author: RAINEY, C. J.

text:
    NORTHERN ASSUR. CO., LIMITED, OF LONDON, et al. v. MORRISON.
    (Court of Civil Appeals of Texas. Dallas.
    Dec. 20, 1913.
    Rehearing Denied Jan. 10, 1914.)
    1. Insurance (§ 621) — Actions on Policies —Time for Bringing.
    Under Rev. Civ. St. 1911, art. 4874, providing that a fire insurance policy in case of total loss shall be a liquidated demand against the company for the full amount thereof, except that this shall not apply to pergonal property, a provision of a policy that the sum for which the company was liable thereunder should be payable 60 days after due notice, ascertainment, estimate, and satisfactory proof of loss had been received by the company did not apply, where there was a total loss and a denial of liability, and suit could be brought on the policy without waiting 60 days; since in such a case no notice or proof of loss is required, and to 'apply such provision would make the time of payment indeterminate.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 1542, 1543; Dec. Dig. § 621.]
    2. Evidence (§ 148) — Competency — Telephone Communication.
    In an action by the assignee of an insurance policy, evidence was admissible that insured, in the presence of the witness, called the office of the insurer’s agent on the telephone and told some person who answered that the policy and property covered thereby had been transferred and for him to make a note of it, though the witness did not know to whom insured was talking.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. § 438; Dec. Dig. § 148.]
    3. Evidence (§ 123) — Declarations of Third Persons — Res Gestae.
    Where insured, at the time of the transfer of a policy and property covered thereby, called the office of the insurer’s agent on the telephone and told some person in the office of the transfer, evidence that he then told a witness that the policy was transferred, and that the matter would be agreed to by the agent, was not hearsay, but was admissible as a part of the res gestse.
    [Ed. Note. — For other cases, see Evidence,' Cent. Dig. §§ 351-368; Dec. Dig. § 123.]
    4. Evidence (§ 184) — Actions on Policies— Sufficiency of Evidence.
    In an action on an assigned insurance policy, evidence as to the mailing of a letter by the assignee to the insurer’s agent, telling him of the assignment, held sufficient to justify the admission in evidence of a copy of the letter.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 638-641; Dee. Dig. § 184.]
    5. Trial (§ 139) — Question for Jury.
    Where there was evidence that a letter was mailed, whether it was received by the addressee, since deceased, was a question for the jury, though it could not be found among the addressee’s papers.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 332, 333, 338-341, 365; Dec. Dig. § 139.]
    6. Insurance (§ 669) — Actions on Policies —Instructions.
    In an action on an insurance policy which provided that it should be void if any change took place in the interest, title, or possession of the property insured, or if the policy was assigned, unless otherwise provided by an agreement indorsed thereon or added thereto, an instruction that mere notification to the insurer of a transfer was not sufficient to change the character of the stipulation in the policy, that notification on the part of the insured, and assent thereto on the part of the insurer was required, and that if, notification was given by insured and received by the insurer, assent would be presumed, unless the insurer declined to accept the transfer so made, was correct and not erroneous, as placing the burden on the insurer to prove its nonconsent, nor contradictory.
    [Ed. Note. — For other cases, see Insurance, Gent. Dig. §§ 1556, 1771-1784; Dec. Dig. § 669.]
    Appeal from District Court, Dallas County; Kenneth Foree, Judge.
    Action by Hiram Morrison against the Northern Assurance Company, Limited, of London, and others. Judgment for plaintiff, and defendants appeal.
    Affirmed.
    Crane & Crane, of Dallas, for appellants. Brooks & Worsham, of Dallas, for appellee.

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

   RAINEY, C. J.

This suit was brought by-appellee to recover of appellant on a fire insurance policy in favor of James Day, and which policy was transferred by Day to ap-pellee. The property covered was a dwelling which was totally destroyed. Plaintiff in his petition, alleged that on “the 24th day of April, A. D. 1911, by a notice in writing plaintiff duly notified the defendants and their agent at Dallas, Tex., of the transfer and assignment of said policy by said James Day to him [plaintiff], and in writing requested the defendants and their agents to mak’e a written indorsement of said transfer and assignment of said policy on their said books; that thereafter plaintiff was not advised by defendant or their said agents that no notice of said transfer or assignment had been received by them, or that if same had been received, that the same had not been accepted, and that indorsement on its books had not or would not be made; and plaintiff says, by reason of their having received said notice and the request of said indorsement, and by reason of their having failed to notify the plaintiff that the same would not be done, they and each of them are estopped in law from asserting that no such notice of the transfer or assignment had been received, and that no such indorsement of such transfer and assignment had been or would now be made.”

Appellant answered by general demurrer, general denial, and specially that, “this entire policy, unless otherwisej provided by agreement indorsed hereon or added hereto, shall be void if any change, other than by the death of an insured, take place in the interest, title, or possession of the subject of insurance (except change of occupants without increase of hazard), whether by legal process or judgment or by voluntary act of the insured, or otherwise, or if this policy be assigned before a loss.” That, during the life of the policy, James Day did transfer and sell to plaintiff the property covered by the policy; that they neither consented to the transfer of the property nor the policy to plaintiff, whereby they pleaded that the policy became null and void because by said transfer the title and interest of insured was changed. They further aver they were not advised of this transfer until after the destruction of the property by fire. They therefore prayed that the plaintiff take nothing by suit.

A trial resulted in a verdict and judgment in favor of appellee for $1,200, and appellants present this appeal. There was a policy issued to cover the building, as alleged, against loss by fire. Said building was destroyed by fire and became a total loss. The policy was issued to James Day, the then owner. The property was duly transferred to the plaintiff, and he owned it when it burned. When the transfer was made, notice of said transfer was duly made by phone and by letter to the office of appellant, to which transfer appellant did not dissent. When notice of loss was given to the appellant’s agency, liability on the policy was denied.

The first assignment complains of the action of the court in overruling appellant’s general demurrer to plaintiff’s petition because the suit was brought, as the demand was not due when the petition was filed.

The policy stipulated that: “The sum for which this company is liable pursuant to this policy, shall be payable sixty days after due notice, ascertainment, estimate, and a satisfactory proof of loss have been received by this company in accordance with the terms of this policy.” The provision of the policy making the claim due 60 days after proof of loss is received by the insurance company became ineffective, because, under the statute, when a total loss occurs, the policy becomes a liquidated demand against the company for the full amount of such policy. In this character of ease, where there is a valued policy and a denial of liability, no notice nor proof of loss is required, and the claim is due upon demand, and the insurer is not required to wait until 60 days after proof of loss has expired before he can bring his suit. Rev. Civ. St. 1911, art. 4874; Ins. Co. v. Chase, 33 S. W. 602; Ins. Co. v. Leaverton, 33 S. W. 579; Ins. Co. v. Ice Co., 64 Tex. 578; Ins. Co. v. Ruddell, 37 Tex. Civ. App. 30, 82 S. W. 826. To hold that the suit on the policy was premature would, in effect, be holding that it was necessary that proof of loss should be furnished under a valued policy before recovery could be had thereon. The provision that the policy is not to be due until 60 days after notice, etc., renders the time of payment indeterminate, unless the proof of loss is made and is therefore inoperative; hence the policy becomes due and payable on demand.

2. The second error assigned is: “The court erred in permitting the witness Milam to testify substantially that James Day, on the sale of the property insured by him, to plaintiff, 'Morrison, called up, presumably, the agent of the defendant Northern Assurance Company, Limited, of London, England, and told said agent that he had transferred the property and had transferred the policy of insurance, and asked said agent to make a note thereof, and that he told the plaintiff substantially that the policy was transferred, and that the matter would be agreed to by the agent of the company, all of which will more fully appear by reference to bill of exception No. 1.”

Two propositions are submitted under this assignment, 1st, that it was error to permit Milam to testify that Day had a conversation over the telephone with some person in reference to transferring the insurance, when he was unable to say who that person was; 2d, the declaration of Day to Milam as a result of the telephone conversation, to the effect that the defendant company would agree to the transfer, was hearsay and therefore incompetent. On the day James Day transferred the property and insurance policy to appellee Day, Morrison and Milam were together when Day, using Milam’s telephone, called up the office of the appellant company, the agent being Mrs. Phipps, some one answered him whom he did not know, and Day stated to the person that the property and policy had been transferred, and for him to make a note of it; that Day then and there told Milam the substance of what was said to him over the telephone. W!e are of the opinion the admission of Milam’s testimony was not error. That Day was talking with some one in defendant’s agent’s office whom he did not recognize we think immaterial, and what Day said to Milam, under the circumstances, should not be considered as hearsay, but as part of the res gestae. Railway Co. v. Heidenheimer, 82 Tex. 195, 17 S. W. 608, 27 Am. St. Rep. 861; Ice Co. v. Dairy Co., 107 Md. 556, 69 Atl. 405, 16 L. R, A. (N. S.) 746; Bank v. Bank, 41 Tex. Civ. App. 392, 92 S. W. 441; Ins. Co. v. Wallace, 160 S. W. 1130, decided Nov. 8, 1913, by this court. Railway Co. v. Anderson, 82 Tex. 516, 17 S. W. 1039, 27 Am. St. Rep. 902.

