author: MOURSUND, J.

text:
    RISHWORTH v. MOSS et al.
    (No. 5732.)
    (Court of Civil Appeals of Texas. San Antonio.
    Dec. 6, 1916.
    On Motion for Rehearing, Feb. 14, 1917.)
    1. Parent and Child <@=>12 — Agency on Child — Question for Jury — Consent to Operation.
    In an action for the death of plaintiff’s minor daughter following an operation for the removal of tonsils and adenoids by surgeons to whom she had been taken by her adult sister, whom she was visiting at the time, evidence held not sufficient to warrant the jury in finding that the sister had either express or implied authority to give consent to the operation on behalf of the parents.
    [Ed. Note. — For other cases, see Parent and Child, Cent. Dig. §§ 141-144; Dee. Dig. <@=>12.]
    2. Principal and Agent <@=>19, 119(1), 147(2) —Authority op Agent — Burden op Proof.
    Persons dealing with an assumed agent-are bound at their peril to ascertain the fact of the agency and the extent of the agent’s authority, and in ease either is controverted, the burden is on such persons to establish it.
    [Ed. Note. — For other cases, see Principal and Agent, Cent. Dig. §§ 36, 391, 393, 398, 399, 401, 529, 531, 533; Dec. Dig. <@=319, 119(1), 147(2).]
    3. Principal and Agent <®=322(1) — Authority of Agent — Declaration.
    To determine whether agency existed, the court must look, not to the acts and declarations of the person assuming to be an agent, but to the transactions between such person and the alleged principals.
    [Ed. Note. — For other cases, see Principal and Agent, Cent. Dig. § 40; Dec. Dig. <§=322(1).]
    4. Parent and Child <§=312 — Operation on Child — Consent—Implied Authority.
    An adult sister, whom an 11 year old child was visiting with the consent of their parents, though she has implied authority to employ a physician if the child became ill, or to have an operation performed if there is an emergency making it necessary to preserve the child’s life, has no implied authority to give consent to an operation for which there is no immediate necessity.
    [Ed. Note. — For other cases, see Parent and Child, Cent. Dig. §§ 141-144; Dec. Dig. <§=> 12.]
    5.Parent and Child <@=312 — Operation on Child — Consent of Parents — Apparent Authority.
    Surgeons cannot rely on the apparent authority of the sister of a child to give her parents’ consent to an operation involving the use of a general ansesthetic, where there was no act on the part of the parents to lead them to believe the sister had such authority, and they did not even know that the child was lawfully intrusted to the custody of the sister, since the authority of an agent can only he established by tracing it to some word or act of the alleged principal.
    [Ed. Note. — For other cases, see Parent and Child, Cent. Dig. §§ 141-144; Dec. Dig. <@=3 12.]
    6.Appeal and Error <@=3728(2) — Questions Presented — Admission of Evidence — General Assignment — Bill of Exceptions.
    Where an assignment of error, complaining of certain testimony in general terms, did not show what witnesses’ testimony was objected to, and the bills of exceptions were filed after the expiration of time allowed therefor, so that they cannot be considered, tbe assignment must be overruled.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3011; Dec. Dig. <©=>728(2).]
    7. Physicians and Surgeons <©=>1S(7) — Operation on Child — Admissibility oe Evidence-Necessity eor Opebation.
    In an action for the death of plaintiff’s child while' surgeons were operating on her, where there was no evidence that plaintiff had consented to the operation, and no emergency was pleaded or proved, expert testimony as to condition of the child’s health and the advisability of the operation is inadmissible.
    [Ed. Note. — For other cases, see Physicians and Surgeons, Cent. Dig. §§ 40, 41; Dec. Dig. <8=>18(7).]
    8. Tkial <©=>256(6) — Omission erom: Charge-Necessity oe Special Request.
    In such an action, if the plaintiff objected to the submission of the issue of implied or apparent authority of the child’s sister, whom she was visiting, to give his consent because it was not specifically stated that such authority must be predicated on the acts of plaintiff, it was his duty to supply the omission by a special charge.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 634; Dec. Dig. <©=>256(6).]
    9. Trial ©=>267(2) — Instructions—Requests —Failure to Charge.
    Error cannot be assigned to the failure to give portions of special charges, for if any part of the charge is erroneous, the court can ignore it altogether.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 668; Dec. Dig. ©=>267(2).]
    On Motion for Rehearing.
    10. Death ©=>16 — Parent and Child ©=>7(1) —Loss oe Services — Right oe Action.
    At common law a parent could recover for loss of a child’s services caused by injuries not resulting in death, or for expenses incurred and loss of services between the injuries and the death, where that was appreciable, but could not recover where her death resulted instantaneously or practically so.
    [Ed. Note. — For other cases, see Death, Cent. Dig. §, 18; Dec. Dig. ©=>16; Parent and Child, Cent. Dig. §§ 72, 86, 89, 95; Dec. Dig.' ©=> 7(1).]
    11. Death ©=>15 — Action eor Causing — Operation on Patient — Consent.
    A patient 11 years of age is incapable of consenting to an operation on herself, and can recover against the surgeon performing an operation to which her parents did not consent, notwithstanding her consent thereto, and therefore, in case of death resulting therefrom, her parents can recover under Rev. St. 1911, art. 4695, giving a'right of action for death resulting from injuries in cases where the injured' person could have maintained an action if death had not resulted, and the damages recovered by the parents are not limited by the fact that the patient could 'have recovered only nominal damages if she had survived.
    [Ed. Note. — For other cases, see Death, Cent. Dig. § 17; Dec. Dig. ©=>15.]
    12. Death ©=>8⅜ — Damages—Funeral Expenses — Evidence.
    In an action for wrongfully causing death, there can be no recovery for funeral expenses paid, unless there is proof that the amounts charged were reasonable.
    [Ed. Note. — For other eases, see Death, Cent. Dig. § 110; Dec. Dig. ©=>84.]
    13. Death ©=>58(2) — Loss oe Services — Damages — Evidence.
    The jury can estimate the value of the services of a patient and the cost of supporting it, the same as an expert could, and can render a verdict for the parents for the loss of such services, though there is no evidence as- to- their value.
    [Ed. Note. — For other cases, see Death,. Cent. Dig. § 77; Dec. Dig. ©=>58(2).]
    14. Appeal and Error <©=>1171 (6) — Review— Yerdico^-Evidence — Damages eor Death.
    In an action for the death of a child, where there was no evidence as to value of the services or the costs of support, the jury may find that the parents have suffered no pecuniary loss, and the rule of nominal damages does not apply, so that a verdict for defendants cannot be set aside, though plaintiffs’ right to recover is established as a matter of law.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4553; Dec. Dig. ©=>1171(6); Damages, Cent. Dig. § 16.]
    15. Appeal and Error <©=51066 — Prejudicial Error — Abstract Charge — Submission oe Issue.
    In an action for the death of plaintiff’s child during an operation to which plaintiff had not consented in person, and where there was no evidence to sustain a finding of implied or apparent authority to another to consent, the giving of a charge, correctly defining implied or apparent authority to be used in determining the issue of consent over the objection that there was no evidence to support the charge, was prejudicial error.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4220; Dec. Dig. <©¿>1066; Trial, Cent. Dig. § 596.]
    16. Appeal and Error <©=>882(12) — Invited Error — Requested Charge.
    Where plaintiffs properly objected to a charge submitting the issue o.f implied or apparent authority to give their consent to an operation on their child because the evidence did not warrant the submission of that issue, a requested charge, defining implied and apparent authority and stating that there was no evidence to show such authority, does not prevent reversal on the theory of invited error; there being nothing in the record to show that the charges wore not first read and excepted to, and then the request made, the order fixed by Rev. St. 1911, arts. 1971, 1973, as amended by Acts S3d Leg. c. 59, § 3 (Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 1971, 1973), or to show that the court’s charge was influenced in any way by the requested charge.
    LEd. Note. — For other cases, see Appeal and Error. Cent. Dig. § 3602; Dec. Dig. ©=> 882(12).]
    Appeal from District Court, Bexar County; R. B. Minor, Judge.
    Action by William H. Rishworth against Robert E. Moss and another. Judgment for the defendants, and plaintiff appeals.
    Reversed and remanded, and motion for rehearing overruled.
    Leo Tarleton and Ryan & Matlock, all of San Antonio, for appellant. H. C. Carter, Champe G. Carter, R. L. Carter, and Perry J. Lewis, all of San Antonio, for appellees.
   MOURSUND, J.

