. 18, 1914.
    Rehearing Denied Dec. 16, 1914.)
    1. Counties (§ 182) — Bonds—Custody.
    Under Rev. St. 1911, art. 632, providing that county and district bonds shall remain in the custody of the commissioners’ court until sold to the highest bidder for cash at not less than par, an order of the commissioners’ court transferring the custody of the bonds to the county attorney, and giving him unrestricted authority to sell, is void.
    [Ed. Note. — For other cases, see Counties, Cent. Dig. § 285; Dec. Dig. § 182.)
    2. Counties (§ 182) — Powees—Delegation to Agents.
    A county, being a government agency of limited authority, cannot, in the absence of statute conferring the power, give the custody of bonds issued by it to the county attorney with absolute discretion in him to make a sale, even though it might employ him to assist at such sale.
    [Ed. Note. — For other cases, see Counties, Cent. Dig. § 285; Dec. Dig. § 182.

    For other definitions, see Words and Phrases, First and Second Series, County.)
    3. District and Prosecuting Attorneys (§ 5) — County Attorney — Compensation.
    Under Const, art. 5, § 21, providing that a county attorney shall receive only the compensation prescribed bylaw, and Rev. St. art. 856a, requiring the county attorney to give information to county and precinct officers, an order of the commissioners’ court employing for one year at the salary of $1,200 the county attorney to advise the county judge and the commissioners’ court in preparing and issuing road bonds, and to assist in selling the bonds, is invalid, as an evident attempt to increase the compensation of the attorney for services which he was bound to render, especially where there was no evidence that the county attorney performed any services in connection with the bond issue, except to present the bonds to the attorney general for approval, and he was paid for that service.
    [Ed. Note. — For other cases, see District and Prosecuting Attorneys, Cent. Dig. §§ 18-25; Dec. Dig. § 5.]
    4. Counties (§ 182) — Delegation op Powers — Sale op Bonds — “Sell.”
    A contract by which the commissioners’ court gave to the county attorney the custody of certain bonds, with authority to sell them for the best price obtainable, authorized the attorney, not merely to negotiate the sale, but to deliver the bonds and bind the sale, since the rule that power to sell land does not authorize an agent to convey, does not apply to a power to “sell” personal property, where possession is given to the agent, but such agent has full authority to consummate the sale, and the contract is therefore void under Rev. St. 1911, art. 682, providing that the bonds shall remain in the custody of the commissioners’ court until sold at auction for the best price obtainable at not loss than their par value. [Citing Words and Phrases, Sell.]
    [Ed. Note. — For other cases, see Counties, Cent. Dig. § 285; Dec. Dig. § 182.]
    5. DISTRICT AND PROSECUTING ATTORNEYS (i 5) — County Attorneys — Compensation — Retainer).
    The commissioners’ court has no authority to employ and compensate the county attorney at a yearly salary to defend suits that may be brought against1 the county, although it may employ him to represent it in a pending suit.
    [Ed. Note. — For other cases, see District and Prosecuting Attorneys, Cent. Dig. §§ 18-25; Dec. Dig. § 5.]
    6. District and Prosecuting Attorneys (§ 5) — County Attorney — Compensation— ¡Services Previously Rendered.
    Where the only services shown to have been rendered by the county attorney in connection with certain road bonds was the taking of the bonds to the capítol to be approved by the attorney general,, for which the attorney had been paid, the subsequent order of the commissioners’ court that he be paid $1,200 a year for services in connection with the bond issue is contrary to Const, art. 3, § 53, prohibiting extra compensation after the services have been performed. •
    [Ed. Note. — For other cases, see District and Prosecuting Attorneys, Cent. Dig. §§ 18-25; Dec. Dig. § 5.]
    7. District and Prosecuting Attorneys (§ 5) — County Attorneys — Compensation —Void Order.
    The fact that the legal compensation of a county attorney affords no remuneration for the service required of him does not authorize the commissioners’ court to pay him further compensation in violation of law or the courts to sustain an order for such compensation, but relief must be sought from the Legislature.
    [Ed. Note. — For other casos, see District and Prosecuting Attorneys, Cent. Dig. §§ 18-25; Dec. Dig. § 5.]
    Appeal from District Court, Kinney County; W. C. Douglas, Judge.
    Suit for injunction by John Jones against Joseph Veltmann and others. From a judgment denying the injunction, plaintiff appeals.
    Reversed and remanded, with instructions to grant the injunction.
    E. A. Jones, of Braekettville, and Martin & Martin, of Uvalde, for appellant. Frank Lane, of Braekettville, and John J. Foster, of Del Rio, for appellees.

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

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

   FLY, C. J.

Appellant applied for and obtained a temporary injunction on April 1, 1914, against appellees, Joseph Veltmann, county judge, Commissioners Hans Peterson, A. M. Slater, N. L. Lewis, and Albert Schwan-der, county clerk H. E. Veltmann, and county attorney Frank Lane, restraining the payment to Frank Lane of $1,200, salary ordered to be paid him by the commissioners’ court. An appeal was taken from the granting of the temporary injunction, and the judgment reversed and cause remanded, on account of the affidavit for the injunction • being defective and insufficient. Lane v. Jones, 167 S. W. 177. The cause was' tried on April 18, 1914, by the court, and judgment rendered denying the injunction.