3. What has just been said applies to assignment five of appellant, and it is overruled.

4. The sixth assignment complains of the court for admitting in evidence a copy of a letter written February 24, 1911, by ap-pellee to Mrs. Phipps, notifying her of the transfer of the property on February 23, 1911, because there was not sufficient evidence that the letter was properly addressed and mailed to Mrs. Phipps.

Mrs. Phipps was dead at the time of trial and, of course, could not testify. None of the employés in the office knew anything of the reception of the letter. Search was made among the files, and it was not found. Mrs. Phipps handled the mail at that time and might have received it. Emma Westinghouser, a stenographer who took the dictation from appellee, testified on direct examination: “I do not know whether I put this copy on the file or laid it aside with others and then filed it The original letter was mailed. I cannot remember whether I mailed it or whether Mr. Morrison mailed it. I usually put up my mail if he was there to sign it; if not, I left it there for him to sign and Re mailed it himself. This letter was addressed to Mrs. E. E. Phipps at the Northern Assurance Company, Dallas, Tex.” On cross-examination, she testified on that point as follows: “I am not sure whether I mailed this letter or whether I left it there for Mr. Morrison to mail. I nearly always took my letters and mailed them, but I do not remember whether I did in this instance or not. I nearly always mailed the letters that I wrote for Mr. Morrison, and I have no recollection of not having mailed this letter that I wrote for him.” The appellee testified: “The only connection with reference to the insurance policy after that was a letter, which was written by my stenographer, the young lady that left the stand awhile ago. I dictated the letter to her. (Witness was handed a letter;) I have examined this letter thoroughly ; I examined it before I turned it over to my lawyer some months ago. This is the identical copy of the letter that the stenographer wrote, the day after I paid them the cash for the property. After the letter was written it was mailed to the Northern Assurance Company. I always keep a copy of letters this way when I write them.” The copy of the letter was properly admitted, and the question of a delivery of the letter or not to Mrs. Phipps was one of fact, and we think the court properly submitted it to the jury for determination. Opet v. Denzer, 93 S. W. 527; Ins. Co. v. Fields, 26 S. W. 280.

5. Complaint is made of the following portion of the court’s charge: “The court erred in charging the jury in substance as follows: The court charges you that mere notification within itself is not sufficient to change the character of the stipulations written by defendant in its policy for the insured, James Day. The law requires notification on one side of the part of the insured and assent to said transfer on the part of the insurer. The court charges you that, if notification is given by the insured and received by the insurer, assent to said transfer will be presumed, unless the insurer or some one authorized to act for it declines to accept the transfer so made.” The criticism of said charge is, first, it placed the burden on appellant to prove that it did not consent to the transfer of the policy; second, that it is contradictory in that in the first paragraph it tells the jury that notice is not sufficient to prove transfer unless assented to by the company, and the second advises the jury notice is sufficient, unless it be shown by the defendant that it did not consent. We are of the opinion that the criticism is not just, and that the charge embraces correct principles of law.

6. There are several assignments presented by appellant complaining of the court’s charge, and its refusal of special charges. None of the assigned errors are well taken. The testimony supports the verdict, and the judgment is affirmed.


source: Caselaw Access Project

author: REESE, J.

license: Public Domain

text:
    DAVIDSON v. LEE et al.
    (Court of Civil Appeals of Texas. Galveston.
    Dec. 13, 1913.)
    1. Appeal and Ebeob (§ 931) — Questions Reviewable — Findings—Absence op Conclusions op Fact.
    In a case tried by the court, in the absence of conclusions of fact, the court on appeal must presume that the conflicts in the evidence on the issuable facts were resolved in favor of the successful party, and that every fact necessary to support the judgment was found by the trial court.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3728, 3762-3771; Dec. Dig. g 931.]
    2. Judgment (§ 883) — Registbation — Effect.
    The effect of the registration of a money judgment is, under Sayles’ Ann. Civ. St. 1897, art. 3289, solely to make the judgment a lien on the property and to give notice thereof, and is not notice thereof to one who takes from the •judgment debtor an assignment of a judgment which he holds against his creditor.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 1669-1688; Dec. Dig. § 883.]
    3. Judgment (§ 883) — Unliquidated Demand.
    A cause of action in tort, in favor of one and against another who had a judgment against the former, cannot be set off against the judgment so long as it is unliquidated.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 1669-1688; Dec. Dig. § 883.]
    4. Judgment (§ 883) — Setting Off Judgments.
    Sayles’ Ann. Civ. St. 1897, art. 4647, providing for the recording of transfers of judgments, or of any cause of action after filing suit, does not apply to a transfer of a one-half interest in a cause of action in tort executed by plaintiff to his attorneys employed to prosecute the action prior to the institution of the suit, and defendant in the tort action, who held a judgment against plaintiff therein, could not, after the rendition of judgment for plaintiff in the tort action, require that the judgments should be set off against each other, and thereby deprive plaintiff’s attorneys of their rights under the assignment.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 1669-1688; Dec. Dig. § 883.]
    6. Judgment (§ 883) — Setting Off Judgments — Assignee’s Rights.
    A judgment is not within Sayles’ Ann. Civ. St. 1897, arts. 308, 309, declaring that the obligee of any nonnegotiable instrument may, by assignment, transfer his interest; and providing that the assignee may maintain an action in his own name, but shall allow every defense against the same which it would have been subject to in the hands of any previous owner before the giving of the notice of the assignment, and a court of equity may set off one judgment against another, where the interests of justice require it, but a set-off will not be allowed against an assignee of an interest in a judgment, where the assignor was not insolvent, and the assignee had no notice of any judgment against the assignor, and where he acted in good faith and paid a fair consideration.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 1669-1688; Dec. Dig. § 883.]
    Appeal from District Court, Nacogdoches County; L. D. Guinn, Judge.
    Action by John P. Davidson against R. H. Lee and others. From a judgment for defendants, plaintiff appeals.
    Affirmed.
    Ingraham & Hodges, of Nacogdoches, for appellant. June C. Harris and King & King, all of Nacogdoches, for appellees.

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

   REESE, J.

On January 3, 1910, John P. Davidson instituted suit in the county court of Nacogdoches county against R. H. Lee to recover money alleged to be due on a contract for rent, and on February 5, 1910, recovered a judgment against Lee for $480, with foreclosure of lien. By a sale of property upon which the lien was foreclosed, $118.65 was realized and credited on the judgment. The balance is still unsatisfied. Abstract of this judgment was filed and registered March 18, 1910. King & King and J. C. Harris represented Lee in this suit as his attorneys. On January 27, 1910, R. H. Lee instituted suit in the district court against Davidson to recover damages for assault and battery upon him by Davidson, and on April 13, 1910, recovered a judgment for $225. On appeal to this court by Davidson, this judgment was affirmed. On January 20, 1910, Lee, by an instrument .in writing, transferred to King & King and J. O. Harris, his attorneys, a one-half interest in his cause of action aforesaid against Davidson and in whatever judgment might be recovered in that suit, which instrument was filed with the papers in the case of Lee v. Davidson on April 15, 1910.- On December 27, 1911, R. H. Lee transferred to W. X. Garrison by an instrument in writing a one-half interest in the said judgment against Davidson, which instrument was filed among the papers of said case on December 29, 1911. The consideration of the transfer to King & King and J. O. Harris was services rendered and to be rendered by them for Lee in prosecuting said action against Davidson. The consideration of the transfer to Garrison of the remaining half of the judgment was $100 paid in cash. An execution was issued upon this judgment against Davidson, and was about to be enforced, when Davidson instituted this suit in the district court against Lee, King & King, J. C. Harris, and W. X. Garrison to enjoin them from the collection of said judgment, and to have set-off against the same, the judgment which Davidson then held against Lee. In addition to the foregoing facts, which were substantially alleged, plaintiff alleged further that Lee was then, and had been since the rendition of the judgment aforesaid against him, notoriously insolvent, and had no property known to him out of which he could make the amount of his judgment, that this fact was well known to the defendants King & King and Harris, and to defendant Garrison at the time of the respective transfers to them, and that they also, and each of them, had knowledge of the existence of his unsatisfied judgment against Lee at the time of the respective transfers. Temporary injunction was issued, and, the ease coming on to be heard without a jury, judgment was rendered dissolving the injunction and in favor of defendants on the cause of action set up. Erom this judgment, his motion for a new trial being overruled, the plaintiff appeals. There are no conclusions of fact or law in the record.