William Rishworth, on September 16, 1910, sued Robert E. Moss and L. K. Beck for damages alleged to have been sustained on account of the death of his daughter, Imogene, which occurred within a few minutes after an operation had been performed upon her for the removal of adenoids and tonsils. The original petition contained charges of unskillfulness and negligence, as well as allegations to the effect that the operation was performed without the consent of plaintiff and his wife. The case was tried and a judgment rendered in favor of defendants, which was reversed by this court. See 159 S. W. 122. Upon the second trial plaintiff, after introducing the testimony of one medical expert, abandoned all charges of negligence, and relied solely upon his allegations to the effect that the operation had been performed without the request or the consent, express or implied, of plaintiff and his wife, and that no one had any authority from plaintiff or his wife to permit such operation to be performed. He alleged that Imogene was 11 years of age, and resided with him near Center Point, about 60 miles from San Antonio; that she was in good health, and made a social visit to San Antonio to be a guest of her two unmarried sisters for a week or ten days; that while in San Antonio defendants performed the operation upon her; and that she died from the application of chloroform and on account of the shock she sustained on account of the means employed in performing the operation. Defendants answered by general denial; allegations to the effect that Imogene was brought to the office of defendant Moss by her two adult sisters, and was in a very bad state of health; that she was suffering from adenoids and her tonsils were very much enlarged, inflamed, and diseased; that she was run-down and in a delicate condition; that her serious condition rendered her in pressing need of surgical attention to remove said adenoids and tonsils; that the operation was urgently necessary for the present health of the child, and was performed at the request and with the consent of said child and her two adult sisters; that Imogene was in charge of and under the control of Mrs. Jesse, an adult daughter of plaintiff, a woman of sound judgment and discretion, with authority from plaintiff to look after her needs, necessities, and comforts; that Mrs. Jesse, being a trained nurse and skilled in the disease of adenoids and tonsils, discovered that the child was in a bad state of health, and brought her to defendant Moss for examination, and had the express authority, as well as the implied and apparent authority, to provide for the care, comfort, and necessities of Imogene, and, acting under that authority she and Imogene requested defendant Moss to make an examination and operate upon Imogene for the removal of tonsils and adenoids; that defendant Moss believed Mrs. Jesse had the right and authority from her parents to do as she did, and that in all things she acted for the best interest of said minor sister, to save and preserve her health and happiness; that under all the facts and circumstances Mrs. Jesse had authority to act for plaintiff in providing Imogene with such medical and surgical services as her condition rendered necessary, and, in so doing, to represent plaintiff and that she acted with authority, both express and implied; that defendants had a right to believe that Mrs. Jesse was acting in the place of and for her father and had authority to provide the necessary medical attention for said child during the time she was in her charge. In addition, defendant Beck pleaded that at the time such operation was performed he was merely an employé of Dr. Moss for a salary, and did not operate on plaintiff’s daughter, but made the examination of her condition and administered the amesthetic as an employé of Dr. Moss. The plaintiff denied defendants’ allegations. The trial resulted in a verdict and judgment in favor of defendants.

By his first assignment appellant contends that the verdict of the jury is contrary to the undisputed evidence. Appellant undertakes to set out all the testimony, and contends that it shows beyond dispute that there was no consent, express or implied, upon the part of himself or wife, to the performance of the operation. We find that appellee contends that appellant, by requesting, as his special charge No. 1, an instruction, which, if given, would have submitted the issue of consent, is estopped to question the sufficiency of the evidence to sustain the verdict returned upon that very issue. It appears that special charge No. 2 (presumably presented after No. 1, Railway v. Dyer, 96 Tex. 76, 70 S. W. 529) contains minute instructions concerning implied and apparent authority, and closes by stating that there is no evidence of authority, and therefore to return a verdict for plaintiff. It also appears that objections, in writing, to the charge of the court were duly filed, which were to the effect that there was no evidence to dispute the fact that neither plaintiff nor his wife ever consented to the operation, and that the evidence does not justify any finding of implied authority to perform the operation. The objections and special charges were aE presented to the court before he read his charge to the jury. The record fails to disclose that special charge No. 1 was requested after plaintiff’s objections to the charge of the court had been overruled, and we must assume that the requests and objections were filed at the same time. There is authority to the effect, we think, that in such a case plaintiff cannot be heard to complain of the action of the court. We find, however, that in the recent case of Paris & G. N. Ry. Co. v. Flanders, 179 S. W. 263, our Supreme Court expressed the opinion that the doctrine of invited error can easily be carried too far, and suggested that the responsibility for the court’s action in the commission of hurtful errors ought not to be transferred to a litigant unless it is reasonably plain that through the action of his counsel lie is equally chargeable with the mistake. In the cited case stress! was laid upon the proposition that no contention appeared to have been made that the issue was not one proper to be submitted. In this case we conclude, in view of what is said in the above-cited case, we should overrule the contention that appellant invited the error, if error there be in holding there was sufficient evidence to go to the 'jury on the issue of consent. We will therefore consider the assignment of error.

Imogene Rishworth, a child 11 years of age, resided with her parents at Center Point, 60 miles from San Antonio. Center Point has railroad, telegraph, and telephone connection with San Antonio. The school Imogene attended closed on Eriday, May 6, 1910, and on that day her two sisters, Clara and Nettie, aged, respectively, about 22 and 20 years, came from San Antonio to their parents’ home. These young ladies had been in training at a hospital in San Antonio, with the- view of becoming professional nurses. The elder, Clara, now Mrs. Jesse, had been at the P. & S. Hospital for three years, and was a very competent nurse. Her father testified that he had confidence in her ability as a nurse; that she was sensible and a girl of good judgment; that he had every confidence in her that a father had in his daughter. On Sunday, May 8, 1910, Clara and Nettie, who had been visiting their parents, returned to San Antonio, and Imogene accompanied them. Her parents testified that at that time their daughters were not in the hospital, and resided on Dallas street in San Antonio, and that Imogene was to pay them a social visit for a week or ten days. Imogene was a delicate child, and often had temperature. Her parents stated she had been suffering with rheumatism, the father fixing the time as probably during the previous winter, while the mother said it was 2 years prior to her death. They testified she was relieved by the application of liniment, and that she did not stay away from school on account of such rheumatism; that she attended school the entire term. Rishworth testified he had never had her tonsils examined; that his daughter Clara, about a year before Imogene’s death, had stated that the child had adenoids and said they ought to be removed; that his wife objected on the ground that there was always danger in such operations, and nothing further was said; that his wife objected several times, objected all the time. He testified that he had never authorized any one to operate on his child, and was never requested to give authority to have an operation performed on her for adenoids or anything; that he did not know that such a thing was in contemplation. On cross-examination he testified as follows:

“On this occasion, in May, 1910, Miss Clara came to Center Point on Friday to visit me bé-fore they came down here on Sunday, and I permitted the child, Imogene, to come here with her on a visit of a week or ten days. That was done with my knowledge and consent. At that time I was on good terms with my daughter Clara, and I had confidence in her taking proper care of my daughter to a certain extent, but at the same time she was told, when she was-leaving Center Point with the child, that if anything got the matter with my baby to let us know at once; that we would be down — we did not have confidence enough in her to let her go, take her to any doctor whatsoever and to be operated on; we would not have done it under any circumstances. Yes, sir; I had confidence enough in her to let her take my daughter on a visit here to San Antonio. I expected her to see that my daughter was properly cared for. I knew that my daughter would have to be fed, would have to have something to eat; I knew that my daughter would have to have shelter. Why, 1 don’t know that she would have to be kept off of the streets and out of danger; she allowed her to go around and visit friends here all night before this operation. I would not have let my daughter go without having confidence that she would have proper care and would be properly taken care of. Tes, sir; I trusted my daughter, Mrs. Jesse, to give her proper care and attention. I expected Mrs. Jesse to see to it that my daughter was provided with proper food and lodging and everything she needed. When the baby left Center Point and when she got on the cars I gave her $10, and said: ‘Get anything you want.’ She could have fed herself as far as that was concerned. I did not expect my daughter Imogene to go to a hotel or boarding house.”
He also said:
“I never said to my daughter Clara at home that it was all right with me if it was all right with her mother. When I let my daughter go with Miss Clara to San Antonio she was distinctly told that if she needed medical attention to let us know at once; we did not leave it with her at all, nor with any doctor in San Antonio. We were going to bring our own family physician with us if she needed one. She was told that at the depot. I did not have in mind that my daughter might need medical attention, but we were always anxious about her —I was foolish about that child; we were always uneasy about her; I was uneasy for fear she would get hurt, she was kicking, jumping, swinging all the time. I meant that if she met with any kind of accident to let us know at once by wire, and we would be down right away. Mrs. Jesse did not phone, nor write me about having my daughter examined by Dr. Moss; we got a card from Nettie, but it did not say anything about it. Nettie is not a nurse, and is in England. * * * When my daughter Imogene came to San Antonio with Mrs. Jesse there was nothing said about the expenses in San Antonio. I gave her $10 and told her (Imogene) to have a good time, and if it gave out to write me and I would send her some more. I did not have an understanding with my other daughters that they were to pay Imogene’s expenses; I expected them to do it; I expected them, to see to it that she had everything she 'needed. I gave her money and told her to draw on me for more if she needed it. Imogene was to be in San Antonio eight or ten days. I never relinquished my care and custody over my child (Imogene) and the rights of medical attention to her to anybody at any time.”

Rishworth also testified that he told Imogene to write to him on Tuesday, but when he got in from his ranch to see if she had written, she had not, but there was a card from Nettie. His ranch was about 3 ⅛ miles from Center Point. He testified he received the card on Tuesday; that nothing was said therein about baying Imogene examined by Dr. Moss.