The facts show that appellant is a resident taxpayer of Kinney county, and owns both real and personal property in said county subject to taxation; that Joseph Veltmann is the county judge and together with the named commissioners constitute the commissioners’ court of Kinney county; that H. E'. Veltmann is the county clerk and Frank Lane the county attorney. The following order was made by the commissioners’ court on February 11, 1914:

“The court after due consideration is of the opinion that the attorney’s fee allowed the county attorney for legal services rendered to the court and county officials, to wit, $600 per annum payable in monthly installments of $50 per month, is inadequate for the amount of work such as the service 1 requires. Therefore it is ordered by the court upon its own motion that the county attorney be and is allowed' an attorney’s fee of $1,200 per annum payable in monthly installments of $100 per month beginning on the 1st day of February, 1914, for legal services to be rendered to this court and the county officials as may be required, and the county clerk is hereby ordered to issue scrip of the county to the county attorney for the sum of $100 per month beginning on the 1st day of February, 1914, until further ordered by the court. It is further ordered by the court that all fees allowed to the county attorney in fines from criminal cases or prosecutions in the different justice courts of the county and county courts accruing since the 1st day of February, 1914, be collected by the constable or justice of the peace, sheriff or county judge and turned over to the county judge.”

After the temporary injunction was granted, the commissioners’ court, on the request of the county attorney, set aside the foregoing order, and made another, as follows:

“It is hereby ordered by the commissioners’ court, at a regular term in regular session on this the 9th day of March, 1914, at 2:10 o’clock p. m.: That the county judge of Kinney county be authorized to secure the services of Frank Lane, attorney at law, to assist said county judge and commissioners’ court in properly preparing the issue of the road bonds voted by a majority of the qualified property taxpaying voters of Kinney county on the 14th of November, 1913, to advise said county judge and commissioners’ court in the proper preparation and issuing of said road bonds, and other legal matters in connection therewith; to sell or assist in selling said issue of bonds at the best price obtainable therefor; to do and perform such other services as shall he required of him in advising said commissioners’ court and county judge with reference to said bond issue, and in reference to all other matters not contemplated or covered by the said Frank Lane’s official duties as county attorney of Kinney county. That said employment by the county judge and commissioners’ court to be for a period of one year from date of this order, said Frank Lane to receive as such compensation for said services to be performed, as above set forth, the sum. of $1,200 payable $100 per month, for a period of 12 months. It being understood and agreed to by the said Frank Lane that, should be be instrumental in selling said bonds or finding a buyer therefor, said • sum of $1,200 shall, be full compensation for his services, and that no compensation shall be expected by or paid to said Frank Lane for such services. -That said county judge is hereby authorized and empowered to enter into a contract with the said Frank Lane embodying the terms of the above order securing his services as special counsel in all civil matters in connection with said bond issue, and other legal matters not contemplated or covered by the said Frank Lane’s official duties as county attorney of Kinney county.”

Commissioner Albert Sckwander voted against both orders. Prior to the two orders hereinbefore copied, an allowance of $100 was made to defray the expenses of Lane to Austin to obtain approval of certain road bonds that had been voted by the people. It was required that he make an itemized account of his expenses, which he did, showing them to have been $32.80; but he failed to return the balance of $67.20, and retained the same. Other pertinent facts are found in the course of the opinion herein.

The court had before him, at the time he granted the temporary injunction, the order of March 9, 1914, upon which order a permanent injunction was afterwards refused. In the opinion of the court on granting the temporary injunction it is forcibly shown that at least a portion of the services sought to be paid for were required by law and that, if any part of the salary was authorized, the evidence failed to separate the legal from the illegal portions. The same state of case is here presented.

The order of the commissioners’ court of Kinney county, made on December 9,1913, was:

“That Frank Lane be authorized to take and have charge of said bonds pending their investigation by the Attorney General and upon their approval shall have authority to negotiate their sale.”

Article 632, Revised Statutes 1911, provides for examination of county and district bonds by the Attorney General and registry by the comptroller of public accounts, and further:

“Such bonds, when so issued, shall continue in the custody of, and under the control of the commissioners’ court of the county in which they were issued, and shall be by said court sold to the highest and best bidder, for cash, either in whole or in parcels, at not less than their par value, and the purchase money therefor shall be placed in the county treasury of such county to the credit of the available road fund of such county, or of such political subdivision or defined district of such county, as the case may be.”

It will be noted that the order of the commissioners’ court not only placed the bonds in charge of Lane, but sought to give him absolute authority to sell them in any way and for any sum; no limitations of any kind being placed upon his powers in connection therewith. The court sought to confer on him authority that the court itself did not possess. There is no reference in the order to any legal limitations upon the sale, but untrammeled discretion is confided to him in the custody and sale of the bonds. Could such power be delegated to any one by the commissioners’ court? We think not.