In the absence of conclusions of fact by the trial court, we must presume that all conflicts in the evidence upon every issuable fact were resolved in favor of ap-pellees, and that, if the evidence was sufficient to support such finding, every fact necessary to support the judgment was so found by the trial court.

The evidence upon the issue of ap-pellee Lee’s insolvency was conflicting, but, under the rule stated, we must assume that the court found that Lee was not insolvent now or at the time of the rendition of the judgment against him. King & King and Harris had knowledge, when they took their transfer, of the judgment of Davidson against Lee, and that it was unsatisfied, as they were Lee’s attorneys in the suit. But Garrison denied all knowledge of this judgment when he took his transfer, and we find that he had no knowledge of it. The registration of the judgment was not constructive notice of such judgment to Garrison. The purpose and effect of such registration was solely to make the judgment a lien on Lee’s real property, and to give notice of such lien. Sayles’ Civil Statutes, art. 3289.

The assignments of error present the general proposition that, under the facts shown, the court erred in not allowing appellant to set off against the judgment sought to be enforced against him, his judgment against Lee, as against the claims of the assignees of the judgment. In some of the assignments the special ground of Lee’s insolvency is set up, which is assumed as a basis of the assignment, but, as we have found, this ground cannot be sustained on the facts found.

We think the case as to King & King and Harris, to whom were assigned one-half of the cause of action and of the judgment to be recovered, may be readily disposed of. This cause of action rested in tort, against which appellant’s judgment could not be set off while it was unliquidated, even in the hands of appellee Lee. This was its condition at the date of the transfer to them. They became the owners of one-half of the judgment the moment it was rendered, and there was no instant of time when such judgment liquidating the tort demand, as to such one-half interest, was the property of Lee, and this would be true, even though this transfer, on account of its having been executed prior to the institution of the suit of Lee against Davidson, does not come within the operation of article 4647, Sayles’ Civil Statutes. By. Co. v. Wooten, 10 Tex. Civ. App. 54, 30 S. W. 684; Putnam v. Capps, 6 Tex. Civ. App. 610, 25 S. W. 1024; Smith v. By. Co., 39 S. W. 969.

But the ease as to Garrison presents more difficulty. A judgment does not come within the provisions of articles 308, 309, Sayles’ Civil Statutes, but a court of equity will set off one judgment against another whenever the interests of justice require it to be done. Waterman on Set-Off (2d Ed.) 398; 23 Cyc. 1019. In 2 Black on Judgments (section 954) it is stated that many of the eases sustain the doctrine “that one judgment may be set off against another, although one of the judgments has been assigned to a third person for a valuable consideration and without notice of the existence of the other judgment, provided the right of set-off existed at the time of the assignment.” This would put judgments in the same class as nonnegotiable instruments, under the statute, so far as the right of set-off is concerned. In the same section it is stated that other decisions, without going to this length, hold that such judgments may be set off where one of them was fraudulently assigned for the very purpose of defeating the set-off, and others go no further than to declare that if the assignee has notice of the other judgment he will take subject to the equitable right of set-off, and that still another view is that the equity in question cannot prevail over the assignment, unless the assignee was insolvent at the time of the assignment. Under the facts in this case, and the rules thus stated, the set-off should not be allowed as against the rights of Garrison under the assignment. Lee was not insolvent, Garrison had no notice of the judgment of Davidson against Lee, and there is no suggestion in the evidence that the assignment was fraudulent or made to defeat the right of set-off, so far as Garrison is concerned. He acted in good faith, and paid $100 in cash for the half interest in the judgment. The author proceeds: “But a considerable proportion of the authorities take the broad ground that the right to set off judgments is permitted only where it will infringe on no other rights of equal grade, and further that the assignment of one of the judgments destroys that mutuality which is an essential condition to the right to set off, and consequently that this equity will not be permitted to affect an as-signee for value and in good faith.” This broad rule seems to have been adopted in Dutton v. Mason, 21 Tex. Civ. App. 389, 52 S. W. 651, cited by appellant. In Wright v. Treadwell, 14 Tex. 255, the two judgments grew out of the same transaction, which is remarked by the Supreme Court in McManus v. Cash & Luekel, 101 Tex. 261,108 S. W. 800, as distinguishing the two cases. Notwithstanding the case of Wright v. Treadwell, Garrison having no notice of the judgment of appellant against Lee, Lee not .being shown to have been or to be insolvent, and Garrison having purchased in good faith and paid value, we think that his equities are superior, or at least equal, to those of appellant, and that the court rendered the proper judgment. Beard v. Puett, 105 Ind. 68, 4 N. E. 671; Pheiffer v. Harris, 11 Bush (Ky.) 400; Rowe v. Langley, 49 N. H. 396; Davidson v. Geoghagan, 3 Bibb (Ky.) 233; Ramsey’s Appeal, 2 Watts (Pa.) 228, 27 Am. Dec. 301.

We have examined the assignments of error together with the propositions stated in appellant’s brief and conclude that none of them presents any ground for reversal, and the judgment is affirmed.

Affirmed.


author: HENDRICKS, J.

text:
    POWER v. FIRST STATE BANK OF CROWELL.
    (Court of Civil Appeals of Texas. Amarillo.
    Dec. 13, 1913.
    On Motion for Rehearing, Jan. 10, 1914.)
    1. Affidavits (§ 11) — Authority to Take-Attorney foe Paety.
    An affidavit for a writ of sequestration was not defective because it was sworn to before plaintiff’s attorney as a notary public.
    [Ed. Note. — For other cases, see Affidavits, Cent. Dig. §§ 43-45; Dec. Dig. § 11.]
    2. Sequestkation (§ 12) — Affidavit—Requisites.
    An affidavit for a writ of sequestration was not fatally defective because it did not allege that the ground stated therein was within affiant’s knowledge true and correct.
    [Ed. Note. — For other cases, see Sequestration, Cent. Dig! §§ 11-16; Dec. Dig. § 12.]
    3. Sequestration (§ 12) — Affidavit — Defects — Remedy.
    ■ Where plaintiff, to obtain a writ of sequestration, made affidavit to the matter stated in the státute as grounds for the issuance of the writ, the fact that the affidavit did not recite that the ground alleged was true and correct within affiant’s knowledge was not ground for suppression of the sequestration, though want of truthfulness was available in reconvention for damages.
    [Ed. Note. — For other cases, see Sequestration, Cent. Dig. §§ 11-16; Dec. Dig. § 12.] -
    4. Juey (§ 25) — Right to Juey Trial — Issues — Discketion.
    Defendant on the evening of Wednesday demanded á jury trial, which the court granted on payment of the jury fee, provided all the parties were ready for trial before the jury for the week was discharged, otherwise the case should remain on the appearance docket and the jury fee be returned. On the next morning, when the case was called, the court entered in the docket a recital that it appeared that no answer had been filed, that defendant the day before had handed to plaintiff’s attorney the answer that he had prepared, but that such attorney had not time to examine the same and file any reply, and that there were exceptions to dispose of which would probably consume the entire day, whereupon the jury was discharged. Held, that refusal to accord defendant a jury trial under such circumstances was not an abuse of the trial court’s discretion.
    [Ed. Note. — For other cases, see Jury, Cent. Dig. §§ 154-173; Dec. Dig. § 25.]
    5. Bides and Notes (§ 489) — Issues—Peoof —Yaeianoe.
    Plaintiff brought suit on a note secured by a chattel mortgage which, as alleged in the petition, was dated August 1, 1912, and described the note as providing for 10 per cent, attorney’s fees. The mortgage when offered in evidence was in fact dated August 3, 1912, and the note called for 20 per cent, attorney’s fees. Held, that the variance was not so material as to require the exclusion of the mortgage when offered in evidence.
    [Ed. Note. — For other cases, see Bills and Notes, Cent.Dig. §§ 1587-1642; Dee.Dig. §489.]
    6. Evidence (§ 143) — Relevancy— Satisfied Mortgages.
    Where plaintiff borrowed money from a bank with which to purchase a printing plant, which was mortgaged, and the bank paid off the mortgages with the proceeds of the loan, evidence as to the mortgages was immaterial in an action by the bank to recover its debt.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 424, 426^28; Dec. Dig. § 143.]
    Appeal from District Court, Foard County; J. A. Nabors, Judge.
    Action by the First State Bank of Crowell against W. L. Power. Judgment for plaintiff, and defendant appeals.
    Affirmed. Rehearing denied.
    Jas. A. Stephens, of Benjamin, for appellant. G. W. Walthall, of Crowell, for appel-lee.