Mrs. Rishworth testified that Imogene had never been away from her prior to this visit to her sisters; that she permitted her to visit her sisters, but never consented to any operation, upon her, and that no one ever applied to her for authority to perform such an operation; that when Clara spoke to her about Imogene having adenoids, and said they ought to come out, she replied: “No, never; no one will ever touch my baby.” She further testified:

“I never relinquished control of my child in any way, or the employment of a surgeon, or anything. The last thing I told her, if anything happened, I must know it at once, and that I would be down on the next train and would bring Dr. Bell, and to trust no San Antonio doctor or 'anybody else. She (Mrs. Jesse) knew nobody was authorized. She was without authority, unless I and my family physician were present. The purpose of her visit was, her sisters wanted her to come and spend a week, just a visit; that is, come up here from that Sunday until the next. There was no legal authority to employ physicians or anything of that kind, just a friendly visit, that was all; and she (the daughter) did not wield any authority from me as custodian of my child.”

Although appellant Rishworth took the deposition of his daughter Nettie, who resided in England at the time of the trial, she was not asked any questions concerning what occurred between her parents and herself and Clara with regard to Imogene’s visit. She was asked questions relating to what occurred in Dr. Moss’ office. She testified that she knew the defendants knew her father and mother were living; that she did not know if they made any effort to obtain their permission or consent to perform the operation.

Clara was brought into court under an attachment issued in behalf of her father, who did not place her upon the witness stand, but tendered her to defendant as a witness, and defendant did not place her upon the stand. It appears from the testimony of Dr. Moss that he had known Clara Rishworth for some time; that he saw her frequently at the P. & S. Hospital; that she had been on duty in the operating room at said hospital for from three to six months, and was considered among the brightest and most reliable girls there; that she was a woman of discretion and judgment. On Monday or Tuesday, May 8th or 9th, Clara, Nettie, and Imogene came to Dr. Moss’ office, and Clara stated that she had been up home to visit her parents, and had brought her younger sister down with her to have Dr. Moss examine her and see if she did not need an operation for the removal of adenoids and tonsils, and she laughingly said:

“I have made the diagnosis myself, I guess; for she has had rheumatism and breathes through her mouth.”

Dr. Moss examined Imogene, and stated that such an operation was very necessary, and that it was only a question of the time when it should be performed. They agreed upon a day for the operation, but at Nettie’s request to Dr. Moss, by telephone, the time was postponed until Friday, May 13th. The three girls came about 15 minutes before the appointed time, and Dr. Moss then asked them something about their parents. Clara said they lived at Center Point, and that her father was amply able to pay for the operation, and that she wanted Dr. Moss to perform it because she had seen so much of his work at the hospital. Dr. Moss told her he asked because, if she was to pay for the operation, there would be no charge; she being a professional nurse. All of the girls wanted Dr. Moss to perform the operation, and none of them indicated to him that any unwillingness existed on the part of either of the parents to have the operation performed. He believed the parents had sent the girl down for the purpose of having the operation performed, and relied upon Clara and Nettie having the consent of their parents for what they were doing. The operation was performed, and about 10 minutes after it was completed the child died. The medical testimony shows that while it was very necessary for the health of the child that such operation should be performed, there was no emergency which required the operation to be performed at once. The testimony fails to show any negligence or unskillfulness in performing the operation or testing the heart, and plaintiff abandoned such charges after Dr. Frank Paschal, his witness, testified that in children of that age death resulted sometimes from the use of chloroform, on account of a condition described as status lymphat-icus, which condition he testified could not be known by the surgeon.

In our former opinion we held that a physician is liable for operating upon a person unless he obtains the consent of such person, if competent to give consent, and, if not, of some one who, under the circumstances, would be legally authorized to give the consent; that in the case of a child of tender years consent must be obtained from the parent or guardian. In addition to the cases therein cited by us, we cite the following: Rolater v. Strain, 39 Okl. 572, 137 Pac. 96, 50 L. R. A. (N. S.) 880; Schloendorff v. Society of New York Hospital, 211 N. Y. 125, 105 N. E. 92, 52 L. R. A. (N. S.) 505, Ann. Cas. 1915C, 581. In these cases the operation was not performed upon a minor, but they support the general proposition that an operation without consent is wrongful and unlawful, and constitutes in law a trespass upon the person and a technical assault and battery. Appellees quote certain excerpts from our former opinion, which, when considered alone, would perhaps justify the conclusion that upon the former-appeal this court believed the testimony would support a finding either way on the issue of consent. The evidence was given only sufficient consideration to ascertain thát the judgment could not be affirmed on the theory that no other judgment could have been rendered, and we believe the opinion, when considered as a whole, discloses that we were considering whether the'issue of consent could be taken from the jury at' defendant’s behest, and not whether the evidence relating thereto was so conclusive in favor of plaintiffs as to require the setting aside of a verdict if one should be rendered thereon in favor of defendants.

Upon the first trial defendants pleaded only á general denial, but upon the second trial they alleged agency on the part of Mrs. Jesse. The testimony shows conclusively that no consent was given by either of the parents to defendants to operate upon their child. The parents had not seen defendants or communicated with them, and Dr. Moss admitted that he did not obtain their consent. We find, therefore, that the evidence conclusively shows that plaintiff is entitled to recover unless his daughters, Olara and Nettie, or one of them, had the authority, express or implied, to give consent in behalf of the parents to the operation being performed. Dr. Moss relies altogether, as is shown by his own' testimony, on permission given him by an agent or agents. At the time the daughters came to him he did not know whether they were even legally in possession of the child; all he knew, was that they led him to believe they were legally in possession of her, and that they had authority to have the operation performed. They did not say they had such authority, but they used language from which such meaning would naturally be deduced. “Persons dealing with an assumed agent, whether the assumed agent be a general or special one, are bound, at their peril, to ascertain, not only the fact of the agency, but the extent of his authority;, and, in case either is controverted, the burden of proof is upon them to establish it.” Baker v. Machinery Co., 84 S. W. 662; Connor v. Bank, 156 S. W. 1092; Corpus Juris, vol. 2, § 665. Had there been no other evidence than that of the parents and Dr. Moss to the effect that no dealings took place between them with reference to Imogene, plaintiff would undoubtedly have made out a clear case of an operation performed upon his infant child without his consent. But the defendants pleaded and undertook to prove agency- on the part of Mrs. Jesse, and that such agent had express or implied authority to bind her parents to the performance of the operation.

In order to determine whether agency existed, we must look, not to the acts and declarations of the person assuming to be an agent, but to the transactions between such person and the persons sought to be charged as principals. The only evidence concerning such matters was furnished by the parents. They testified that Imogene' was permitted to accompany her sisters to San Antonio to pay them a visit for á week or ten days, and with this purpose in view, and no other, she was placed in the custody of her sisters. They were constituted the agents of the parents, but their authority was very limited. It cannot be contended that such an agency would carry with it the implied authority to take the child to a surgeon and have an operation performed upon her, there being no emergency. Such an agency would carry the implied authority to employ a physician to attend the child if it should become ill and require medical aid, and if an emergency arose which required that an immediate operation be performed in order to save the life of the child, the agent would undoubtedly have authority to employ a surgeon to perform the operation. Where there has been no change in the child’s health after its custody was confided to its sisters for a week, it appears to us that the sisters would not have any authority to employ physicians to treat the child and endeavor to improve its health, much less to employ a surgeon to perform such an operation as is involved in the removal of tonsils and adenoids, and requires the use of a general an-iesthetic. There is nothing in the relation created by giving the custody of the child to its sisters for a short visit which would imply the authority exercised by them. Let us see, then, if the testimony shows that the parents expressly gave the adult daughters any authority greater than that implied from conferring the custody of the child, and, if so, whether the authority, so expressly conferred by words is such that authority to bind the parents to the performance of the operation upon Imogene can be implied therefrom. Mr. Rishworth testified on cross-examination what he expected of his adult daughters in regard to Imogene, but so far as instructions are concerned, it appears that the only instructions he gave was that if anything got the matter with Imogene, to let them know at once, and they would be down. He afterwards stated that he distinctly told Olara that if Imogene needed medical attention to let them know at once. 1-Ie said he meant if she met with any kind of accident, to let them know by wire. This testimony does not disclose that any instructions were given from which the authority to permit an operation could be deduced. So far as Mrs. Rishworth is concerned, it appears that the only instruction she gave Olara was that if anything happened, she must know it at once, and she stated to Olara in this connection that she would, in such event, be down on the next train and bring Dr. Bell, and for her not to trust any San Antonio doctor or any one else. Surely. this statement to Olara conferred no express authority to employ a surgeon to operate on the child, nor did it confer any authority from which could be implied authority to have an operation performed.