It is a well-settled principle that the public powers or trusts devolved upon .a council or governing body of any subdivision of a state, to be exercised by it when and in such manner as it shall deem best, cannot be delegated to others. Dillon, Mun. Corp. § 244. No direct authority is found in the statutes for the employment of an agent to have the custody of and sell county or district bonds, and the principle should be always remembered that a public corporation is a governmental agency of very limited powers, hedged about with restrictions, and the authority to employ agents to assist in the performance of duties devolved on the governmental agency must be expressly given or strongly implied from the language of the statute. It has been held that power of a municipality to issue and sell bonds carries with it the implied power to secure such reasonable and necessary assistance as may be requisite to make an advantageous sale. Armstrong v. Ft. Edward, 159 N. Y. 315, 53 N. E. 1116; Slayton v. Rogers, 128 Ky. 106, 107 S. W. 696. In the case of Davis v. City of San Antonio (Civ. App.), 160'S. W. 1161, this court placed the authority of the city to employ agents to sell bonds on the language of the charter which permitted the employment of agents when “deemed necessary for the good government and interest of the city.” But we are of opinion that the authority to sell lodged in a governmental agency would carry with it the authority to employ agents to assist in such sale, but at the same time it would not carry the authority to place the sale of the bonds at the absolute discretion of any one. Blair v. Waco, 75 Fed. 800, 21 C. C. A. 517. In the employment of such agencies, the most absolute good faith would be required, and no pretended agency to sell bonds could be made the basis of an increase of an officer’s salary. There could have been no necessity for releasing the custody of the bonds to Frank Lane, in the very teeth of the statute, because, if his assistance in selling the bonds had been demanded, he could have given that assistance fully as well with the bonds in the custody provided by law.

The commissioners’ court not only was guilty of- an infraction of law in divesting itself of the custody of the bonds, but attempted' to give Lane the absolute right of disposal of the bonds in any manner and for any price he might desire. It was sought to give him authority which could not be- exercised by the court, and of course the order was invalid. Lane was charged with the knowledge that his employment was in violation of the plain terms of the statute, and, being void, it cannot form the basis of a recovery for services rendered. Dillon, Mun. Corp. § 895; Ft. Edward v. Fish, 156 N. Y. 363, 50 N. E. 973.

The first order passed by the commissioners’ court recited:

“That the attorney’s fee allowed the county attorney for legal services rendered to the court and county officials, to wit, $600 per month, is inadequate for the amount of work such as the service requires.”

Provision was made in the order for raising the amount to $100. That order vras made on February 11, 1914, and a temporary order restraining payment of the salary was issued on February 24, 1914. No doubt recognizing the illegality of the order, the county attorney, on March 9, 1914, requested the revocation of the order by the commissioners’ court, and on the same day it was as recited in the order that the former order was “revoked, repealed, annulled and held for naught,” but was followed by an order to employ the county attorney “to advise said county judge and commissioners’ court in the proper preparation and issuing of said road bonds, and other legal matters in connection therewith; to sell or assist in selling said issue of bonds at the best price obtainable therefor; to do and perform such other services as shall be required of him in advising said commissioners’ court and county judge with reference to said bond issue; and in reference to all other matters not contemplated or ■ covered' by said Frank Lane’s official duties as county attorney of Kinney county.” It was further provided that the employment should be for a year on a salary of $1,200, payable monthly at the rate of $100 per month. On December 9, 1913, the commissioners’ court passed the following order:

“It is also ordered that Frank Lane be authorized to take and have charge of said bonds pending their investigation by the Attorney General and upon their approval shall have authority to negotiate their sale.”

On the same date as the order quoted, a hundred dollars was appropriated to pay the county attorney’s expenses to Austin to present the bonds to the Attorney General. The facts clearly indicate a determined purpose upon the part of the commissioners’ court to evade and thwart the provisions of article 5, § 21, of the Constitution and the statutes of the state. The very services enumerated in the order as to adviee to be given by the county attorney to the county judge and commissioners’ court are provided for in article 356a. It was as much the duty of the county attorney to advise the county judge and commissioners’ court in regard- to properly preparing and issuing the road bonds as in regard to any other matter in which the county was interested, and it was his duty to advise them in regard to all county matters. There could be no county matters about which advice was required that was “not contemplated or covered” by his official duties as county attorney of Kinney county.

There was no testimony tending to show that the county attorney performed any services in connection with the bonds, except to present them to the Attorney General for approval, and he was given, under the guise of expenses, an extra hundred dollars for that service.

If the sums paid for advice, already provided for by law, could be separated from any imaginary services rendered in connection with the bonds, there is no testimony indicating that the county attorney rendered any services in selling the bonds if they were ever sold. Surely such services could not endure for 12 months. The testimony indubitably stamps the whole ■ affair as a deliberate attempt to increase the salary of the county attorney for services required of him by the laws of the state. ■ As said by the trial judge in his conclusions on granting the temporary injunction:

“It appears from said order that the commissioners’ court is undertaking to pay said county attorney additional compensation for services which he is required, by virtue of his office, to perform. * * * ”

If the judge was in possession of any more facts than on the hearing of the temporary injunction, the record fails to indicate them. The order passed to meet the judgment on granting the temporary injunction did not meet the exigencies or the demands of the law.

In the order approving the contract made by the county judge with Lane it is recited that:

“The purpose and intent being to compensate said Frank Lane for his services in aiding this court to get the Kinney county road bonds approved by the Attorney General including trips to Austin in connection with the said bond issue, and to sell said bonds and protect the county against the payment of exorbitant charges for the sale of said bonds, and commissions and to defend any suit that might be filed to restrain the sale of said bonds or delay the sale of same by any taxpayers opposed to said bond issue.”

The object appears to be, from that part of the order, not only to pay the county attorney for his advice and aid in selling the bonds, but to provide a retainer for his services in any case that might arise about the validity of the bonds. And if there was any doubt as to the authority to “negotiate,” meaning the authority to sell the bonds, it is fully removed by the language of the contract and the order approving it.

Not only did the contract authorize Lane to sell the bonds, but, regardless of the requirement of the statute that the bonds be sold at par, the contract and last order authorized him “to sell said bonds at the best price obtainable therefor.” Having possession of the bonds, he could deliver them and bind the “sale,” if such delegated authority had been supported by law.

Appellees seek to apply the rule that a power to sell land does not give authority to convey, to a case in which an agent is placed in possession of personal property, but it does not'apply, as one of the cases given under the word “sell,” in Words and Phrases, to which we are referred, abundantly shows. Thacher v. Moors, 134 Mass. 163. The power to sell bonds by an agent in possession of them carried with it the power to deliver the bonds and thereby fully consummate the sale. The commissioners’ court could no more delegate that authority to an agent than it could delegate the power to sell and convey land to an agent, and that has been condemned by the Supreme Court and this court. Logan v. Stephens County, 98 Tex. 288, 83 S. W. 865; Brazoria County v. Rothe, 168 S. W. 70. As said by the Supreme Court in the Log'an Case:

“It is not intended to limit the power, which has been granted by the Constitution to the commissioners’ court, to manage, according to its discretion and to the best advantage, the lands held in trust for the public free schools; but simply to hold, as we do, that the commissioners’ court cannot commit their discretion in making sale to an agent.”

If the right to sell bonds, of which he had the possession, at the best price he could get for them, did not commit the discretion of the commissioners’ court to the county attorney, such discretion could not be committed.

It has been held that commissioners’ courts may employ county attorneys to represent the county in pending suits, but we have seen no case in which a commissioners’ court is given authority to employ an attorney and pay him a retainer of $100 a month for 12 months to defend suits that might possibly be instituted against the coun- % ty. In the case of Lattimore v. Tarrant county, 124 S. W. 205, it was held that a contract to pay the county attorney for written advice was not inhibited by law; that, however, was before the passage of article 356a, which makes it one of the duties of the county attorney to give such advice, and for which he cannot receive additional remuneration.

If additional pay could be allowed county attorneys for advice given the commissioners’ court, for the possible prosecution or defense of suits not in existence, and which may never arise, the Constitution and laws as to their salaries are nullities, and the salaries they might receive would be measured by the generosity or extravagance of the commissioners’ court. Suits may possibly arise in any county, although they seldom occur, but such possibility would form the excuse for a large salary to any county attorney in the state, and the Constitution overridden.

In this case, so far as the record discloses, no extra service whatever was rendered by the county attorney for the $1,200 voted him out of the county finances. If he gave any advice, if he defended any suits, if he sold any bonds, the statement of facts does not show it. All that the record shows that he did was to make a trip to Austin to present the bonds' to the Attorney General for approval, and that was long before the contract was made with him, and he was given $100 for that trip. In article 3, § 53, of the state Constitution, it is provided that no extra compensation shall be allowed any public officer, agent, servant, or contractor after service has been rendered, and yet in the face of that provision the commissioners’ court voted the $1,200 “to recompense said Prank Lane for his services in aiding this court to get the Kinney county road bonds approved by the Attorney General, including trips to Austin in connection with the said bond issue,” etc. The Constitution in positive terms provides, also:

“County attorneys shall receive as compensation' only such fees, commissions, and perquisites as may be prescribed by law.”

No such remuneration as was voted by the commissioners’ court is provided by law, and the Constitution cannot be set aside by a subterfuge, but must be obeyed. If the bonds have been sold, it did not require a salary for 12 months to sell them, and if they have not been sold no service has been rendered. As said by this court:

“In special matters, and cases where the interest of a county may require the services of an attorney, its commissioners’ court may contract for them. * * * But such court cannot make an order which will warrant the payment of the people’s money to an attorney for services neither required nor performed.” Grooms v. Atascosa County, 32 S. W. 188.

to the plea that the fees and emolu-emoluof county attorneys being so meager “as to afford no fit remuneration for the of-ofin some counties, it is doubtless true, but that can offer no justification for a gen-gencommissioners’ court to relieve the ne-neof the occasion by violating laws and disregarding the Constitution. There are few officers, executive, judicial, or legislative, that receive adequate remuneration for their services; but the only appeal is to the people and their Legislatures. Courts, however will-willhave no power to raise salaries of county attorneys or any other officer unless so em-emby the Constitution or legislative act.

If the opinion of the majority of the Su-SuCourt in Dallas County v. Lively, 167 S. W. 219, be sound, still the facts of that case render it inapplicable in this case. The statute as to ex officio services of the county judge has no reference to a county attorney. Provision had been made for the salary of the county attorney before orde^p herein re-reto were made.

The judgment is reversed, and the cause remanded to the district court with instructions to set aside the orders of the commissioners’ court and issue a permanent injunction against appellees as prayed for in the petition.


author: TALBOT, J.

text:
    HOUSTON & T. C. R. CO. v. SMALLWOOD.
    (No. 7200.)
    (Court of Civil Appeals of Texas. Dallas.
    Nov. 21, 1914.
    Rehearing Denied Dec. 12, 1914.)
    1. MASTER AND SERVANT (§ 288) — ACTION for Injuries — Question for Jury — Assumption of Risk.
    On evidence in a railroad servant’s action for injury from falling from a car load of lumber which he was trying to straighten, held, in view of the opportunity and capacity of the servant, an uneducated negro, for discovering the risk, that whether he knew or ought to have known that the pinch bar furnished him with directions to use it was defective, and appreciated the danger of using it as directed, was for the jury.
    [Ed. Note. — Eor other cases, see Master and Servant, Cent. Dig. §§ 1068-1088; Dec. Dig. § 288.]
    2. Master and Servant (§ 217) — Action for Injury — Assumption of Risk — “Unsafe”— “Dangerous.”
    In a railroad servant’s action for injury from falling from a car load of lumber which he had been, directed to straighten and arrange, where plaintiff knew that the work was dangerous and the danger of attempting to do it without help, and where the jury found that the defective condition of the pinch bar furnished him, with directions to straighten the lumber, was such that it could be seen by merely looking at it, and that plaintiff knew,, or, by ordinary care, could have known, that it was unsuitable and “unsafe” for doing the work, the latter finding being equivalent to a finding that it was “dangerous,” the facts found established the defense of his assumption of risk.
    [Ed. Note. — Por other cases, see Master and Servant, Cent. Dig. §§ 574-600; Dec. Dig. § 217.

    For other definitions, see Words and Phrases, First and Second Series, Dangerous; Unsafe.]
    3. Judgment (§ 256) — Special Verdict — Effect — Re jectio n.
    When a special verdict has been returned, the trial court, in rendering judgment, cannot disregard- a finding on a material issue, even though such finding has no support whatever in the testimony.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 446-454; Dec. Dig. § 256.]
    4. Master and Servant (§ 297) — Action for Injury — Findings—Assumption of Risk.
    In a railroad servant’s action for injury from falling from a car load of lumber which he was trying to straighten with a pinch bar, where the common-law doctrine of assumed 'risk applied, findings that he knew that the pinch bar furnished him was unsafe, and that his attempt to do the work without help was dangerous, established that his injury was from an assumed risk, even though he was inexperienced and had not been warned, as such warning would not have given lym any information which he did not have; and the finding that his injury did not result from any risk assumed when he entered the service did not alter the case.
    [Ed. Note. — For other cases, see Master and Sei-vant, Cent. Dig. §§ 1195-1198; Dec. Dig. § 297.]
    Appeal from District Court, Grayson County ; W. M. Peck, Judge!
    Action by C. H. Smallwood, against the Houston & Texas Central Railroad Company. Judgment for plaintiff, and defendant appeals.
    Reversed and remanded.
    Baker, Botts, Parker & Garwood, of Houston, and Head, Dillard, Smith, Maxey & Head, of Sherman, for appellant.
    E. J. Smith, of Denison, and Freeman & Batsell, of Sherman, for appellee.

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

   TALBOT, J.

The appellee instituted this suit in the district court of Grayson county, Tex., against the appellant to recover damages for personal injuries which he alleges he sustained as the result of a fall from a car load of lumber; he being engaged at the time in straightening and arranging the lumber on said car. The petition alleges, in substance, that appellee was in the employ of appellant in the capacity of a common laborer and porter at its station and offices in the city of Denison, Tex.; that there was standing on one of appellant’s tracks, in said city, on September 21, 1912, a car of lumber; that the lumber on this car had become badly disarranged in transportation, and not in a condition to be further transported; that appellee was directed by C. M. Kirk, appellant’s agent, to straighten and arrange the lumber on said car, and was furnished by said agent with a pinch bar and maul to use in doing said work; that he was inexperienced in doing the work; that the lumber was heavy, and one man was not sufficient to safely do the work; that at least two men were required and reasonably, necessary to do it; that the pinch bar was' defective and unsuitable, worn at the point, and would not take hold and stick in the lumber, and slipped and caused him to fall from the car and sustain serious and permanent injuries. The grounds of negligence alleged were: (1) Directing appellee to do the work at the place and under the circumstances, and failure to provide him a reasonably safe place in which to do said work;

(2) placing appellee in a place of danger, and directing him to do dangerous work, with knowledge of his inexperience, without warning him of the danger, and without instructing him as to the manner of doing the work;

(3) failure to furnish sufficient number of men to safely do the work; and (4) furnishing him a defective pinch bar. Appellant answered by specific denial of the allegations of appellee’s petition, and alleged the facts to be that appellee was familiar with the work, he was doing at the time of the accident ; that one man was sufficient to safely do it; that appellee was engaged in interstate commerce; that appellant’s agent directed him to do the work, and he (appellee) selected the pinch bar to use in doing it; that he (appellee) knew all about what danger there was incident to the work; that, if more than one man was required to do it, plaintiff knew it, and knew the danger of one nian alone doing the work; that the pinch bar was a simple tool, and, if defective, its defects and the danger, if any, in using it were open and obvious, and as well known to plaintiff as to defendant, and the injuries, if any were sustained by plaintiff, resulted from a risk assumed by him. The case was tried December 10, 1913, before a jury, and was submitted on special issues. Plaintiff and defendant each filed motion for judgment on the findings of the jury. Plaintiff’s motion was granted, defendant’s overruled, and judgment rendered for plaintiff in the sum of $2,500, and appellant appealed.

The first assignment of error complains of the court’s refusal to give appellant’s requested charge instructing the jury to return a verdict in its favor. The proposition under the assignment is that the undisputed evidence showed that appellee was engaged in work in connection with interstate commerce; that he knew whatever danger there was incident to doing the work in which he was engaged; that he knew the danger incident to doing the work without help; that the defects, if any, in the pinch bar were open, obvious, and known to appellee, and that he therefore assumed all the risks and danger incident to doing the work without assistance, and to using the pinch bar in the condition it was, and appellant was entitled to have the jury instructed to return a verdict in its favor.

After a careful examination of the evidence and the authorities bearing upon the proposition asserted, we have reached the conclusion that the charge under consideration was properly refused. This is especially true, we think, in view of the decision of our Supreme Court in the ease of Drake v. Railway Co., 99 Tex. 240, 89 S. W. 407.

It is doubtless true that the undisputed evidence showed that plaintiff knew when he undertook to do the work of arranging the lumber on the car that he could not do it safely without help and that he appreciated the danger incident to undertaking to do the work without assistance, but we do hot believe it can safely be said from the evidence, as a matter of law, that he knew before he was injured, or ought to have known, that the xfinch bar furnished him by appellant with directions to use it in arranging the lumber was defective, and appreciated the danger of using it as directed. In the case cited, which the court said was a very close one, it is said:

“If there was negligence on the part of the defendant in furnishing a tool which, because of its unfitness for the use to which it was to be put, exposed the plaintiff to danger which the exercise of ordinary care in doing his work would not have brought to his knowledge, he cannot be held to have assumed the risk resulting from his employer’s negligence. Whether or not the condition of a tool is so obvious, that a servant necessarily assumes the risk of using it must depend, in some cases, not merely upon the simple character of the instrument itself, and the openness of the defects in it, but also upon the situation and condition of the servant himself, his opportunity and capacity for discovering that condition, and the circumstances calculated to withdraw his attention from it; and the test in, doubtful cases is the judgment of a jury upon the question whether or not persons of ordinary prudence similai'ly situated would have discovered the risk.”

The appellee was an uneducated negro, and these remarks of the Supreme Court are, in our opinion, peculiarly applicable in the case at bar, and make it plain that “the degree of mental capacity and knowledge of tools and máchinery possessed by the servant,” and “his right to rely upon the master to protect him from danger and injury and in selecting the agent from which it may rise,” aré proper to be considered in determining whether he assumed the risk, and that in such cases the assumption of the risk becomes one of fact for the jury.

The next assignment is that the court erred in overruling the appellant’s motion, filed in the trial court, for judgment and in entering judgment for the appellee. It is urged that this action of the court was error, because, under the undisputed evidence, no negligence was shown against the appellant in any respect; (2) because, under the undisputed evidence and findings of the jury, appellee knew the number of men required according to his contention to safely perform the work that he undertook to do and assumed the risk of whatever danger there was incident to one man attempting to do the work; (3) because, under the undisputed evidence and findings of the jury, the appellee, at the time he was injured, was engaged in interstate commerce in doing the work that he was attempting to do, the pinch bar, a plain simple tool, and its defect, if any, open, and obvious and actually known to appellee, or must necessarily have been known to him in the performance of his work, and appellee knew, before or at the time he was injured, the danger incident to the use of the pinch bar, if any, or', by the exercise of ordinary care for his own safety, would have known it, and therefore assumed the risk of danger incident to working with said pinch bar.

The contention that, according to the undisputed evidence, no negligence whatever was shown against appellant will not be sustained. As was held in the case of Drake v. Railway Co., supra, we hold in this case, that whether or not the appellant furnished the appellee the pinch bar in question under circumstances showing a want of ordinary care for his safety was a question of fact for the determination of the jury. That the appel-lee knew the work he attempted to do was dangerous and knew the danger incident to his attempt to do the work required of him without assistance is very conclusively established by his own testimony, and the findings of the jury on that question are to that effect, and, notwithstanding the views expressed in discussing appellant’s first assignment of error, that the evidence was sufficient to entitle appellee to have a jury determine the issue of whether or not he should be charged with having assumed, the risk of danger incident to the use of the pinch bar, we think, in view of the findings of the jury on tfiat issue, the court erred in rendering judgment for the appellee. In answer to appropriate questions propounded to them, the jury, on the issue of assumed risk arising from the use by appel-lee of the pinch bar, made the following findings: (1) That the condition of the pinch bar was such that it could be seen by merely looking at it; (2) that appellee would have known the condition of the pinch bar by merely looking at it before he attempted to use it; (3) that appellee knew, or, by the exercise of ordinary care, would have known, under the circumstances, that the pinch bar was unsafe, unfitted, and unsuitable for doing the work he was attempting to do when hurt. These findings were most material on the issue of assumed risk to which they relate, and the undisputed evidence having shown, and the jury having found, in accordance therewith, that the work of arranging the lumber on the car was dangerous, that appellee knew it was dangerous, and knew the danger incident to his attempt to do the work without assistance, the other phase or issue of assumed risk involved in the ease, the court was not authorized to disregard the findings of the jury upon either issue, and render judgment for appellee, even though the other material issues in the case. may have been determined in his favor. The jury by the findings in relation to the use of the pinch bar found not only that the condition of the pinch' bar was such that it could be seen by merely looking at it — that is, “so patent as to be readily observed,” by appel-lee — and that he would have known its condition by merely looking at it before he attempted to use it, but that he knew, or, by the exercise of ordinary care in doing his work, would have known, that the pinch bar was unsuitable and unsafe for the work he was directed to do. The effect of this latter finding is to charge the appellee with knowledge of the alleged defect in the pinch bar and the danger incident to its use before the accident, for there is no practical difference in the meaning of the words “unsafe” and “dangerous.” So that, if appellee knew that the pinch bar was an unsafe tool to use in doing the work required of him, he must necessarily have known that it was dangerous to do the work with it, and, of course, the danger incident to the use of' it in attempting to do the work. These issues, and the issues arising from appellee’s attempt t< arrange the lumber without aid, were vital issues in the case, and, the jury having determined them against appellee, appellant’s defense that appellee assumed the risk of attempting to do the work alone and of using the pinch bar was established, and the only course open to the trial court was to enter judgment in accordance with the jury’s findings on said issues, or to set aside the verdict and grant a new trial.

When a special verdict has been returned, the trial court, in rendering judgment, cannot disregard a finding of the jury on a material issue, even though such finding has no support whatever in the testimony. Scott v. Farmers’ & Merchants’ Nat. Bank (Civ. App.) 66 S. W. 485; Clark & Loftus v. Pearce, 80 Tex. 146,15 S. W. 787.

The finding of the jury that appellee’s injuries were not the result of one of the risks assumed by him when he entered the service of the appellant does not alter the case. The work appellee was doing when hurt related to interstate commerce, and the common-law doctrine of assumed risk applies. The warning which appellee claims should have been given him would have placed him in possession of no information with respect to the risk of attempting to arrange the lumber without assistance and the use of the pinch bar, which he did not, according to the verdict of the jury, possess before and at the time he was injured, and, the foregoing findings having been made by them, it follows, as a matter of law, even though he was inexperienced and had not been warned, that his injuries were the result of risks assumed by him. i

There are a number of assignments of error complaining of instructions given by the court to the jury in connection with the special issues submitted. These assignments need not, we think, be considered in detail. We conclude from an examination of the charges complained of that, if all of them were not necessary to enable the jury to properly determine the issues submitted to them, none constitutes reversible error.

For the reason indicated, the judgment is reversed, and the cause remanded.


author: HARPER, C. J.

text:
    BASTROP & AUSTIN BAYOU RICE GROWERS’ ASS’N et al. v. COCHRAN et al.
    (No. 354.)
    (Court of Civil Appeals of Texas. El Paso.
    Nov. 12, 1914.
    Rehearing Denied Dec. 10, 1914.)
    1. Appeal and Eeeor (§ 907) — Peesuhp-TIO NS — J TJDGMENT.
    Wheie there was no statement of facts, it will be presumed that a judgment recital that they came and announced ready for trial is true, and that all the parties were before the court to authorize judgment.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2899, 2911-2915, 2916, 3673, 3674, 3676, 3678; Dec. Dig. § 907.]
    2. Joint-Stock Companies (§ 19) — Judgment Against Individual Membees. _
    _ Where the petition in an action against a joint-stock association also named each of certain members individually, and prayed judgment against each of them, as authorized by Rev. St. 1911, § 6153, and each in person answered to the merits, and the judgment recited their appearance and answer, there was a sufficient showing to authorize personal judgment against each of them individually.
    [Ed. Note. — Eor other cases, see Joint-Stock Companies, Cent. Dig. §§ 21-27; Dec. Dig. § 19.]
    3. Joint-Stock Companies (§ 19) — Action Against — J ud gment.
    The fact that the judgment in an action against a joint-stock association did not formally read that the property of the association should first be exhausted before execution against the property of the individual members did not vitiate the judgment as to them, since Rev. St. 1911, art. 6153, expressly provides that execution may be issued against such property, but that no execution shall issue against members until execution, against the association is returned unsatisfied; and plaintiff was not bound to prove that all the defendants were bound in order to recover against any one of them.
    [Ed. Note. — For other cases, see Joint-Stock Companies, Cent. Dig. §§ 21-27; Dec. Dig. §
    4. Appeal and Err on (§ 677) — Review—Evidence CONSIDERED.
    A citation showing that one of the parties therein was not served and that one was dead was not evidence for the consideration of the Court of Civil Appeals, unless it came up in the proper statement of facts.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 2877; Dec. Dig. § 677.]
    5. Appeal and Error (§ 701) — Statement op Facts — Assignments.
    In the absence of a statement of facts, assignments complaining 'of the court’s refusal to give requested charges will not be considered.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2933-2935; Dec. Dig. ‘ 701.]
    Error from District Court, Harris County; Norman G. Kittrell, Judge.
    Action by J. B. Cocliran against the Bas-trop & Austin Bayou Rice Growers’ Association and others. Judgment for plaintiff, and certain defendants bring error.
    Affirmed.
    See, also, 138 S. W. 1188.
    Masterson & Masterson, of Houston, and Masterson & Rucks, of Angleton, for plaintiffs in error. Kahn, Williams & King, of Houston, for defendants in error.

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

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

   HARPER, C. J.

This suit was brought by appellee, Cochran, against the appellant association and the individual members thereof, naming them, and A. N. Fitzgerald, to recover the sum of. $1,449.53, alleged to be due by the appellants to said Fitzgerald as a balance upon a contract under which Fitzgerald constructed for appellants a lock and dam, which claim had been transferred by Fitzgerald to appellee. There being no question concerning the proper determination by the trial court of the issués involved, presented in appellants’ brief, which this court can consider, we deem it unnecessary to make any further statement of the issues involved, but for a full statement thereof refer to the opinion in a former appeal of this ease reported in 138 S. W. 1188.

The first, second, third, fourth, and fifth assignments of error attack the validity of the judgment appealed from: (a) Because the individual members' of the association were not sued in their individual capacity, (b) Because the judgment entered does not first require execution to issue against the stock association, and the joint property be exhausted before execution issue against the individuals, (c) Because it was not shown by any evidence offered that the individual members of the association were served with citation, or that they answered, (d) Because all of the citations on file show that the individuals were not served — the propositions being that where there is no legal service of process or appearance the judgment is void, and there being no service and no appearance by J. W. Heard and W. A. Robertson the judgment as to them is void, and being indivisible is void as to all. There is no statement of facts in the case by which to determine whether the parties against whom judgment was entered were cited or not. The judgment recites that they came and announced ready for trial. Under such state of the record, it must be presumed that the judgment recited the facts, and that all parties were before the court to authorize judgment as provided in article 6153, Revised Civil Statutes 1911.

The appellants’ proposition under the first assignment of error is that F. Oberhelman, E. E. White, W. C. Stockton, R. W. Stewart, J. W. Heard, and Raddlemiddle Bros., who are alleged to be a copartnership composed of-Raddlemiddle and-Raddlemiddle, W. O. Robertson, and J. G. Barth, are not parties to this suit, and that a judgment rendered against them individually is void. The statute (article 6153, Rev. Civ. Stat.) is somewhat obscure in whether it intended that where individual members of an unincorporated joint-stock company were served by citation, as in this case, that a judgment might be rendered against each of them individually, or simply that execution only might issue against their, individual property; but this seems to be a distinction without a difference. If execution may issue, their property may be subjected to the satisfaction of the judgment rendered against the association, whether in fact there was an express judgment against each, individually, or not. But it is not necessary in this case to decide the effect of the statute, for the members each in person answered to the merits. The plaintiff’s petition named each of them individually, and prayed judgment against each of them, and the judgment recites that they each came and answered, which is sufficient showing to authorize the personal judgment against each of them individually.

The pleadings name each of the members of the association and pray for judgment against each of them. Therefore the fact that the judgment does not formally read that the property of the association shall first be exhausted before issuing as to individuals does not vitiate the judgment, because it is a matter controlled by statute (article 6153, supra), and plaintiff is not bound to prove that all the defendants are hound in order to recover against any one of them. Stevens & Andrews v. Gainesville National Bank, 62 Tex. 499. And the general rule is that the indebtedness of a joint-stock company will be charged pro rata to the solvent members. Cameron v. First National Bank, Decatur, 34 S. W. 178. But there is nothing in this record to show that all the individuals against whom this judgment was rendered are not equally solvent; nor, in fact, that the assets of the association are not sufficient to satisfy the judgment.

The seventh and eighth assignments assert that the citation shows that W. O. Robertson was not served and that J. Heard was dead. The citation is not evidence for our consideration, unless it comes up in a proper statement of facts; besides, the judgr ment contradicts the citation, in that it recites the parties came and announced ready for trial.

The ninth and tenth assignments complain of the refusal of court to give special charges requested. In the absence of a statement of facts, they will not be considered, and are therefore overruled.

The eleventh complains that the court erred in refusing a new trial because the judgment is not supported by the pleadings, and is disposed of by discussion under first to fifth assignments.

There being no error apparent of record, the cause must be affirmed.

Affirmed.