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

   HENDRICKS, J.

The appellee, the First State Bank of Crowell, instituted this suit in the district court of Foard county, Tex., against W. L. Power, the appellant, on a certain promissory note for the sum of $705.15, and to foreclose a chattel mortgage on a certain automobile; and at the time of the institution of the suit the appellee procured the issuance of a writ of sequestration, which was executed by the sheriff, who took possession of the automobile under said writ, which was replevied by the appellant (defendant in the court below) within the time prescribed by law. The appellant specially pleaded that the consideration for the note was a certain printing plant, which, at the time of the transfer to appellant by said bank, there existed a valid chattel mortgage upon the property, and further alleging that the engine of said printing plant was not as represented and was of no value, pleading that the writ of sequestration was wrongfully sued out for the purpose of harassing and annoying him, and that the grounds alleged in the affidavit for the writ of sequestration were untrue, praying for actual damages in the sum of $25 for the detention of said car, and for the sum of $500 as exemplary damages.

First. The appellant, by its first assignment of error and propositions thereunder, attacks the affidavit for the writ of sequestration upon two grounds: First, that said affidavit is insufficient and void, for the reason that the same shows to be sworn to by the agent R. R. Waldrop before G. W. Wal-tliall, a notary public, and that the latter was the attorney for the appellee at said time, and not authorized under the law to administer the oath to plaintiff’s agent; second, appellant says that the affidavit is insufficient in that the same shows on its face to be sworn to by R. R. Waldrop, agent, and the same does not state that the ground set forth in said affidavit is, within the knowledge of the affiant, just, true, and correct.

As to the first criticism of the appellant, with reference to the affidavit for sequestration, on the ground that the attorney is incapacitated to administer the oath to affiant, we are unable to find any authority in this state bearing upon this matter, applicable to affidavits for writs of sequestration, and appellant has referred us to none, but we refer to the well-considered case, decided by Chief Justice Fisher, Kosminsky v. Raymond et al., 20 Tex. Civ. App. 702, 51 S. W. 51, where the question of the sufficiency of the affidavit for garnishment made by the client before his attorney in the cause was sustained. In that cause Judge Fisher considered the cases holding that an attorney, as notary public, could not take the acknowledgment of a married woman to a deed, who at that time was his client, nor take the depositions of witnesses to be used in cases in which he may be an attorney for either of the parties. He argued that, with reference to the acknowledgment by the married woman before her attorney, there was an exercise of some discretion in passing upon the facts authorizing such acknowledgments to be made, and that an attorney interested in the case, of course, should not be permitted to take depositions of witnesses to be used on the trial; the policy of the law forbidding such can be readily seen. “But the work of swearing a party to the truth of the contents of a paper, and officially testing the same, is ministerial in character, and involved the exercise of no judicial labor or of its discretion,” and Judge Fisher refers to the case of Ry-burn v. Moore, 72 Tex. 86, 10 S. W. 893, decided by the Supreme Court, where it was held by the Supreme Court that an affidavit of inability to give security for costs was not invalidated “because it was made before one of the attorneys of the plaintiff, who was a notary public,” and the reference to which, upon consideration of that opinion, is fully sustained.

As to the second ground, to the effect that it is not stated that the ground set forth in the affidavit is not, within the knowledge of the affiant, true and correct, we are not able to find any authority condemning an affidavit upon that ground in this character of cause, and the statute does not contain any prescription of that character, as a part of the affidavit, or as a prerequisite to the issuance of the writ.

He swears to the matters stated in the .statute as grounds for the issuance of the affidavit, and, while it may be attacked of course as to their truthfulness in reconvention for damages, we think a motion based upon the lack of such a recitation in the affidavit is entirely inappropriate and not a ground for the suppression of the sequestration.

Second. The appellant complains that the trial court erred in refusing him a jury trial in this cause, and the bill of exceptions addressed to this particular matter discloses the following condition, as indicated by the bill and the explanation appended by the trial judge: The appellant, defendant in the trial court, demanded a jury as expressed by the trial judge on the evening of Wednesday, April 2, 1918, and the court upon this application made the following memorandum on his appearance docket, where said cause was docketed: “Jury asked and granted on payment of jury fee and provided all parties are ready for trial before the jury for the week is discharged; otherwise this case is t© remain on this docket (the appearance docket), and the jury fee, if paid, to be returned.” The court further said: “When the case was called Wednesday morning, it appeared that no answer by the defendant had been filed in the case; that the defendant the day before had handed to plaintiff’s attorney the answer he had prepared, but that said attorney had not had time to examine the same and file any reply; that there were exceptions to dispose, of, and that the chances were that the entire day would be consumed in these pleadings and presentations of exceptions, whereupon the court discharged the jury.” We presume that the court meant Thursday morning when he used the language, “when the case was called Wednesday morning,” for the reason, as we understand it from the record, the case had not been called for trial earlier than Thursday. Appellant says in his brief: “The case was not reached for trial and could not have been called for trial before Thursday, at which time there was a regular drawn jury in attendance upon the court, and the demand being made, and the jury fee being paid on Wednesday preceding.” If our construction of this record is correct, the status of it is that the defendant had filed no answer upon appearance day and had none on file upon Thursday morning when the court called the case for trial. It is true the record discloses that he had handed an answer the day before to the appellee’s attorneys, and there seems to have been some indulgence by the court as well as appel-lee’s attorneys, with reference to this matter. The court said that the attorney had. not time to examine the appellant’s answer and file a reply. If there was any delay with reference to the work of the cojfrt applicable to this particular case, the defendant or his attorney, in so far as this record exhibits the matter, was at fault. Chief Justice Stayton, in the case of Cabell v. Shoe Co., 81 Tex. 107, 16 S. W. 811, said: “District courts are required to fix a day for taking up jury cases; * ⅜ * clerks are required to keep a jury docket and thereon to place cases, under the order of the court, when the jury fee is paid. * ⅜ * And, whenever the failure to make this payment is delayed for such time as to materially affect the rights of the parties or to interfere with the orderly conduct of the 'business of the court, a jury trial ought to be refused.” We are inclined to think that the second ground for refusing a jury trial may become a material one in some cases with reference to the orderly administration of the business of a court by a trial judge. This jury was demanded late in the day preceding the day when the cause was called for trial, actuating the court to place the order he did upon the appearance docket. The next morning, with the jury still in attendance, the case was called, the remaining jury business for the week finished, no answer on file by the defendant, and evidently the delay of the defendant in the preparation of his answer prevented the expedition of the trial of this case. This bill of exceptions was evidently prepared and allowed at the time the jury trial was refused, and the court must have been guided by the lights then before him with reference to the administration of his business, and the trial of this particular cause, and thought that considerable time would be consumed in the pleadings and presentations of exceptions. His opinion with reference to this matter may have been incorrect, as it seems that thereafter the cause was presented to the court and tried upon that day, Thursday, the 3d of April, 1913, but the cause not having been ready for trial, it is hard to tell how long is consumed with reference to these matters, and a trial court naturally obtains his opinion from the statements of the attorneys with reference to the pleadings and the issues involved. Of course it may be possible that this cause could have been tried before the jury as quickly as before the court; hardly probable, however, when you take into consideration the examination of jurors, arguments of counsel, and' the consideration of the cause by a jury, all of which, however, is to some extent speculative. We are not advised, of course, how many jurors were impaneled— whether 24, 36, or simply 12 necessary to try the ease. Where a litigant does not call for a jury upon appearance day, and the record indicates delay upon his part with reference to the presentation and filing of his pleadings, and on that account the cause is not ready for trial then the case is regularly reached on the appearance docket, not having been placed upon the jury docket on account of the condition made by the trial court, and the trial court on that account, having in view the matter of expense to the counties and the expeditious dispatch of business, refuses a demand for a jury, we are inclined to think that the same does not constitute an abuse of discretion. It may be that the court’s judgment, with reference to the time-to be consumed in the administration of business in the light of subsequent events, was incorrect. However, we think in this matter that it is very probable that the cause would', have gone into the next day upon trial before a jury, at a cost of $2 per day per juror brought aboht, in so far as this record discloses, by the negligence of the defendant with reference to his pleadings.