It appears, however, that appellees rely most strongly upon Mr. Rishworth’s testimony with regard to what he expected of Mrs. Jesse, although there is nothing in the record to show that these expectations were made known to Mrs. Jesse, and therefore it is impossible that authority of any kind could be implied therefrom. “The authority of an agent, and its nature and extent, where these questions are directly involved, can only be established by tracing it to its source in some word or act of the alleged principal.” Mechem on Agency (2d Ed.) § 285. But if such expectations had been made known to the daughters, we think they showed no more than would ordinarily be expected of a custodian, especially when considered in connection with the fact that their agency was so limited that they were not even intrusted with Imogene’s money or with authority to draw on Mr. Rishworth for her benefit, but Imogene was given such authority. Mr. Rishworth testified on cross-examination that he expected Mrs. Jesee to see to it that Imogene was provided with proper food and lodging and everything she needed. He did not expect her to go to a hotel or boarding house. He trusted Mrs. Jesse to give Imogene proper care and attention. Surely if he had stated these things to Mrs. Jesse, she could not imply therefrom that he authorized her to take Imogene to a surgeon and have adenoids and tonsils removed, and especially when Mrs. Jesse knew her parents were opposed to any such operation, and knew they had even refused to give their consent to an operation upon her (Mrs. Jesse) for appendicitis.

Appellees say that if the child had developed a toothache, or stuck a nail in its foot, or broken an arm, or developed fever, it would have been the right and duty of Mrs. Jesse to have engaged competent medical attention. This power would doubtless be incident to the custody, .being usual and necessary to adequately dicharge the duties of custodian, but in this case nothing happened to make any change in the health of the child, no duty devolved upon the custodian to seek to improve its health, and especially by exercising authority of a very unusual and extraordinary nature. Appellees, apparently fearing that the illustrations furnished in their brief fail to meet the facts of this case, go a step further and argue that the authority to see that Imogene had everything she needed carried with it the authority to provide what the agent deems is reasonably needed. As before pointed out, neither daughter was told to see that Imogene had everything she needed, but the father, on cross-examination, stated he expected Mrs. Jesse to do so. However, suppose he had stated such expectation to Mrs. Jesse. It is plain that he expected Mrs. Jesse as hostess to provide food and shelter for her guest, and expected her to see that her guest had such other things as she might need. He evidently did not expect her to have an operation performed which he and his wife both opposed, but merely expected her to see that Imogene had the usual and ordinary things necessary for her to live comfortably and safely while paying the visit. The authority to see that Imogene had everything she needed might empower the custodian to provide what she deemed reasonably necessary in order to properly and faithfully discharge her duties as custodian, but not to exercise such unusual and extraordinary power as was exercised by Mrs. Jesse in having such an important operation performed upon the child permitted to visit her.

We conclude that the appellees wholly failed to show that the adult daughters, or either of them, had any authority, express or implied, to have the operation performed upon Imogene.

In their brief, appellees contend the jury was not required to believe the testimony of the parents, because they were interested parties, even though such testimony should be uncon'tradicted, and they point to certain portions of the testimony relied upon by them as justifying the jury’s failure to believe the parents’ testimony. The fact that the parents did not in person give any consent to the performance of the operation does not depend alone upon their testimony, for it is admitted by Dr. Moss. The jury was bound to accept that fact as proven, and plaintiff was entitled to recover unless the defendants showed that the authority of the agents was sufficient to empower them to have the operation performed. If the testimony of the parents be discarded, where is any testimony to which appellees could point as sufficient to discharge the burden placed upon them by law of showing that the persons upon whom they relied in fact had authority to bind the parents. But, in addition, the testimony criticized is all consistent with the theory of the plaintiff and the testimony of the parents, to the effect that Imogene was only confided to her sisters in order that she might make them a social visit. Appellees also point to the fact that the plaintiff did not place Mrs. Jesse upon the witness statnd, and did not question Nettie about the extent of the authority of herself and Clara. They contend this is a circumstance reflecting upon the credibility of the parents’ testimony, under the rule that when a party has evidence and fails and refuses to produce it, the presumption ¿rises that it would not benefit such party. They say the failure to interrogate the daughters is suggestive to the jury that their testimony would have been against plaintiff on the issue of their authority. On the other hand, it can be said that the failure of principals to put the assumed agents on the stand is suggestive that, had they done so, the testimony would have disclosed want of authority. It would be profitless to discuss which side the daughters would be most apt to favor. The fact remains that the party relying upon the authority of an agent has the burden of showing it, and if defendants, on account of relationship of the agents to the plaintiff, were afraid to put them on the stand, they are just as unfortunately situated as if the daughters had testified against them, because there is no other testimony to which they can point to substantiate their claim that the daughters had the necessary authority.

We find no claim in appellees’ brief that Dr. Moss was justified by apparent authority, but we find it pleaded and mentioned in the charge, and will therefore briefly discuss that phase of the case. Was Dr. Moss led by the special circumstances reasonably to believe that the authority existed in that particular case, and did he act upon that belief in a way that he will be prejudiced if the authority be denied. “It is indispensable to keep in mind here that, as against the principal, there can be reliance only upon what the principal himself has said or done, or at least said or done through some other and authorized agent The acts of the agent in question cannot be relied upon as alone enough to support an estoppel. If his acts are relied upon, there must also be evidence of the principal’s knowledge of and acquiescence in them.” Me-chem on Agency (2 Ed.) vol. 1, § 725. In this case Dr. Moss did not rely upon any act of the parents of the child, for he did not know of any such act. He did not know whether the daughters were legally in charge of Imogene or whether they had taken her from the custody of the parents without permission. This was the first instance in which Clara and JNettie Rishworth had dealt with him with reference to Imogene, and he had nothing to go on .but the fact that they assumed to have the custody of the child and he presumed they had authority to have an operation performed. Their assumption did not justify him, and his presumption that they had authority cannot protect him. Had he known that the parents permitted their little girl to visit her sisters, he could not say that, from the fact that the adult sisters had possession of the child, he was authorized to infer that they had authority to employ him to remove the child’s adenoids and tonsils, even though he knew they had been in training to become trained nurses, and that the parents very properly might invest them with authority to employ medical assistance. Agency for a certain purpose- cannot be inferred from the mere fact that the person assuming to be agent would make a suitable agent for such purposes. Besides, the authority of an assumed agent to have an operation performed upon a girl 11 years old for removal of adenoids and tonsils under general anaesthesia is of such unusual and improbable, character when the. parents are living that the person sought to be employed by such assumed agent should refuse to perform such an operation unless he has information from the parents that the necessary authority has been given by them. The fact that parents are not present when an operation is to be performed upon a little child is a circumstance sufficient to arouse inquiry as to whether they know the operation is to be performed.

The first assignment is sustained.

By the second assignment complaint is made in general terms of the testimony of expert witnesses with regard to the advisability of performing the operation at the time it was done. We are not informed by the assignment what witnesses’ testimony is complained of. We find that all of appellant’s bills of exception were filed after the time allowed by the court had expired, and therefore they cannot be considered. Unknown Heirs of Criswell v. Robbins, 152 S. W. 210; Loeb v. T. & N. O. Ry. Co., 186 S. W. 379. The assignment must therefore be overruled. However, all of this testimony should have been excluded; there being no evidence of any express-or implied or apparent authority. The condition of the child’s health, and the advisability of removing tonsils and adenoids, could not justify want of authority; no emergency being alleged and proven.

By the third assignment complaint is made of that portion of the court’s charge defining implied authority and apparent authority. The objection embraced in the first proposition is to the effect that there was no evidence of express or implied consent or authority, and therefore the charge should not have been given. This is correct, and we sustain the assignment.

The further objection is urged that the charge should not have submitted any issue of implied or apparent authority, without stating specifically that it must be predicated ■upon the acts or conduct of the party to be bound. If this was omitted, it was appellant’s duty to supply the omission by special charge.

The fourth assignment complains of the failure to give several paragraphs of charge No. 2, requested by plaintiff, and the fifth assignment complains of the failure to give the fifth paragraph of special charge Wo. 1. Complaint cannot be made of the failure to give portions of special charges, for if any part is erroneous, the court can ignore it altogether. No proposition is submitted under these assignments, and it is evident the assignments themselves cannot be considered as propositions. It also appears that the bills of exception showing the presentation of these charges were not filed in time, and cannot be considered. The assignments are overruled.

The sixth assignment raises the issue of the sufficiency of the evidence to support the verdict, and is sustained for the reasons given in sustaining the first assignment.

The judgment is reversed and the cause remanded.

On Motion for Rehearing.

It is contended that plaintiff’s cause of action must find its basis in our death statute, and that no other judgment could legally have been rendered than the one appealed from, the theory being that appellees were not guilty of wrongful acts such as would have given Imogene Rishworth a cause of action had she survived the anaesthetic and the operation, and that, therefore, under article 4695 (R. S. 1911) her parents have ho cause of action.

At common law the parent could recover for loss of services of a child, when deprived of such services or part thereof by injuries not resulting in death. Railway v. Brick, 83 Tex. 526, 18 S. W. 947, 29 Am. St. Rep. 675. It also appears that if death did not result at once, or practically so, suit could be maintained for expenses incurred and loss of services between date of injury and date of death. Note, 41 L. R. A. 807. When death resulted instantaneously, or practically instantaneously, no action would lie. Railway v. Beall, 91 Tex. 310, 42 S. W. 1054, 66 Am. St. Rep. 892, and note, 41 L. R. A. 807. True, the courts of some states declined to follow a distinction based upon no satisfactory reason, but in view of the decision in the Beall Case we conclude that plaintiffs herein had no action at common law, and must rely upon the death statute.

