author: RASBURY, J.

text:
    GROSMAN CO. v. F. DE WITT & SON et al.
    (No. 7814.)
    (Court of Civil Appeals of Texas. Dallas.
    Nov. 3, 1917.)
    Trial <®=3251(7) — Instructions—-Issues.
    The elements of tho issues of estoppel in pais and novation being so radically different, and the proof necessary to sustain them so unlike, judgment on a verdict for defendant will not be affirmed as a correct result founded on an incorrect reason, where the evidence raised the issue of novation, and submission to the jury was on the theory of estoppel; especially where plaintiff’s testimony tends to disprove novation.
    Appeal from Dallas County Court at Law; T. A. Werk, Judge.
    Action by the Grosman Company against F. De Witt & Son and another. FYom the judgment for the named defendant, plaintiff appeals.
    Reversed and remanded.
    Wood & Wood and W. W. Hagebush, both of Dallas, for appellant.
   RASBURY, J.

Appellant sued appellees De Witt & Son, as makers, and appellee Weatherford, as indorser, .upon .a series of promissory notes executed and delivered in payment of a soda fountain sold to appellees De Witt & Son by appellant and subsequently by De Witt & Son to Weatherford, who, at the time of his purchase, indorsed the notes, and to foreclose a chattel mortgage on the fountain. There was a trial by jury, resulting in verdict in favor of appellees De Witt & Son, and. against appellee Weather-ford, followed by similar judgment from which this appeal is prosecuted.

The appellant’s testimony tended to.show that after appellees De Witt & Son purchased the fountain they consummated a sale of their business to Weatherford upon condition that appellant would permit De Witt & Son to convey the fountain to Weatherford and permit him to indorse their notes and assume payment of same, to which appellant consented, and whereupon Weatherford did indorse the notes and take over the fountain, while the testimony of De Witt & Son tended to show not only an agreement to permit a conveyance of the fountain and an in-dorsement and assumption of the note by Weatherford, but as well a release of De Witt & Son of all liability on the notes. The evidence adduced in support of the facts .briefly related consisted largely of correspondence, some shown by original letters, some by carbons, and some by oral proof of contents of those lost.

The conflicting facts being as stated, the court, among other things, charged the jury, in substance, that in the event they believed the facts dedueible from appellees’ testimony to be true, that then appellant would be estopped to recover against appellees De Witt & Son on said notes, correctly defining for the benefit of the jury the elements of estoppel. Appellant excepted to the court’s charge, and contends, we think correctly, that the issue of estoppel was not raised by the evidence, and should not have been submitted. While loose discussions seem inevitable when estoppels in pais or equitable es-toppels, which result from declarations, admissions, etc., arise, yet it may in general be said to be “the effect of voluntary conduct of a party whereby he is precluded, both at law and in equity, from asserting the rights which might perhaps have otherwise existed, either of property, of contract, or of remedy, as against another person who has, in good faith, relied upon such conduct, and has been led thereby to 'change his-.-position for the worse, and who on his part acquires some corresponding right, either of property, of contract, or of remedy.” Edwards v. Dickson, 66 Tex. 613, 2 S. W. 718. It is obvious, we think, in the light of the definition quoted, that the release of one debtor and the acceptance of another, as the testimony of appellees at most tends to show, does not present estoppel in pais. The evidence of appel-lees raises not estoppel, but novation, which is said in a general way to be effected “by the 'substitution of a 'new obligation between the same parties with the intention to extinguish the old one, or by the substitution of a new - debtor with the intention to release the old one, or by the substitution of a new creditor with the intent to transfer the rights of -the old one to him.” Gimble & Sons v. King et al., 43 Tex. Civ. App. 188, 95 S. W. 7. The elements of the two issues are so radically different, and the proof necessary to sustain the respective issues so unlike, that- we ar.e unable to say, particularly in view of the fact that appellant’s testimony tends to disprove novation, that the verdict should be affirmed as correct, though founded on an incorrect reason; and for that reason the judgment is reversed, and the cause remanded.

• Reversed and remanded.
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source: Caselaw Access Project

author: BOYCE, J.

license: Public Domain

text:
    LEVY v. JARRETT.
    (No. 1214.)
    (Court of Civil Appeals of Texas. Amarillo.
    Oct. 10, 1917.
    Rehearing Denied Nov. 7, 1917.)
    1. Trial €=>205-AtNSTRUCTioNS — Necessity— Burden of Proof.
    Trial court, in submission .of special issues, should give -proper charge on the burden of proof in connection therewith.
    2. Ajbpeal ’and Error €==>1067— Harmless Error — Errors not Affecting- Result.
    Refusal to give proper charge on burden of proof is harmless error, where it does not appear that result would probably have been different if charge had been given.
    3. Master and Servant <§=»73(3) — Compensation — Forfeiture.
    Preparing, before end of term for which servant wa§ employed, to engage in competitive business at expiration of term, and attempting to engage one.pf employer’s, clerks for his business when opened, are not Such unlawful acts as to forfeit his right to compensation for past services.
    4. Master and Servant €=>30(1) — Grounds for Discharge.
    That an employe intends, at. expiration of his term of employment, '.to engage in competing business is not ground of discharge.
    5. Master and Servant €=>41(1) — Actions for Compensation — Amount of Recovery.
    . ■ An employé, wrongfully discharged, may sue on contract.for services performed and recover proportional compensation.

      6. Master and Servant @=>75.— Compensation— Mutual Abandonment.
    If a contract of employment is mutually abandoned, the employé is entitled to recover proportional compensation for his services.
    7. Master and Servant @=>32 — Grounds rob Discharge.
    When an employer assigns grounds for discharge of employé, he cannot afterwards justify it on other grounds which were not at the time made the basis of termination of contract.
    8. Master and Servant <®=>73 (3) — Compensation— Damages for Misconduct.
    In a discharged employé’s action to recover compensation for past services, the employer may set off damages for actual misconduct by employé; though he did not base discharge on those grounds.
    Appeal from Potter County Court;. T. W. McBride, Judge.
    Action, by M. J. Jarrett against J. Devy. From judgment for plaintiff, defendant appeals.
    Affirmled.
    C. E. Gustavus, of Amarillo, for appellant. Reeder & Dooley, of Amarillo, for appellee.
   BOYCE, J.

In this case appellee, Jarrett, recovered judgment against appellant, Devy, as compensation alleged to be due for services under a contract of employment, as manager of a department of appellant’s store at Amarillo. The contract of employment provided that appellee, for his services, was to receive a salary of $150 per month, and in addition a commission of 2 per cent, on the gross sales of the department of which he was manager. The only dispute between the parties with reference to the contract was as to the tirnie it was to cover — appellee claiming that it was for six months and appellant that it was for one year. According to the testimony of both parties, the commission was to be paid at the end of the term of employment. It was shown that some time in April, 1916, appellee rented a building in Amarillo and was preparing to quit the service of appellant on July 1st, the date of the expiration of the six months for which he claimed, he was employed, and at that time engage in a business competitive with his employer. Appellee did not inform appellant of his plans, but appellant, having learned of theml from other sources, inquired of ap-pellee with reference thereto and, being informed by appellee that such was his intention, requested appellee to quit the service on June 1st, and appellee did so. The controversy is as to the right of appellee to recover the 2 per cent, commission on the gross sales of his department during the time of his employment.

Appellant asserts that the contract being for one year was breached by appellee’s declared intention to terminate it at the end of six months. The jury found, in response to two special issues submitted, that the contract was for six months and the converse that it was not for one year, and appellant presents an assignment complaining of the action of the court in refusing to submit a requested instruction as to the burden of proof in connection with the submission of the first issue stated.

It is ordinarily true that the trial court in the submission of special issues, should give a proper charge on the burden of proof in connection therewith. Texas Baptist University v. Patton, 145 S. W. 1063; Sanger v. Bank, 170 S. W. 1087.

The solution of the sole issue between the parties as to the terms of the contract depended upon the weight the jury should give to the testimony of the plaintiff and the defendant, respectively, they being the only witnesses to the terms of the contract, which was oral. The court gave the usual charge to the effect that the jury were the sole judges of the credibility of the witnesses, and the weight to be given to their testimony, etc. Under these circumstances it is doubtful whether a charge on the burden of proof, in connection with the submission of the issue, was necessary. T. & P. Ry. Co. v. Geiger, 79 Tex. 13, 15 S. W. 216; Blum v. Strong, 71 Tex. 324, 6 S. W. 167; Frost v. Grimmer, 142 S. W. 615; Stooksberry v. Swan, 85 Tex. 563, 22 S. W. 963; Syfan v. Ry., 43 S. W. 553. At any rate, we do not think it appears that the result would probably have been different if the charge had been given, so that, if the action of the court was error, it was harmless.