Third. Appellant complains of the action of the trial court in admitting in evidence the chattel mortgage for the reason of a variance in this: That the mortgage-was of a different date than that of the note and described the note providing for 10--per cent, attorney’s fees, when the note in-question provided for 20 per cent, attorney’s fees, and also claiming that the description of the property was insufficient to-permit in evidence said instrument. It seems that the mortgage, as alleged in plaintiff’s-petition, was dated August 1, 1912, and the mortgage, introduced in evidence was dated August 3, 1912. The note called for in the mortgage was a note calling for 10 percent. attorney’s fees, and the note introduced, in evidence called for 20 per cent, attorney’s fees. The assignment is addressed entirely to the introduction of the mortgage in testimony, and not to the introduction of the note. The Supreme Court said in the case of Washington v. First National Bank of Den-ton, 64 Tex. 6: “The misdescription was not such as intended to mislead or surprise the-adverse party, and hence it was properly disregarded by the court. McClellan v. Smith, 3 Tex. 210; Hays v. Samuels, 55 Tex. 560.” There was no surprise in this case. The case-of Trabue v. Stonum, 20 Tex. 454, involved a variance to this extent: The note set out in the petition was alleged to have been dated January 3, 1855, and to be due March 1,, 1855, and the note introduced in evidence-was really dated Januáry 3, 1856, and matured March 3, 1856, and Judge Roberts said: “If the writing produced be clearly not the instrument set out in the petition, it would be the duty of the court to not permit it to be the foundation of any assessment by the clerk. In judging of this, however, the court should not have reference to any mere clerical variance or other matters by which the rights of the parties would not be-materially affected,” the Supreme Court sustaining the judgment rendered by default in that cause. It is unnecessary for us to cite-authorities, which are numerous, upon this-question that the variance should be a material variance with reference to the difference between the pleadings and the instrument.

Fourth. The appellant complains that the court erred in refusing to permit the defendant to introduce in evidence a certain chattel mortgage which had been executed.. and recorded upon the printing plant, which constituted the consideration for the note sued upon. The evidence conclusively shows that the chattel mortgages on the property were paid oft by the bank.

Fifth. There is complaint made that the court should not have rendered judgment for the full amount sued for, and erred in refusing to consider defendant’s damages on the ground that the undisputed evidence shows that the writ of sequestration was issued without probable cause, and that the grounds set forth in the application for said writ were untrue. Upon consideration of the testimony stated in appellant’s brief, claimed to be applicable to this proposition, we do not think the proposition is tenable, and, when we go to the record for a fuller development of the testimony, we are inclined to think the testimony is in such condition addressed to the court upon an issue of fact, as to exclude the $25 actual damages and the exemplary damages contended for.

Finding no error in this record complained of in appellant’s brief, we affirm the judgment, and it is so ordered.

On Motion for Rehearing.

Appellant, with reference to its assignment complaining of a denial of a trial by a jury, insists that this court misconstrued the record as to the fact of his negligence, in not filing an answer within the time prescribed by law, and which we held was a condition contributing to the action of the trial court in discharging the jury, and further insists that his answer was handed to ap-pellee’s counsel on Tuesday, the appearance day of court, and that the mere omission to file the answer on that day should not be charged against him. Our position in the matter was based upon the failure to present the answer, and not on the omission to file on Tuesday, and which entered into the action of the court.

The body of the bill of exceptions, excluding the explanation appended by the trial judge, says that the jury was in attendance upon the court Wednesday, when the jury fee was deposited with the clerk, and the jury “remained until Thursday, and was in court when said case was called on Thursday, which was the first day said ease could be reached or was reached or called for trial.” The trial court, in his explanation, stated that late the evening before, on Wednesday, the appellant requested the cause to be placed on the jury docket, which was granted, provided that all parties were ready for trial before the jury was discharged, otherwise to remain on the appearance docket, and the jury fee, if paid, was to be returned ; added to this the appellant says in his brief that the case was not reached and could not have been called for trial before Thursday. The court further says in his explanation that, when the “case was called Wednesday morning,” the defendant’s answer having been handed to plaintiff’s counsel the day before, and said attorney not having had time to examine the same and file any reply, and for other reasons mentioned in the bill, that “whereupon the court discharged the jury.” It is upon the statement in the bill made by the court, “when the case was called Wednesday morning” (the answer having been handed to plaintiff’s attorney the day before), appellant deduces his conclusion that the record shows he handed the answer to appellee upon Tuesday, appearance day, and hence he did, in substance, what the law required him to do. When the main body of the bill of exceptions, presumably prepared by appellant, recites that “Thursday” was the first day the cause “could be reached or was reached or called for trial,” and when appellant says in his brief that the cause was not “reached for trial and could not have been called before Thursday,” and the bill further showing that the court discharged the jury at the time and upon the day he called the case for trial, we think it a fair and reasonable construction that, when the-court used the language, “when the case was called Wednesday morning,” and said that, on account of certain conditions then existing, and according to the lights then before him, he believed other conditions would exist to delay the trial and thereupon discharged the jury, that the court meant to say that he did this “when the case was called Thursday morning,” and could not have meant anything else. The court surely did not take this action Wednesday morning before appellant requested a jury Wednesday evening; appellant himself says the jury was in attendance Thursday; hence we think it clearly in-ferable that it was Wednesday and not Tuesday appellant handed his answer to ap-pellee, on account of which the court says, when he called the ease upon Thursday,-ap-pellee’s counsel had not had time to examine and file a reply thereto, which, as a supplemental petition, constitutes seven and one-half pages in this record with numerous exceptions and filed on Thursday, evidently after the court had discharged the jury. As stated, the court recites at the time the case was called for trial appellee’s counsel had not had time to prepare and file said reply. A trial by a jury is not wholly an arbitrary right. When the trial court discharged this jury, based upon a condition and a delay then confronting him, and other conditions believed by him to exist, and produced by appellant, and exercising his discretion according to the conditions then presented, we are unable to say there was an abuse of discretion, and that appellant was improperly denied a jury. The motion for rehearing is in all things overruled.


author: WILLSON, C. J.

text:
    JONES v. WALKER COUNTY LUMBER CO.
    (Court of Civil Appeals of Texas. Texarkana.
    Dec. 10, 1913.
    Rehearing Denied Jan. 8, 1914.)
    1. Master and Servant (§ 129) — Injuries to Servant — Defective Appliances — Proximate Cause.
    Plaintiff, a log buncher, was employed by defendant in the woods to drag logs into bunches for convenient loading, the work being' done by skidding tongs, to which a team was attached. The tongs furnished plaintiff were defective, so that they would not always hold the log when applied. He testified that he put the tongs on a log, and, after properly setting them, stepped aside to a suitable place where there was no danger, and when he started the team he was struck by a pole, but did not know whether the log rolled on the pole or was already on it when he started the team. Held, that the • employment of the pole and not the defective character of the tongs was the proximate cause of the injury.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 257-263; Dec. Dig. § 129.]
    2. Master and Servant (§ 221) — Injuries to Servant — Defective Tools — Assumed Risk.
    Where a servant had been furnished defective tongs with which to conduct logging operations in the woods, and had been promised new ones by his foreman on making complaint, but the foreman’s promise to furnish new ones prior to the servant’s injury had not induced him to continue in the employment with full knowledge of the danger, he assumed the risk.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 638-640, 642-645; Dec. Dig. § 221.]
    Appeal from District Court, Sañ Jacinto County; S. B. Hightower, Judge.
    Action by A. J. Jones against the Walker County Lumber Company. Judgment for defendant, and plaintiff appeals.
    Affirmed.
    Wm. McMurrey and F. O. Fuller, both of Cold Springs, and R. J. McMurrey, of Ana-huac,. for appellant. J. V. Lea, of Houston, J. M. Hansbro, of Cold Springs, and Crook, Lord, Lawhorne & Ney, of Beaumont, for appellee.

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

   WILLSON, C. J.

Appellant, plaintiff below, was a “log buncher” for appellee. In his petition appellant alleged that his duty as such log buncher “consisted of dragging logs into bunches for the convenience of defendant’s (appellee’s) carts and wagons in loading said logs; that he bunched said logs by engaging them at one end with a tool known as ‘skidding tongs,’ which was fastened to a pull chain by which means the log was drawn by a team of horses.” His contention was that he was injured as the result of the failure of defendant to exercise ordinary care to furnish him a reasonably safe pair of “skidding tongs” to use in bunching logs. After hearing the evidence, the court instructed the jury to return a verdict in favor of appellee, and, the jury having returned such a verdict, rendered judgment that appellant take nothing by his suit.