We come, therefore, to the test whether administering chloroform and operating upon Imogene Rishworth under the circumstances shown in this case constituted a wrongful act towards her, which, had she survived, would have given her a cause of action against appellees'. This matter was discussed in our opinion upon the first appeal and also in our former opinion upon this appeal, and we stated our conclusion that consent to such acts by a child of the tender age of Imogene Rishworth would not be binding upon her, and must be treated as no consent at all. Knowledge of the effect of anaesthetics and surgical operations and the dangers incident thereto cannot be placed upon a parity with knowledge of everyday dangers plainly apparent to the mind of even a child. Had Imogene survived the anaesthetic and the operation, she would have had a cause of action. The extent of her recovery would have been dependent upon the extent of the injurious consequences resulting from the wrongful acts, but whether her damages would have been nominal or great is not a proper subject of inquiry, for the cause of action given the parents is' not dependent on a determination of such inquiry. Appellees contend, virtually, that we are not only wrong in holding as a matter of law that Imogene’s consent was a nullity, but that we should hold as a matter of law that her Consent would have been binding upon her had she lived, and that she could not have contended that any wrongful act was committed by appellees. We conclude there is no merit in the contention that the parents have no cause of action.

It is also contended that plaintiffs failed to prove any damages recoverable under the rules of law applicable thereto. They say the sums paid out by plaintiffs for funeral expenses, etc., could not be allowed, because there was no proof that the amounts charged were reasonable. This contention is sustained by our decisions. Railway v. Rowell, 92 Tex. 150, 46 S. W. 630; Wheeler v. Railway, 91 Tex. 356, 43 S. W. 876; Railway v. Willis, 117 S. W. 170; Railway v. Hemphill, 58 Tex. Civ. App. 232, 125 S. W. 340; Railway v. English, 178 S. W. 666.

They say that the evidence would not support a verdict of pecuniary loss, because no evidence was adduced of the cost of the support and maintenance of the child, and therefore the jury had no basis for estimating the difference between the value of her services and the cost of support and maintenance. This contention is without merit. We have found no decision by our Supreme Court which requires any more exact character of proof with reference to cost of support and maintenance than the pecuniary value of the services. An expert might indulge in extensive calculations on either subject, taking into consideration probable changes' in value of services and cost of support during the many years to be taken into consideration, but our Supreme Court has expressed the opinion that the jury can make the estimate just as well as the expert, and that these matters are not susceptible 'of accurate proof, and therefore must be left to the jury. Brunswig v. White, 70 Tex. 504, 8 S. W. 85; Railway v. Measles, 81 Tex. 474, 17 S. W. 124. The liberal rule announced in said cases has been often followed, and in many cases verdicts upheld upon testimony not as full as that in this case. Railway v. Yarbrough, 73 S. W. 845; Railway v. Bolen, 61 Tex. Civ. App. 339, 129 S. W. 860; Waters Pierce Oil Co. v. Deselms, 212 U. S. 159, 29 Sup. Ct. 270, 53 L. Ed. 453. We, therefore, overrule the contention that the evidence would not support a verdict for plaintiffs.

Appellees contend, further, however, that if the jury could find either way on the issue of proximate cause or damages, we must overrule assignments 1 and 6, which question the sufficiency of the evidence. This is correct; and, while we find that the testimony conclusively shows that the wrongful acts were the proximate cause of the child’s death, we are unable to find that the jury was bound to return a verdict for some amount of damages. The very fact that the jury is given so much latitude in applying their own knowledge to the facts proven, considered in connection with the testimony regarding Imogene’s health, makes it impossible to say that they were required to allow some damages as the net estimates of the difference between the value oí services and the cost of support and maintenance. Practically speaking, we do not believe a jury would find that the dost of support and maintenance would exceed the value of services, but it is, of course, a question of fact in each case, and on account of the wide latitude given the jury, it would be difficult to question its verdict. In this connection it is to be noted that our courts have decided that the death statute limits the recovery to actual damages, to damages purely pecuniary and compensatory, and that the doctrine of nominal damages does not apply. McGown v. I. & G. N. Ry. Co., 85 Tex. 289, 20 S. W. 80; Rader v. Railway, 137 S. W. 718. The contrary view expressed in Brunswig v. White, supra, has never, as far as we find, been expressly overruled, but we take it that the law is now settled in favor of the conclusion stated in the McGown Case. In view of the foregoing, we conclude that we erred in sustaining assignments 1 and 6.

However, we also sustained the third assignment, which complained of the charge of the court. It is contended that the portion of the charge complained of was only a definition, and was abstractly correct, and that no injury resulted therefrom. It is true it is a definition, and that it is not applied to the facts, but it is expressly stated that it is to be used as the law to determine the issue of consent. It may be correct, but is not clear, and would undoubtedly be accepted by the jury as a clear intimation that the case turned on the question of implied authority, and that the court considered that issue to be in the case. It is true that plaintiffs objected to submitting the issue of consent, but they also objected to submitting any issue of implied authority. They should have briefed an assignment complaining of submitting the issue of consent, but their failure to do so does not deprive them of relying on an assignment complaining of .submitting any charge relating to implied authority, which complaint is based on an objection'that there was no evidence justifying such a charge. They might be willing to risk the finding of a jury on whether they consented or not, but unwilling to risk its verdict on implied authority .of an agent. We conclude that we did not err in sustaining that assignment, and, in view of such assignment being sustained, it is immaterial whether the verdict of the jury might possibly have been rendered for defendants on the theory that no pecuniary loss was proven. It is highly probable that it was rendered on the theory that the evidence showed implied authority, and highly improbable that it was rendered on the theory that the testimony showed no damages. We deem it unnecessary to add anything to our discussion of the evidence, having implicit confidence in the correctness of our conclusion that the evidence, conclusively shows that no consent was given, and does not tend to raise any issue of implied authority on the part of the adult sisters to have the operation performed. The error in the charge complained of is material, and requires the reversal of the judgment.

Here, again, we are met by a contention that such error was invited by plaintiffs, by asking a special charge in which a definition of implied authority is given. It is true that plaintiffs, in their second special charge, discourse on what constitutes implied authority, but it is merely an argument leading up to the real request found in the' concluding portion of the charge, wñich is .that a peremptory instruction be given because the evidence fails to show consent or implied authority on the part of the adult sisters to have the operation performed.. The definition, if it can be called one, of implied authority given in said special charge differs so radically from that given by the court that it cannot be contended the court based his charge thereon, and there is nothing in the record to indicate that the court did not prepare his charge in the very words used by him, and submit it to the parties and that they then prepared objections and special charges. Such is the course contemplated by articles 1971 and 1973, R. S. 1911, as amended by the Thirty-Third Legislature (Acts 33d Leg. c. 59, § 3 [Vernon's Sayles’ Ann. Civ. St. 1914, arts. 1971, 1973]) and there is nothing in the record to indicate that it was not followed. We see no good reason why, after objections to admitting an issue have been made and overruled, a party should not submit his theory as to the proper wording of such issue, and are not prepared to hold that thereby he waives his objection to the submission of the issue, but in this case it is clear that the part of the special charge relied on was not even submitted on that theory, but as an argument to the court to give a peremptory instruction. Specific objections were made to the charge of the court in writing, and the court appended thereto a statement over his signature that the objections were presented before the charge was read to the jury and overruled. This was sufficient to entitle plaintiffs to urge their objections by assignment of error. Railway v. Dickey (Sup.) 187 S. W. 184. In addition, it is persuasive that the court did not overrule the objections because of any special charges requested, for he would likely have said so. We conclude that the contention, that of invited error, must be overruled.

We wish to state, in justice to appellants, that we believe we were in error in construing their first special charge as a request for the submission of the issue of consent. Upon further examination, we conclude that paragraph 5 thereof evidences an intention to inform the jury that, when an operation is performed without consent, the parties would be liable regardless of whether it was skillfully performed or what preparations the operating room was supplied with. It is true the language is appropriate for submitting the issue whether the operation was performed without the knowledge of plaintiff or his wife, or without the consent of either, but in preceding paragraphs of the charge the jury is told that the evidence shows that they had no knowledge that the operation was contemplated, and that there was no evidence of consent; in fact that the evidence showed they had refused their consent. The charge is not well drawn, but, construing it as a whole, we think it shows that plaintiffs wore not asking for submission of the issue of consent, and this is emphasized by their written objections.

What we have said renders it unnecessary to consider the objections urged in the motion to the sufficiency of assignments of error Nos. 1 and 6. They are both defective as pointed out, but each has been sufficient to direct attention to the error complained of, and wo believe that under the amendment to article 1012 made by the Thirty-Third Legislature in chapter 136 (Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1612) they are sufficient.