Appellant pleaded that appellee, during his employment, was unfaithful and disloyal to the interests of his employer; that he was guilty of disobedience of instructions, and failed to discharge properly the duties of his employment, and thereby breached the contract and forfeited any right to the commission which was to be paid at the end of the term of his services. Some evidence was offered as to some specific instance of disobedience to general instructions, as to adhering to marked prices, reporting sales, etc., and evidence was offered but rejected as to some specific instances of exhibition of irritability on the part of the appellee in dealing with customers of the store. Appellant, by various assignments, complains of the action of the court in refusing to permit the introduction of the'evidence referred to as being offered and in refusing to submit issues to the jury as to the faithfulness of appellee’s service, the only issues submitted being the two issues as to the stipulation of the contract fixing the term of the employment, as before stated.

The charge of disloyalty against appel-lee is based on the fact of his renting a building and preparing to engage in a competitive business at the expiration of his term of service, and also an alleged effort on his part, while in his employer’s service, to engage one of such employer’s clerks for ap-pellee’s business when opened. The only authorities to which we have been cited as bearing on this question hold, we think correctly, that such acts alone on the part of the employé are not wrongful. Myers v. Sullivan Co., 166 Mich. 193, 131 N. W. 521, 34 L. R. A. (N. S.) 1217; Nichol v. Martyn, 2 Esp. 732. It is not every act of disregard of and inattention to the duties of the employment that will forfeit the servant’s right to compensation, though he may be discharged by reason thereof. Cotton v. Rand, 93 Tex. 7, 51 S. W. 843, 53 S. W. 343; Hahl v. Kellogg, 42 Tex. Civ. App. 636, 94 S. W. 391; Eidson v. Saxon, 30 S. W. 957; Mechem on Agency (2d Ed.) § 1548. The following rule stated by Mechem is generally adopted by the authorities as correctly stating the law:

“If the agent was guilty of such misconduct as amounts to treachery, or if he wholly failed to recognize the duties and responsibilities imposed upon him by his situation or so conduct himself that his services are of no value, it is entirely just and reasonable that he should receive no compensation whatever and to this extent the law is well settled.”

We think it clear that the acts charged against appellee do not come within this rule.

The appellee was requested to quit appellant’s service because of his expressed intention to enter into business for himself on July 1st, prior to the expiration of his term of service, as appellant claimed. If the transaction is to be treated as a discharge, under the finding of the jury and the authorities above cited, this discharge was wrongful, and all the authorities agree that in such event appellee could sue on the contract for the servides performed and recover a proportional compensation. If the transaction be treated as a mutual abandonment of the contract, appellee would be entitled to recover proportional compensation for his services. Labatt on Master & Servant, §§ 467-468. If the acts of misconduct other than his planning to enter into business for himself upon the expiration of his term of employment, now charged against appellee, would have justified his discharge, they were not made the basis of the termination of the contract and would not affect appellee’s right to recover on it, as appellant at the time did not treat such acts as being a breach of the contract, but, on the contrary, insisted that he was entitled to appellee’s services until the end of the year, and terminated the contract because of his expressed intention to quit the service earlier than such time. Dunkell v. Simons (N. Y. City Ct.) 5 N. Y. Supp. 417; Wright v. Graves Land Co., 100 Wis. 269, 75 N. W. 1000; Mechem on Agency (2d Ed.) § 1581. Under these circumstances we think appel-lee could recover on the contract, and the showing of these acts of misconduct would not defeat recovery entirely, though appellant may have pleaded them and asked for damages in offset of appellee’s claim. This he did not do. For this reason we think the issues as to these alleged acts of misconduct in the service are immaterial, and overrule appellant’s assignments in reference thereto.

Even if appellee had been rightfully discharged for these other alleged acts of misconduct, numerous authorities hold that he could nevertheless maintain his suit for compensation, and could recover the proportional part of the compensation earned under the contract subject to the right of the employer to offset this recovery, with the damages sustained by him on account of the wrongful acts of the servant in disregard of his duty. Hildebrand v. Art Co., 109 Wis. 171, 85 N. W. 268, 53 L. R. A., 826; Maratta v. Chas. H. Heer Dry Goods Co., 190 Mo. App. 420, 177 S. W. 718; Myers v. Sullivan Co., 166 Mich, 193, 131 N. W. 521, 34 L. R. A. (N. S.) 1217. It is not so clear to us, however, whether in Texas the recovery would not be on a quantum meruit, and just how far the contract might be used by the plaintiff in such circumstances as a basis for the suit and determination of the value of the services. Carroll v. Welch, 26 Tex. 147; Meade v. Rutledge, 11 Tex. 44-52; Shute & Limont v. McVitie, 72 S. W. 433; Peacock v. Coltrane, 44 Tex. Civ. App. 530, 99 S. W. 107; Cotton v. Rand, 93 Tex. 7, 51 S. W. 843, 53 S. W. 343; Basse v. Allen, 43 Tex. 481; Mudgett v. Texas Tobacco Manf. Co., 61 S. W. 150, and for this reason base our ruling on the conclusions announced above.

Affirmed.
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author: WALTHALL, J.

text:
    TEXAS & P. RY. CO. v. THORP.
    (No. 724.)
    (Court of Civil Appeals of Texas. El Paso.
    Oct. 25, 1917.)
    1. Carriers <@=a>230(7)— Live Stock — Damages in Shipment — Instructions — Conformity with Issues.
    Where there was evidence that the shipper of live stock was required under his contract to bed the stock and care for them en route, an instruction that if plaintiff was negligent in failing to inspect the cars or negligently failed to care for his cattle during transportation, and that such negligence was the proximate cause of the damage, plaintiff could not recover, was not sufficient to present the issue.
    2. Appear and Error <@=>1002 — Scope of Review-Conflicting Evidence.
    Yvhere the evidence directly conflicts, the verdict of the jury should not be disturbed on appeal.
    3. Carriers <⅞=230(9) — Live Stock — Damages in Shipment — Instructions — Con- ' formity with Issues.
    Where the assignment of negligence is failure to properly bed a car for the shipment of cattle, a charge reading “Unless you do find from a preponderance of the evidence that the injury to said cattle, if any, was the proximate result of the failure of the defendant, to bed or properly bed the car or ears in question, your verdict will be for the defendant,” is not amenable to the criticism that it assumes that the defendant was guilty of negligence in failing to bed the car.

      4. Carriers @=3208 — Live Stock — Duties of Oaeeiee.
    Where .the carrier undertook to bed the stock it was liable for failure to exer.cise ordinary care to perform such duty.
    6..Trial @=3259(2) — Special Instructions— Filing.
    A special charge requested by a party should be-filed before it is read to the jury.
    6. Trial <©=3259 (2) — Special Instructions— Filing.
    Where a special requested charge was read to the jury before being filed, but on objection was ordered filed, there was at most an irregularity and not error. • - ■
    7. Carriers ,@=3228(3) — Live Stock Oaeeiers —Damages’ in Shipment — Evidence — Admissibility.
    In an action by the shipper of live stock for damages in transit, it was error to permit him to testify that he met a man who said he was the yardmaster, and who on request refused to give assistance in taking care of cattle, in the absence of proof that such person was in fact the carrier’s yardmaster.
    Appeal from Eastland County Court; Joe Burkett, Judge.
    Action by A. L. Thorp against the Texas & Pacific Railway Company. Judgment for plaintiff, and defendant 'appeals.
    Reversed and reminded. ' •
    Earl Coriner, of Eastland, for appellant. R. L. Rust, of Eastland, and Capps, Cantey, Hanger & Short, of Ft. Worth, for appellee.
   WALTHALL, J.

Appellant, Texas & Pacific Railway Company, perfects this appeal from a' judgment rendered in the county court of Eastland county in favor of appellee, A. D. Thorp, for damages alleged to have been sustained in the shipment of three cars of cattle fr<pn. Ft- '7$⅜⅝...⅜0 Cisco, .Tex,, The ship- ' nient’bf the cattle was made in three separate cars, ahd the negligence assigned causing the death of some ‘of’ the cattle and injury to others is- that one of the cars was not properly heddéd. The appellee alleged that it was the duty pf appellant to bed the car with sand and straw, or other suitable substance, in order that the cattle might thereby be enabled to stand iip in the car-during the transports tion; that unless the cars’were properly bedded the car becomes slick and stock cannot stand up during shipment; that for lack of proper bedding the floor of the car in question was hard and became wet and slick and the cattle were unable, on account of that condition of the car, to stand up; that in the transportation of the cattle 16 head were , thrown down and injured, and from their injuries died, and that .other cattle in the car were injured.

The appellant’s pleadings, among other things, contained a general denial; sets up a live stock shipment contract containing among other provisions that the shipper should accompany said shipment for the purpose of caring for said cattle during their transportation, and that the shipper at his own risk and expense is to take care of and attend the stock while the same is being transported, agreeing to hold the carrier harmless on account of loss or damage to the cattle while so cared for and attended to by the shipper. Appellant alleged that the cattle were in a weak and emaciated condition, 'and that appellee failed and neglected to care for said cattle during transportation; that many of the cattle would get down in the car during transportation, and that appellee made no effort whatever when the cattle were down to get them up on their feet;' that if the cattle were, injured same was the result of appel-lee’s failure to care for the cattle during their transportation. The answer tendered other issues which we need not state. The charge of the court submitted the case on the general issue, and the jury returned a general verdict in favor of appellee.

The court instructed the jury among other things as follows:

“If you find from the evidence that the plaintiff was negligent in the failure to inspect the cars as to their being properly bedded before loading, and you further find that plaintiff negligently failed to care for and see after his said cattle during the transportation of same, and you further find from the evidence that such failure on the part of plaintiff, if any there were, was the proximate cause of the injury and death of said cattle, if any occurred, then your verdict will be for the defendant, Texas & Pacific Railway Company, and against the plaintiff, A. L. Thorp.”

The ’ appellant submitted to the court the following special charge No. 4:

“You are charged that if you find from the evidence that the plaintiff abandoned his cattle at Ft. Worth, Tex., ánd if you further find that the said cattle were damaged or injured or killed during transportation from Ft. Worth to Cisco after such time, and that such damage or injury' was the proximate result of such abandonment, then you are instructed that the plaintiff- would be estopped from complaining of any injurious consequence of such abandonment, you will find for the defendant as to such injury or damage.”

The 'court refused-'-to give the special charge. * ’ •

The above copied portion of the general charge is the only charge found referring to or submitting the issues requested. The statement of the facts disclose-that ample evidence was introduced on the trial to show that’appellee' was given reasonable opportunity during the transportation to care for-the cattle and get those found down upon their feet, and that appellee not only failed but refused to do so.. The witness J; Johnson having charge of other cars of cattle in the same train said:

. “I' offered to get in the cars with the owner and help them up at Mingus, but he would not do anything towards getting them. * * * They were badly down, spread out and too weak to get up without help. * * * We were at Weatherford and Mingus plenty long enough time for the shipper to have gotten these cattle up. * * * I know that we were talking about them being down and in bad shape at Mingus' and I offered to go in the car with him and help him get them up but he refused to do anything for them, and as he did not seem interested enough to look after his cattle I did not do anything further myself, he stating to ine that the railroad had gotten them down and that they could look after them, or similar statements. * * * I think that practically all of them could have been gotten up on their feet, and rode better if they had been gotten Up. Permitting cattle to remain down in the cars causes them to be trampled, bruised, and billed by the cattle able to stand up. A great deal more injury results to them while down in the cars than when standing up.”

There was other evidence offered as to the opportunity of appellee to care for his cattle and his failure to do so. The evidence was conflicting as to the bedding in the car and as to the physical condition of the cattle.

Appellant assigns error in the court’s general charge quoted and in the refusal to give the special charge. We are of the opinion that the general charge of the court did not properly and sufficiently submit to the jury the issue of fact embraced in the pleading and proof, and that the court, his attention having been called to the error, should have either refrained the general charge so as to clearly submit to the jury the issues requested, or should have given the special charge requested, or a charge in lieu of the special charge, separate and apart from the issue as to the bedding of the car. If it was plaintiff’s duty to inspect the car as to the bedding before loading, and it was also his duty to care for the cattle while in transportation, and he failed to perform either duty, and if the injury to the cattle complained of was the approximate result of appellee’s failure to perform either duty the appellant was entitled to recover. The charge complained of confined appellant’s rights to recover-upon 'the failure of appellees to perform both duties. It may not be that it is the unqualified duty of the shipper under all circumstances, as a matter of law, to attend and care for his cattle while in transportation, as suggested in the special charge submitted, but in view of his contract, and the opportunity given the 'shipper to attend and care for his cattle, we think the appellant rvas entitled to have clearly submitted the issues of fact constituting so important a part of its defense.

In view of another trial, we briefly indicate our view as to the disposition that should he made of the other assignments. The first assignment claims that the evidence is insufficient to support the verdict and judgment. The evidence is conflicting, and the jury having found against appellant, their finding should not be disturbed. The third assignment criticizes the general charge as being upon the weight of the evidence, in that it assumes negligence in killing some of the cattle and injuring others, and in failing to properly bed the ears and failing to handle the same in transportation with ordinary care. We do not believe the charge is amenable to the criticism made. The portion of the charge submitting the measure of damages to the cattle injured is not altogether free from objection. On a retrial we suggest that the charge follow the rule for the measure of damages as stated by the Supreme Court in Hovencamp v. Union Stockyards, 107 Tex. 421, 180 S. W. 225.

Where the assignment of negligence is failure to properly bed a cattle car for the shipment of cattle, a charge reading:

“Unless you do find from a preponderance oi the evidence that the injury to said cattle, if any, was the proximate result of the failure of the defendant, Texas & Pacific Railway Company, to bed or properly bed the car or cars in question, your verdict will be for the defendant,”

—is not amenable to the criticism that it assumes that the defendant was guilty of negligence in failing to bed the car, as claimed in the second assignment.

Special charges Nos. 2 and 3 are not in good form, and the court was not in error in refusing to give them. At the request of appel-lee the court gave the folio whig charge:

“Should the jury find and believe from the evidence in this case that the defendant the Texas & Pacific Railway Company contracted and agreed to ship and transport from Ft. Worth, Tex., to Cisco, Tex., the said cattle as alleged in plaintiff’s petition, then you are instructed that it was the duty of the defendant, the Texas & Pacific Railway Company, to furnish the plaintiff with cars properly bedded with suitable material in which to ship said cattle, and a failure to furnish said cars properly bedded would be negligence as that term has been hereinbefore defined in the general charge of ike court.”

Appellant assigns error to the giving of this charge. The charge is subject to some of the criticisms made. The railroad company having undertaken to bed the cars it was its duty to properly bed them. H & T. C. Ry. Co. et al. v. Mayes et al., 97 S. W. 318. A failure to exercise ordinary care to perform such duty is all that is required. The charge placed a greater duty on the appellant than the law requires.

The special charge requested by appel-lee should have been filed prior to the reading of it to the jury. The bill of exceptions approved by the court shows that timely objection was made to the reading of the charge on the ground that it had not been filed. Article 1974, Rev. St. 1911, as amended by the Thirty-Third Legislature, c. 59 (Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1974), requires that the requested instruction shall be filed with the clerk. The court, in approving the bill, states that the special charge was then ordered to be filed. The record does not otherwise show that the special charge was filed. The failure to file the charge before reading it to the jury was an irregularity, but we cannot say that it was such a denial of the rights of appellant as was reasonably calculated to cause and did cause the rendition of an improper judgment, or was such as probably prevented appellant from making a proper presentation of the case to the appellate court. It was not-reversible error.

We think it was error to admit in evidence, over objection, the testimony of ap-pellee, detailing a conversation he had with an unidentified man, and the reply made by the man to appellee’s request as appears in the following:

“After I examined the cattle in west yards and found about half of them down in one car, I * * * started out to hunt the Texas & Pacific yardman, and on my way to the office I met some one coming toward us from the direction of that office, and when I came up to him I asked him where the yardmaster was, and he replied that he was the yardmaster himself. I then told the man the condition that I found the cattle in in one of the cars and asked him to do something with the cattle, and he replied, ‘The cattle can stay there until hell freezes over before I will have a thing to do with them.’ Then I told him that the cattle belonged to the company as I would have nothing more to do with them and he turned and walked away. I do not know who the man was except from what he said.”

If it be conceded that the unidentified man with whom appellee had the conversation was the yardmaster at Et. Worth (a fact not admitted), the question remains, How does the conversation between the appellant and the unidentified man tend to prove or to disprove any issue in the case, or have the effect of relieving appellant from any duty devolving upon him to look after and care for the cattle? What the appellant had done as to the bedding of the car had already been done; the cattle loaded in the ear and the car put in the train of cars and moved some three or four miles from the place of loading ready for movement to its destination. The statement made by appellee to the man and his reply thereto had no reference to the condition of the car as to bedding, or the cause of the cattle being down in the car. In Cooper Grocery Co. et al. v. Britton, 74 S. W. 91, the court said that:

“Mere idle, desultory, or careless talk of the agent, having no legitimate reference to or bearing upon the business of his principal, cannot be binding upon the latter. And the statements, representations, or admissions must have been made by the agent at the time of the transaction, and either while he was actually engaged in the performance, or so soon after as to be in reality a part of the transaction. Or, to use the common expression, they must have been a part of the res gestae.”

In this case, to be admissible, the statement of the yardmaster (if he was the yardmaster) must have reference to the bedding of the car (the business of the master) and made at the time the car was bedded, or so soon thereafter as to be a part of or in connection with the bedding of the ear. The admission of the evidence is error, was self-serving, in that he was permitted to state what he told the man was the condition of the cattle in the car, and was inflammatory in its nature as claimed in the appellant’s proposition. This assignment is sustained. For errors discussed the case is reversed and remanded.
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      gr^sEor other oases see same topic and KEY-NUMBER in all Key-Numbered. Digests and Indexes


author: KING, J.

text:
    GULF, C. & S. F. RY. CO. v. NICHOLS et al.
    (No. 211.)
    (Court of Civil Appeals of Texas. Beaumont.
    Oct. 26, 1917.
    Rehearing Denied Nov. 14, 1917.)
    1. Carriers <S=>277(1) — Carriage of Passengers — Breach of Contract — Damages.
    For breach of a contract in carrying a passenger beyond his destination, the passenger is entitled to recover damages for his trouble and inconvenience, loss of time, and costs suffered as well as such injury and sickness as results from being wrongfully carried beyond his destination, but the damages recoverable are limited to those which are proximate and not remote or contingent.
    2. Carriers <®=»277(1) — Carriage of Passengers — Breach of Contract — Damages.
    Where a woman with two little children, on being carried a few miles by her station in a country with which she was familiar, became so frightened and excited that her nerves and muscles became completely shattered and incon-trollable, resulting in serious illness and physical pain, though she was subjected to no insults, and was not exposed to cold or inclement weather or to any of the usual and natural causes of sickness or mental anguish, but was politely assisted from the train at the next station, taken by the company’s agent to a hotel, conducted by a woman whom she knew, and on the following morning was returned free of charge to her station, where another friend assisted her to her home, her injuries were not the proximate result of the conductor’s failure to stop the train at her station, as the probability of such serious consequences could not have been anticipated.
    Appeal from District Court, Montgomery County; J. Llewellyn, Judge.
    Action by Mrs. Sophie Nichols and others against the Gulf, Colorado & Santa Fé Railway Company. Judgment for plaintiffs, and defendant appeals.
    Reversed and remanded.
    W. N. Foster, of Conroe, and F. J. & C. T. Duff, of Beaumont, for appellant. C. A. Toler and Howard Bennette, both of Conroe, for appellees.
   KING, J.

This suit was tried in the district court of Montgomery county, the plaintiff alleging the following cause of action:

“(9) On or about April 22, 1914, plaintiff, her two little children and a boy about 14 years of age, went aboard defendant’s west-bound passenger train at Big Creek, where she contracted with defendant and its agents for passage to Timber and paid to them the fare demanded, whereby defendant became liable and bound to carry her to that place and let her off the train in safety.
“(10) At the time just mentioned, plaintiff’s children were 22 and 9 months of age, respectively. She had engaged the boy aforesaid to assist her out home with the children from Timber two miles, which she intended to walk in case the weather would permit; otherwise she intended to stay all night with friends in Timber, and go out home to her father’s next morning, either of which she could have done.
“(11) When plaintiff entered the train at Big Creek she was not a strong woman, but was as strong and healthy as was customary for her; she was not an invalid, but was afflicted with a nervous trouble known as shaking palsy that had been bothering her slightly for some time thex-etofore; however such disease was not then such as caused her any perceptible physical pain or mental anguish, it being, nevertheless, such a disease of the nerves and muscles as was noticeable to herself and other persons, and such disease as was susceptible of being aggravated by excitement, disappointment, fear, or any other sort of mental worry and anguish, and such disease, when aggravated, as assists to promote mental anguish and physical pain, which disease was grievously aggravated and augmented by the negligence of defendant in the way and manner hereinafter complained of.
“(12) While making the trip from Big Creek to Timber plaintiff relied upon defendant _ to care for her and put her off the train at Timber according to its contract of carriage, but defendant breached the same, negligently failing to stop its train at that place, and by willfully carrying her on to Waukegan, a station six or eight miles distant from Timber; which breach of contract and wrong committed by defendant, its servants, agents, and employés, directly caused great injury and damage to accrue to plaintiff in the following manner:
“(13) When the train passed Timber without stopping plaintiff knew it, and, not knowing where she would be carried to, and not being able to see any of the trainmen whom she could request to stop the train, and being incumbered with the care of two little children, and being physically diseased as aforesaid, defendant’s said negligence and breach of contract caused her to become frightened and so generally excited that her nerves and muscles, in their already weakened condition, then and thei'e became completely shattered and incon-trollable, whereby she began to suffer much physical pain and mental anguish before she reached Waukegan, where she was put off the train, among strangers.
“(14) When she was put off the train at Waukegan, plaintiff was so scared, nervous, weak, and in such pain that she fell helpless to the ground while on the way from the depot to her place of lodging, and suffered great physical and mental pain continuously all night without sleep or rest as the direct result of said negligence.
“(15) The next morning plaintiff was transported to Timber free of charge by defendant, and, after reaching Timber, being in her scared and nervous and painful condition still, and being so weak mentally by reason of said excess of nervousness that she was incapable of taking care of herself by sound reason and judgment, and thinking as she did, in a delusion, that she must go home then at once at all hazards, she immediately set out to walk home, and did so.
“(16) Plaintiff went to bed when she reached home, and in a few hours became relieved of physical pain, but her nerves continued to be excited and beyond control to the extent that she could not do anything but lie in bed in a weakened but painless condition for over a week, since which time she has been able to walk about the house, but is not able to care for her children and dress them, which she did with ease before said injury, which injury has permanently augmented said disease.
“(17) After becoming relieved of physical pain, plaintiff nor her father, nor any one else at her home, apprehended that her life or health was in immediate danger; it appearing to her that rest was the principal thing she needed to restore her to her usual health again, wherefore she did not summon medical aid.
“(18) As a direct result of defendant’s negligence and breach of contract, plaintiff has suffered in the form and manner above described to her damage $2,500 -to recover which this suit is brought.”

The jury rendered a verdict in favor of appellee, Sophie Nichols, in the sum of $1,250, upon which judgment was entered, and from which the railway company appeals.

The trial court charged the jury to assess such damages, if any, as the plaintiff was entitled to recover, in such sum of money as would fairly and justly compensate her for such mental and physicial pain and anguish she might have suffered as the direct and proximate result of being carried by her station to the station of Waukegan, and further, that if the jury found from the evidence that plaintiff’s nervous complaint was aggravated and her mental and physical suffering was thereby augmented, and that such augmented mental and physical suffering was caused and produced alone by the wrongful act of the defendant in carrying plaintiff beyond her station to the station of Waukegan, she would have been entitled to recover for such augmented suffering, provided that such suffering was produced alone as the direct and proximate result and consequence of the wrongful act of the defendant in carrying plaintiff beyond her station to the station of Waukegan. This charge was objected to upon several grounds, one of the grounds being that it permitted the jury to award damages for mental and physical pain and anguish suffered by plaintiff by reason of being transported beyond the station of Timber, and on to the station of Waukegan, when such damages could not have been, and were not, in the contemplation of the parties at the time the contract of carriage was entered into, as likely to flow from a breach of said contract by so transporting plaintiff by the station of Timber, and because no evidence whatever is described by the record, charging defendant with notice or knowledge that so carrying plaintiff by her station of Timber to Waukegan would probably have the result of causing plaintiff to suffer the acute pain and great excitement and nervous condition as shown by plaintiff’s own evidence.

The defendant also requested special charges, among them being one to the effect that the plaintiff was not entitled to recover in this case any damages for mental anguish or suffering occasioned or produced by her anticipation of being carried to unknown points or places, or because, after realizing that she was carried by her point of destination, she was in doubt as to where she would be carried, and by reason of doubts suffered mental anguish and pain, such damage being too remote and of an anticipatory nature, and that the jury should not consider same in arriving at their verdict.

Another special charge requested the court to instruct the jury that there was no evidence in this case of plaintiff having suffered, as the direct and proximate result of the contract of carriage, any injury or damage, except that of being delayed in reaching the point of her destination, and that the jury should, in considering their verdict, only estimate the damages suffered by her by reason of such delay in reaching her point of destination.

The above objection to the court’s charge, as well as the refusal of the court to give the special charges above requested, is assigned as error, and we think should be sustained.

The material testimony of the plaintiff in the case is, in substance, as follows:

That on the date alleged she took passage on the passenger train of defendant company from Big Creek to Timber, Tex.; that she got on the train at Big Creek, a flag station, and therefore did not buy a ticket, but paid the money for passage to Timber to the conductor; that it was a night train, and that no one was with her, except her two children, and a boy 14 years of ag'e; that she told the conductor that she wanted to get off: at Timber; that the boy was on the train wife her to help her with the baby after she got off the train at Timber; that it was two miles in the country from Timber to the place she was going that night. “When I got on the train that night I was afflicted with this disease a little. I was kind of nervous, but wasn’t bad. I hardly ever noticed it myself at that time. X was nervous at that time to shake a little, but not much. I was physically able, at that time, to have walked out home that night; X could have toted the baby out home, and I was in good health.”

She further testified that the train did not stop at Timber that night, and that she discovered that they had carried her by the station when the train was crossing Caney creek, which is between Waukegan and Timber, and that when she saw they had carried her by Timber, it had a bad effect on her. She said:

“It just frightened me, and-I got so nervous I could hardly walk. I had to catch hold of the seats, and the conductor had to help me off the train, and didn’t know what to do. I felt so bad, I didn’t know what to do, and didn’t know nobody.”

She stated:

That she did not have any money in her purse that time, not a nickel. That she made an effort to have the train stopped, as follows: “I asked Mr. John Shropshire to see the trainman, and he went off and was gone a few minutes and came back and said he couldn’t find the conductor, but found fee porter; that the porter said he had no orders to stop the train at Timber.” That the porter assisted her to get off. That she went over to the hotel after getting off at Waukegan; that she went in to see the agent about it, and he took her over to the hotel. That she had some trouble in getting over there. That she fell down and hurt her leg. She testified that she never lay down that night. That she was scared to death, and was so nervous that she just sat on the side of the bed all night long. That she did not eat breakfast the next morning. That she went back to the station, assisted by the boy that was with her, and that the railroad company furnished her free transportation back to Timber the next morning. That Mrs. Butler charged her $1 at the hotel for her lodging, and that she did not have a bit of money, and that Mrs. Butler said that she was not running a free hotel, and that Mr. Sprayberry paid the hotel bill, and that her father repaid Sprayberry.

The proof shows that she was carried back to Timber the next morning, free of charge, and that when she got to Timber she met Mr. McCormick, and that he helped the 14 year old boy carry the baby out to her father’s house; that she walked from Timber out home, and that it took her until about 11:30 to walk two miles; that they got to Timber after 8 o’clock, and that when she got home she went to bed, because she was sick; that after ‘ reaching her father’s house, she stayed in bed for about a week, and that her nervous condition was extremely bad; that after she had been there a while she did not suffer any pain, because when she considered that she was at home she got all right, only that she was nervous and just could mope about.

She testified, further, that her physical condition before being carried by her station was such that she could do a big washing and walk a distance of four miles; that she could attend to her children, wash and dress them as good as any woman; that she did the cooking, made up beds, swept floors, etc., but that since making this trip and after going home to bed she hadn’t been able to do any washing or ironing, but was barely able to help her mother set the table and sweep the floors and such things as that; that she was not able to attend to her children, and could not even put their clothes on.

The testimony further shows that she was, at the time of the trial, 19 years of age, and that the injury occurred some 2½ years before the date of the trial, and that she was, at the date of her marriage only 12 years 6 months and 7 days old. Plaintiff further testified that the train got to Timber at 6 minutes after 8 o’clock at night, and that it was her intention to get off at Timber and go out to her father’s house that night, if none of her folks met her and the weather was permissible; that none of her folks knew she was coming home that night; that Wau-kegan is about four miles from Timber; that she recognized Caney creek when the train was crossing it, because she had been there fishing before, and knew the country all around it; that Mr. Shropshire was the first man to whom she mentioned the fact that she had been carried by; that he was a friend of hers, and had been talking to her on the train; that they got to talking after she got on the train, and that when she saw that she was carried past the station, she told him about it, and asked him to see some of the trainmen; that it was about a mile and a half or two miles from Caney creek, where she discovered that she had been carried by, to Waukegan, where she was put off the train. That it was a mighty few minutes after she so discovered that she had been carried by until they reached Waukegan. Her evidence further shows that she was acquainted with Mrs. Butler, who kept the hotel at Waukegan; that the hotel was about 100 or 200 yards from the depot; that just as soon as she saw Mrs. Butler she knew her; that she had known her pretty nearly all her life, ever since she was a little girl; that Mrs. Butler showed her to her room, and that it was a nice room, and that Mrs. Butler treated her all right; that she had plenty of room and bedding, and that the room was comfortable, but that Mrs. Butler did not put herself to any trouble to accommodate her, any further than showing her the room and telling her there was the bed.

On cross-examination, she testified further that she was not a strong, healthy woman when she got on the train; that she wasn’t a giant, or anything like that, but was tolerably stout, and that she could do her own work all right; that she was in good condition and couid do her own work, and was doing it, and everything was all right with her; that any one could have told, however, that she was nervous, if they noticed it, but that she was able to do her own work; that she was afflicted with palsy, and that it first began to appear on her when she was 11 years old; that she was scared so bad, after she found out she had passed Timber, that she couldn’t tell how long it took them to go; that what scared her was their taking her by Timber; that she did not know where they would take her, and that she did not have a bit of money; that the worst scare she got was when she found out she had gone by Timber; that it did not come and go, but stayed with her all the time.

We think we are justified in saying that the testimony of Dr. Smith and others shows that excitement would have a tendency to aggravate the disease which the plaintiff testified she was suifering with slightly, and that after plaintiff had reached her father’s house she was in a nervous and broken down condition, and remained so for a long time, but that so far as physical pain was concerned, it left her soon after arriving at her father’s house.

We do not think that the injuries testified to could be said to be the direct and proximate result of appellant’s breach of duty in carrying the appellee by Timber, her destination, to the station of Waukegan. We are aware that ordinarily the question of proximate cause is for the determination of the jury, yet, in view of all the attending circumstances shown in this case, we feel that as a matter of law, in this case, the injuries shown were not such as would be reasonably anticipated to likely or naturally flow from the breach of duty on the part of the conductor in so carrying the appellee by her station, under the circumstances alleged and proven.

For breach of contract in carrying a passenger beyond his destination, the passenger is entitled to recover damages for his trouble and inconvenience, loss of time, and costs suffered, as well as such injury and sickness resulting from being wrongfully carried beyond his destination, but the damages so recoverable are limited to those which are proximate, and not remote or contingent. Texas & Pacific Ry. Co. v. Bigham, 90 Tex. 223, 38 S. W. 162; T. & N. O. v. Wiggins, 156 S. W. 1131; M., K. & T. Ry. Co. v. Welch, 100 Tex. 118, 94 S. W. 333; Railway Co. v. Kellogg, 94 U. S. 469, 24 L. Ed. 256.

The rule is, perhaps, best stated in the last-cited case, in the following language:

“It is generally held that, in order to warrant a finding that negligence, or an act amounting to wanton wrong, is the proximate cause of an injury, it must appear that the injury was the natural and probable consequence of the negligence or wrongful act, and that it ought to have been foreseen in the light of attending circumstances.”

In Eailway Oo. v. Welch, above cited, the rule is thus stated:

“The general rule to be applied to this case is that, to sustain the judgment, the injury complained of must be such that, at the time the conductor was guilty of negligent omission, he ought to have foreseen that the necessity to borrow the money or a like injury would probably result. * * * The viewpoint from which the facts must be considered is the time when the conductor acted. .Standing in the place of the conductor when he failed to give the slip to authorize the next conductor to transport Mrs. Welch to Kansas City, could one reasonably anticipate that upon being refused a continuous passage, Mrs. Welch would be under the necessity of borrowing money from some other person? There is nothing in the facts to suggest such a contingency. Looking back at a state of facts which have transpired, one can see a connection between the consequence and the original cause which would not appear from a most careful consideration of the matter when the first act occurred.”

Under the testimony, we have a case where the mere carrying of a woman, with her two little children, by her station, in a country that she was familiar with, with a man friend talking to her on the seat when the discovery was made that she had been carried by, became so frightened and generally excited that her nerves and muscles became completely shattered and uncontrollable, resulting in serious illness and physical pain, in the absence of any insults or exposure to cold or inclement weather, or any of the usual and natural causes of sickness and mental anguish, but simply that, upon the realization of being carried by her station, she became so nervous and excited that she suffered great mental anguish and bodily pain as testified to by her and others.

It is disclosed by the evidence that she was with a friend; that she was carried only about four miles, and was kindly and politely assisted off of the train, and escorted to the hotel by the company’s agent at Waukegan; that there she was placed in a hotel with a woman that she had known all her life, who gave her a nice, comfortable room; that she was returned free of charge to the station of Timber, the next mornin'g, where she met another friend of hers, who assisted her out to her father’s home; and that she walked a distance of two miles next morning from Timber to her father’s home. Gan it be said that the injuries claimed were the direct and proximate result of the conductor’s breach of duty? In other words, applying the rule as above set out in this opinion, would it be reasonable to hold that at the time the conductor collected the passage from this woman he could have reasonably anticipated that the mere failure to put her off at her station, under all the attending circumstances, would result in the shattering of her nerves, and that she would be reduced to an invalid from this fact alone? We think that nothing short of prophetic ken upon the part of the conductor could have revealed to him at that time the probability that any such serious consequence would flow from his failure to stop the train at Timber and allow the plaintiff to disembark. We think the damages claimed are too remote, and are not the direct and proximate result of the conductor’s negligence.

We are also of the opinion that appellant’s first assignment of error, complaining of the court in overruling its special exception to the plaintiff’s petition, because the damages sought to be recovered were too remote, and are not shown to have been the proximate cause of the alleged injuries, should be sustained.

For the errors pointed out, the cause is reversed and remanded.
      lg=»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: MOURSUND, J.

text:
    TEXAS EMPLOYERS’ INS. ASS’N v. BRYAN.
    (No. 5885.)
    (Court of Civil Appeals of Texas. San Antonio.
    Oct. 17, 1917.
    Rehearing Denied Nov. 14, 1917.)
    1. Master and Servant <§=>349 — Statute-Retroactive Operation — Jurisdiction.
    Where plaintiff sued, on an award of the Industrial Board, in her favor, under Acts 33d Leg. c. 179, and recovered judgment for the unmatured installment, which judgment was not authorized by the Act (Acts 35th Leg. c. 103, pt. 2, § 5a), amending the original act, under which suit was brought, authorizing the beneficiary to mature the entire claim and sue thereon, such act becoming a law after the case was pending on appeal, would not affect the question of the jurisdiction of the court based on amount of claim at the time the case was tried.
    2. Courts >§=>121(4) — Jurisdiction—Amount in Controversy — Mandamus.
    Where the Industrial Accident Board, under the Employers’ Liability Act, awarded a widow $12.96 per week for 360 weeks, for the death of her husband in service, and when the payments that had accrued to the widow under the award did not exceed $500, she sued the Employers’ Insurance Association in the district court for the amount and for mandamus, the district court had no jurisdiction of the case, which was in the county court, the case being for an amount exclusively within the latter’s jurisdiction, it being vested with power to issue writ of mandamus in cases involving amounts within its jurisdiction.
    Appeal from District Court, Grimes County ; S. W. Dean, Judge.
    Suit by Mrs. R. E. Bryan against the Texas Employers’ Insurance Association. From a judgment for plaintiff, defendant appeals.
    Judgment reversed, and cause dismissed.
    J. E. Price and F. J. Winter, both of Houston, for appellant. Haynes 'Shannon, of Nav-asota, for appellee.
   MOURSUND, J.

Appellee sued appellant on May 9, 1916, and on June 30, 1916, filed her amended petition upon which judgment was rendered in her favor on the same date. In her amended petition she alleged that on September 15, 1915, her husband, R. E. Bryan, while in the employ of the Texas Power & Light Company, at Ennis, was severely injured through the negligence of the agents and servants of said company; that said company at that time carried a policy of insurance with defendant under the provisions of chapter 179, Acts of the Regular Session of the Thirty-Third Legislature, and had paid all premiums due by it; that said policy bound defendant to pay any and all damages awarded by the Industrial Accident Board to any laborer injured while working for said Power & Light Company; that when plaintiff’s husband was injured said Power & Light Company reported said injury, as provided by law, to the state Industrial Accident Board, and .defendant was properly notified, and said cause submitted to said board for adjudication; that after investigation and full hearing said board, on December 8, 1915, allowed said Bryan compensation in the sum of $12.96 per week for 400 weeks for total incapacity to labor, and additional compensation for 300 weeks for partial incapacity in the event his total incapacity to labor continued beyond the 400 weeks; that defendant made no objection to such award and took no steps to set the same aside, nor did it appeal therefrom; that defendant offered Bryan $200 in settlement of his claim, which he refused, and thereupon defendant refused to pay him anything, and has never paid any part of said award; that Bryan was totally incapacitated from labor from the time of his injury to his death on December 23, 1915, from the effects of his said injury; that on May 15, 1916, an award was made by the Industrial Accident Board to plaintiff of $12.96 per week for 360 weeks; and that defendant did not appeal from said award, and the same is a liquidated demand against appellant. Copies of the two orders entered by the Industrial Accident Board were attached and made part of the petition. Plaintiff prayed for judgment for $12.96 per week for 360 weeks, or such sum as the court might find plaintiff entitled to under and by virtue of said award; that the award in favor of plaintiff on May 15, 1916, be made the final judgment of the .court; and that execution issue to enforce the same. She also prayed that a writ of mandamus be awarded commanding defendant to pay said award at the end of each week.

Plaintiff, by trial amendment, alleged that B. E. Bryan liad no children and no relatives who were entitled to receive any part of the money due by defendant under the award or awards, and that she, as his surviving wife, was entitled to all of the same. The defendant’s amended answer consisted of a general demurrer, special exceptions, a general denial, and a special plea that no notice was given by Bryan to defendant or to his employer until October 24, 1916, and that said notice was not given as soon as practicable, and therefore plaintiff was not entitled to recover. The court rendered judgment in favor of plaintiff for $12.96 per week for 360 weeks, beginning December 23, 1915, providing for execution for the' sum then due, and that plaintiff have her execution for said weekly sums as they accrue from date of trial, and that the judgment should bear interest from its date at the rate of 6 per cent, per annum.

The appellant contends that plaintiff’s pleadings disclose that the district court was without jurisdiction of the case alleged. It is pointed out that the sum due under the award to plaintiff according to the terms thereof does not exceed $500, and this is admitted by appellee, but she contends that the award was not divisible, and that her suit was properly brought for the entire sum, and further, that her prayer for mandamus gives the district court jurisdiction.

Plaintiff’s suit is upon the award in her favor, upon the theory that it had been regularly made, and that it therefore created a liquidated demand in her favor. The law made no provision with respect to the enforcement of such awards, evidently upon the theory that unless the insurance association objected to the jurisdiction of the board and appealed to the courts as prescribed in the law, it would pay the award. The association refused to pay the installments which matured prior to the filing of the amended petition and plaintiff pleaded a cause of action entitling her to judgment for the same, and to such writ or writs as are proper and necessary to collect a judgment from an association designated a private corporation, but which is in fact merely an administrative agency to effectuate the purposes of the law. But the matured installments amounted to a sum insufficient to confer jurisdiction upon the district court. In the case of New York Life Insurance Co. v. English, 96 Tex. 268, 72 S. W. 58, it was held that where the sum to be paid under a life insurance policy waq to be paid in installments, the entire amount did not become due on the death of the insured and the refusal of the company to pay the first installment, and that it was error to render judgment for the full amount, or a judgment authorizing execution for each future installment as it should fall due. While this case is founded upon an award by an administrative board instead of a contract, we are unable to perceive any distinction in principle such as would justify a holding that suit could be maintained upon un-matured installments.

The pleadings present the case of a suit upon the award of an administrative body, which award under the law governing the body making the same could not vest in Mrs. Bryan unmatured installments, for if she died, they would go to other beneficiaries or creditors. We must, therefore, read into the award the provision that said installments go to other beneficiaries or creditors if she dies before the maturity of the same. This furnishes an additional reason if any be required, why suit cannot be sustained as to the unmatured installments.

It is contended that section 5a of part 2 of chapter 103, Acts of Eegular Session of the Thirty-Fifth Legislature, amending the act under which this suit was brought, will cure the defect in the petition, because it provides that if the association fails to pay an installment of an award the beneficiary shall have the right to mature the entire claim and sue thereon. That act became a law on March 28, 1917, after this case was pending on appeal, and could not possibly affect the question of jurisdiction of the court at the time it tried the case. Besides, the act expressly limits the provision in question to awards made under the terms of such act, and cannot be construed as an effort to affect awards made under the previous act.

Appellee also contends that the district court has jurisdiction by reason of her plea for mandamus. The statute does not provide that upon failure to pay installments the claimant may procure a writ of mandamus commanding the association to comply in all respects with the award. It therefore appears that the rules applicable to suits for debt would apply, and the writ would only issue for the collection of such judgment as was rendered in the cause.

The judgment which could be rendered upon the petition would be for an amount which is exclusively within the jurisdiction of the county court, and that court is vested with the power to issue the writ of mandamus in cases involving amounts within its jurisdiction.

We conclude that the district court did not have jurisdiction of the case pleaded, and its judgment will therefore be reversed, and the cause dismissed.
      ©smEor other cases see same topic and KEY-NUMBER in ail Key-Numbered Digests and Indexes


author: HIGHTOWER, C. J.

text:
    BUKOWSKI v. WILLIAMS.
    (No. 185.)
    (Court of Civil Appeals of Texas. Beaumont.
    Oct. 22, 1917.)
    1. Malicious Prosecution ®x=>62 — Wealth oe Defendant — Evidence—Admissibility.
    In action for malicious prosecution, admission over objection of evidence showing financial condition and worth of defendant was reversible error.
    2. Courts <©=92 — Decisions of Supreme Ootjrt — Dictum^ '
    The Court of Civil Appeals would not feel bound by dictum of the Supreme Court.
    3. Courts <s=91(1) — Decisions of Supreme Courts — Binding Effect on Other Courts.
    A decision of the Supreme Court stands as the law of the state in so far as the Court of Civil Appeals is concerned until it shall be overruled by that court.
    4. Malicious Prosecution <©=^22 — Defense-Advice of Magistrate.
    The advice of a justice of the peace or a constable would not afford any defense in an action for malicious prosecution.
    5. Malicious Prosecution <©==>60(4) — Want of Probable Cause — Advice of Attorney.
    In malicious prosecution, evidence that prosecutor consulted and was advised by counsel is admissible upon issue whether he acted without malice and perhaps had probable cause.
    6. Míalicious Prosecution <®=22 — Probable Cause — Advice of Prosecuting Officer.
    Where a county or district attorney advises a citizen upon a full and fair statement of facts that a criminal prosecution can be sustained, the institution of the prosecution by the citizen cannot afford the basis of a suit for malicious prosecution against him.
    7. Malicious Prosecution <S=56 — Burden of Proof.
    The burden of establishing want of probable cause, presence of malice, and that plaintiff was not guilty of theft of the mule is upon plaintiff.
    8. Malicious Prosecution <©=>56 — Want of Probable Cause — Presumption of BIal-ice.
    Malice may be presumed where a want of probable cause is shown.
    9. Malicious Prosecution <®=64(2), — Want of Probable Cause — Evidence.
    Evidence held. to warrant charge that, if there was no contract by which the mule was turned over by plaintiff to defendant, there was a want of probable cause on the part of defendant when he filed the complaint charging theft of the mule.
    10. Malicious Prosecution <©=64(2) — Probable Cause — Evidence.
    Evidence held hot to warrant charge that, if the contract by which defendant claimed to have acquired the mule was made, it would constitute probable cause for the prosecution for the theft of the mule.
    Appeal from District Court, Liberty County; J. Llewellyn, Judge.
    'Suit by E. W. Williams against John Bu-kowski. Judgment for plaintiff, and defendant appeals.
    Reversed, and remanded for new trial.
    E. B. Pickett, Jr., of Liberty, and Dean, Humphrey <& Powell, of Huntsville, for appellant. Marshall & Harrison and W. T. Norman, all of Liberty, for appellee.
   HIGHTOWER, C. J.

We take from appellant’s brief the following statement, showing the nature and result of this Suit, which is shown by the record to be substantially correct:

This suit was filed by the appellee, E. W. Williams, against the appellant, John Bu-kowski, for the recovery of damages alleged to have been sustained in consequence of an alleged malicious prosecution, appellee’s petition alleging that on December 11, 1915, he was arrested upon a complaint made by the appellant before W. S. Perriman, justice of the peace, precinct No. 1, Liberty county, Tex., charging appellee with the theft of a mule, and that when appellant caused such arrest of appellee, appellant well knew that appellee was not guilty of the theft of .said mule, but that appellant acted without probable cause to believe that appellee had stolen said mule, and willfully, maliciously, and falsely made said affidavit for the arrest and detention of plaintiff. Appellee further alleged that the criminal charge against him was false, slanderous, oppressive, and defamatory, and was willfully, wantonly, and maliciously initiated for the purpose of annoyance, and for the further purpose of frightening and coercing appellee into the surrender of said personal property to< appellant, and not for the purpose of vindicating public justice. The property referred to in this allegation was specifically mentioned in appellee’s petition. It was further alleged by appellee that appellant forced and compelled and coerced him to surrender, deliver, and transfer to appellant, said personal property, which was alleged' to be of the value of $400. Appellee prayed for actual damages, in the sum of $25,000, and for exemplary damages in the sum of $25,000.

The ease was tried with a jury, and was submitted upon a general chafge by the court, and the jury returned a verdict in favor of appellee for $2,500 as actual damages and $1,000 as exemplary damages, and judgment was entered in his favor accordingly.

Appellant, in due time, filed his motion for new trial, which was by the court overruled, and the court’s action in so ruling was properly excepted to, and the cause is now before us on apiieal for review.

Appellant and appellee, on the 12th day of February, 1915, entered into a written contract of lease, by the terms of which appellant let and leased to appellee, for the period of one year, a farm in Liberty county, Tex., for a cash rental of $3.50 per acre, and by the terms of this contract this rent became due and payable on the 1st of December following. Appellant was not a resident of Liberty county, but resided at New Waverly, in Walker county, Tex., and on the 9th of December of that year, acting upon the suggestion made to him by letter from one of the officers of the Liberty County State Bank, left New Waverly on the evening of that day, and reached the town of Liberty the following morning for the purpose of collecting the rent due by appellee under said contract. After* reaching Liberty, appellant went out to his farm, four miles distant from the town of Liberty, where he found appellee, and made known to appellee that his purpose in being there was to collect the rent due from appellee, and he was informed by appellee that appellee was unable to pay him the rent in cash, for the reason, as stated by ap-pellee at the time, that the storm of that year had wrought such destruction of his crop that he did not have the money with which to pay the rent in cash. After some discussion of the matter between appellant and appellee at that time, appellant told' appellee that he appreciated the situation, and that in view of the misfortune of appellee, on account of the storm, he (appellant) would agree to accept $150 cash as settlement in full of the rent due from appellee. There were some suggestions made by appellee at the time in the way of a proposal to turn over to appellant certain personal property owned by appellee, and consisting of two mules, a wagon, and some corn that had been grown on the farm that year, but it seems that the parties reached no understanding at that time, and on the next day they went into the town of liberty, appellee thinking that he might he able to make some arrangement by which he could raise the money and settle with appellant for the rent, but after an effort in that direction, appellee was unable to borrow money in the town of Liberty with which to pay appellant, who up to that time was insisting upon the rent being paid in cash. Up to this point there was practically no dispute in the evidence.

It was the contention of appellee below, as shown by the evidence in the record before us, that after ascertaining that he could not raise the money in the town of Liberty with which to pay appellant, and after his offer to turn over to appellant enough of the personal property then owned by him, including the mule in question, had been refused and rejected by appellant, and after seeing, according to appellee, that he would be compelled to raise the actual cash with which to pay appellant, he (appellee), late in the evening of December 11, 1915, left the town of Liberty, with the intention of going to the town of Sour Lake, in Hardin county, Tex., for the purpose of meeting his son, who was then at Sour Lake, and borrowing from his son such money as he needed to pay appellant. Appellee, when he left the town of Liberty that afternoon, rode the mule, which it was charged in the complaint filed, in the criminal case belonged to appellant, and that same night, before appellee reached Sour Lake, he was overtaken by the constable of precinct No. 1 of Liberty county, who was driving an automobile, and who was accompanied by appellant, and was arrested by the constable, who was armed with a warrant for that purpose, based upon the complaint filed by appellant, as hereinbefore stated. Appellee was carried back by the constable to the town of Liberty, and there made bond to appear before the justice of the peace on the following Monday for examining trial.

It was the claim of appellant on the trial below that, after appellee had ascertained in the town of Liberty on the morning of the 11th of December, 1915, that he could not procure the-money with which to pay appellant, he and appellee then reached an agreement and understanding by which appellee agreed to turn over to appellant the mule, the ownership of which was claimed by appellant in the criminal complaint, along with other personal property, in satisfaction and payment of appellant’s debt against appel-lee, and that appellee did, in fact, turn over to appellant said mule, and pointed hird| out to appellant while he was hitched to the rack in the town of Liberty on that day, and that such agreement and understanding was a full and complete contract, by which appellant agreed with appellee to accept said personal property, including said mule, as a full and final discharge of appellant’s debt against appellee, and from these respective contentions, as stated, it will be seen that appellant’s claiml of ownership to this mule is based alone and wholly upon the claimed agreement or contract between him and ap-pellee, as above stated, by which appellee turned over said mule and other property in settlement and discharge of his indebtedness to appellant.

‘We think this will suffice to show clearly the character of the controversy between the parties. There are 15 assignments of error in appellant’s brief, but we shall not discuss them in the order in which we find them, and shall only refer specifically to such of them as we think should be mentioned, in view of the probability of another trial of this case.

We proceed first to the disposition of appellant’s fifth assignment of error, which complains of the action of the trial court in admitting in evidence, over appellant’s objection, testimony showing the financial condition and worth of appellant, iSuch testimony was admitted by the trial court, over objections timely made by appellant, on the ground that such evidence was irrelevant and immaterial, and was calculated to inflame the minds of the jury, and to prejudice them against appellant, etc. There are several assignments in the record which, in effect, complain of the action of the trial court in admitting this character of evidence, but they will be disposed of, in effect by what we shall say under this assignment.

This testimony, according to the record, without stating it in detail, consisted substantially in showing the property owned and rendered for taxation by appellant in Walker county, Tex., including a stock of merchandise, a homestead, and some (small items of personal property, and aggregating approximately between $4,000 and $5,000, and also in showing the value of realty owned by appellant in liberty county of the probable value of between $9,000 and $10,000. This testimony was offered by appellee, as stated by him at the time, for the purpose of enlightening and guiding the jury in assessing exemplary damages, in the event the jury should find in favor of appellee for exemplary damages, and to aid the jury in measuring or graduating the exemplary damages so found, if any. Appellant strenuously objected to the admission of such testimony for any purpose and on the grounds hereinbefore stated, but, as stated, the objection was overruled, and thereafter the trial court instructed the jury, in effect, that such evidence showing the financial worth, etc., of appellant, might be considered by the jury on the issue of exemplary damages if, in their discretion, they should award such damages, but told the jury that such evidence could not be considered by them for any other purpose in the case. This charge also was duly excepted to by appellant, and is assigned as error herein.

The action of the court in admitting this character of evidence over the objection of appellant was error, which necessitates a reversal of the judgment in this cause.

We find, after a thorough investigation of this question, that it was held by the Supreme Uourt of this state, in the case of Young et al. v. Prank Kuhn, 71 Tex. 645, 9 S. W. 860, speaking through Chief Justice Stayton, that it was reversible error 'on the part of the trial court to admit such evidence in a case of this character. The reason assigned by the court in that case for so holding is fully stated in the opinion written by Chief Justice Stayton, and it would serve no useful purpose to repeat that reason here. Suffice it to say that this court is bound by the holding of the Supreme Court in that case on this question, as announcing the rule in this state, and any discussion of the point by us would serve no useful purpose or be profitable in any way, either to the profession or bench in this state. The opinion of the Supreme Court in that case was delivered in 1888, and Judge Stayton expressly announced in that opinion that up to that time the question now under consideration was an open one in this state, and while it was expressly stated in that opinion that the weight of authority on the point, in so far as numbers were concerned, seemed to be in favor of the admission of such evidence in a case of this character, yet the opinion states that sounder reason is against the admission of such evidence. We note that Judge Stayton in the case mentioned did not refer to the dictum of Judge Bonner in the ease of Willis v. McNeill, 57 Tex. 465, which dictum was also against the admission of this character of evidence in a case of this character.

This court would not feel bound by what was said in Willis v. McNeill on this point, for the reason that the expression of the court on the point in that case was clearly not called for, or necessary, in disposing of the case. The question simply arose there on objection to the argument of counsel for the plaintiff, which argument was without evidence in the record touching the wealth, etc., of the defendant) in that case, but' it was said there that such evidence could not be admissible under any circumstances.

We have been unable to find where-Young v. Kuhn, supra, has ever been overruled in this state, or in any manner questioned; neither have we been able to find where the same has been since followed or even cited, but the decision, having been rendered by the Supreme Court of this state, stands as the law of this state, in so far as this court is concerned, until it shall be overruled by that court. The writer, speaking for himself only, is of the opinion that the overwhelming weight of authority in America, both as to numbers and in sound reason, sustains the admission of the character of evidence here under discussion, the writer entertaining, at the same time, the very highest regard for the great jurist who wrote the opinion in Young v. Kuhn, above referred to. It would serve no useful purpose to discuss the writer’s reasons in this connection, and he simply desires to here note his personal opinion in this connection, for the reason that, if in the future the Supreme Court of this state shall conclude that this character of testimony is admissible in cases of this kind, the writer will be found in accord with that view.

We therefore sustain appellant’s fifth assignment of error, and all other assignments on that point found in the brief.

We have carefully examined appellant’s first, second, and third assignments of error, which are grouped, and the several propositions submitted thereunder, and have concluded that none of them should be sustained, and they are overruled.

With reference to the first proposition under these assignments, we say briefly that the record in this case, when clearly understood, shows conclusively that the criminal prosecution was not compromised or disposed of by compromise between appellant and ap-pellee, or in any other manner than by the act of the county attorney of Liberty county, acting in his official capacity, and such prosecution was dismissed by him for the expressed reason that, in his opinion, as the public prosecutor of that county, the evidence was insufficient to warrant a further prosecution of the case. This, we say, is manifest when this record is carefully understood. Appellant himself expressly denies any such compromise, and it is clearly shown that appel-lee, at the time he executed the conveyance of personal property to appellant, on the day of the dismissal of the criminal prosecution, did not even know that the criminal prosecution had been dismissed by tbe county attorney, and it is tbe county attorney’s positive testimony that be did not consult appel-lee nor appellant, nor any one else, nor was he actuated in dismissing tbe same by the desires of either party.

With reference to tbe second proposition under these assignments, we desire to say that we have been cited to no authority by appellant, nor have we been able to find any in Texas, sustaining the contention that the advice of a justice of the peace or a constable in Texas would afford any defense whatever to one sued in a civil action for damages growing out of a malicious prosecution. We think that there is nothing in the proposition. We are aware that in cases of this character the defendant is permitted to show that before instituting the criminal prosecution he consulted and was advised by an attorney at law, such evidence being admissible as bearing upon the issue of good faith, in instituting the prosecution, and therefore negativing the essential element of malice, bub even then such evidence would only be admissible upon the issue of fact as to whether the prosecutor acted without malice, and perhaps had probable cause at the time of the institution of the criminal prosecution. What we have said in this connection has reference to a private practitioner of the law, and not to a public prosecutor, such as a county or district attorney in this state. We understand the rule to be in this state that, where a county or district attorney advises a citizen upon a full and fair statement of the facts by such citizen that a criminal prosecution can be sustained, then the action of the citizen in instituting the criminal prosecution, under such circumstances, cannot afford the basis of a suit for malicious prosecution. This is simply upon the theory of estoppel; that is, upon the theory that the public prosecutor in such instance stands in the stead of the state itself, and, having advisedl the citizen that a certain state of facts, when fairly and fully made by the citizen to the state, warrants a criminal prosecution, the state and all citizens of the state would be estopped to prosecute a civil action for damages based upon such criminal prosecution. There is no use in citing authority for our conclusion in these respects, because there can be no real question of the correctness of our views as here expressed.

In view of the probability of another trial of this case, it would not be proper, perhaps, for this court to discuss the third proposition under these assignments, which challenges the sufficiency of the evidence to warrant the jury in finding that appellant did not have probable cause, etc., for instituting the criminal prosecution. We simply dispose of th'e same by saying that we cannot sustain the proposition.

The fourth assignment of error relates to a matter that will not occur on another trial, and needs no discussion.

The sixth and seventh assignments have been disposed of by what we have said relative to the fifth assignment.

We may dispose of the eighth and ninth assignments by saying that it would be safer, perhaps, for the trial court, if the case should be tried again, to let the charge in this connection clearly show that before the jury could find in favor of plaintiff want of probable cause and presence of malice must be shown by the evidence, and also that it must be shown by the plaintiff that he was not guilty of theft of the- mule, as charged. The burden of proof to establish all three of these essential elements is upon the plaintiff in this case. It will be borne in mind, however, that the element of malice may be presumed where a want of probable cause is shown. The jury will be clearly guided in these matters by the charge of the court on the next trial.

We have examined the charge of the trial court in connection with the second proposition under the eighth and ninth assignments of error, and we find that there is no room for the contention made by this proposition.

The third proposition under these assign* ments points out nothing in connection with which we deem it necessary to say anything as a guide to the trial court hereafter.

The tenth assignment of error, in so far as it challenges the correctness of the definition of “probable cause” as contained in the court’s charge is overruled. The definition was, in our opinion, clearly sufficient, and has been approved by the appellate courts of this state.

With reference to the eleventh assignment, we will suggest that the trial court, on another trial, let the portion of the charge there complained of clearly show that both want of probable cause and malice must have existed at the time defendant filed the criminal complaint, and, further, that the plaintiff must establish, by a preponderance of the evidence, that he was not guilty of the offense of theft, as therein charged.

With reference to the twelfth assignment of error, we have only this to say: Assuming that the state of the evidence upon another trial will be the same as shown by this record, the court would be clearly warranted in telling the jury that, if they believed that there was no contract or agreement by which the mule in question was turned over by appellee to appellant, as claimed by appellant, that then there was a want of probable cause on the part of defendant at the time he filed the criminal complaint, because there is no pretense that appellant had any claim of ownership to this mule other than the contract or agreement which he claims was made with appellee in settlement of his debt. We do not think, however, that the converse would be true; that is, we do not think that the court could correctly tell the jury that, if they should find that such contract as claimed by appellant, by whiéh he acquired the mule, 'was in fact made, that that of itself would-in law constitute probable' cause for instituting the criminal'proceeding, because we are of opinion that, even though the jury might believe that the contract as claimed by appellant Was made, by which he was to have the mule in question, yet it would not necessarily follow, as a matter of law, that he had probable cause for believing that plaintiff intended to steal the mule, but under the facts in this cáse as now before us we think the jury should pass upon this as a question of fact. Of course, we do not intend by what we have said to use the very words that the court should employ in a charge on this point.

We overrule the thirteenth assignment of error, for reasons stated in disposing of the first, second, and third assignments. There would be no basis in the evidence for such a charge as was requested by appellant, the refusal of which is made the basis of this assignment.

With reference to the fourteenth assignment, we will say only that, while we believe the court’s charge on the point here complained of was full enough, yet it would, perhaps, be well to hereafter frame it so as to leave it free of any question as made in this assignment.

With reference to the fifteenth assignment, we will only say that the same presents m> error for which this court would reverse the judgment, but upon another trial, if the issue raised by the pleadings mentioned in this assignment should not be submitted to the jury, for any reason, it would be proper practice to affirmatively take the same from the jury by the court’s charge.

This disposes of all assignments found in appellant’s brief, and it follows from what we have said that the ease must be reversed on account of the action of the court in admitting, over the objection of appellant, the evidence complained of under the fifth assignment.

The judgment of the trial court is therefore reversed, and the cause remanded for a new trial.
      <&=>For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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