As described by appellant, testifying as a witness, the tongs in question in some respects were like common pothooks. They were made of two pieces of iron or steel, curved, crossing each other near the top ends thereof, and, riveted together where they crossed each other. At the lower extremity of each of the curved prongs was a hook sharpened to a point, so it would take hold of a log. Logs were dragged by means of a chain attached to the other ends of the prongs. The effect of force applied to these ends was to draw the other ends, when attached to a log, towards each other, so that the greater the force applied the more secure was the hold of the tongs on the log. Appellant testified that the manner of using tongs in good condition was to attach them to a log by hand, and then move to one side before starting the horses to pulling. The tongs in question, he said, had become so sprung that frequently they would -not hold the log when so applied, and it then became necessary, as it did on the occasion when he was hurt, to hold them in place with his hands until the horses pulled on them hard enough to set the points thereof securely in the log. Appellant was injured as the result of a blow from a pole, moved by a log as it was being dragged by the horses. His account of the accident was as follows: “I put them (the tongs) on a log, and, after turning the log loose and properly setting them on there, I stepped out, of course, to a suitable place where there was no danger, and they turned the log loose, and of course I had to step up there and pick those tongs up and place them there, and after putting them there then my team tightened up to catch hold of the log, and when I went to get out of the way I discovered that pole. I don’t know whether the log was already on it or whether the log rolled on it, but^anyway the pole struck my leg and broke it before I could get out to a place of safety.”

In determining whether the court should have instructed the jury as he did or not, the first question to be considered is, Did the testimony make an issue for the jury as to whether appellee had been guilty of negligence as charged or not? The testimony was . sufficient to show that the tongs were defective, but we do not think it was sufficient to support a finding that the defect was the proximate cause of the accident resulting in the injury to appellant of which he complained. The defect in the tongs had nothing to do with the movement of the pole which struck him. The pole would have moved as it did had the tongs been without a defect. Appellant does not question this, but says that but for the defect it would not have been necessary for him to hold the tongs until the horses commenced to pull thereon, and that, if it had not been necessary for him to so hold the tongs, he would have been at a point far enough away from the log to have escaped injury by the movement of the pole. That may be true; but still the fact was that the movement of the pole was the efficient cause of his injury, and it conclusively appeared that the movement of the pole was not in any way due to any act or omission on the part of appellee. Therefore, on the ground that it appeared that the negligence of appellee complained of was not the proximate cause of the accident, we think the court should have peremptorily instructed the jury as he did.

And for another reason suggested by the testimony, we think the action of the court was not erroneous. Appellant was of mature age, had worked as a log buncher during 23 years of his life, and knew all about the danger involved in such work. He knew the tongs were defective, and on the day before he was injured had reported the fact to his foreman, one Byrd. The rule applicable to such a state of facts has been stated to be: “If a servant knows of the danger in prosecuting the master’s work, or if it is so patent that an ordinarily prudent man would have seen it, and he continues in the employment without complaint, or without assurance by the master that the danger will be lessened or obviated, he cannot hold the master liable for injuries received in such employment, and the rule is the same with respect to those risks which first arise or become known to the servant during the service as to those in contemplation at the original hiring.” 20 A. & E. Enc. Law, p. 124. Appellant insists his ease is not within the rule, but within a qualification of it as follows: “If the defects grow out of the want of ordinary care and vigilance on the part of the master in providing or maintaining the appliances, and are not so serious but that with care and prudence the appliances may be safely used, and at the request of the master the servant continues to use them and is injured, notwithstanding the exercise of care and prudence, he may hold the master liable.” 20 A. & E. Enc. Law, p. 126. In support of his contention, appellant refers to his testimony as a witness showing that, when he notified the foreman of the defect in the tongs, the foreman told him “to go ahead with them, that he would supply him [me] with a new pair as quick as he could get them out from the mill, that he was expecting them every day.” If that was all the record showed with reference to this phase of the ease, and if it appeared that an issue as to negligence vel non on the part of ap-pellee was made by testimony, appellant’s contention that his case should have gone to the jury would be meritorious. Appellant was the only witness, and he further testified as follows: “They [appellee] were supposed to furnish the men with tools to work with. If a fellow has got tools he needs, and they are all right, his foreman would not know anytlpng about it. He turns them in and he notifies him for the purpose of getting a tool repaired so he could do good work with it That is not the reason I told Mr. Byrd. I knew — well, there was danger as far as that is concerned. In that work there is some danger. As to my knowing that all of the time, well, there is danger anywhere in the woods. Everybody knows that. When those tongs would get out of repair, whoever was using them was supposed to report them to the foreman, and the foreman would bring them out another pair. I asked him to bring me another pair on this occasion because they had always done it and that was the custom. I did not say to Mr. Byrd: ‘You furnish me a pair of tongs or I will quit.’ I did not have to quit. I did not consider it so dangerous that I was going to quit. He promised to fix it. Why, if he had told me he would not get me any other or fix them either, I don’t suppose I would use them. I told him I wanted another pair of tongs, and he said ‘All right.’ I knew he was going to give me some other tongs. Oh, no; I did not have in mind that was a dangerous thing. * * * I did not tell Byrd that I was figuring on quitting if he did not fix the tongs for me, and I did not have that in mind at all. I did not tell Byrd anything about quitting at all. That was not considered, as it did not enter my mind at that time. As to whether I was simply turning in the tongs because they got loose in the rivets, well, they were getting worn and they needed going to the shop to get fixed. They needed the blacksmith hold of them. I could not handle as many logs and not as often with them. I wanted tools to handle my work properly and easier for me. That is why I reported them in bad condition, because I wanted them for good work. * * * I wanted tongs to handle the logs with less trouble to myself and less work on the team, too. It is a heap of trouble to back up your team, and works them. That is the reason I wanted the tongs, so I could do that.” The testimony quoted, considered as a whole, we think brings appellant’s case within a qualification of the rule he invokes, applied by the court in T. & P. Ry. Co. v. Nichols, 41 Tex. Civ. App. 119, 92 S. W. 411. That qualification has been stated as follows: “In order that the rule stated shall apply, it is necessary that the promise made by the master should have been the cause which induced the servant to continue in the employment. If for any other reason the servant continues in the employment, the master is not liable for the injuries received therein.” 20 A. & E. Enc. Law, p. 128. The application of the qualification stated is illustrated in the Nichols Case referred to and others cited in a note to the quotation made from the encyclopedia mentioned. It was applied in Bod-well v. Nashua Mfg. Co., 70 N. H. 390, 47 Atl. 613, where the Supreme. Court of New Hampshire said: “The promise to repair was not shown to have any connection with the plaintiff’s continuation in the employment. ‘No case,’ said the court in Lewis v. Ry. Co.,' 153 Mass. 73 [26 N. E. 431, 10 L. R. A. 513], ‘has gone so far as to hold that, where the servant does not complain on his own account, and continues in his employment with full knowledge of the risk, he can recover of the master, because the latter, when the defective condition was called to his attention by the servant, gave assurances, which did not induce the servant to remain, that the defect should be remedied.’ ”

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


author: FLY, C. J.

text:
    SAN ANTONIO TRACTION CO. v. CRISP.
    (Court of Civil Appeals of Texas. San Antonio.
    Dec. 20, 1913.)
    1. Damages (§ 100) — Personal Injuries— Measure oe Damages — Loss oe Earning Capacity.
    Where a person sustaining a personal injury had gone into the saloon business because it was easier and more lucrative than working at his trade as a carpenter, and only resorted to the carpenter’s trade to recoup his broken fortunes to enable him to re-enter the saloon business, his lessened earning capacity, in awarding damages, must be tested in connection with his occupation as a saloon keeper.
    TEd. Note. — For other cases, see Damages, Cent. Dig. §§ 237-241; Dec. Dig. § 100.]
    2. Damages (§ 132) — Personal Injuries— Excessive Damages.
    A saloon keeper was thrown to the ground while attempting to alight from a street car, and his left hand and shoulder were injured. The third finger was crushed in part, and the second and third fingers were stiffened so that the grip of his hand was much impaired. He suffered great pain. He had no extra bartender in his saloon except for about two months. He had an extra porter since the accident. Held, that a verdict for $12,650 was excessive and must be reduced to $6,000.
    [Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 372-385, 396; Dec. Dig. § 132.]
    3. Trial (§ 315) — Mode of Reaching Verdict-Personal Injuries — Damages.
    Where ten of the jurors desired to award to plaintiff suing for a personal injury $15,000, the full amount claimed in the petition, and thereafter the jurors found the average of the amount each desired to give to be $12,638, and then, for the sake of good measure, made the verdict $12,650, the facts indicated a disregard of the fights of defendant, and a prejudice against him warranting the reduction of the verdict.
    . [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 740-742; Dec. Dig. § 315.]
    Appeal from District Court, Bexar County; R. B. Minor, Judge.
    Action by J. T. Crisp against the San Antonio Traction Company. From a judgment for plaintiff, defendant appeals.
    Conditionally affirmed.
    Templeton, Brooks, Napier & Ogden, of San Antonio, for appellant. James Rout-ledge and J. R. Norton, both 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 growing out of personal injuries inflicted upon appellee through the negligence of ap-pellait. The cause was tried by jury, resulting in a verdict and judgment for ap-pellee in the sum of $12,650. The facts indicate clearly that appellee was injured through the negligence of appellant.

The facts in this case are that on the night of January 7, 1912, appellee, who was riding in the front vestibule of a street car with his dog, a suit case and some birds he had killed, attempted to get off the ear at the corner of Market street and Main plaza in San Antonio, and, just as he started to get off, the car was moved with a jerk that threw him to the ground and hurt his left hand and shoulder. The bone of the third finger in the middle of the left hand, above the knuckle, was broken by the fall. The second and third fingers were stiffened by the breaking of the bone of the third finger, so that the grip of the hand is much impaired. The condition of the hand is permanent. The bone of the third finger was crushed into fragments for about an inch. He suffered great pain from the wound. Appellee is a saloon keeper, and had no extra bartender in his saloon, except for two months and three days. He has had an extra porter since the accident. He had one regular bartender before the accident, and had only one after two months from the accident. Ap-pellee’s wife testified: “After the accident, Mr. Crisp was walking around all the time, he spent some time of the next day at his place of business, I think — he looked after his business — and I think he went to his business every day following the accident.” About two weeks after the accident, appel-lee went to Refugio county on business, and when he got back he struck a man with his right hand. Appellee was at one time a carpenter and contractor, but for three years had been in the saloon business. Appellee went into the saloon because he thought it easier and more lucrative than working as a carpenter or contractor. There was no testimony 'tending to show that he ever intended to return to the carpenter’s business. He was an experienced saloon man before he opened his business in San Antonio. He went back to the carpenter’s business after he broke in the saloon business in Milwaukee. He stated: “I have been working at the carpenter trade since I was 18 years old. I worked at it after I went broke in Milwaukee, I went back to Glasgow; and as soon as I got back on my feet I jumped back into the saloon business.”

Under the facts of this case, appellee’s lessened earning capacity must be tested in connection with his occupation as a saloon keeper. After he has forsaken an occupation, it cannot he applied as the test for his earning capacity. His favorite occupation seems to be the saloon business, the carpenter’s trade being used merely as a means to recoup his broken fortunes so as to enter the saloon business. However that may be, the verdict for $12,650 is such as to shock the mind and conscience of a court, and clearly indicates prejudice upon the part of the jury. Whether he should be considered saloon keeper or carpenter, the verdict is unconscionably large, and cannot be permitted to stand. While the peculiar facts of •each case must govern in fixing the amount of damages, and precedents have but little authoritative value, still the judgment of courts in similar cases should at least be 'persuasive and of some assistance in arriving •at a proper conclusion. In the case of Railway v. Turney, 33 Tex. Civ. App. 626, 78 S. W. 256, the injuries were very similar to those in this ease. In that case the two middle fingers of the right hand were stiffened, as are the two middle fingers of the left hand in this ease. The capacity of the appellee to perform his work in that case was decreased fully as much as the capacity of the appellee in this case. The appellee in that case suffered as much, if not more, than the appellee in this case, and- yet in that case this court required a remittitur of $1,000 from a $5,000 verdict. The cited case was decided about ten years ago, and we are aware' that much larger verdicts are approved now than at that time, which is justified; perhaps, by the increased cost of living and the diminished purchasing power of money, but if a verdict for $4,000 was with difficulty affirmed ten years ago for two stiffened fingers on the right hand, a verdict for $12,650 for two stiffened fingers on the left hand should not be countenanced. There has been no such increase in the earning power of men or in the cost of living as would justify any such ver-dict.

It is rarely the case that a party seek•ing damages for personal injuries has the faintest expectation of recovering the maximum amount named in the petition. The high sum usually alleged is intended merely to form a basis for such damages as may be proved. In this case, however, in spite of the fact that there was no basis iii the evidence for a verdict for the $15,000 claimed in the petition, there were ten of the jurors who favored a verdict for every cent claimed by appellee, and that sum was made to affect •the verdict by an average being struck between the sums desired by the ten, and the lower ones desired by the remaining two .jurors. After they found the average to be $12,638, they then, for the sake of good measure, put in $12 so as to make it $12,650. The very fact that ten of the jurors on the first ballot desired to find the limit claimed, under the facts, showed prejudice against appellant. While the excess in the verdict was largely increased by the prejudiced undertaking on the part of some of the jurors to give appellee all demanded in the petition, which was used in striking an average, the jurors testified that they did not bind themselves to abide by the amount found after adding all the sums and dividing by 36. This is evidenced by the fact that, after the result had been obtained, $12 was added for appearance’s, if not conscience’s, sake. The reason for adding the $12 was $12,638 “would look funny, look ridiculous.” These circumstances indicate an utter disregard of the rights of appellant; still the verdict was not arrived at by lot.

If a remittitur of $6,650 is entered by ap-pellee within ten days,' the judgment will be affirmed for the amount remaining; if not, it will be reversed, and the cause remanded.


text:
    FAVORITE OIL CO. OF BEAUMONT & CLEBURNE et al. v. JEF CHAISON TOWNSITE CO.
    (Court of Civil Appeals of Texas. Galveston.
    Dec. 8, 1913.)
    1. Corporations (§ 630) — Stockholders — Right to Sue.
    Though, since the action of the Secretary of State, under Rev. Civ. St. 1911, art. 7399 (Sayles’ Ann. Civ. St. 1897, art. 5243i), in forfeiting, for failure to pay franchise tax, the right of a corporation to do business did not dissolve the corporation, but only suspended its powers, the directors could not, under Rev. Civ. St. 1911, art. 1206 (Sayles’ Ann. Civ. St. 1897, art. 682), providing that, upon the dissolution of a corporation, unless a receiver is appointed, the directors shall become trustees of the property for the stockholders and creditors, etc., sue as such trustees to set aside a void judgment against the corporation, yet they could maintain 'such action in their capacity as stockholders, not because of- the refusal of the corporation to.sue, but because of its incapacity caused by the forfeiture of its right to do business, since, if the stockholders could not sue, the corporation would be powerless to protect its rights and property.
    [Ed. Note. — For other eases, see Corporations, Cent. Dig. §§ 2482-2486; Dec. Dig. § 630.]
    Appeal from District Court, Jefferson County; R. G. Street, Special Judge.
    Action by W. E. Waggoner and others, stockholders and directors of the Favorite Oil Company of Beaumont & Cleburne, against the Jef Chaison Townsite Company. Judgment for defendant, plaintiffs appeal.
    Reversed and remanded.
    F. J. & C. T. Duff, of Beaumont, for appellants. Watts & Wheat and Dougherty & Gordon, all of Beaumont, for appellee.

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

   REESE, J.

-The plaintiffs in this action, W. E. Waggoner and eight others, allege that they are stockholders of the Favorite Oil Company of Beaumont & Cleburne, that on May 6,1904, said corporation became defunct underhand by virtue of tbe laws of tbe state of Texas, by reason of having failed to pay tbe franchise tax for wbicb it was liable, and was so declared by the Secretary of State, and 'that tbe said persons were also tbe duly elected and qualified board of directors of said corporation at tbe time of tbe forfeiture so declared by tbe Secretary of State. They sue for themselves and as trustees for tbe stockholders and creditors of the Favorite Oil Company aforesaid, and for the said corporation. The purpose of the suit is to set aside and cancel a certain judgment against the said Favorite Oil Company in favor of the defendant Townsite Company, for the title and possession of a certain tract of land, alleging that said judgment was obtained without legal service of citation or other notice upon the oil company, in consequence of which tbe court was without jurisdiction to render said judgment. The trial court sustained a general demurrer to the petition, on the ground, as stated in the judgment, that the action of tbe Secretary of State did not have tbe effect of forfeiting the charter of the oil company, but only of its right to do business, operating only to suspend the corporate powers of the oil company, and that it did not operate a dissolution of tbe oil company so as to cast the legal title to the property in controversy upon the plaintiffs “as trustees for the stockholders and creditors, and thereby enable them to sue as trustees.” The plaintiffs declined to amend, and the case was dismissed. Plaintiffs appeal.

It seems to have been appellants’ idea that the action of tbe Secretary of State, in forfeiting its right to do business for failure to pay its franchise tax, under tbe provisions of article 5243i, Sayles’ Civil Statutes (article 7399, R. S. 1911), bad the effect to dissolve the corporation, and to bring its affairs under the operation of article 1206, R. S. 1911 (article 682, Sayles’ Statutes), by the provisions -of which the president and board of directors in office at the time of such dissolution become trustees for the stockholders and creditors, with full power to settle its affairs, collect debts, etc. This question has not, so far as we have been able to find, been decided by the Supreme Court. It was held by the Court of Civil Appeals of the Fifth district in Fox v. Robbins, 70 S. W. 599, approving tbe decision of the Court of Civil Appeals of tbe Fourth district in the same case (62 S. W. 815) that article 5243i of Sayles’ Civil Statutes did not authorize tbe Secretary of State to declare a forfeiture of tbe charter of a corporation, but that its dissolution could only be effected by a suit brought by the state for that purpose. Again, in Rippstein v. Ry. Co., 85 S. W. 314, by tbe Court of Civil Appeals of tbe Fourth district, and in Maloney Mercantile Co. v. Savage Bank, 56 Tex. Civ. App. 397, 121 S. W. 889, by the Court of Civil Appeals of 'the Second district tbe same doctrine was announced. In tbe case of Fox v. Robbins, 70 S. W. 597, writ of error was denied by the Supreme Court. But there were many issues involved in that case, and we cannot say that tbe refusal of tbe writ of error necessarily involved an approval by the Supreme Court of the holding of the Appellate Court on this question. Conceding, however, the correctness of these holdings on this question, and that therefore the appellants were not by tbe action of tbe Secretary of State aforesaid made trustees with the power conferred by article 1206, R. S. 1911, to settle the affairs of the corporation, we are of the opinion that plaintiffs still had the right to prosecute this action in their capacity as stockholders. Although they do not so specifically allege, it necessarily resulted that the suit was being prosecuted for themselves, and other stockholders.

It is a well-recognized exception to the general rule that during the life of the corporation it, and not the stockholders, is the legal owner of its property, and it alone can ■ sue for the enforcement of its rights, that such suit may be prosecuted by a stockholder, suing for the benefit of himself and other stockholders, when the proper officers of the corporation whose duty it is to prosecute such action refuse to do so, and it appears to be necessary to the ends of justice that such action be prosecuted. 2 Cook Corp. §§ 645-750; 4 Thompson Corp. § 4488; Dodge v. Woolsey, 18 How. 331, 15 L. Ed. 401; Huber v. Martin, 127 Wis. 412,105 N. W. 1031, 1135, 3 B. R. A. (N. S.) 655, 115 Am. St. Rep. 1023, 7 Ann. Oas. 400. Referring to the objection to such a suit on the ground that the property belongs to tbe corporation as a separate entity, the court in the case last cited says: “That, while the corporate property belongs to the corporation for corporate purposes, the corporation itself belongs to the members thereof, and that any such member, however small bis interest, may knock successfully at the judicial doors to prevent the use of the corporate ■ assets in any other way than in strict harmony with what has been said. If such were not the case, wrongs of a serious nature would quite likely go without redress and rights without protection.” This doctrine is not denied by appellee. One of the propositions stated in its brief is that, in order to entitle a stockholder to maintain a suit for the benefit of the corporation or its stockholders, which suit should have been brought by the corporation, it must be alleged and proven that there had been a request and a refusal of the proper corporate officers to sue. Such request, in the present case, would have been a vain and futile thing. The right to institute this suit was denied the corporation by the express terms of the statute, as a result of the action of the Secretary of State. It was therefore forbidden to do any business as a corporation, and deprived of the power to bring or defend any suits of any kind, except that it might defend an action brought to forfeit its charter.

The right of the stockholders, in certain cases, to sue, when the corporation refuses to do so, rests upon the necessity to prevent a failure of justice. The whole doctrine is thus stated by Mr. Pomeroy with his usual clearness and force: “Although the corporation holds all the title, legal or equitable, to the corporate property, and is the immediate cestui que trust under the directors with respect to such property, and is theoretically the only proper party to sue for wrongful dealings with the property, yet courts of equity recognize the truth that the stockholders are ultimately the only beneficiaries ; that their rights are really, though indirectly, protected by remedies given to the corporation; and that the final object of suits by the corporation is to maintain the interests of the stockholders. While, in general, actions to obtain relief against wrongful dealings with the corporate property by directors and officers must be brought by and in the name of the corporation, yet, if in any such case the corporation should refuse to bring a suit, the courts have seen that the stockholders would be without any immediate and certain remedy, unless a modification of the general rule were admitted. To that end the following modification of the general rule stated in the last preceding paragraph has been established as firmly and surely as the rule itself. Wherever a cause of action exists primarily in behalf of the corporation against directors, officers and others, for wrongful dealing with corporate property, or wrongful exercise of corporate franchises, so that the remedy should regularly be obtained through a suit by and in the name of the corporation, and the corporation either actually or virtually refuses to institute or prosecute such a suit, then, in order to prevent a failure of justice, an action may be brought and maintained by a stockholder or stockholders, either individually or suing on behalf of themselves and all others similarly situated, against wrongdoing directors, officers, and other persons; but it is absolutely indispensable that the corporation itself should be joined as a party — usually as a codefendant. The rationale of this rule should not be misapprehended. The stockholder does not bring such a suit because Ms rights have been directly violated, or because the cause of action is Ms, or because he is entitled to the relief sought; he is permitted to sue in this manner simply in order to set in motion the judicial machinery of the court. The stockholder, either individually or as the representative of the class, may commence the suit, and may prosecute it to judgment; but, in every other respect, the action is the ordinary one brought by the corporation, it is maintained directly for the benefit of the corporation, and the final relief, when obtained, belongs to the corporation, and not to the stockholder plaintiff.

The corporation is therefore an indispensable necessary party, not simply on the general principles of equity pleading in order that it may be bound by the decree, but in order that the relief, when granted, may be awarded to it, as a party to the record, by the decree. This view completely answers the objections which are sometimes raised in suits of this class, that the plaintiff has no-interest in the subject-matter of the controversy, nor in the relief. In fact, the plaintiff has no such direct interest; the defendant corporation alone has any direct interest; the plaintiff is permitted, notwithstanding his want of interest, to maintain the action solely to prevent an otherwise complete failure of justice.” It would be entirely futile to make the corporation a party defendant to the suit in the present case. As it had no power to bring suits, so it had none to defend, by the terms of the statute.

There can be no possible distinction, with any basis in reason, between a case where the corporation refuses to sue, after being requested by a stockholder to do so, and the present case, where by the express terms of the statute the corporation is deprived of the power to institute and prosecute a suit apparently necessary in order to avoid a failure of justice. A court of equity is not to be stopped by so baseless a distinction from an application of the rule stated in the present case. According to the allegations of the petition the right to do business by this corporation was forfeited in 1904, and with it its right to institute any sort of an action. This right might be revived, provided the franchise tax was afterwards paid, but this must be done within six months. That right of revival is now long since gone. If in such case suits cannot be brought by stockholders, under the general rule stated, to recover and to preserve the property of the corporation, the result would Be that such property would be open to be appropriated by the first person who should choose to grab it. The corporation might have no creditors, might not care to continue business, and in such case there-would be no power in the courts to protect its property from spoliation. We think that in such case, not on account of refusal, but on account of the inability of the corporation to sue, under the rule stated, a court of equity should entertain a suit by stockholders when necessary to prevent a failure of justice.

We think that in the present case the appellants, in their capacity of stockholders, had the right to sue, and the general demurrer to the petition should not have been sustained. For the error indicated, the judgment is reversed and the cause remanded, with suggestion that the petition be amended so as to show more specifically that the suit is brought by stockholders suing for themselves and other stockholders, and also stating more specifically the action of the Secretary of State in entering the forfeiture.

Reversed and remanded.