The motion for rehearing is overruled.
      <E=>For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      <SspFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: CONNEB, C. J.

license: Public Domain

text:
    ROSS v. MOORE.
    (No. 8466.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    Dec. 2, 1916.
    Rehearing Denied Jan. 13, 1917.)
    1. Evidence @=3445(1) — Admissibility — Paeol Evidence — Vaeying Weitings — Subsequent Paeol Ageeements.
    The rule excluding parol evidence varying writings does not prevent the introduction of parol evidence of an oral modification of tlie written contract made subsequent to the execution of the written contract.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig, §§ 2052-2054, 2063; Dec. Dig. @= 445(1).]
    2. Conteacts @=>237(2) — Execution—Modification— CONSIDEBATION — SUFFICIENCY.
    Where a broker and owner entered into a contract to subdivide and sell lots at a certain price and for a certain commission, the fact that the lands were not being sold as rapidly as desired was a sufficient consideration for an oral modification of the written contract in order to facilitate the sales.
    [Ed. Note. — For other eases, see Contracts, Cent. Dig. §§ 1120-1122; Dec. Dig. @=237(2).]
    3. Contracts @=238(2) — Enforceability — Definiteness.
    Where a broker and owner had a contract to subdivide and sell lands at a price and for a commission, and the lots did not sell as anticipated, it was competent for the owner to confer a general power upon the broker to make any change in the contract necessary to facilitate the sale of the land. .
    [Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 1117, 1123; Dec. Dig. @=238(2).]
    4. Appeal and Eeeor @=230 — Objections in Trial Court.
    Objection to the issues as submitted to the jury and the refusal of special requested issues cannot bo considered on appeal when not urged
    before the trial court prior to submission of the charge, as required by Bev. St. 1911, art. 1971.
    [Ed. Note. — For other cases, see Appeal and Error, Dec. Dig. @=230; Trial, Cent. Dig. §
    5. Trial @=141 — Questions foe Jury — Undisputed Facts.
    No necessity exists for submission to the jury of undisputed facts.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 336; Dec. Dig. @=141.]
    6. Appeal and Erroe @=747(3) — Assignment of Cross-Errors — Filing.
    Under rules for district and county courts, No. 101 (159 S. W. xi), a cross-assignment of error not filed in the court below will not be considered.
    [Ed. Note. — For other cases, see Appeal and Error, Dee. Dig. @=747(3).]
    Appeal from District Court, Tarrant County; B. B. Young, Judge.
    Action by G. W. Moore against D. S. Boss. Judgment for plaintiff in part, and defendant appeals.
    Affirmed.
    A. C. Heath and EG. D. Payne, both of Ft. Worth, for appellant. McLean, Scott & McLean and Mays & Mays, all of Ft. Worth, for appellee.
   CONNEB, C. J.

As finally presented in the pleadings and trial, the appellee, G. W. Moore, sought the recovery of damages because of an alleged breach on appellant’s part of a written contract as subsequently modified by an oral agreement between the parties. The written contract was attached as an exhibit to the plaintiff’s petition, and is as follows:

“The State of Texas, County of Tarrant.
“Know all men by these presents that this agreement entered into by and between D. S. Ross, of the first part, and G. W. Moore, of the second part, witnesseth: That the said D. S. Boss hereby appoints the said G. W. Moore as his agent, to subdivide and advertise and sell all that certain tract or parcel of land situated in Clay county, Tex., and described as follows: ,Sixty-six acres of the east side of block 27, Parker county school lands, shown by plat of said school lands, and recorded on page 52S, Book B, Clay County Deed Records — same being land deeded to D. S. Boss by T. A. Matlock and M. A. Matlock, dated August 14, 1908, and described on page 67 of abstract to said lands, said land to be divided into lots 20 by 30 feet, and lots to be sold for $10 per lot, said appointment to continue till all lots are sold, $2 per lot to be set aside by said G. W. Moore as a sinking fund to drill a well on said land, said well to be the joint property of the tract owners, said D. S. Boss and G. W. Moore to share balance, $8, equally, money to be divided as sales are made and money paid in, said G. W. Moore to bear expense of agents, advertising, plotting, and office expenses, said D. S. Boss to sign all deeds as lots are sold, and pay all notary fees, if lots are sold on payments deeds will be given when lots are paid out.
“[Signed] D. S. Boss.
“G. W. Moore.
“And said Moore agrees to devote his best interest, time, and attention to said business.
“[Signed] D. S. Boss.
“G. W. Moore.”

It was alleged, in substance, that pursuant to this contract the tract of land therein described had been divided into 4,808 lots, of which 285 were sold by the plaintiff and paid for by the purchasers in accordance with the terms of the written contract, after which time it was found that the sales were not sufficiently rapid to be satisfactory, whereupon it was mutually agreed that the price of the lots should thereafter be $15, instead of $10, as specified in the written contract, the extra $5 to be used for the purpose of increasing compensation to employed sub-agents ; that yet later, this change not proving entirely satisfactory, it was further mutually agreed that the original written contract should be further so modified as that the lots should be sold for $30 each, of which plaintiff, Moore, was to receive $4, the defendant, Ross, $4, and the remainder devoted to the payment of agents and for the digging of ten wells instead of two wells, as provided in the written contract. It was alleged that under the contract as so modified the plaintiff had sold 707Tots, at which time the defendant Ross wrongfully revoked his agency and sued out a writ of injunction preventing all further sales and preventing payment on the part of purchasers of the said 707 lots. The plaintiff therefore sought to recover his damages in the sum of $4 each for the 707 lots sold and not paid for, and for the sum of $4 each for the remaining lots not sold, aggregating $15,264, or a grand total of $18,092.

The defendant Ross answered by demurrers, a general denial, and specially charged, in substance, that the sales made by the plaintiff under the modifications, as the plaintiff claimed, of the original written contract constituted breaches of the only contract between them, and because of which he had revoked the plaintiff’s authority to further act. There were certain other special allegations that need not be noticed in view of the result of the trial.

It was undisputed that the defendant Ross canceled the agency of the plaintiff Moore in October, 1913, and the jury in answer to special issues submitted to them found that Moore had sold in all 992 of the lots, of which 285 had been paid for at the time <jf the cancellation, leaving 707 lots unpaid for at that time. The jury found that the defendant, Ross, by his actions and conduct prevented the payment for the unpaid lots. The jury further found that D. S. Ross knew of the changes made with reference to the raised price and the number of wells to be dug before he had given written notice of the cancellation, and had also executed deeds' and received his pro rata share of money for which the lots were sold after the changes indicated. The jury further found that D. S. Ross authorized the plaintiff to make such change as to price and conditions of sale as plaintiff might deem necessary and proper to stimulate the sale of the lots. They further found that the plaintiff, by an exercise of such diligence as he had been exercising, could have, with reasonable certainty, sold all of the lots. The jury also found that the plaintiff, Moore, had not failed to account for any of the money collected by him from the sale of the lots.

The plaintiff, Moore, moved the court for judgment for the full amount claimed by him upon the answers of the jury. This motion the court declined to grant, but on such answers entered a judgment in plaintiff’s favor for the sum of $2,828, and the defendant, D. S. Ross, has appealed.

Appellant has presented some 45 assignments of error, many of which are objected to by appellee as not in compliance with the rules for briefing. Many of the objections are well taken, but we think their discussion will add nothing to what has already been frequently decided, and will therefore undertake to dispose of appellant’s brief in a general way only.

It is undisputed that the written agreement was executed as alleged by the plaintiff. The appellee’s evidence was undoubtedly sufficient to support the allegations of his petition relating to the subsequent changes in the written agreement and sufficient, as we think, to support the several findings of the jury. Appellant’s principal contention seems to be that it was incompetent to prove the alleged subsequent modifications of the written contract, in the absence of a plea of fraud, accident, or mistake. In volume 3 (Blue Book) of Jones’ recent Commentaries on Evidence, the author, after discussing the rule which forbids the alteration of a written contract by parol evidence, further says:

“The general rule under discussion, however, does not prevent the proof of ‘the existence of any distinct, subsequent, oral agreement to rescind or modify any such contract, grant, or disposition _ of property, provided that such agreement is not invalid under the statute of frauds or otherwise.’ The general rule does not purport to exclude negotiations respecting written contracts, unless they are prior to or contemporaneous with the making of the written instrument, anA in a great variety of cases it has been held admissible to prove by parol a subsequent change, modification, addition, or even discharge. For example, it is admissible to show by parol that the written contract has been abandoned except in so far as it has been modified by a new parol agreement; that the time or place of payment or of performance of the contract has been changed; that performance has been prevented or waived by the other party; that the mode of payment for services has been changed. * * * ” Section 442, p. 192.

And in 3 Elliott on Contracts, § 1988, that author says:

“Since the parties have the right to modify the contract in any manner they choose, they may, unless prohibited by positive enactment, modify the written contract, even though it be of the most solemn character, by a subsequent valid parol agreement at any time before performance.”

These general expressions of the authors named seem to be well supported by numerous authorities cited in notes to the text. Mr. Elliott also notes in section 1989 a conflict in the authorities as to whether any new consideration is needed to support the modification, but in note 69 to that section he cites numerous authorities, including the case of Cooper v. McIlwain, 58 Ala. 296, holding that in general a parol modification of a written contract need not be based upon a new consideration. In, ithe Alabama Case Judge Brickell, C. J., who wrote the opinion, on this subject says:

“There can be no doubt that the parties to a contract may rescind or modify it, at pleasure; and their mutual assent is all that is necessary to support the modification or rescission.”

