author: GRAVES, J. ' '

text:
    GALVESTON DRY GOODS CO. v. KEMPNER et al.
    No. 9779.
    Court of Civil Appeals of Texas. Galveston.
    Nov. 23, 1932.
    Rehearing Denied Jan. 12, 1933.
    Earle P. Adams, of Austin, and McDonald & Wayman and H. E. Kleineeke, Jr., all of Galveston, for appellant.
    S. A. Denny and D. A. Nimn, both of Crockett, for appellees.
   GRAVES, J. ' '

The sole question this litigation presents is: Which side has the title to the 95.2 acres of land in the Stillwell Box league in Houston county that stood in Lang Smith on March 9, 1915, he being admittedly not only the common source of title thereto between the parties, but also both claiming solely under him. It is therefore only necessary to determine which has the better right so emanating. Vernon’s Annotated Civil Statutes, art. 7382, and authorities cited in footnotes.

The appellees Kempner have by about seven years the older chain of title from Lang Smith; it being in material substance this: On March 9, 1915, Lang Smith conveyed the land to R. C. Paul by a deed which was never recorded, it having been lost or destroyed, in part consideration for Paul’s three vendor’s lien notes in the sum of $250 each, payable on or before January 1st of 1918,1919, and 1920, respectively; the vendor’s lien being expressly reserved to secure the payment thereof. Thereafter, in due course of trade, for a valuable consideration, and before tjie maturity of such notes, about May 2d of 1918, these three notes, together with “all right, title arid interest in the land,” were duly assigned and transferred in writing by Lang Smith to Kempners, which transfer and assignment was duly recorded among the deed records of Houston county on the 3d day of May, 1918, in Bools No. 85, page 376; a description of the land and the notes being as follows: “Three notes of R. C. Paul, dated March 9th, 1915, aggregating $750.00, x>art purchase money for a certain lot or parcel of land situated in Houston County, Texas, out of and a part of. the Stillwell Box League of land, being designated as ‘First Tract,’ and out of a 200 acre survey of S. F. Goodwin to J. J. Woodson.”

Thereafter the Kempners regularly foreclosed, as it stood on March 9,1915, the lien upon the land so acquired by them as against both Lang Smith and R. C. Paul, the appellant here not being a party to the proceeding, and bought in the land under a judgment and sale under such foreclosure proceeding on April 1st of 1924; the deed to them going to record among the deed records of Houston county on April 4th of 1924.

The junior claim of appellant dry goods company under Lang Smith is as follows: On December 30th of 1921, Smith, by deed duly filed for record in the deed records of Houston county on January 27th of 1922, conveyed the 95.2 acres to D. C. Lawson for $2,500, $500 in cash and trade, and $2,000 in Lawson’s two vendor’s lien notes for $1,000 each, due January 1st of 1923 and 1924, respectively, to secure the payment of which a vendor’s lien was expressly retained. Thereafter, on January 20th of 1922, Smith, for a valuable consideration, in writing, transferred and assigned these two notes and the lien on the land so expressly retained to secure them to the appellant, which assignment was duly filed for record in the proper records of Houston county on January 26th of 1922.

Thereafter, on August 3d of 1923, D. C. Lawson, the grantee in this deed of December 30th of 1921 from Lang Smith, conveyed the land to the appellant dry goods company in consideration of the cancellation of these two $1,000 vendor’s lien notes that had been so transferred to it by Smith, by deed that was duly filed in the proper records of Houston county on August 10th of 1923.

The controlling legal inquiry is whether or not, in the state of the record recited, the appellant, when it came, on January 20th of 1922, to acquire the assignment from Lang Smith it so did on that date and the subsequent deed it did from Lawson on August 3d of 1923, was affected with constructive notice of the appellees’ claim to the land under the prior assignment to them from Lang Smith of May 3d of 1918. The learned trial court held that it was as a matter of law, and adjudged the title of the land in consequence to be in appellees; at the same time finding on the facts that appellant had acquired the Lawson notes and lien and subsequent deed from him for a valuable consideration, without actual notice of either the unrecorded deed from Lang Smith to Paul or of the so recorded transfer of the lien retained therein from Smith to Kempners.

This court agrees with that legal conclusion. The appellant inveighs against it mainly on the grounds that the appellees’ prior and duly recorded assignment was not in its own chain of title, and that the quoted description therein of the land was not such that it could be identified without the aid of other instruments not referred to in the assignment.

The first of these objections is answered by the consideration that the assignment was a link in its chain of title and should have been so shown in its abstracts. Since Lang Smith was the acknowledged common source of title between it and its adversaries, such a transfer from him, expressly conveying all the interest he had in the land, that is, only the superior title held by him as security for the payment of the notes,- amounted in sub-, stance if not in form to a deed, and, being recorded, constructively at least bound appellant by its recitals. R. S. articles 6627 and 6646, Wooten Grocer Co. v. Lubbock State Bank (Tex. Com. App.) 215 S. W. 835, Moran v. Wheeler, 87 Tex. 179, 27 S. W. 54, Wilkerson v. Ward (Tex. Civ. App.) 137 S. W. 158, writ of error denied, Adams v. Williams, 112 Tex. 469, 248 S. W. 673 (Commission of Appeals).

The second one, relating to the description, is disposed of by this fully supported finding of the trial court: “Eighth: That the plaintiffs (appellant) at the time of the transaction with Lang Smith and D. O. Lawson had in their possession the three abstracts of title to the land in controversy, two prepared by Aldrich & Crook,' lawyers and abstracters, and the other prepared by Moore and Ellis, lawyers and abstracters, which gave the history of the deeds relating to the land in controversy from the sovereignty of the soil down to R. C. Paul and Lang Smith. The deed of R. C. Paul to Lang Smith conveying the land in controversy, which was introduced in evidence, under whom plaintiffs claim, described the land as being out of the Stillwell Box League of land, and a part of the tract of land that was allotted to one Kissi'ah Goodwin and as being the North half of 200 acres deeded to John J. Woodson by Samuel E. Goodwin, as administrator, on April 20, 1872, by deed duly recorded in Book T, page 177, of the Houston County Deed Records and as subsequently conveyed by the said John J. Woodson to the Houston and Great Northern Railroad Company on June 27, 1874, by deed duly recorded on February 19, 1884, in Book No. 5, page 495-6, of the Deed Records of said Houston County and referring to other deeds, as shown in the ab-traets of title above mentioned.”

The other matters discussed in the briefs do not require detailed discussion, since what has been said determines the merits of the appeal and requires an affirmance of the trial court’s judgment. It will be so ordered.

Affirmed.


source: Caselaw Access Project

author: ALEXANDER, J.

license: Public Domain

text:
    ELLIOTT et al. v. LANGHAM et al.
    No. 1438.
    Court of Civil Appeals of Texas. Waco.
    Feb. 2, 1933.
    Arthur Lee Moore and Mack Taylor, of Fort Worth, and Bush & Parten, of Franklin, for appellants.
    Oliver J. Todd, of Beaumont, and J. L. Goodman, of Franklin, for appellees.
   ALEXANDER, J.

The appellees have filed 'herein their motion to have the judgment of the trial court affirmed on certificate, as provided in Revised Statutes, art. 1841.

Final judgment in the trial court was entered on May 6, 1932, and on May 7, 1932, appellants’ motion for new trial was overruled. Appellants gave notice of appeal, and thereafter perfected said, appeal by filing an appeal bond in the trial court on the 27th day of May, 1932. The time for filing the transcript in the appellate court expired July 6, 1932, without such transcript having been filed. Thereafter the appellants abandoned their appeal and sued out a writ of error and filed a writ of error bond on August 10, 1932. The transcript in the writ of error proceedings was then filed in the Court of Civil Appeals on August 15, 1932. Appellees thereafter on the 10th day of January, 1933, filed herein a motion to affirm this cause on certificate.

An appellee’s right to affirm on certificate is available only if the motion to affirm is filed before the termination of the term of the Court of Civil Appeals to which the appeal is returnable. Article 1816, Revised Statutes, as amended by Acts 1927 (1st Called Sess.) c. 50, § 1 (Vernon’s Ann. Civ. St. art 1816), provides that the term of each Court of Civil Appeals shall begin on the first Monday in October of each year, and shall continue in session until the first Monday in October the next succeeding year. The term of the Court of Civil Appeals to which the appeal was returnable ended on the first Monday in October, to wit, October 3, 1932. Ap-pellees having filed their motion to have the judgment of the trial court affirmed on January 10, 1933, after the term to which the cause was appealable has expired, are not entitled to an affirmance on their motion. The law is well settled by the uniform decisions of this state that this court cannot affirm on certificate a judgment of the trial court after the term to which it was appeal-able has expired. 3 Tex. Jur. 748; Laughlin v. Dabney, 86 Tex. 120, 24 S. W. 259; Farmers’ & Merchants’ Lumber Co. v. Fidelity Union Casualty Co. (Tex. Civ. App.) 45 S.W.(2d) 754; Perkins v. Williams (Tex. Civ. App.) 47 S.W.(2d) 659; Ross v. Cantrell (Tex. Civ. App.) 278 S. W. 927; Herndon v. Ridley (Tex. Civ. App.) 297 S. W. 309.

The motion of appellees to affirm judgment of the trial court on certificate is overruled.


author: PELPHREY, O. J.

text:
    MODERN WOODMEN OF AMERICA v. BAKER.
    No. 2761.
    Court of Civil Appeals of Texas. El Paso.
    Jan. 12, 1933.
    Rehearing Denied Feb. 2, 1933.
    Sullivan, Speer & Minor, of Denton, and Burgess, Burgess, Chrestman & Brundidge, of Dallas (Geo. G. Perrin, of Rock Island, Ill., of counsel), for appellant.
    King S. Williamson and J. H. Synnott, both of Dallas, for appellee.
   PELPHREY, O. J.

Appellee instituted this suit against appellant seeking to recover the sum of $2,000, alleged to be due her on a benefit certificate issued to her deceased husband, Bruce B. Baker, by appellant, and 12 per cent, penalty for refusal to pay upon demand together with attorney’s fees in the sum of $500.

Appellant' affirmatively defended on the ground that Bruce B. Baker came to his death while being engaged in a violation of law; that he was killed in consequence of being engaged in an attempted violation of the law; and that he was killed in consequence of being engaged or participating in a personal quarrel, controversy, or altercation in which he was the aggressor, which by reason of the provisions of the certificate and appellant’s by-laws rendered the certificate null and void.

It is undisputed that Baker died shortly after having been stabbed by William H. Hunter at City Barn No. 4, which was used by the street and bridge department of the city of Dallas, on July 12, 1930;

The single issue submitted to the jury reads: “Do you find from the preponderance of the evidence that Brace B. Baker, in the altercation resulting in his death, was the aggressor, as that term is hereinafter defined to you?”

The following definition was given: “The term ‘aggressor’ as used in this charge, means a person who brings on an altercation with another person by some act or demonstration such as would indicate to a reasonable mind a present intention on the part of such person to do such other person serious bodily harm.”

Upon a negative finding by the jury, the court rendered judgment in favor of appel-lee for $2,000, with 6 per cent, interest thereon from January 1, 1931.

This appeal is from such judgment.

Opinion.

Appellant’s brief contains fifteen assignments of error, upon which are based eight propositions.

In its first two propositions appellant contends that it was entitled to an instructed verdict because the undisputed evidence snows that Baker engaged in a fight and died in consequence thereof, and that his death occurred through engaging or participating in a personal quarrel, controversy, or altercation in which he was the aggressor.

Appellant, under his theory that the 'un-contradicted evidence shows that Baker was killed while engaged in a violation or attempted violation of the law, asserts that the undisputed evidence shows that he engaged in an affray as defined by article 473, of the Penal Code, and, further, that he was guilty of an assault or assault and battery under article 1138 of that Code.

Appellee in her argument admits that, if the deceased was engaged in a violation of the law at the time of his death, or died in consequence of a fight in which he was the aggressor, then appellee cannot recover, but she urges that the jury had the right to reject the testimony of both Hunter and Moore and decide the issue as to whether deceased was the aggressor from the circumstances, or, the burden being upon appellant to show that the deceased was the aggressor, find the issue against appellant for want of credible testimony.

She contends that, Hunter having an interest by reason of the fact that he was still subject to indictment and prosecution for the hilling of Baker, and being contradicted in some particulars by Moore, and further by the evidence showing that the wounds inflicted on deceased could not have been made •by the knife which he testified he used, the jury was at liberty to wholly disregard his testimony.

We agree with this contention, Dut we fail to agree with the contention that the testimony of the witness Moore was in the same condition. In other words, we fail to see how Moore, under the facts and circumstances here reflected, would have any fear of later being indicted for the killing of Baker, and we cannot agree that the fact that Moore gave no assistance to Baker, conceding that he knew he had been dangerously injured, and that the evidence showed that a longer knife had been used in the stabbing of Baker than Hunter admitted using, would justify the assumption that probably Moore had used the other and longer knife. Therefore his testimony would not fall within the rule that the testimony of an interested party, though not contradicted, raises only an issue for the determination of a jury, and, unless there be some other evidence or some fact or circumstance which contradicts his testimony, then appellant was entitled to an instructed verdict’ that is, provided his testimony shows either that deceased was killed while engaged in a violation of the law or while engaged in an altercation in which he was the aggressor.

In support of her argument that appellant has adduced no credible testimony at all, and that the undisputed facts and circumstances prove that deceased was not the aggressor, she advances the following:

“Now let us look at this testimony and see what the jury had a right to believe, and did believe. We know one thing, and that is that Hunter did not stab Baker with the knife the blade of which had been broken down to a length of one inch, and with which he had been scraping dynamite fuses. We know the knife blade that killed Baker, whoever wielded it, had a long slim blade, three and one-half inches long. This 'being true, then the jury must look to something else, and not to the testimony of the witnesses as to who killed the deceased, or with what instrument.”
“They proved with their own testimony that deceased was a powerful man, weighing over two hundred pounds, standing nearly six feet tall, while the supposed killer was five ieet five inches tall, weighing less than 140 pounds. According to their testimony, deceased approached the killer, never having exhibited any ill temper before, spoke to him, and as the killer was rising from his seat, struck him, knocked him down or nearly down two or three times, and then’ran from him. The jury might well believe that as the killer rose to his feet, he rose with an open knife in his hand, and that the deceased struck him to protect himself. It is true, that nobody said he had the open knife in his hand then. But we do know that he did not get out his knife and open it at the time he says he did. They would have you believe that after Baker had knocked this man down three times, he ran away from him and did not return until he armed himself with two whole bricks. Why would this powerful man run from this little weakling whom he had knocked down three times as easily as one could knock down a straw man, if his weap-’ on was not in use at the time.”

While the testimony of the undertaker as to the depth of the wounds refutes the testimony of Hunter that they were inflicted by a knife with a blade about an inch long, still that testimony easts no reflection upon Moore’s testimony, for he not only did not attempt to describe the knife, but testified that he did not see the knife at all.

The further theory that the jury could have believed the deceased struck Hunter, when Hunter raised up from his seat with an open knife in his hand, and that he ran from him and armed himself with the bricks because Hunter was using his knife at that time, appears to be going out quite a ways into the realm of speculation.

There is not a scintilla of evidence hexe to show that the knife was used before Hunter says it was, and the only thing even tending to place suspicion upon it is the fact that he testified that he shook it open with one hand.

Moore says he was in a position to see Hunter when the difficulty started, saw him getting up, saw him almost knocked down, saw him trying to get his children out of the way, saw him ward off the brick with his arms, and still says he saw no knife. Wouldn’t it be more plausible to say that Hunter did not get out his knife until after, he was on the ground, where Moore’s failure to see the knife could 'be explained by the fact that Baker was either bending over or on top of him?

Moore’s testimony was that Baker came, up to where Hunter was sitting, told him he ■had seen him stealing gasoline out of a tractor; that Hunter started to get up, called Baker a damned liar; that Baker then struck Hunter, knocking him back against the bench, walked just around the corner of the house, got a brick,. came back, and hit Hunter on the elbow with it; and that then they went together, fell on the ground, with Baker on top.

We have been unable to find any evidence, fact, or circumstance which contradicts this testimony; therefore, if it shows that Baker was engaged in a violation of the law or was the aggressor in the altercation, the trial court should have granted appellant’s reguest for an instructed verdict.

An affray is defined in the Penal Code: “If any two or more persons shall fight together in a public place they shall he fined not exceeding one hundred dollars.”

An assault and battery is thus defined: “The use of any unlawful violence upon the person of another with intent to injure him, whatever be the means or the degree of violence used, is an assault and battery.”

It is well established that a person acting in his own self-defense would not be guilty under either of the statutes, but it appears to us that under the facts here deceased was engaged in a violation of at least one of them when he met his death.

It may be said that the evidence is not sufficient to show that the place where this difficulty occurred was a public place within the purview of the statute, but we think it clearly shows that Baker engaged in an assault and battery, and was the aggressor in the altercation from which he died.

The judgment of the trial court will be accordingly reversed, and judgment here rendered that appellee take nothing.


author: LOONEY, J.

text:
    BAIRD v. WILLIAMS et ux.
    No. 11095.
    Court of Civil Appeals of Texas. Dallas.
    Jan. 21, 1933.
    W. B. Handley and C. J. Shaeffer, both of Dallas, for appellant.
    Grace N. Fitzgerald, of Dallas, for appel-lees.
   LOONEY, J.

John S. Baird, Jr., appealed from an adverse judgment rendered in a suit brought by him to recover damages from H. G. Williams and wife for the loss of clothing stolen from a trunk left in the custody of defendants at the Milam Hotel in the city of Dallas operated at the time by them.

Plaintiff was a district sales manager for a hosiery mill, established headguarters in Dallas, registered at the Milam Hotel under a special arrangement that plaintiff would pay $1 per day for his room; that he would not be charged while absent from Dallas; that during the period of absence his mail and baggage would be cared for in the hotel. This arrangement constituted the consideration for plaintiff becoming a guest at the hotel. About two weeks after plaintiff registered he made a business trip to South Texas, intending to be absent but a few days, but, on account of illness, was detained several weeks. Before leaving, plaintiff was informed by defendant that there was in the hotel a trunk room kept for the purpose of caring for the baggage of guests, but, as plaintiff said he would return in a few days, that the trunk was fastened by a splendid lock, and that there was no need to move it to the trunk room, this was agreed to by defendant, and the trunk was left in plaintiff’s room. Returning to the hotel, plaintiff was assigned a different room, and discovered when the trunk was brought up that the lock had been broken and three suits of clothing, a top coat, and six shirts, of the aggregate value of $175, were missing. It appears that during the absence of plaintiff defendant sold the hotel and made delivery of same to the purchaser, including the trunk belonging to plaintiff.

The questions discussed herein have been properly raised and presented for consideration.

No contention is made that defendant is liable at common law as an innkeeper, but it is contended that, under the special arrangement entered into between the parties, defendant became a bailee for hire, owed' the duty of reasonable care to safeguard the property, and, failing to account for or excuse the loss of the clothing, liability to plaintiff for damages was established.

We think the bailment in question was for the mutual benefit of both plaintiff and defendant, in other words, that it was a bailment for hire, with the legal consequences attaching to that relation.

The case of Hotels Statler Company, Inc., v. Safier, 103 Ohio St. 638, 134 N. E. 460, 461, 22 A. L. R. 1190, involved substantially the same state of facts, and is as near in point as cases are usually found. Speaking of a similar special arrangement made between the guest and hotel for the keeping of baggage, the court said: “This special engagement entered into between them, while relieving the innkeeper from the stringent rule of liability under the common law for the safe-keeping of goods, imposed upon the hotel bailee the duty of exercising reasonable care for their preservation. This arrangement is based upon a sufficient consideration, and imposes upon the bailee the duty required of it as a bailee for hire. Under the facts disclosed in this case this is .a bailment for mutual benefit.” At this point the court quoted from 6 C. J. 1100, the following: “Where a bailment is a mere incident to the performance of services for which the bailee receives compensation, or to the conduct of a business from which the bailee derives profit, it is a bailment for mutual benefit, although the bailee receives no compensation for the bailment as such.” The court also quoted from Story on Bailments (9th Ed. p. 27), the following in point: “When the bailment is reciprocally beneficial to both ■parties,' the law requires ordinary diligence on the part of the bailee, and makes him responsible for ordinary neglect.” After these ■quotations, the court proceeds: “Manifestly the bailment, in a case like the present, is of the latter class, for, while the customer pays nothing directly, or eo nomine, for the safekeeping of his effects, the dealer receives his compensation in the profits of the trade of which the bailment is a necessary incident.” See this case for full discussion and citation of authorities on the question under discussion.

As stated above, during the absence of plaintiff, defendant sold out the hotel, and made delivery to the.purchaser, trunk and all, thus abandoning to a stranger custody of plaintiff’s baggage, and failed to explain or excuse the loss of clothing from the trunk.

The doctrine applicable to a situation like this is announced in 3 R. O. L. § 74, p. 151, as follows: “The general rule, at least in the United States, seems to be that where a bailor alleges and proves simply the delivery of the property to the bailee and the latter’s failure to return it on demand, a prima facie case is made out against the bailee. The same is true if it is proved that the property was delivered to the bailee in good condition and was returned damaged in such a way as does not usually occur by the exercise of proper care, and in either case negligence will be presumed.” Also see 6 C. J. p. 1158, § 160; Cochran v. Walker (Tex. Civ. App.) 49 S. W. 403; Hislop v. Ordner, 28 Tex. Civ. App. 540, 67 S. W. 337; Powell v. Hill (Tex. Civ. App.) 152 S. W. 1125, 1126; Bagley v. Brack (Tex. Civ. App.) 154 S. W. 247.

In view of the facts stated above and the authorities cited, we are of opinion that the court erred in denying plaintiff recovery, and, it appearing that the case has been fully developed, it becomes our duty, under article 1856, R, S., to render such judgment as the court below should have rendered; therefore it is ordered that the judgment below be, and is, hereby reversed and judgment is here rendered in favor of John S. Baird, Jr., plaintiff, against H. G. Williams (no recovery against Mrs. Williams) for the sum of $175, with interest at the rate of 6 per cent, per annum from March 30, 1931, and all costs of this and of the court below, and that same be certified to the court below for enforcement.

Reversed and rendered.


author: GALLAGHER, C. J.

text:
    ARMSTRONG v. MULLER.
    No. 1296.
    Court of Civil Appeals of Texas. Waco.
    Jan. 19, 1933.
    B. A. Garrett, of Waco, for appellant.
    Poage & Neff, of Waco, and Kerr & Gayer* of San Angelo, for appellee.
   GALLAGHER, C. J.

This appeal is prosecuted by T. A. Armstrong from a judgment of the county court at law of McLennan county, sustaining a plea of privilege interposed herein by appellee, Lelah Belle Muller, and transferring the cause to Schleicher county, where appellee resides, for trial on its merits. Appellant sold a diamond ring to J. W. Muller by a written contract, tie paid a part of the purchase price in cash and agreed in said contract to pay to appellant the remainder in installments at Waco, Tex. Further provisions of said contract constituted the same in legal effect a chattel mortgage to secure such unpaid installments. He gave said ring, to appellee, who was then his wife. .They were subsequently divorced. Default having been made in the payment of the remainder of the purchase money, appellant instituted' this suit on said contract in the county court at law of McLennan county against both said Muller and appellee, and prayed for judgment for his debt and for foreclosure of his lien against both said parties. He alleged in his petition that Muller then resided in Burle-son county and appellee in Schleicher county. Appellant thereafter amended his petition and further alleged that the sheriff of Schleicher county, acting under a writ of sequestration issued out of said court, saw ap-; pellee in person and demanded the possession of said ring for the purpose of levying said writ thereon, and that she refused to surrender possession thereof. He further alleged that the market value of said ring was in excess of $200, that he had been damaged by the action of the defendants in the sum of $250, and prayed for judgment for that amount against them, jointly and severally, and for- foreclosure of his chattel mortgage lien. Muller made default. Appellee filed a plea of privilege in statutory form, alleging her residence in Schleicher county, and asking that the cause be transferred to such county for trial. Appellant filed a controverting affidavit, in which he alleged that the contract sued on was payable in Waco* McLennan county, and obligated the maker to return the ring to him in Waco upon default in the payment of the remainder of the purchase price. He referred therein to his amended petition, and made the same a part thereof.

Appellee’s plea of privilege came on for-hearing before the court. Appellant introduced his contract in evidence. He also introduced a witness who testified that there was a balance due thereon of $140.50, together with interest and attorney’s fees. The wit-, ness further testified that about December 1,1931, he went with the sheriff of Schleicher. county to levy a writ of sequestration on said ring; that he saw the same o-n appellee’s left hand; that she refused to deliver the same to the sheriff, stating, in substance, that it was as safe with her as with the sheriff and that it would be there when he came to get it. No other testimony was introduced. The,court recited in the judgment entered on such hearing that in his opinion “the plea of privilege of the defendant, Lelah Belle Muller, should be overruled as to the cause of action set up in plaintiff’s said first amended original petition seeking to establish the indebtedness of the defendant J. W. Muller and to have foreclosure of chattel mortgage lien on the property described therein and alleged to be in the possession of the defendant Lelah Belle Muller.” He further recited therein that in his opinion “the plea of privilege should be sustained as to the cause of action in plaintiff’s said first amended original petition contained seeking a personal judgment against the defendant Lelah Belle Muller for damages in the sum of $250.-00 for alleged conversion of the property described therein.” He further recited therein that he had announced said respective holdings in open court and had offered appellant an opportunity to elect upon which of said inconsistent causes of action he desired to rely and to dismiss the other; that appellant declined to elect, but stood on his pleadings as filed. The court thereupon entered an order transferring the entire case to the county court of Schleicher county.

Opinion.

Appellant presents a single assignment of error in which he contends that the court erred in transferring the cause to Schleicher county upon the record hereinbe-fore presented. The allegations made by appellant in his amended petition are meager, but we are of the opinion that, in addition to his cause of action for recovery of the unpaid purchase money and for foreclosure of his contract lien to secure the same against both defendants, sufficient acts on the part of appellee are alleged to constitute a technical conversion of the ring, should he see fit to so treat the same. These allegations, together with appellant’s prayer for personal judgment against appellee, are sufficient, in our opinion, to state some, if not all, of the essential elements of a cause of action for conversion. So far as appellant’s cause of action for the recovery of his debt and for foreclosure of his contract lien against both Muller and appellee is concerned, the trial court had jurisdiction thereof as against ap-pellee’s plea of privilege. Sabine Motor Co. v. W. C. English Auto Co. (Tex. Com. App.) 291 S. W. 1088; Chapman v. Head (Tex. Civ. App.) 284 S. W. 299; 9 Tex. Jur., p. 196, § 88. The trial court so held, and we understand appellee to concede that such holding was correct. Appellant having alleged affirmatively that neither Muller nor appellee resided in McLennan county, such jurisdiction was predicated solely on Muller’s written promise to pay the remainder of the purchase money to appellant in Waco. Appellant’s further allegations pertinent to this issue, considered as a whole, merely show that Muller gave the' ring to appellee; that she removed to Schleicher county and took the ring with her; that the sheriff of said county presented to her therein a writ of sequestration for the seizure of the ring; and that, though she was wearing it at the time, she refused to surrender the same that such levy might be made. Such refusal is the only act alleged by appellant which could be held to constitute a conversion of the ring by ap-pellee. Neither appellant’s controverting affidavit nor his amended petition, referred to and made a part thereof, showed, as against appellee’s plea of privilege, any fact or facts conferring jurisdiction on the trial court of appellant’s cause of action, if any, for such conversion. Appellant’s action in joining in one suit a cause of action for debt and foreclosure with a cause of action for conversion of the mortgaged property did not constitute a misjoinder. Cobb v. Barber, 92 Tex. 309, 311, 47 S. W. 963; Cassidy v. Willis & Connally, 33 Tex. Civ. App. 289, 78 S. W. 40, 41. Such causes of action, however, when prosecuted against the same person, are more or less inconsistent, and, if combined in one suit, should be alleged in the alternative. Hydraulic Casing Pulling Co. v. Brown (Tex. Civ. App.) 297 S. W. 770, 772, par. 3; Smith v. Wall (Tex. Civ. App.) 230 S. W. 759, 760, par. 2; A. B. C. Stores, Inc., v. Houston Showcase & Mfg. Co. (Tex. Civ. App.) 284 S. W. 332, 333, pars. 1 and 2. See, also, 9 Tex. Jur. p. 196 et seq., § 88; Id., p. 213 et seq., § 104. Even when so alleged, a recovery on one such cause of action precludes a recovery on the other. Saner-Whiteman Lumber Co. v. Texas & N. O. Ry. Co. (Tex. Com. App.) 288 S. W. 127, par. 1; Coffman v. Brannen (Tex. Civ. App.) 50 S.W.(2d) 913, 914, par. 3. A suit, however, combining such alternate causes of action can be maintained as against a plea of privilege only in a forum having jurisdiction of both of the same. Behrens Drug Co. v. Hamilton & McCarty, 92 Tex. 284, 287, 48 S. W. 5.

The causes of action asserted by appellant were severable. The court erred in transferring, over appellant’s protest, the entire suit to Schleicher county for trial. Johnson v. First Nat. Bank (Tex. Civ. App.) 42 S.W.(2d) 870, 871, par. 2, and authorities there cited. The judgment is therefore reversed, and the cause remanded, with instructions to overrule appellee’s plea of privilege to appellant’s suit for debt and foreclosure against both defendants. The trial court is further instructed to permit the plaintiff, if he desires, to dismiss his suit for conversion without prejudice, or, in the alternative, to transfer the same to Schleicher county for trial.


author: HICKMAN, C. J.

text:
    BALDRIDGE et al. v. KLEIN et ux.
    No. 1038.
    Court of Civil Appeals of Texas. Eastland.
    Dec. 23, 1932.
    Rehearing Denied Feb. 3, 1933.

      '■ Marshall & King, of Graham, Cox & Hayden and Scarborough, Ely & King, all of Abilene, and Touchstone, Wight, Gormley & Price, of Dallas, for plaintiffs in error.
    Wagstaff, Harwell, Wagstaff & Douthit, of Abilene, for defendants in error.
   HICKMAN, C. J.

The appeal is from a judgment in favor of defendants in error David E. Klein and wife, Blanch V. Klein, against plaintiffs in error, Thomas B. Baldridge and Graham Mill & Elevator Company, for damages on account of personal injuries sustained in an automobile accident occurring on a highway in Taylor county, in which a ear occupied by defendants in error was overturned and practically demolished, with resulting personal injuries. Judgment was also had for damages to their car. Defendants in error'were driving west on the Bankhead Highway at the rate of about thirty-five miles per 'hour. Bald-ridge overtook them, traveling in the same direction, and speeded up ■ his car to about forty-five miles per hour in attempting to pass them. He made the mistake of cutting back to the right before he was clear of the overtaken car, and as a result the right rear fender of his car became enmeshed with the front bumper of the overtaken car, resulting in the overturning of the latter, with consequent injuries. Judgment ran against Graham Mill & Elevator Company upon pleadings and a jury finding that Baldridge was its agent. Both defendants below have' brought the case here for review by writs of error.

The first proposition presents the question that a peremptory instruction in favor of Graham Mill & Elevator Company should have been given by the trial court. The facts disclose that Baldridge was engaged in the brokerage business at Abilene, in partnership with a man by the name of McClure. The firm sold various products of various companies, including the products of Graham Mill & Elevator Company of Graham, Tex. The brokerage firm employed and discharged its own salesmen. When it sold products in carrying out its brokerage business, ⅞ purchaser owed the debt for the purchase price to Baldridge & McClure and not to the company whose products were sold. Neither the Graham Mill & Elevator Company, nor any other company whose products were handled by this brokerage firm, had any right of control whatever over the conduct of its business. On the occasion of the accident Baldridge was returning from Clyde, where he had been to collect for a sum owing his partnership firm on account of products theretofore sold. The products for which the collection was made were the products of his codefendant theretofore shipped to Baldridge & McClure at Abilene, and by them sold and delivered to the dealer at Clyde. There was evidence that the telephone in the place of business of Baldrige & McClure was listed in the directory under the name of Graham Mill & Elevator Company, and that a sign was exhibited at their place of business, which was conducted in a house owned by Bald-ridge, reading “Graham Mill & Elevator Company.”

The foregoing is a summary of the material facts. From them we have concluded that Baldridge’s relation to Graham Mill & Elevator Company was that of broker. That relationship may be said to be one of limited agency, but it is not such a relationship as that the doctrine of respondeat superior would apply, rendering the company liable for the negligence of Baldridge on the occasion in question. The nature of the relationship between an employer and the person employed, so far as concerns the question of agency, is determined by whether the former had the right to exercise control over the details of the work. To establish the relationship of principal and agent it is not essential that the employer actually exercise his right of control over the details of the work, but it is essential to that relationship that he had the right to exercise that control. In Re-statement of the Daw of Agency by the American Daw Institute, as quoted in 2 Tex. Jur., p. 884, § 5, this definition is given: “The relation of agency is the consensual relation existing between two persons by virtue of which one of them is to act for and on behalf of the other, and subject to his control.”

This court, in at least two cases [Tarver Steele & Co. v. Pendleton Gin Co., 25 S.W.(2d) 156, and Bertrand v. Mutual Motor Co., 38 S.W.(2d) 417], has quoted this definition with approval and in each instance has held that, in the absence of the right of the employer of control over the employee, the relation of principal and agent does not exist. This rule has long been well established by our decisions. Cunningham v. Ry. Co., 51 Tex. 503, 32 Am. Rep. 632; Cunningham v. Moore, 55 Tex. 373, 40 Am. Rep. 812; King v. Galloway (Tex. Com. App.) 284 S. W. 942; National Cash Register Co. v. Rider (Tex. Com. App.) 24 S.W.(2d) 28.

We sustain the first proposition.

Propositions 2 to 6, inclusive, complain of the trial court’s definition of “an agent” and of the admissibility of certain testimony seeking to establish agency. These propositions are rendered immaterial by our holding that the evidence did not raise the issue of agency.

The seventh proposition complains of the definition contained in the charge of “natural and continuous sequence.” We are still of the opinion which we expressed in the case of West Texas. Transportation Co. v. Hash, 43 S.W.(2d) 152, 158, that it is not necessary to give a definition of this term, but since the court has done so, if that definition was erroneous and proper written objections were timely filed thereto, an error would probably be disclosed. The definition is the same as that which we condemned in the Hash Case, supra, and is ,as follows: “ ‘Natural and continuous sequence’ means an act which ordinarily follows, the result of which may reasonably be anticipated from it.”

The definition is subject to some objections, but plaintiffs in error failed to .point out any objectionable feature. The only objection to this definition was in this language: “Defendant excepts to the court’s definition of ‘natural and continuous sequence’ because the same is erroneous in defining said term as an ‘act’ when in fact it is'a succession of events.”

Let us suppose that the trial court had agreed with this exception and had so changed his definition as to substitute for the words “an act,” the suggested words, “a succession of events.” The definition would then have read as follows: “ ‘Natural and continuous sequence? means a succession of events which ordinarily follows, the result of which may reasonably be anticipated from it.”

Would such change have cured the error in the definition? We think not. The statute (article 2185, R. S. 1925), requiring that objections shall in every instance be presented to the court before the charge is read to the jury, is a wholesome one designed to correct a well-known existing evil,. and our courts have uniformly held the complaining party to a strict compliance with its provisions. If an objection to a charge is insufficient to point out to the trial judge the particular defect, it is also insufficient as the basis.of an assignment of error in this court.

The eighth proposition complains of •the failure of the trial court to define the term “proximately caused or contributed to cause.” The court defined both “proximate cause” and “contributory negligence.” It was therefore not error for it to refuse .to. define the term above quoted.

The ninth proposition presents the question that each of the defendants below were entitled to six peremptory challenges. By provision of article 2148, R. S. 1925, each party to a civil suit in the district court is entitled to six peremptory challenges. In construing this statute it has been properly held that two or more defendants should be considered as one party when they have a common defense. The defendants in this ease had identical defenses. There were no fact •issues between them. The same issues were .submitted as to each, except only the issue .of agency.' The fact, that an issue of agency was esséntial to the liability of one of the defendants and not as to the other, would not operate to render them two different parties to the suit. We think this well settled. Jones v. Ford, 60 Tex. 127; Hargrave v. Vaughn, 82 Tex. 347, 18 S. W. 695; Wolf v. Perryman, 82 Tex. 112, 17 S. W. 772; Allen v. Waddill (Tex. Civ. App.) 26 S. W. 273; Raby v. Frank, 12 Tex. Civ. App. 125, 34 S. W. 777; St. L. S. W. Ry. Co. of Texas v. Barnes (Tex. Civ. App.) 72 S. W. 1041; Witliff v. Spreen, 51 Tex. Civ. App. 544, 112 S. W. 98; International-G. N. Ry. Co. v. Smith (Tex. Civ. App.) 269 S. W. 886. ‘

The case of St. Louis, S. F. & T. Ry. Co. v. Rutland (Tex. Com. App.) 292 S. W. 182, relied upon by plaintiffs in error, does not announce a different rule and does not overrule prior decisions by the Supreme Court. In that case the same acts of negligence were not charged to each of the defendants.

By the tenth and eleventh propositions complaint is made-of an issue contained in the court’s charge. The issúe inquired as to whether or not the defendant Baldridge, ifi passing the car driven by the plaintiff David F. Klein, drove to the right “before he was reasonably clear of the overtaken car driven by. Klein.” It was objected that the charge was vague; ambiguous, and indefinite. If the criticism is just, its indefiniteness is the result of the use of the word “reasonably,” and its use was more favorable to plaintiffs in error than they -were entitled to. The contention that the court should have defined in his charge the term “reasonably clear of the overtaken ear,” is overruled.

The twelfth proposition complains of the argument of counsel. It is claimed that certain language employed by one of the attorneys'for defendants' in error should be construed as intimating that an insurance' company had an interest in the defense. The language, to our minds, is not reasonably susceptible of that construction.

Proposition 12 complains of the refusal of the trial court to give certain charges. Without going into details concerning this matter we think it sufficient to state that it is not error for the court to refuse an issue concerning an undisputed matter. Neither is it error to refuse a multifarious issue or one which has been embodied in the main charge.

The 14th and 15th propositions relate to evidence as to damage to the automobile. The facts disclose that the witness was qualified to express his opinion as to the value of the car before and after the accident, and the evidence supports the jury’s finding.

The 16th proposition presents that there was no competent proof in the record of the reasonableness of the charges for medical bills, etc., and that it was therefore error for the trial court in its charge to permit the jury to consider these items in fixing the amount of damages. We overrule this proposition. Mr. Klein testified that Drs. Shytles, Grubbs & Hodges attended Mrs., Klein after the accident, and that they rendered him a bill of $150 for their services. Dr. Shytles did not remember the amount of the charges, but testified that whatever charges were made at the time were reasonable, and that the treatment was necessary. This evidence was sufficient to authorize the inclusion of these items in the charge to the jury.

It is our order that the judgment of the trial court awarding a recovery against plaintiff in error Graham Mill & Elevator Company be reversed, and that judgment be here rendered that defendants in error take nothing by their suit against it; that the judgment of the trial court against plaintiff in error Baldridge be in all things affirmed. Since no costs of appeal can be adjudged against Mill & Elevator Company, it is ordered that one-half of the costs of appeal be adjudged against defendants in error and the other one-half against Baldridge.

Affirmed in part, reversed and rendered in part.

On Rehearing.

It is earnestly insisted that we erred in that portion of our opinion wherein we held that the objection to the court’s definition of “natural and continuous sequence” was not sufficiently specific to point out any defect therein. We have carefully examined the entire record to determine whether, if we erred in that holding, and should now adopt the view of plaintiff in error, a reversal of the judgment would follow. Our conclusion is that it would not. The only possible suggestions of an intervening cause between the negligence of plaintiff in error and the injuries were certain acts pleaded by plaintiff in error as contributory negligence on the part of defendant in error. These issues of negligence were answered by the jury contrary to the contentions of plaintiff in error, and, in fact, no other answers would have been warranted. This case is not involved. The plaintiff in error was clearly guilty of negligence. It is impossible to conceive that that negligence was not the proximate cause of the injuries sustained by defendants in error, and no other answer could have been made by the jury, based upon the evidence, than that the negligence of the plaintiff in error proximately caused the injuries.

Motion overruled.


author: WALTHALL, J.

text:
    RIO GRANDE, EL PASO & SANTA FE R. CO. et al. v. DUPREE.
    No. 2721.
    Court of Civil Appeals of Texas. El Paso.
    Jan. 19, 1933.
    Rehearing Denied Feb. 9, 1933.

      Turney, Burges, Gulwell & Pollard, of El Paso, for appellants.
    Robert L.' Holliday and Henry T. Moore, both of El Paso, for appellee.
   WALTHALL, J.

This is a companion case to that of Rio Grande, El Paso & Santa Fe Railroad Company v. Dupree, by this court, and reported in 35 S.W.(2d) 809, and reviewed on writ of error by the Commission of Appeals, Section A, and affirmed by the Supreme Court as recommended by the Commission [55 S.W.(2d) 523], We refer to the above ease for a full statement of the facts and the law as applied to the instant case.

The record shows that on March 24, 1928, Dr. W. A. Dupree and his son, John L. Du-pree, were each killed at a public road crossing, at the same time and under the samé circumstances, in a collision between a Pord truck in which they were riding and a locomotive attached to a freight train, operated by the Atchison, Topeka & Santa Pe Railway Company on the track of the El Paso & Santa Pe Railroad Company in El Paso county. In the former suit Mrs. Dora Du-pree, surviving wife of her deceased husband, sued in her own behalf as next friend for her two minor sons to recover damages against the two companies for the alleged negligent killing of her said husband.

In this suit appellee seeks to recover for herself against appellants for the death of her son, John L. Dupree, then seventeen years of age, the present value of such pecuniary loss suffered by her by reason of the death of her son, John Dupree, averring in effect, the same facts and circumstances as in the! suit for the death of her husband, and averring as negligence substantially the same acts as in said former suit. Appellants, in defense, alleged substantially the same facts as in said former suit. Such acts are reflected in the several special issues submitted to the jury on the trial.

The jury found all of the issues submitted in favor of appellee.

On the verdict of the jury the court entered judgment in favor of appellee and appellants assign error and prosecute this appeal.

Opinion.

This case was tried and judgment rendered and the case briefed by both parties pending the former Dupree Case on writ of error. Ini their brief appellants say: “We have no new thoughts on the question, nor have any cases bearing on the question, decided since that submission, been called to our attention. We must, therefore, rest upon the record made there, re-submitting, if it may be done here, and respectfully asking that the court give further consideration to these questions, based upon the actual record made on the trial. * * * We again, therefore, submit the question of contributory negligence arising under the facts here presented.”

We may add here that we have before us in considering this appeal the opinion of this court written by Judge Higgins, and the opinion of Judge Critz, for Section A of the' Commission of Appeals, the latter handed down and approved by the Supreme Court on December 22, 1932. We can add nothing to what has there been said, we therefore pretermit any discussion of what has been, so ably discussed in the briefs on the same questions in the other Dupree Case, and refer to the opinions for what is there decided.

On the trial of this case the court submitted to the jury questions numbers 18 and 19, as follows:

No. 18, with the court’s explanation, reads-!

“Do you find from a preponderance of the evidence that the plaintiff, Dora S. Dupree, has suffered pecuniary loss by reason of the death of her son John L. Dupree?
“If you do find from a preponderance of the evidence that during the course of their lives the deceased, John L. Dupree, would have contributed in money, services or other things of value to the plaintiff, Dora S. Du-pree, the present value of which is in excess of the present value of the expense or coat that the plaintiff would have been put to for his maintenance and education or other expenses, then you will answer the above question yes; and if you find that the expense of the maintenance and education of the deceased, or other expense, to which the plaintiff would have been put hád he lived, would have equalled or exceeded the present value of the contributions that the deceased would have made to her had he lived, you will answer the above question no.”

Question No. 19, with the court’s explanation, was as follows:

“How much do you find to be the pecuniary loss -suffered by the plaintiff by reason of the death of her son, John L. Dupree?
“In answering this question, you should take into consideration only the present value of the pecuniary or material loss suffered, if any, by reason of the death of her son in excess of the present value of the expense or cost she would have been put to on his account had he lived, and not take into consideration any damages suffered by reason of loss of society, and you should not allow anything for comfort or for. the grief suffered by the plaintiff by reason of the death of her son.”

The record shows, without dispute, that ■ the deceased son,.John L. Dupree, was seventeen years of age at the time of the accident and was going to school; that he lived with his father and mother.

The objections made by appellants, as shown by the record, to questions numbers •18 and 19, were:

(To No. 18) “Because same is not the proper measure of recovery and does not give to the jury a correct rule to guide it in determining what would be regarded as pecuniary •■loss under a case of this character. No such rule, of recovery as there stated has ever been recognized under the laws of this state.”
“⅞0 question Ño. 19, and particularly the 'explanation therein made by the court, be•'cause it states a false premise. The record herein -is sought for the death of a minor son, and to whose services the parent would not be entitled after majority, and the right after, majority .would, depend upon evidence ¡warranting the conclusion that deceased would have made contributions. The rule as stated by the court to guide the jury as to .the amount of the recovery, if any, does not have ‘a proper basis, and has never been rec-'ogpized in this state. The rule announced W the court does not correctly state that which has been recognized for fifty years in this state ⅛⅛ being the measure of recovery ill-a case-of -this character.”

’' Appellants in 'their brief are more specific ih; átaiting their objections. We make a few observations taken from the brief: No dis'; 'tinctióri''is made based upon the minority and 'majoiity of the deceased boy. It was'an érróríeóus statement as to the right of a parent ⅛⅛ recover for the death of a minor. .“There is no such thing in law as contribution^ frorh'á minor child to a parent. • The service's of ⅜ child belong to the parent”— ^(¿iese^belcm^ to the mother as a matter of i'ight!” — “it’was his sexwices during minority 'th'dt' she lo&t, if anything, not contributions 'Of’’ixifmfeybr other thing of value.” “The fact is, lie had performed'no services, and the evidence does not indicate that he had made any Contributions.”' : ' ■ . .

A few quotations from the record may not be amiss. The deceased’s mother, Mrs. ¿Dora-S..-.I>uprce, testified: Witness teaches seh'ool dn El Paso' High.- She taught deceased ffor ypars herself. He was studious and just an ordinary kid, a bright enough boy, and with-’p leaning toward science, chemistry, physics,, and history. He was kind and ambitious for his mother. “He always hoped ,to get me a pink dress, because I didn’t dress to suit him.” When he studied geography and history, “he never studied about a place he didn’t plan to take me there when he made enough money.” On one occasion he sájd:. “'Why, Mama, I don’t have to go to college, as soon as I graduate, if Papa were to be killed (the family was then living in Mexico) I would make your living for you.” On one occasion when working and receiving wages from his father he said: “I will ‘take half but T want half to go into Mom’s adobe house.” “He stood high in his classes, ¡had an average of 88 in the College of Mines. * * * After he graduated from High School he substituted at $5 per day in Math, and history and science and English.” He was six feet tall and weighed around 165 pounds. It was not necessary for him to contribute money to actual expense of the family, his father was able to attend to that.

By a witness other than the mother of deceased the record shows that deceased was industrious and had worked with witness mixing and wheeling concrete for the family home.

Subdivision 2, of article 4671, Statutes 1925, provides that when an injury causing the death of any person is caused by the wrongful act or neglect of any railroad and others mentioned, or their servants, such railroad “shall be liable in damages for the injuries causing such death.”

As to the damages resulting in death, article 4677, of our statute seems applicable, which states: “The jury may give such damages as they think proportionate to the injury resulting from such death.”

The objection does not go to the sufficiency of the petition to justify the submission of a recovery for the present value of the pecuniary loss suffered which the mother could reasonably expect during both the deceased’s minority and majority; nor does the objection go to the sufficiency of the evidence to justify a recovery for services rendered during minority and'majority of the deceased. The petition declares upon what the deceased was able to earn and would have' earned in her support during his minority and his majority. The question is then presented, Could the mother recover, as a matter of law, for the present pecuniary value of the services rendered her during the minority and the majority of the deceased, where the evidence justifies such recoveiw? It will be noted that the statute makes no difference or distinction as to the character or- the value of services rendered during the minority and majority of the deceased, the only requirement is that the one causing the injury shall be liable in damages for the injuries causing said ■death. The pecuniary value of the loss of services that the mother could reasonably expect to recover must be determined by the evidence as to the ability, willingness, ■ etc,, of the deceased to render such services before and after Ms majority.

Without quoting from the cases at length the points suggested by appellants, both as to form of the charge and the evidence, havei been directly passed upon by the Supreme Court and Courts of Civil Appeals in the following cases:

In Gulf, C. & S. F. Ry. Co. v. Compton, 75 Tex. 667, 13 S. W. 667, 670, the court held that the plaintiff being the sole surviving parent of the deceased, is entitled to recover, if at all, damages “not only for the loss of seryiees during her son’s non-age, but also for the loss of any prospective pecuniary benefits which she may have received from him after he attained his majority. She has sued for the whole in the statutory action, as we think she had the right to do, and her right to recover in such action cannot be restricted to the period of her son’s minority.”

To the same effect are the cases of San Antonio St. Ry. Co. v. Mechler (Tex. Civ. App.) 29 S. W. 202, and affirmed 87 Tex. 628, 30 S. W. 899; Texas & Pacif. Ry. Co. v. Harby, 28 Tex. Civ. App. 24, 67 S. W. 541, and cases referred to. A writ of error was refused. The case of English v. Miller (Tex. Civ. App.) 43 S.W.(2d) 642, was a suit by the widow to recover damages for alleged negligence in causing the death of her minor son. The charge is similar to that submitted in the instant ease, allowing recovery for any pecuniary value in dollars and cents to the mother for the services of her deceased son during his minority, less the cost and expense for his maintenance, etc., during his minority, and the value in money of any pecuniary benefit the mother had a reasonable expectation of receiving from the deceased son after his majority, excluding from recovery mental suffering, etc., incident to his death. The Amarillo court held that the law is settled that the plaintiff was entitled to recover as submitted in the charge. We state only the substance of the charge and refer to the case for the verbiage of the charge. A writ was refused.

Appellants refer to the case of Chicago, R. I. & G. R. Co. v. Loftis (Tex. Civ. App.) 168 S. W. 403, 404, and submit that no evidence was offered as to the cost of care and education of the minor, and for that reason there is no evidence from which the 'jury could determine the value to the' mother of his services, and the jury could not properly- find such expense from their own experience.

The ease supports appellant’s contention. The opinion, in support of the holding, refers to Sabine Land & Improvement Co. v. Perry (Tex. Civ. App.) 64 S. W. 327. We do not think the referred to case is in point In this character of. case. We have concluded that the Loftis Case is not in harmony with other Texas cases we have examined. In Brunswig et al. v. White et ux., 70 Tex. 504, 8 S. W. 85, the Supreme Court, after reviewing a number of cases in other jurisdictions, states with approval and holds, as we understand it, to a rule different from the Loftis Case. In Rishworth v. Moss, 191 S. W. 843, 851, on motion for rehearing, the San Antonio court said: “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 m> 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. * * * 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 case of Fort Worth & D. C. Railway Co. v. Measles, supra, holds that: “It would seem to be only necessary to prove the willingness and the capacity of the child, his age, and his relationship to the next' of kin,, and the extent to which he has been injured; leaving to the jury, as ‘men of knowledge and experience in relation to mattérs of common observation,’ the task of assessing the pecuniary damages upon the facts proved.”

Appellants submit that the verdict and judgment of 810,509 is excessive. The record shows that at the time of John Dupree’s death Mrs. Dupree was .49 years of age, and had a life expectancy of 21-63 years; she had two other boys, ages 9 and 15 years.

The statute, article 4677, provides that the jury may give such damages as “they think proportionate to the injury resulting from such death.” Absolute accuracy with respect to the damages in such a case cannot be attained, and must be loft to the discretion and common sense of the jury. We have reviewed and compared the amount recovered in other cases, and cannot say that the amount is excessive. Gulf, C. & S. F. R. R. Co. v. Ballew (Tex. Civ. App.) 39 S.W.(2d) 180; Flippen-Prather Realty Co. v. Mather (Tex. Civ. App.) 207 S. W. 121; Dulaney v. Sebastian’s Administrator, 239 Ky. 577, 39 S.W.(2d) 1000; Ashland Sanitary Milk Co. v. Messrsmith’s Administrator, 236 Ky. 91, 32 S.W.(2d) 727; Phillips’ Committee v. Ward’s Administrator, 241 Ky. 25,' 43 S.W.(2d) 331; Oil Belt Power Co. v. Touchstone (Tex. Civ. App.) 266 S. W. 432; Hines v. Richardson (Tex. Civ. App.) 232 S. W. 889.

The case is affirmed.


author: 'HICKMAN, C. J.

text:
    TEXAS & P. RY. CO. v. HENRY.
    No. 1039.
    Court of Civil Appeals of Texas. Eastland.
    Jan. 6, 1933.
    Rehearing Denied Feb. 10, 1933.
    Wagstaff, Harwell, Wagstaff & Douthit, of Abilene, for appellant.
    Scarborough, Ely & King, of Abilene, for .appellee.
   'HICKMAN, C. J.

In the court below appellee recovered judgment against appellant for $198.25 for damages to his automobile suffered in a collision on a crossing in the town of Merkel. In his Suit he sought damages for personal injuries on account of spraining his ankle when he jumped from the ear, but recovered nothing therefor. The facts essential to an understanding of our holdings will be stated in connection with our discussion of the propositions.

Only three propositions are found in appellant’s brief, and they will be considered in their order. The first presents the contention that appellant’s motion for a peremptory instruction should have been granted because, as a matter of law, its negligence was not the proximate cause of the injury. It is not contended that the evidence does not support the jury’s finding of negligence, but the contention is that there was no causal connection between the negligence and the injury. The jury found that appellant was guilty of negligence by operating its train at a high and dangerous rate of speed immediately before the collision, which negligence was the proximate cause of the injuries complained of. It also found that the appellant operated its train on the occasion in question in excess of fifteen miles per hour within the town of Merkel, which was also the proximate cause of the injuries. There was a valid ordinance in force in the town of Merkel, limiting the speed of trains therein to fifteen miles per hour. The evidence discloses that, at the time appellee undertook to drive his car across appellant’s track, the train was at least a quarter of a mile from the’crossing; that the crossing was rough, and when appellee’s car got upon appellant’s track he shifted to a lower gear and in doing so killed his engine. He jumped from his car and undertook to push it off the track before the train reached the crossing, but was unable to do so. His plight was discovered by the engineer operating appellant’s train when the train was at least a quarter of a mile away, and the evidence clearly supports the conclusion that, had the train been running no faster than fifteen miles an hour, it could have been brought to a stop before reaching the crossing where appellee’s car was stalled. These facts well support the jury’s finding that appellant’s negligence was the proximate cause of the injury. The rule announced in such well-known cases as Seale v. Gulf, C. & S. F. Ry. Co., 65 Tex. 274, 57 Am. Rep. 602, and Texas & P. Ry. Co. v. Bigham, 90 Tex. 223, 38 S. W. 162, relied on here by appellant, has no application. We overrule proposition No. 1.

The second proposition presents that a peremptory instruction should have been given in favor of appellant, because appellee was guilty of contributory negligence as a matter of law. Just wherein he could be convicted of contributory negligence as a matter of law on the record in this case we are unable to see. The only contributory negligence pleaded was in the most general terms, and was as follows: “In the way and manner in which lie approached and went upon the tracks of the defendant herein, and in the way and manner in which he acted after going on said tracks.” It was certainly not contributory negligence as a matter of law to undertake to pass in front of a train more than a quarter of a mile distant. An ordinarily prudent person might well conclude that he had ample time to pass safely in front of such train. The evidence does not compel a finding that appellee was guilty of contributory negligence in killing his engine. According to his testimony he had never had that experience before, and he was unable toi explain just how it occurred. We would certainly be unwarranted in holding that, as a matter of law, a driver of an automobile is guilty of negligence in killing his engine by undertaking to shift to a lower gear on a rough road. This proposition is overruled.

The third proposition is as follows: “The judgment is erroneous and void in that the undisputed evidence shows that all necessary parties to the suit were not before the court.”

There was no pleading below of a failure to join any other party, but it is claimed that the judgment is void because Clay Lumber Company held a note against appellee which was secured by a chattel mortgage against the car and was therefore an indispensable party to this suit, without which no valid judgment could be rendered. It is not contended by appellant, as we understand its brief, that generally a mortgagor in possession cannot maintain a suit for damages to the mortgaged property without joining the mortgagee as a party; but the claim seems to be that the property in the instant case was in custodia legis. The facts disclose that, prior to the accident, Clay Lumber Company, the mortgagee, had brought suit against ap-pellee on his note and for a foreclosure of the mortgage, and the sheriff had taken possession of the automobile under a writ of sequestration. The appellee regained possession by a replevy bond, and this was the status of things at the time of the injury; the suit being then pending. The contention advanced under this proposition must be overruled. ' The property was not in custodia legis. The effect of filing the replevy bond was to withdraw it from the possession of the court and .vest in appellee the lawful right to its possession. In the case of Masterson v. I. & G. N. Ry. Co. (Tex. Civ. App.) 55 S. W. 577, some mules in custodia legis were hired by a receiver to a third person for a year. While these mules were in the possession of the bailee, they were killed by the negligence of the railroad company, and the right of the bailee to recover the full damages was-upheld. This opinion was cited with approval by the Supreme Court in Waggoner v. Snody, 98 Tex. 512, 85 S. W. 1134. The appellant’s fear of a suit by the mortgagee. Clay Lumber Company, is not well founded!, for,, under the holding of the Masterson Case, supra, it may successfully plead the judgment, rendered against it in this case as a bar to recovery in any suit hereafter filed by Clay Lumber Company.

No error is pointed out in the briefs, and! the judgment of the trial court is therefore affirmed.

On Rehearing.

The nature of appellant’s argument in its motion for rehearing is well reflected by the following sentence taken therefrom: “We earnestly insist that the speed of the train was not the proximate cause of plaintiff’s injury, the evidence showing that the engineer discovered the plight of appellee more than a quarter of a mile away, and the record further showing that the train could have been stopped in less than a quarter of a mile, and plaintiff having failed to allege as negligence the failure of appellant to stop its train after discovering the plight of appellee, appellee-is certainly not entitled to recover oh that-theory.”

The argument proceeds upon the theory that a negligent defendant may break the causal connection between its negligence and the injuries by doing a further wrong or committing a further act of negligence. The facts do not present that interesting question for our decision, but what we shall state hereinafter is not to imply our assent to its soundness.

Appellant’s engineer testified that he set his brakes and began to slow his speed- as-soon as he saw the automobile, and that he saw sarnie, when he was “about a half a mile or a quarter of a mile” from the automobiles He further testified that he had a good set of brakes and that they were in good working: order. This testimony disproves appellant;» contention that the proximate cause of the injuries was the failure of its engineer to exercise ordinary care to avoid the injury after discovering appellee’s plight, but tends rather to support the conclusion that the train was being operated at such a high and-dangerous rate of speed that it could not be-brought to a stop within a quarter of a mile.

The motion for rehearing will be overruled.


author: MURRAY, J.

text:
    PUBLIC INDEMNITY CO. v. PEARCE.
    No. 8963.
    Court of Civil Appeals of Texas. San Antonio.
    Jan. 11, 1933.
    Rehearing Denied Feb. 8, 1933.
    Touchstone, Wight, Gormley & Price, of Dallas, for appellant.
    Jones & Lyles, of Del Rio, for appellee.
   MURRAY, J.

In this ease the appellee sued the appellant as workmen’s compensation insurance carrier of Walter H. Denison, alleging that he was totally and permanently disabled as a re-suit of injuries received in the scope and course of his employment by said Denison. The trial was before the court without a jury. Judgment was rendered in favor of appellee in the sum of $5,102.89 and costs of court.

The appeal is based upon three alleged errors, which will be taken up in the order presented.

The first error complained of is “the refusal of the trial court to grant a jury trial.” The record discloses that the court met at Eagle Pass, in Maverick county, on March 14, 1932. This case, being an appearance dase, would rtot be called for trial until the following day, March .15, 1932. Under our statutes (Rev.-St. 1925, art. 2124) it was the duty of either party desiring a jury trial to make demand at that time and pay a jury fee of $5. This appellant freely admits that it did not do, but wljen this case was called for trial two weeks later, on- March 28, 1932, in pursuance to a special setting for that date, appellant, for the first time, demanded a jury and tendered the proper jury fee. The trial court oVerrúled said demand on the ground that appellee was ready for trial, and that, no jury-being present, to grant appellant’s demand would necessitate a continuance of the case for six months, or until the next term of said -court.

Appellant sought to justify its failure to make demand and tender fee upon the ground that it had been led to believe by counsel for appellee that it would not be necessary to do so. We have examined the testimony on this proposition and find that appellant does not show that it was misled in reference to this matter. Furthermore, re* gardless of what may pass between attorneys, the trial court is vitally interested in knowing what eases are to be tried by jury and is entitled to this information as early in the term as possible, so that he may properly handle his docket, orderly conduct the business of 'the court, and have juries present in court only when needed. Where a jury has not been demanded and the jury fee paid, within the time prescribed by law, and it is shown that to grant a delayed request for a jury would cause a continuance of the case or interfere with the proper handling of the docket or orderly conduct of the business of the court, such delayed request should be refused.

It is true that article 1, § 15, of the Constitution of Texas provides that “the right of trial by jury shall remain inviolate,” but the same section further provides that “the legislature shall pass such laws as may be needed to regulate the same, and to maintain its purity and efficiency” ; and .the requirements of the.statute that a demand for a jury in ah appearance case be made not later than the second day of the term of court is certainly a needed regulation.

The record in this ease discloses that the demand for a jury was made for- the first time on March 2S, 1932, which was Monday of the third and last week of that term of court, that no jury was present, that to grant 'such request would necessitate a continuance of said case until the next term of the court, some six months later, we therefore conclude that the. trial judge did not abuse his discretion in refusing appellant’s demand for a jury in this case. Kenedy Town & Improvement Co. v. First Nat. Bank (Tex. Civ. App.) 136 S. W. 558; Hardin v. Blackshear, 60 Tex. 132; Wood v. Kieschbaum (Tex. Civ. App.) 31 S. W. 326; Revised Civil Statutes, arts. 2123, 2124, 2125, 2126; Constitution of Texas, art. 1, § 15.

The second error complained of is, “The trial court’s alleged error in rendering a judgment in the appellee’s favor when there was no competent evidence showing that the plaintiff had filed a claim, for compensation with the Industrial Accident Board within six months from his injury.”

Article 8307, § 4a, R. S. 1925, requires that such claim be filed before any proceeding for compensation for injury may be maintained, and it necessarily follows that the burden was upon appellee to show that such a claim had been filed within the time prescribed. Appellee was asked the question as to whether or not he had so filed such a claim, to which he replied in the affirmative. Objection was made that the question called for a conclusion and was not the best evidence of the contents of a written instrument. .The record discloses that before this question .was- asked and answered a copy of a claim was exhibited to the witness and identified by him as an exact copy of his claim so filed. The trial judge in qualifying the bill of exception on this point certified that said copy was a duplicate original of said claim.- Iff the 2d Edition of Jones on Evidence, § 209, we find the following language, “Where a document is executed in duplicate or triplicate: each one is primary evidence of the contents of the document.” Under all the circumstances surrounding the admission of thisi testimony we do not find that error , was shown, Pecos & N. T. Ry. Co. v. Cox (Tex. Civ. App.) 150 S. W. 265, 266; State ex rel. Daniel v. Torrey, 225 Mo. App. 966, 33 S.W.(2d) 130; Philadelphia Underwriters Agency of Fire Ass’n v. Brown (Tex. Civ. App.) 151 S. W. 899, 900.

Furthermore, the record- -in this case', affords a legal presumption that 'appellee made a claim for compensation with respect to his injury within six months after the occurrence of the same. The record shows that appellee was injured on May 25, ,1931. The Industrial Accident Board made its final ruling and decision upon appellee’s claim for compensation, on November 13, 1931, ivhich was within six months of the date of the injury. .The law requires the filing of a claim with said board before it can lawfully, pass on same. The law presumes that the board conducts its business in a lawful manner. Therefore, this matter must have been called to the attention of the Industrial Accident Board by a proper claim, or it would not. have passed on same. We conclude that the; record sufficiently shows,' both by affirmative proof and by legal presumption, that a proper claim was filed with said board and within the prescribed time. Western Ind. Co. v. Toennis (Tex. Civ. App.) 250 S. W. 1098, 1102.)

The third error complained of is, “The alleged error of the trial court in ■ admitting;’ into evidence, over objection, incompetent testimony attempting to prove that plaintiff hácí filed the claim for compensation with the Industrial Accident Board within six months after his injury.” We feel that, having concluded that there is'competent evidence in the record to establish the fact that a' proper claim was filed, this proposition becomes im material. This was a trial before the court-' without a jury, and, if improper evidence' was admitted, the presumption is that’ sam'e was not considered by the trial court. " ' ''

The judgment of the trial court is affirmed.


author: JONES, Chief Justice.

text:
    MADISON v. MARTINEZ.
    No. 11084.
    Court of Civil Appeals of Texas. Dallas.
    Jan. 14, 1933.
    Rehearing Denied Feb. 11, 1933.
    See, also, 42 S.W.(2d) 84.
    Ross M. Scott, of Dallas, for appellant.
    Smithdeal, Shook, Spence & Bowyer and Lewis B. Leflcowitz, all of Dallas, for appel-lee.
   JONES, Chief Justice.

At a former day of this term, this cause was dismissed for want of jurisdiction. In the motion for rehearing, our attention is called to the fact that, in the judgment in favor of appellee in the forcible entry and detainer suit, judgment was also entered in favor of appellee against appellant in the sum of $461, as damages. Appellant’s brief only assigns error on that portion of the judgment against appellant on the plea of forcible entry and detainer and authorizing a writ of restitution. No appeal lies from the county qourt to this court on such an order, but, under the terms of article 3992, R. S. 1925, an appeal can be prosecuted from a judgment for money damages in excess of $100. Appellant contends that, because the money judgment in the instant case is in excess of $100, ■this court is given jurisdiction of the entire subject-matter of the judgment. We do not understand this to be the law. Rose v. Skiles (Tex.Civ.App.) 245 S. W. 127; Boyle v. Grubbs (Tex. Civ. App.) 268 S. W. 277.

There isi no assignment of error contesting the amount of the money judgment, and hence no power of review is conferred by the appeal on this portion Of the judgment. However, because of the money judgment of $461, we set aside the order heretofore entered dismissing the appeal, and affirm the portion of the judgment awarding damages.

Affirmed.

       No opinion filed.


author: PLEASANTS, C. J.

text:
    AMERICAN FINANCE CO. OF GALVESTON v. RANDOLPH et al.
    No. 9793.
    Court of Civil Appeals of Texas. Galveston.
    Jan. 6, 1933.

      Terry, Cavin & Mills, of Galveston, for ap- • pellant.
    Roy Johnson, of Galveston, for appellees.
   PLEASANTS, C. J.

This suit was brought by appellant against appellees, J. A. Randolph and W. O. Eaves, to recover the amount due upon a series of notes executed by the defendant Randolph in favor of plaintiff on June 21, 1930, and to foreclose as against both defendants a mortgage lien, given by Randolph to secure the payment of the notes, upon a Ford automobile fully described in the petition, and alleged to be of the value of $425.

The amount alleged to be due upon said notes, all of which were declared duel under the acceleration provision contained in each of the notes, was the sum of $403.31, with 10 per cent, interest on each of the unpaid notes from maturity, and the further sum of 15 per cent., as attorney’s fees, on the principal and interest due plaintiff upon the notes, as stipulated in each of the notes.

With the filing of its petition the plaintiff . made affidavit and bond in sequestration proceedings against the defendant Eaves, and the automobile was seized by the sheriff of Harris county under a writ of sequestration issued on said application, and was thereafter replevied by the execution of a replevy bond by Eaves.

The defendant Randolph answered by general demurrer and general denial, and by special plea in ■which he avers that when called upon by an agent of plaintiff to make payment of the notes due plaintiff he surrendered the automobile to said agent, who accepted the automobile in full satisfaction of said indebtedness; that such agent, after receiving the automobile, sold it for the sum of $475 in cash, which was more than the amount of the defendant’s indebtedness to plaintiff; and that this transaction with plaintiff’s said agent constitutes a full and complete satisfaction of the balance of the indebtedness for which plaintiff brings this suit.

The defendant Eaves answered by general demurrer and general denial, and specially, pleaded that he bought the automobile from Tom Oliphint, the agent of plaintiff to whom it had been delivered by defendant Randolph in full satisfaction of plaintiff’s debt. “That on or about December 26, 1930, this defendant, in total ignorance of the transaction be- ■ tween the plaintiff, the said Tom Oliphint, and the defendant J. A. Randolph, and entirely innocent of the existence of and registration of any chattel mortgage in favor of the plaintiff and covering the automobile described in plaintiff’s petition, purchased the automobile described in plaintiff’s petition from the said Tom Oliphint, giving him in payment therefor one Model T Ford Four Door Sedan of the. reasonable value of $150.-00 and the sum of $325.00 cash, and received the said automobile, together with proper transfer of license receipt and bill of sale, and that plaintiff had no reason to believe and did not know or believe that there was any legal reason why the said Tom Oliphint did not have the legal right to sell and deliver said automobile to him and to receive from him the Model T Ford automobile and said sum of $325.00 cash, and here and now alleges that the chattel mortgage lien which was held by the plaintiff against said automobile has been discharged, satisfied, and cancelled by the acts and conduct of the plaintiff’s agent, Tom Oliphint, and that this defendant should go hence without day and recover his costs.”

He further pleaded that Tom Oliphint had the automobile upon the floor of his place of business in Huntsville, Walker county, at the time he sold it to this defendant, and when such sale was made Oliphint fraudulently concealed from defendant the existence of the chattel mortgage in favor of plaintiff upon the automobile, “and that in the event this defendant be required by the judgment of this honorable court to pay to the plaintiff any sum or sums of money whatsoever, that he is entitled to recover said sum or sums of and from the said Tom Oliphint for the reasons above alleged.”

This answer further asks that Oliphint be cited to appear and answer this cross-action of defendant, and prayed for judgment against Oliphint as above indicated.

The plaintiff by supplemental petition, after excepting generally and specially to the answers of the defendants, denied generally and specially all of the allegations of facts contained therein; the denial of the agency of Oliphint being duly verified by oath.

By supplemental answer the defendants denied all of the allegations of plaintiff’s supplemental petition, and further pleaded i “That if it be true that, the mortgage. contains a stipulation that the monthly payments should be made direct to the America^ Finance Company of Galveston that the said American Finance Company of Galveston has waived that provision in said mortgage in this cause by agreeing to and permitting the said Tom Oliphint to receive as many as three monthly, payments from the defendant Randolph and remit the same to the American Finance Company of Galveston and that by its conduct the said plaintiff has waived that provision in the mortgage requiring the defendant Randolph to make remittance direct to the American Finance Company of Galveston.”

The trial in the court below with a jury resulted in a verdict and judgment in favor of defendants. The case was not submitted upon special issues, and the verdict of the jury in- favor of the defendants- under the. pleadings and ’uncontradicted testimony can only be based-on a finding by the jury that Tom Olipliiht, to whom the automobile was delivered by defendant Randolph in satisfaction of the notes sued on which were executed by Randolph in favor of plaintiff and payable to- plaintiff at its office in the city of Galveston, acted as the authorized agent of plaintiff in accepting the automobile in full payment and satisfaction of the notes.

We agree with appellant that there is no evidence in the record sufficient to raise an. issue of such agency. The undisputed evidence shows that Tom Oliphint, who was an automobile dealer in the city, of Huntsville, Walker county, had ■ an arrangement with .the plaintiff,- a corporation domiciled in Galveston, to sell it the notes taken by him iii .part payment of the purchase money for automobiles sold by him, upon terms satis-' factory to „ plaintiff, and would indorse and, guarantee the payment of notes so sold by. him to plaintiff. In furtherance of this arrangement ,the plaintiff, prepared and furnished Oliphint with notes and blank mortgages in its favor to be executed by purchasers of-his automobiles whose purchase-money notes Oliphint desired to sell plaintiff. The notes and mortgage sued on by plaintiff,, which were executed by Randolph, were prepared in accprdance with the agreement between plaintiff and Oliphint. Randolph was charged with" notice that the notes and mortgage executed by him were in favor of plain-jiff, and that the notes were'payable to plaintiff "at its office in the city of Galveston, and he 'does not deny he had actual notice of these facts. As. the notes matured plaintiff notified-. Randolph, and. also notified the in-, dorser-and guarantor,-Oliphint, and demanded payment oí the matured note. Randolph p^id several of these notes as they matured to Oliphint, who remitted the amounts so paid to plaintiff at, Galveston.

' When .the note upon which default was "íriáde matured, ■ plaintiff sent notice of- maturity arid demand for payment to Randolph: ánd- Oliphint severally. -After such notice was received by Oliphint, he sent one of his agents to see Randolph and-demand payment of the note-or-a return- of the automobile. In compliance with this demand Randolph returned the' automobile, and Oliphint agreed to accept it in full satisfaction of the balance due on the notes. ' -

Oliphint in a short time' after receiving the automobile sold it to defendant Eaves. The mortgage securing the notes was duly recorded in Walker county, where Rándolph resided and kept the automobile, and where Oliphint, from whom he purchased it, resided and carried on his business.

The uncontroverted evidence shows that; Oliphint was not authorized by plaintiff to accept for it the automobile delivered by Randolph in satisfaction of Randolph’s notes in favor of plaintiff. There is no evidence to show a ratification by plaintiff of the unauthorized act of Oliphint in accepting the automobile in satisfaction of plaintiff’s notes, and no evidence that plaintiff received any of the proceeds frorii the sale of the automobile by Randolph, of'that it ever-had notice of the acceptance by'Oliphint of the automobile in satisfaction of plaintiff’s notes.

Upon this state of the evidence no issue. of agency or of ratification of the acts of the pretended agent was raised. The issue of estoppel was not raised by the pleadings, nor by any evidence in the case. The fact that plaintiff had received from Oliphint the payment of several of the notes due it by Randolph, which had been paid to Oliphint by Randolph, would not raise the issue of es-toppel, if that issue had been pleaded. It is well settled that in questions of agency vel non the claim of estoppel by the person dealing with the supposed agent is not available unless specially pleaded, regardles's ' of the evidence on such issue. ■ i

These conclusions require that the judgment of the trial court be reversed, and' judgment here rendered in favor of appellant against the defendant Randolph for the! amount of the principal, interest, ánd attorney’s fees due upon the notes sued on, and against both these defendants establishing and foreclosing appellant’s lien upon the automobile described' in its petition. Appellant is further entitled to a judgment 'against de-’ fendant Eaves and the sureties upon his re-plevy bond for the value of the automobile as fixed by the Officer taking and approving said bond, subject to the right of said defendant and his bondsmen to satisfy such judgment by complying with the provisions of the sequestration statute of this state (Rev. St. 1925, art. 6840 et seq.).

Judgment is ordered entered in accordance with the above conclusions.

Reversed and rendered.