But, whatever may be the better rule, we think there can be but little doubt, under the evidence of this case, that a consideration sufficient to support the modified agreement existed. To illustrate, appellee, Moore, testified on this subject:

“I went to work on the proposition right after this contract was entered into, selling the lots and appointing agents. I put in all of my time on the proposition, and did practically nothing outside of that until they got out the injunction and stopped me. I do not remember the date, but the injunction will show. After the injunction was served on me, I never sold anything else, and I notified all my agents to stop. * * * We changed the price of these lots. * * * The first raise in the lots was to raise them to $15, which was a raise of $5 a lot. That raise was made so that we could pay the agents more. As to the condition of the oü field that I was developing and working in about a month before this suit was filed or the injunction, I will say that the wells were coming in on the land and flowing.
“I talked with Mr. Ross about raising the lots to $15; Mr. Boss came down to the office and said that the proposition was not going fast enough; it was not selling, and I explained to him that I was doing the very best I could, and that I could not make it go any faster, not paying the agents, when other companies— There was two or three different oil propositions on at the same time and they were paying their agents more. That was in that section of the country, up at Electra and across the line in Oklahoma at Tioga and different places. There was two or three oil propositions on the market, and I explained the proposition to Mr. Ross, and he told me to change it any way on earth that I could to make it go. He says, ‘You change it any way you see fit to make it go,’ he says. He says, T will stand by you in anything you do.’ I believe there were five men in my office when I had this conversation with Mr. Boss; there was Mr. Hull and Mr. Cochran, and I forget the names of the other men that were in there at the time. With reference to the progress I was making in selling the lots at $10, Mr. Boss said the lots wasn’t going fast enough; that the sales wasn’t going fast enough. There had been no oil struck right in the immediate vicinity of the Boss property at the time we raised the price to $15. The raise of $5 was to enable us to pay our agents more. I cannot say how long we operated on the basis of selling the lots at $15, but it was for several weeks. The first note listed covering the sale of a lot at $15 is dated September 9, 1913. There was no additional sinking fund created when we raised the price of the lots to $15— No; the date of the raising of the lots to $15 was August 21, 1912. We subsequently raised the price of the lots to $30 a lot. * * * I had a conversation with Mr. Boss regarding the raising of the lots to $30, and he told me to change the proposition any way on earth that I seen fit to make it go. At the time we raised the lots to $15 Mr. Boss told me then to change the proposition any way on earth that I seen fit to make it _ go. At that time there had been a well drilled on the property was how come we had to raise the sinking fund to drill more weils, and Mr. Boss told me to change the proposition any way I seen fit to make it go, to make the proposition go, and I changed it That is all that was said about it. The first raise was made in order to pay the agents more, and the raise to $30 was made in order to dig ton wells instead of one well. In the Electra field there was a man had dug one well, and he didn’t get anything, and he abandoned it, and it seemed like the people were afraid of one well, and so we raised the price to $30 a lot, and made a sinking fund of $10 a lot, so as to enable us to dig ten wells. People would pay $30 for ten wells quicker than they would pay $10 for one well. Mr. Boss signed deeds to lots sold for $30 after that raise was made. I got my proportion out of the $30 sales just the same as before and Mr. Ross got his. I got $4 a lot. That was my proportion under the contract, and that is what I got. I did not get any more than the $4 a lot unless I went out and made sales myself. Once in a while I helped an agent and he gave me a little out of his commission. That was a matter between the agents and myself; but as between Mr. Boss and myself I did not get any more out of the sale of the lots at $15 or $30 a lot than I did out of a sale at $10 a lot. As I liave stated, about a month before this suit was filed, or the injunction, oil wells were coming in and flowing right along there in that field. Conditions were booming there in the field that I was developing and working. They just brought in several flowing wells right on the line, right close to ours. As to the advance in the oil land owned by Mr. Boss at the time this injunction writ was filed as compared with what it was at the time we entered into this contract, I will say that people paid as high as $300 an acre bonus right along within 100 yards of our land when these wells began to flow. That was just before he got out the injunction. At the time I began working on this proposition that same land was worth about $150 an acre. At the time this injunction writ was served lots were selling up there as fast as the agents could get to them.”

A fair construction of the above testimony tends to show that both parties to the contract were mutually interested in making the proposition “go.” No way has been suggested in which a modification of the contract operated to appellant’s prejudice. He continued to receive, as before, the amount specified in the original contract, and we see nothing unreasonable in the desire, as indicated by the testimony, to stimulate the interest and energies of the subagents employed in making sales, and in proffering to purchasers the added inducement of providing ten wells instead of one. The mutual interest thus existing constituted, we think, ample consideration for a modification of the original contract. Indeed, as indicated by some of the testimony and one of the jury’s findings, appellant executed deeds and received his pro rata share of the money for which lots were sold under the new agreement.

A consideration of the testimony quoted we think also a sufficient answer to one of appellant’s contentions urged by demurrer, objections to evidence, and in other ways, to the effect that the modified contract was insufficient and unenforceable because of its generality; this contention being predicated upon the allegation and proof on appellee’s part that the appellant said, “You change it in any way you see fit to make it go, and I will stand by you.” We see no reason why one person may not confer a general power upon another to do or to perform for him any act or thing not unreasonable or of a forbidden character, but, whatever force there may be in appellant’s contention to the contrary here, it must be noted from the testimony quoted that the general authority so given by Ross to make a change in the written contract was preceded by conversations in which explanation was made of the necessity or advisability, and contemplated terms of the change.

Numerous objections are presented by assignment to the issues as submitted by the court and to the action of the court in refusing special issues requested. The objections seem not to have been urged before the court prior to the submission of the court’s charge to the jury, as required by Revised Statutes, art. 1971, and hence these assignments are subject to appellee’s objections. See G., T. & W. Ry. Co. v. Dickey, 187 S. W. 184.

However, it may be said that the questions presented in the objections now urged to the court’s general charge are substantially disposed of in what we have already stated, and the issues presented by the special instructions, so far as proper, were sufficiently covered by those submitted by the court. As to the sufficiency of the evidence to sustain the verdict and judgment, it need only be said that no necessity existed for the submission to the jury of undisputed facts. Such undisputed facts must be considered here together with the facts as found by the jury upon the disputed issues, and the whole, in our opinion, undoubtedly .sustains the judgment; there being no doubt in our minds of the sufficiency of the evidence to sustain the special findings.

Appellee has presented a cross-assignment complaining of the action of the court in not rendering judgment upon the verdict of the jury for the sum of $18,092, as claimed by him, instead of for the sum of $2,828, but, without considering the questions presented by the assignment, we think it sufficient to say that it will be disregarded because not filed in the court below, as provided in the rules for briefing. See Rules for District and County Courts, No. 101 (159 S. W. xi); Lippincott v. Taylor, 135 S. W. 1070, writ denied; Wilson v. Brown, 145 S. W. 639; League v. Scott, 156 S. W. 1129; Guaranty State Bank v. Hull, 165 S. W. 104.

It is accordingly ordered that the judgment be in all things affirmed.
      <&s»For otter oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: CONLEY, C. J.

text:
    GRAHAM et al. v. CANSLER.
    (No. 112.)
    (Court of Civil Appeals of Texas. Beaumont.
    Dec. 2, 1916.)
    1. Execution <§=>251(2) — Inadequacy of Pbice — Validity of Sale.
    Inadequacy of price in execution sale in connection with additional facts showing fraud, irregularities or other circumstances, calculated to prevent the property from bringing approximately its reasonable value, will avoid the sale.
    [Ed. Note. — For other cases, see Execution, Cent. Dig. §§ 709-716; Dec. Dig. <§=>251(2).]
    2. Execution <§=>250 — Inadequacy of Pbice —Validity oe Sale.
    Where the testimony showed the value of the land to be between $500 and $1,000, and it was sold on execution for $160, the price was inadequate.
    [Ed. Note. — For other cases, see Execution, Cent. Dig. §§ 703-707, 789; Dec. Dig. <§=>250.]
    3. Execution <§=>248 — Sale—Ibbegulabities —Eeeect.
    Where a judgment was rendered in 1910, but not entered except by nunc pro tunc judgment in 1911, and the execution thereon described only the 1910 judgment, and the judgment debtor had personal property of sufficient amount to pay the judgment, but was given no opportunity to point it out, and where the execution described the property so defectively that the lines could not be run out, the aggregate of such defects rendered the sale invalid.
    [Ed. Note. — For other cases, see Execution, Cent. Dig. § 696; Dec. Dig. <§==248.]
    4. Appeal and Eebob <§=>1175(2) — Scope oe Review — Disposition of Cause.
    Where the cause was fully developed in the lower court, it is the duty of the Court of Appeals to render such judgment as the trial court should have rendered.
    [Ed. Note. — For other cases, see Appeal ’ and Error, Cent. Dig. § 4574; Dec. Dig. <§=> 1175(2).]
    Appeal from District Court, Angelina County; L. D. Guinn, Judge.
    Suit by Warren J. Graham, a minor, by O. A. Graham, his father, as next friend, and by O. A. Graham for himself, against M. H. Cansler. Judgment for plaintiff in part and in part for defendant, and, motion for new trial being filed, the court reversed its former judgment and rendered judgment for defendant, and thereupon plaintiffs appeal.
    Reversed, and judgment rendered.
    Denman & Thomas, of Lufkin, for appellants. M. M. Feagin and Sam Sayers, both of Lufkin, for appellee.
   CONLEY, C. J.

This is a suit in trespass to try title, filed by appellants, Warren J. Graham, a minor, by and through O. A. Graham, his father, as next friend, and O. A. Graham for himself, against M. H. Cansler, the appellee. Appellants sought to recover 101.14 acres of land out of the John W. Lock survey in Angelina county, and by special pleas sought to set aside a sheriff’s deed, made under an execution sale to the appellee on October 3, 1911. Appellants sought to set aside said deed:

First. Upon the theory that the appellant O. A. Graham, against whom the ap-pellee, M. H. Oansler, had previously recovered a judgment in the county court for $128, and upon which judgment the execution in question was issued, had, prior to the levy of said execution, conveyed the land to his son, Warren J. Graham, and that when such conveyance was made, he was solvent, and that therefore the execution was levied upon property which was not, in fact, subject to execution to satisfy said judgment.

Second. Appellants further sought to set aside the sale of said land under said execution, upon the alleged ground that the sheriff’s sale of the land was for an inadequate price, and that this fact, coupled with the following irregularities, which are alleged to have existed in the issuance and levy of the execution, and in the sale of the land, was sufficient grounds for canceling the sale, and deed evidencing the same:

(a) Because the sheriff did not ash the judgment debtor, O. A. Graham, to point out property, nor did he give him an opportunity to point out property upon which to levy said execution.

(b) That the levy and sale was made of real estate which was not, in fact, in the name of O. A. Graham, and that he, O. A. Graham, had personal property, describing the same, which he would have pointed out had he been given an opportunity, and which was more than sufficient in value to satisfy said judgment.

(c) That the sheriff sold land belonging to a third party who was not a party to said judgment when O. A. Graham, the real judgment debtor, had other real estate in the county of sufficient value to pay said execution, describing such real estate. .

(d) That the plaintiff, M. H. "Cansler, induced the officer to levy said execution upon the land in question, in order that he might purchase it at an inadequate price, pointing out said land to the sheriff, and knowing that no other bidders would participate.

(e) That advertisement of the sale of said land was not in the manner and form required by law, not being for the time required, not published as required, and in fact no legal notice was given, that the sheriff’s return thereon is insufficient, irregular, and void, in that the return is in form one required in the seizure and sale of personal property, and, further, that the description given in said return, as well as in the notice of sale and in the deed, is defective, and does not properly describe the land, all of which, it is claimed, caused the land to sell for a grossly inadequate price.

The answer of the appellee denied all the allegations of plaintiffs’ petition, and pleaded that the sale to Warren J. Graham by O. A. Graham and wife was made to defraud creditors, and was therefore void, and that O. A. Graham was in truth the real owner of the land.

The ease was submitted to the court without a jury, and on the 30th day of October, 1915, judgment was rendered for the plaintiff, setting said sale aside, and canceling said deed, and further rendered in favor of the appellee, that he recover of and from the defendant $290.91, which amount included the amount of the original judgment in the county court case, under which the execution was issued, and also included an item of $50, which represented cost of improvements which the appellee, Oansler, put upon the property, and the balance was for taxes and other items of expense incurred by Oansler during the time he had said property in his possession. In due season the appellants filed a motion to reform said judgment, and retax the costs which had been rendered therein. The appellee also filed motion for a new trial. On the 29th day of November, 1915, the court reversed its former judgment, and allowed the ap-pellee herein to recover the land in controversy. The appellants in due season perfected their appeal, and the cause is now before us for review.

The record discloses the following facts: The appellee, M. H. Oansler, sued A. L. Graham in the county court of Angelina county, and on the 29th of October, 1910, recovered a judgment against him for the sum of $128.05. This judgment was not entered at the term of court at which it was rendered, and at the following term, in April, judgment was entered nunc pro tunc. O. A. Graham and wife conveyed the land in controversy bo Warren J. Graham on July 18, 1911. Execution was issued on said judgment August 28, 1911, and on September 2, 1911, the sheriff levied the same on tne land in controversy, and on October 3, 1911, sold said land to the appellee, M. H. Cans-ler, for the sum of $160, and forthwith executed a deed on the same day to ap-pellee, M. H. Oansler.

The first assignment of error attacked the judgment of the court as being contrary to the law and the evidence, for the reason that at the time of the levy of said execution, the property did not belong to O. A. Graham, but was the property of W. J. Graham. Inasmuch as we are of the opinion that the execution sale must be set aside for the reasons hereinafter stated, regardless of the question of the true ownership of the property, we do not deem it necessary to determine the issue raised by this assignment, and we, therefore, proceed to consider the other assignments of error. The second assignment of error is as follows:

“The court erred in rendering judgment for the defendant for the land sued for, and in favor of the plaintiffs, for the evidence shows on the trial that the land sued for was sold at the sheriff’s sale at an inadequate price, that is, the land was worth at the date of said sale, as shown by the testimony, from $500 to $1,000, hut that said sale was for but $160, a price inadequate, and that this inadequate price, coupled with irregularities shown by the testimony, that is, the defendant in execution, though residing in the county, was not asked nor permitted to point out any property subject to execution; that M. H. Cansler, the plaintiff in said execution, did point out &e property levied upon and sold, and at the sale purchased same for the price stated; that the defendant in said execution had personal property sufficient and more to satisfy said judgment; that he had real estate in his own name that might have been levied upon, instead of the land that was levied upon; that the description contained in the notice of sale is irregular, insufficient, and fails to properly describe the land, that the description in the deed offered in evidence is insufficient, irregular, and does not properly describe the land sued for; that the execution did not identify the judgment sued on as the basis for its issuance; * * * and that because of all, each and every one, of said irregularities, an inadequate price was caused at said sheriff’s sale. * * * ”

The rule is well settled in this state that any inadequacy of price in an execution sale, in connection with additional facts showing fraud, irregularity, or other circumstances calculated to prevent the property from bringing something like its reasonable value will avoid the sale. Moore v. Miller, 155 S. W. 575.

No briefs have been filed in this case by the appellee. If the statements contained in this assignment of error are supported by the evidence, it will be necessary to reverse this case, and we therefore proceed to examine the record in that respect.

The land sold at the sheriff’s sale for $160. The oral testimony on the value of the land ranges from $500 to $1,000. The price of the land brought at the sheriff’s sale is therefore inadequate, and is not a fair and reasonable price for said land.

It further appears from the record that judgment was originally rendered in the county court in the case of Cansler v. O. A. Graham, on October 29, 1910, but was never entered, and on April 17, 1911, a nunc pro tunc judgment was entered. The execution refers to and describes only a judgment of date October 29, 1910, and does not recite the nunc pro tunc character of the judgment. If a prospective purchaser were to rely upon the recital in said execution as to the date of said judgment, and refer to the minutes of the October term of the county court in an effort to examine the judgment, as a basis for the issuance of the execution, he would not find the judgment recorded at that term of court. The description of the judgment is therefore, not correct. No judgment being found on the minutes of the court for the October term would, in all probability, affect the determination of a prospective purchaser in making a bid on said property. At least, we are not of the opinion that such a circumstance would not have that effect.

It further appears from the record that O. A. Graham possessed personal property of a sufficient amount to pay said judgment, but that he was not given an opportunity to point out property upon which to levy said execution, but that, on the other hand, the appellee, M. H. Cansler, pointed out the specific property involved in this suit, and directed the sheriff to levy the execution thereon.

It also appears that the return made on the execution describes the property so defectively as to make it impossible to run out its lines, and therefore it cannot be identified on the ground. This same defective description also appears in the deed executed by the sheriff to the said M. H. Cansler.

For these reasons, we are of the opinion that the above assignment is well taken, and should be sustained. Cleveland v. Simpson, 77 Tex. 96, 13 S. W. 851; Capps & Cantey v. Leachman, 90 Tex. 499, 39 S. W. 917, 59 Am. St. Rep. 830; Collins v. Hines, 100 Tex. 304, 99 S. W. 401; House v. Robertson, 89 Tex. 681, 36 S. W. 251; Irvin v. Ferguson, 83 Tex. 491, 18 S. W. 820; White v. Taylor, 46 Tex. Civ. App. 471, 102 S. W. 748.

It further appears from the record that the appellant tendered into court the sum of $210, being the amount of said judgment recovered in the county court in the cause of Cansler v. O. A. Graham, with interest thereon, and costs of suit to the date of the filing of the petition in this cause.

Our action in sustaining the second assignment of error disposes of this case, and therefore we do not deem it necessary to set out in detail, nor to discuss appellants’ other assignments of error. They are all well taken, and are sustained.

This cause having been fully developed in the lower court, it is our duty to render such judgment as the trial court should have rendered. It is therefore adjudged that appellants recover the land in controversy, and that said execution sale be set aside, and the sheriff’s deed be canceled. It is further adjudged that the appellee recover of and from O. A. Graham and Warren J. Graham the sum of $210, which is now in the registry of the court; and it is so ordered.

Reversed and rendered.
      '<5fc=a.For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes