author: LATTIMORE, J.

text:
    ROWLAND v. STATE et al.
    No. 12721.
    Court of Civil Appeals of Texas. Fort Worth.
    Oct. 22, 1932.
    Rehearing Denied Dec. 3, 1932.
    Marvin I-I. Brown & Son, of Fort Worth, for appellant.

      H. 0. Wade and J. M. Eloyd, both of Fort Worth, for appellees.
   LATTIMORE, J.

This is an appeal from a judgment suspending for six months Chas. T. Rowland, as an attorney at law, from the practice of law. The complaint was signed by seven practicing-attorneys. While article 314, Rev. Statutes, says “a practicing attorney * * * may file * ⅜ * a sworn complaint,” etc., still there is no statutory prohibition against more than one such joining in the complaint. We are not able to believe that a jury who heard the testimony and were properly instructed as to the law would 'be so unmindful of their oath as to give any evidentiary weight to the fact that seven lawyers signed the complaint. No argument was made to the jury that these signatures added any probative value to the case, and the record is wholly silent of any fact suggesting that it did in fact influence the jury. The first assignment of error is overruled.

The affidavit of the attorneys who signed ■the complaint was that “each for himself deposes and says upon his oath that he has read tlje above and foregoing petition and complaint, and is cognizant of the statements and allegations therein contained; that he is informed that such allegations and statements in said complaint are true in substance and in fact.” It is true that such affidavit would place a greater burden of proof upon one seeking to establish false swearing against the maker of such affidavit than if the affidávit had been an unqualified declaration of the truth of the facts pleaded in the complaint. It is likewise true that in the pleading of an ordinary civil case the statutes which require the same to be sworn to have been uniformly held not satisfied with an affidavit on information and belief. However, the matter has been passed on in Houtchens v. State (Tex. Civ. App.) 47 S.W. (2d) 679, on an affidavit in most respects similar to this and the complaint sustained. That case is now in the Supreme Court of this state on writ of error granted. The reasoning of Mr. Justice Levy is applicable to this jurat. In addition to those reasons, it seems to us that, when we apply the well-recognized rule of looking to the evil sought by the Legislature to be eliminated and the cure approved by that body, we can reach no other conclusion. Any other holding would practically destroy the remedy of disbarment. The Statute, article 314, limits those who mdy file disbarment proceedings to “the judge of any court, a practicing attorney, a county commissioner or justice of the peace.” Evidently the Legislature had in mind the fact that the very nature of an attorney’s business is such that he has enemies, those litigants who may have been on the opposite side of a lawsuit, people angered because the lawyer’s advice was adverse to their desires, any of whom might from selfish motives or anger or disappointment be willing to lend themselves unworthily to humiliate the lawyer who had crossed their path. To avoid such event, the Legislature selected a class evidently believed to be free from such prejudice and a class whose daily life gave them access to abundant information with which to bear that responsibility thus placed on them. If that be true, then the very selection of the class makes the importance of a flat verification of the complaint dwindle.

But, if the complainant must swear un-qualifiedly that the facts in the complaint are personally known by him to be true, and cannot be sworn to on information found to b'e reliable, and can only be filed by one of the above-named class, then the unscrupulous lawyer, the shyster, could prey with impunity upon the public, taking care to see that his misdeeds wore not done in the presence or hearing of one of the above class. Such would destroy the beneficent value of the statute. We think the better view is that those who may by law file a com plaint are named and charged with a sacred trust and duty to see that the unworthy, the unfaithful, are discharged from that great army whom the people have elected to lead them in an orderly and just management of their affairs with each other. As the shadow follows the substance, the law follows the development of society, and, as the law changes, the methods of the practitioner change. In no walk of life is so much trusted as to the lawyer. Money and property, titles, without receipt, confidences too sacred to disclose, mistakes too terrible to undo, reputation, honor, life, and liberty, all these rest in the hands of the chosen lawyer. In such a day the compliment paid the profession by the Legislature in selecting largely from the profession those who are charged with careful‘watch of the fraternity to see that none profane its sacred vows is not unappreciated, and the corollary is that their hands must be upheld. The second assignment of error is overruled.

We have examined the complaint, and have considered carefully each of the exceptions thereto. The various paragraphs of the complaint end with the charge that the facts therein constitute malpractice, fraudulent or dishonorable conduct. While each paragraph does not within its confines allege such a complete case, still, construed together, they do allege fully the various facts which were evidenced. Assignments of error 3 and 14, inclusive, are overruled.

Assignments of error 15 to 28 complain of various testimony of witnesses as to matters occurring out of the presence of defendant and with which he contends he was not shown to be connected. We review the state’s case as presented: A Mrs. Johnson, who was going under the name of Rolfe, had come with a friend, Helen Gibson, to Fort Worth from Oklahoma, and employed attorneys (not appellant) to file suit for her child for an interest in a large estate. A tentative agreement to settle this suit for $25,000 had been reached. Fred Strang, not an attorney, had gone to attorneys for the estate and arranged with them to assist them for $1,000 in making a settlement advantageous to the estate prior to the time the tentative agreement was reached, and had employed Rowland to advise him and promise him a portion of this $1,000 as his.fee. Strang, after this $25,000 settlement appeared agreed to, procured Emma Rudd, a manicurist, to approach Mrs. Johnson and represent to her that -she had overheard in a barber shop a conversation to the effect that the estate was actually paying $175,000 on this settlement, and that her lawyers were joining with the estate’s lawyers to defraud her out of the difference, and that she (Mrs. Rudd) had a lawyer friend, Strang, who would do better by her. Mrs. Rudd carried out these instructions, and returned to Strang with Mrs. Johnson’s invitation to Strang to call on her, Strang stating to Mrs. Rudd, “If this steal goes over, you get $5,000.00 out of it.” Strang called on Mrs. Johnson, told her, in long detail’ not necessary here to repeat, that she was a victim of ignorant and unfaithful attorneys, and that he, Strang, and his partner, Rowland (the appellant), would get her more money, and requested her to discharge her attorneys and turn the representation of her rights over to Strang and appellant. He left, and Mrs. Rudd called later, and Mrs. Johnson told her to send her friend to see her, that she hah decided to commit her ease to his hands. Strang procured her signature to letters discharging her then attorneys, and took Mrs. Gibson away from the presence of Mrs. Johnson “to talk to her.”. This engagement lasted for two hours or more. Thereafter Strang moved the two to an apartment and paid the rent. Strang told Mrs. Gibson to keep Mrs. Johnson in the background, and he would transact his business with the latter through the for- • mer.

The above is substantially the facts testified to up to the stage of the proceedings where the appellant is connected with it by testimony and to the admission of which appellant assigns error. In order that our discussion may be understood, it is necessary to review some of the state’s testimony of what occurred later. These women went to Rowland’s and Strang’s joint office; Rowland was introduced to Mrs. Johnson by Strang as “her lawyer”; and Rowland and Strang had Mrs. Johnson assign to Mrs. Gibson all her settlement except $2,500, reciting a debt to Mrs. Gibson, who testified that Mrs. Johnson never at any time owed her any money. Mrs. Johnson told Rowland and Strang that she was married. Rowland exclaimed, “Why did you do that, now you can only get $2,500.00.” The case was settled for $S2,500. Appellant appeared in court at that time and declared himself to be of counsel, took the check from the clerk for Mrs. Johnson, signing as attorney, carried the check to his office, delivered it to Strang in Mrs. Johnson’s presence, all of them went to the bank, and it was cashed without Mrs. Johnson, according to her story, being .allowed to know the amount. Appellant was paid $⅛000 of the check and left the bank, leaving Mrs. Johnson, Mrs. Gibson, and Strang. Thus it is seen that until the first meeting of Mrs. Johnson and appellant in the latter’s office all of thb transactions occurred out of appellant’s presence, and there is no exact evidence as to the time that knowledge of these transactions was brought home to him. The circumstantial evidence is sufficient and the jury verdict conclusive on us that he knew of them prior to.the time he appeared in court on the day before the settlement judgment. The testimony of Mrs. Johnson, the first witness for the state, directly implicated appellant in a fraud for which her testimony was sufficient to 'support a verdict. When a prima facie case has been made against a defendant of an unlawful conspiracy, the acts of the other conspirators in furtherance of the conspiracy, even though done before the defendant became connected with the conspiracy, are admissible. It does not lie in the mouth of the wrongdoer to say: “I took the benefits of their deeds and sought to and did carry on what they had already started, but I will .not accept the responsibility for them.” Schallert v. Boggs (Tex. Civ. App.) 204 S. W. 1061; Daggett v. Farmers’ Nat. Bank (Tex. Civ. App.) 259 S. W. 198, 202; Perry v. State, 44 Tex. Civ. App. 55, 98 S. W. 411; Longworth v. Stevens (Tex. Civ. App.) 145 S. W. 257. The cases cited by appellant are those where an appeal is taken from the trial court’s order refusing to admit the testimony of declarations of a eoconspirator because a prima facie case of’ conspiracy had not been made out. Moore v. Robinson (Tex. Civ. App.) 75 S. W. 890; Martin Brown Co. v. Perrin, 77 Tex. 199, 13 S. W. 975, and the trial court was upheld. As said by the lamented Mr. Justice Buck in Daggett v. Farmers’ Nat. Bank, supra: “The order of proof is * * * discretionary with the court * * * but there must be some tangible * * * evidence of conspiracy, or a promise of its production.”

The case of Fort Worth Live-Stock Commission Oo. v. Hitson (Tex. Oiv. App.) 46 S. W. 915, only holds that the conspiracy must be shown “to have existed at the time” the declarations of the coconspirator were made, but does not attempt to say that it must be shown that the defendant was then one of the conspirators. The facts stated in the opinion are too brief for us to judge whether they were analagous to the case at bar. Those assignments axe overruled; also assignment 29, which bears on the same legal principles.

Assignments of error 30 to 35 relate to objections to questions as leading and answers as opinions. We have examined each, and believe them without merit.

‘ Assignments of error 38, 39 and 40 complain of the refusal of the court to allow appellant’s counsel to question on cross-examination Mrs. Johnson concerning her sexual purity before lier marriage, and condemning in writing her child as a bastard, to obtain money, and counsel cite Ingersol v. McWillie, 9 Tex. Civ. App. 543, 30 S. W. 56. That was a case in which a woman sought io show herself to have been the common-law wife of deceased. Another woman witness testified to declarations by the deceased made in intimate surroundings which went to deny the claim of marriage. The court permitted her to be cross-examined as to her sexual relation with, the deceased and her living with him in such intimacy. This w$s correct because it went “to discover the motives, inclinations and prejudices of the witness” toward the litigants. The Supreme Court declined to grant a writ of error, but in ¿ short opinion refused to approve so much of the Court of Civil Appeals’ opinion as suggested the evidence was admissible as bearing on ■general character or reputation. Ingersol v. McWillie, 87 Tex. 648, 30 S. W. 869. These cases were discussed in Missouri, K. & T. R. Co. of Texas v. Oreason, 101 Tex. 335, 107 S. W. 527, in which the early rule was reaffirmed that attack on general credibility may not be by cross-examination as to isolated acts of misconduct not connected with the issues being litigated.

This extended discussion would not have been necessary except for the recent case of Kennedy v. International-Great Northern Ry. Co. (Tex. Com. App.) 1 S.W.(2d) 581, 582, in which Commissioner Nickels in discussing the admissibility of certified copies of convictions of witness for crime, as impeachment, and after stating that mere acusations of crime were not admissible, said;

“But charges whose truth have already been established or we presently admitted obviously have import and character wholly alien ■to mere accusations; e. g., admission of lewdness by a female witness is ‘relevant,’ within the rules, to her credibility. Ingersol v. McWillie 87 Tex. 64S, 30 S. W. 869. The ruling just cited is mentioned, with apparent approval, in M., K. & T. Ry. Co. v. Creasen.”

■, It will be seen from our discussion above that the ruling of the Court of Civil Appeals in the MeWillie Case was not approved by the Supreme Court, on the grounds suggested in the Kennedy Case, but, on the contrary, Chief Justice Brown called attention to the fact that Chief Justice Gaines, speaking for the Supreme Court in the Ingersol Case, expressly declined to place the affirmance of the case on the grounds of an attack on general credibility, and thought it of such importance as to do the unusual thing of writing an opinion on refusing application for a writ of error. The question under consideration in the Kennedy Case was whether prior judgment of conviction of theft was admissible on general credibility. The statement italicized was therefore dicta. The opinion was not adopted by the Supreme Court. We therefore are not inclined to read the same as any departure by our courts from the established rule in Boon v. Weathered’s Adm’r, 23 Tex. 675.

Moreover, it will be observed that the questions ruled out by the court in the one' instance asked for details of the witness’ chastity, which in general terms she had already confessed, and, in the other, a general question whether she wanted to add anything to the allegations of a sworn pleading, a question manifestly too broad, and in a third instance whether she had at a particular time admitted her child was a bastard, to obtain money, a question which would carry the court far afield in a controversy as to the merits of the witness’ decision on that matter— wholly unrelated to the lawsuit on trial. Those assignments are overruled.

We do not believe the question asked ■by Assistant District Attorney H. O. Wade on cross-examination of coconspirator Ered Strang that “nearly' every thing you ever did incriminated you, didn’t it?” was of such a nature that it was not cured by the court’s instruction to the jury mot to consider it. Strang submitted himself to the witness stand voluntarily at the’instance of defendant, who proved him then to be a guest of Uncle Sam at the government hostelry at Leavenworth, Kan., having been admitted there on a letter of recommendation from the United States Circuit Court of Appeals for mail fraud. The question was improper, but could not have made the jury have any more unfavorable opinion of Str'ang than his own confessions, at the instance of appellant, had created — or that were just. Likewise the final suggestion of the same counsel that he return to Leavenworth was no more than the jury already knew was his next peregrination.

The whole matter would be comic if it were not such a tragic demonstration of the shortsightedness of the policy of the iaw to allow a felon in the penitentiary to testify in a place where honor and truthfulness are the cornerstones upon which the entire edifice of trials is constructed. I-Ie testified fully in the hands of friendly counsel, and assumed the blame of the transaction in phrases carefully worded, but, when cross-examination is offered as to discrepancies in that story and pressed on him, he draws his head into the shell of his immunity from self-incrimination. That he is not susceptible to the dictates of honor, truthfulness, and the duty of every citizen to uphold the social structure, his con-flnement as- a felon strongly suggests, and his conduct demonstrates; that the pains and penalties of contempt of court mean nothing to one who is already condemned for a fine and imprisonment that makes the maximum punishment for his refusal to testify nothing is equally eyident. The law ought not to allow such a one to testify at all, and the permission of Mr. Wade for Strang to return to Leavenworth is only that which ought to he necessary. The law should make provision that such a person ought not to be allowed on the witness stand in such a sorry position as this record shows.

The court instructed the jury that “malpractice is the intentional failure to perform a duty owed by an attorney to his client and may consist of an act, omission or concealment of an attorney with reference to matters in which he has accepted employment as an attorney.” We believe the definition was subject to the objection that it allowed the defendant to be found guilty on negligence alone. lie may not have known of the duty and yet have “intentionally failed” to do it; for instance, if on a trial he had intentionally not made an objection to a ruling against his client because he did not believe an objection good, it being proven later that he was wrong in his idea of the law, and thus shown to have “intentionally failed” to perform a duty. “The corrupt motive, or fraudulent intent, is of the very, essence of the offence, and ought to have been found by the jury.” Jackson v. State, 21 Tex. 668.

However, the court defined “fraudulent conduct” as: “Fraudulent conduct by an attorney is an act, omission or concealment done, made or affected as an attorney with a purpose, design or intent to carry out fraud or wrong.”

And “dishonorable conduct” as: “Dishonorable conduct by an attorney at law is the doing intentionally of some act, or acts in the discharge of his professional duty, which an attorney at law endowed with the ordinary sense of honor would not have done or the intentional failure to do-that which under the same circumstances such an attorney would have done.”

And we believe those definitions to be substantially correct as applied to this case and not subject to the objections urged by appellant. The court submitted separately whether the appellant was guilty of each, and the jury found that he was. This court, as such, feels that each of these issues cover the case fully, and that the evidence is sufficient to sustain the judgment of the court, and that, taken even in the light most favorable to the appellant, the court’s punishment fixed at suspension for six months could have been no less, with respectability, for guilt on any one of the three questions. All exceptions to the charge are overruled.

Several .assignments are directed to argument of counsel. We have examined each, and find no merit in any of them. Counsel for the state made a statement to the jury, the summing up of which was that the purpose of disbarment proceedings is to keep the administration of justice clean. The argument was a true statement of the law, and, if not in the record, was harmless.

After defense had made “an impassioned plea” to the jury not to deprive the defendant of his license, by which he earned a living, counsel for the state told the jury that the penalty would be fixed by the court, who could, if he wished, only suspend defendant or disbar him as the court saw fit, and that the probable action of the court was none of the jury’s business. This also was correct, and invited by defendant, and in nowise to be criticized.

The gravity of the nature of these proceedings has caused us to speak more at length, than some of the complaints justify. We have examined each assignment of error. The' judgment is affirmed.

DUNKLIN, J., disqualified, not sitting.


source: Caselaw Access Project

author: SMITH, J.

license: Public Domain

text:
    BUSTAMANTE et al. v. HAYNES et al.
    No. 8895.
    Court of Civil Appeals of Texas. San Antonio.
    Nov. 9, 1932.
    Rehearing Denied Dec. 14, 1932.

      Mann, Neel & Mann, of Laredo, P. W. Minter, of Hebbronville, John L. Dannelley, of San Antonio, and S. T. Phelps and W. W. Win-slow, both of Laredo, for appellants.
    Dodson & Ezell, of San Antonio, M. J. Raymond and L. H. Doty, both of Laredo, and U. S. Algee, of San Antonio, for appellees.
   SMITH, J.

The case involves distinct land titles running back through the last hundred years to two grants originally issued by the government of the republic of Mexico to Antonio Zapata and Pedro Bustamante, respectively. The grants lie contiguously in Zapata county, and are known as the Villa and Las Confit-as, respectively. Each embraces five leagues of land, but this suit directly concerns only 20,000 acres thereof, approximately, lying together under one fence.

Appellees claim and recovered a segregated two-fifths interest in the Confitas, amounting to 7,076.5 acres, and 12,252.37 acres in the Villa. Their title to the interest in the Confit-as is based upon an alleged contract between one Leonard Haynes, now deceased, and the heirs of Pedro Bustamante, the original grantee, whereby the former undertook to clear the title of said heirs in the grant in consideration of the stated interest therein. Their record title rests upon a conveyance executed on February 11, 1893, by Manuel Bustamante individually and as attorney in fact for said heirs. Appellees claim the interest in the Villa through purchase and direct conveyances from the heirs of Antonio Zapata, the original grantee, to Haynes. -And appellees claim all the lands here involved by limitation, as well as upon the record.

This suit was brought in the form of trespass to try title by Alice Doran Haynes, widow of the said Leonard Haynes, and the Security Hirst National Bank of Los Angeles, Cal., against two groups of defendants, to wit, the heirs of Pedro Bustamante, claimants of part of the Comitas grant, and the heirs of Antonio Zapata, claimants of part of the* Villa grant.

The number of defendants seems to run into the hundreds. Some were cited in person; most of them by publication. Some answered in person; others defaulted; others were represented by attorneys appointed by the court. Some disclaimed in toto or in part; some pleaded in abatement as well as in bar; others in bar only; others affirmatively, through cross-actions, as well as defensively.

Each group of defendants asserts ownership of a portion of one of the other of the two grants, but none claims interest in both. The two grants and the respective chains of title thereto are separate, distinct, unrelated. This diversity of grants, of titles, of parties, of claims,'has involved the case in the greatest confusion, as is evidenced in the voluminous record and lengthy briefs.

The grants in controversy have been involved in previous litigation. State v. Bustamente, 47 Tex. 320; Haynes v. State (Tex. Civ. App.) 85 S. W. 1029; Id., 100 Tex. 427, 100 S. W. 912. The record, but not the opinion, in the case-first cited (State v. Busta-mente, 47 Tex. 320), shows that Antonio Zapata and Pedro Bustamante, ancestors of the principal appellants in this case, settled upon the lands in controversy in or before the year 1822, and obtained grants thereto in or before the year 1835, as evidenced by final titles issued by the Governor of the Mexican state of Tamaulipas, on January 2, 1848. Haynes v. State (Tex. Civ. App.) 85 S. W. 1029.

The condition of the titles to the two grants was uncertain prior to the settlement thereof by our Supreme Court in favor of appellants or their ancestors or assigns against the state of Texas, in the final disposition in 1907 of the case last cited, Haynes v. State, 100 Tex. 427, 100 S. W. 912.

The lands in those grants were never patented by the state of Texas to appellants or those under or from whom they claim; their titles were deraigned from the sovereignty through the original Mexican grants, the existence and validity of which were established by the decision cited last above.

There were five sets of defendants or in-terveners below. Appellees recovered Judgment against all of them. Only three sets have appealed, to wit:

(1)Cipriana Garza de Beyes and associates, being the heirs of Desidora Bustamante de Beyes and her husband, Antonio Beyes, thé said Desidora being one of the heirs at law of the original grantee, Pedro Bustamante, of the Comitas. This group disclaimed as to the Villa. It will be hereinafter referred to, for convenience, as “appellants Beyes.”

(2) Dionicio Bustamante and associates, also descendants and heirs at law of Pedro Bustamante, who also disclaimed as to the Villa. This group will be designated herein as “appellants Bustamante.”

(3) Francisco Coronado and associates, descendants and heirs at law of Antonio Zapata, original grantee of the Villa, who disclaimed as to the Comitas. This group will be designated “appellants Coronado.”

Appellants Coronado and Bustamante both urged pleas in abatement, which, being overruled below, are again urged here. These pleas are based upon the contention that the actions to recover the titles to the Comitas and Villa grants were improperly joined in one suit. It is true that each grant was made separately and distinctly from the other, and each took a distinct course apart from the other until the title asserted by appellees in parts of both grants merged into appellees. The two titles rest upon similar grants, issued at the same time by the same authority, to contiguous bodies of land, but to different grantees. And, while appellees’ record title to each originated at different times and from separate conveyances, both were finally settled and established by the same judgment of the Supreme Court, and the limitation titles to both tracts, inclosed under one fence, fully concur and rest upon identical facts of possession. We conclude from this state of facts that the ruling of the trial court on the pleas in abatement did not constitute such abuse of discretion as to require this court to reverse.

Appellants vigorously contend that ap-pellees’ pleadings were not sufficient as against the general demurrers. We have concluded that those contentions must be overruled in view of the familiar.rule which requires the indulgence of every reasonable in-tendment to sustain the allegations of pleadings challenged by general demurrer.

It is first contended that appellees’ pleadings must be tested by the strict rule prescribed in article 1977, B. S. 1925, which requires that the complainant set forth his chain of title in suits to recover title of persons required to be cited by publication; whereas, appellants contend, appellees, dependent upon heirship, did not in terms allege the fact, shown by the evidence, that the title of their grantor was connected only by heirship with the title of the original grantee. We conclude, however, that, giving effect to all in-tendments to which appellees were entitled, their pleadings in this respect were sufficient. In those pleadings all the instruments relied upon by appellees to show their title were .specifically set out, and it was expressly alleged that appellees held their said title through those conveyances “from the heirs” of the original grantees, specifically named. The whole context of the pleadings, as well as those specific allegations, at least when aided by reasonable intendment, amounts to allegations of heirship sufficient to satisfy article 1977, in the absence of special exceptions.

In. further urging their general demurrers appellants insist that appellees’ several pleas of limitation were insufficient. It is contended that the questioned pleadings did not allege the requisite possession after the accrual of appellants’ cause of action. This contention rests upon a highly technical construction of the relation of certain dates set out in appellees’ pleas of limitation, whereby the date .of the beginning of the period of limitation is sought to be confused with, and substituted for, the date of ouster. A reasonable view of the whole pleading shows the date of ouster to be at the end, and not at the beginning, of the limitation period alleged, and we overrule appellants’ contention as being hypercritical.

Appellants further urge their general demurrer upon the ground that .appellees’ pleadings do not show that the title involved had passed out of the sovereignty and came from a common source. The challenged pleadings showed that the asserted titles rested upon original grants of the Mexican government, which had been established or validated by a judgment of the Supreme Court of Texas, and that appellees obtained their interest through conveyances from the heirs of the original grantees, likewise the source of appellants’ title. Both pleadings and evidence show that all the parties claim under common sources, whose titles were deraigned from the sovereignty. We conclude the court did not err in overruling appellants' general demurrers.

Appellants Reyes do not assign error upon the findings of the jury, and for that, if no other, reason those findings are conclusive upon those appelants. Nor do the remaining appellants assign error upon such findings, except in a very general way, concerning only a few of them. But, in any event, we have reached the conclusion that those findings, all of them, are founded upon sufficient evidence to render them conclusive upon this court. The statement of facts and exhibits thereto cover more than a thousand pages of the record. We have carefully examined the evidence set forth in appellants’ briefs,- have pursued their record references to other evidence, have made independent-excursions into the voluminous record, and conclude from -such investigation that there is sufficient evidence to support the normal presumptions in fayor of those findings. We approve them. But we are not justified in prolonging this opinion by setting out any of- that evidence.

Both sets of appellants vigorously assail the judgment establishing appellees’ title by limitation. We -have already disposed of the matter of pleadings, holding them sufficient to support proof of limitation, at least in the absence of special exceptions. We are further fortified in that holding by the fact that appellees’ trial pleadings of limitation were filed after the modification of article 1977, prescribing the requisites of pleadings in suits of this character. Acts 1931, 42d Leg. p. 363, c.,213, § 1 (Vernon’s Ann. Civ. St. art. 1977). And we have approved the finding-3 which support appellees’ titles by limitation.

Appellees’ title to the claimed interest in the Las Comitas rests up-on a conveyance thereto from Manuel Bustamante, as attorney in fact for the heirs of Pedro Bustamante. This deed is dated February 11, 1893, and was executed as to appellants Reyes upon authority assumed from a power of attorney executed by Desidora Bustamante on April 12, 1892. It is contended by appellants that under this power the attorney in fact was not authorized to convey the property for the consideration recited in the conveyance. The point made is of doubtful solution, but it need not be decided here, for the reason that the jury found, upon sufficient evidence and without objection from appellants, that Desi-dora Bustamante, who executed the power of attorney, ratified said deed based thereon. This finding binds appellants, and the point made becomes immaterial.

Appellants Bustamante likewise question a similar conveyance from Manuel Busta-mante based upon a power of attorney from the remaining Bustamante heirs. The assignment of error raising this question is grouped with 38 other assignments, each raising separate and distinct questions of law and aimed at different rulings of the trial court. This group of assignments is not accompanied by any proposition of law, and rests upon one general combined “statement and/or argument.” We are disposed to disregard these 39 assignments, the grouping and briefing of which in this fashion is certainly not authorized by the most recent enactment upon the subject of briefing. Article 1757 (Rev. St.) as amended in chapter 45 of Acts 1931 (Vernon’s Ann. Oiv. St. art. 1757). With equal certainty it offends all rules of practice and briefing. Appellants invoke the provisions of the amended article as warranting this character of presentation. We do not so construe the act, which provides as follows:

“In all cases appealed to the Court of Civil Appeals and/or taken to the Supreme Court, it shall be sufficient if said briefs contain the following:

“1. A statement as to the nature and result of the suit.
“2. The alleged error or errors -upon which the appeal is ¡predicated.
“3. The authorities relied upon.
“4. A statement and/or argument on the errors assigned. Provided, however, that the Supreme Court may adopt rules with reference to the form and time of filing of briefs generally, but not inconsistent with the provisions hereof.”

The amendment, like nearly all recent legislative acts to “simplify” and “facilitate” court procedure, is'vague, confusing, misleading, is subject to a variety of constructions, and therefore largely defeats its own expressed objects. But we are unable to see anything in its vague scope that would warrant a specific construction which would authorize an appellant to group two or more or 39 or 300 separate and distinct assignments of error and discharge them at an appellate court in one shot over one omnibus “statement and/or argument.” If such grouping is permissible, then an appellant may properly present a thousand assignments of error, or “alleged errors,” in one paragraph, with only a semicolon to separate each from all the others, and all resting upon one omnibus “statement and/or argument.”

A rational analysis discloses that the amendment to article 1757 prescribes the same requisites of a brief that existing rules prescribe, except that it omits specific requirement of “propositions or points” of law, such as are prescribed in the rules. This is plainly disclosed by the following parallel, showing what the rules and amended statute, respectively, provide shall be contained in the brief:

Article 1757 as Amended Existing -Rules
“Statement ol natnre and resnlt o£ the snit.” Rule 29. “Statement of nature and result of the suit.”
“The alleged error or errors upon which the appeal is predicated.” Rule 30.. “Propositions or points upon which the appeal is predicated.” t>3
“The authorities relied on.” Rule 31. “The authorities relied on.”
“A statement and/or argument on the errors assigned.” Rule 31. “Argument or discussion * * * with * * * statement of the record bearing upon the respective propositions.” rt*.

JSow, after prescribing tbe requisite contents of tbe brief, tbe statute further provides that the “Supreme Court may adopt rules with reference to -the form * * * of briefs generally, but not inconsistent with the provisions hereof”; that is to say, the power is still confided in the Supreme Court, and the implied duty still rests upon that tribunal to prescribe appropriate rules for the form of briefs, which means the arrangement therein of the requisites thereof prescribed by the statute.’ “Form,” when used in the sense here employed,, means “orderly arrangement.” Words and Phrases, First Series, vol. 3, p. 2910; Webster’s New International Dictionary, p. 852 et seq. So, when rationally construed, the statute simply provides that a brief shall be deemed sufficient when it embraces the four requisites therein prescribed', arranged in accordance with the form prescribed by the Supreme Court. It would be absurd to say that every litigant may follow his own judgment or caprice in the form or arrangement of the requisites prescribed' by the statutes, without reference to or notice of uniform' rules prescribed therefor by the power designated by the statute for that purpose.

Such rules are absolutely essential to the orderly disposition of cases referred to appellate courts. The true office of briefs is' to lighten the burdens and facilitate the decisions of the courts, by a reasonable and orderly presentation of cases therein, and this' object cannot' be attained without a uniform system of rational rules for orderly arrangement prescribed by those trained in the use, and cognizant of the' necessity of such rules. And such, no doubt, is the reason why the Legislature left that power in the Supreme Court, where it should ever be.

We do not mean to hold by these observations that litigants in this court must still assemble all their assignments of error in one group in their brief, or all their propositions of law in another group, or all their authorities alphabetically arranged in still another. We have-never enforced those requirements in- this court, believing them expensive, cumbersome, futile, and confusing. But-we shall enforce the spirit of existing rules which require each contention or assignment, or each group of closely related assignments, to be separately presented in connection with statements from the record appropriate to such assignment or related group.

We will close this digression by expressing the conviction that article 1757, as amended, in no manner lessens the obligation of the litigant to apprise the trial court of the complaints and contentions he expects to urge on appeal. The statutes relating to and requiring motions for new trial below' and the preservation of the record thereon are not áííected by article 1757, and are still in full force. So also is the requirement that the litigant inay make no complaint in this court, other than of fundamental error, that" he did not make below, and no position taken Below may be asserted here except through a specific designation of error in the complainant’s brief, whether such designation be called “assignment” or something else. In short, article 1757 does not excuse the parties from standing in this court upon the same errors assigned below; it does restrict their complaints here to those made below.

The trial conrt not only rendered judgment decreeing title in appellees, but went further and rendered judgment affirmatively decreeing that appellants take nothing by reason of their cross-actions for the recovery of the titles in controversy. Appellants vigorously attack the latter decree. They contend that their cross-actions were filed to be used only in the contingency of. a nonsuit by appellees, and that, as appel-lees did not at any time move for a nonsuit and appellants had taken no affirmative steps to support their cross-action and thereby abandoned it, the court should have dismissed it, without prejudice, and should not have rendered affirmative judgment against appellants thereon. Appellees vigorously resist this position, and the parties are in sharp disagreement concerning the history of this aspect of the case. Appellants contend that it was understood by all parties and the court that the cross-actions were interposed by appellants solely to protect them against non-suit by appellees, and were to serve no other purpose. Appellees certainly, and the trial judge apparently, disavow such understanding. The controversy seems to be reflected somewhere in the record by unapproved bills of exception, qualifying certificates by the trial judge, and affidavits by counsel as to matters occurring de hors the record, which is otherwise silent in the controversy. Under the circumstances, this court declines to resolve the issue, but will look only to the record made at the time, which shows the cross-actions were duly filed by appellants and remained in the case without record reservations, qualifications, or abandonment, and must be appraised and disposed of at their face value. We conclude that the trial court did not err in rendering judgment thereon upon the merits.

Appellants complain of the court’s charge to the jury, and of the giving and refusal of certain special issues. These complaints are presented in groups, one of seven assignments of error under subdivision XV and another of five under subdivision XVI. The gist of these complaints is that the charges omitted some and erroneously propounded other definitions of terms used in the charge and omitted aqme and erroneously framed certain material issues. It is complained that “peaceful possession,” “adverse possession,” and “continuous possession,” should have been, but were not, defined in the charge. We conclude that, however awkwardly it was done, the two latter phrases were sufficiently defined in the charge, and that the jury were not misled or confused. Of course it is better that such definitions be given to jurors in the precise language of the statute, if given in the statutes. Article 5507 et seq., R. S. 1925. Conformity to the spirit, not the letter, of the legislative definition, is mandatory, and we think that requirement was substantially met in this case, as to adverse and continuous possession. Peaceable possession was shown conclusively, and was not an issue.

So do we conclude that the issue of continuity of use was sufficiently covered in the question: “Do you find from all the evidence that such periods of time as stock were not actually maintained upon the lands were reasonable and consistent with good faith, continuous possession, and use and enjoyment of the lands?”

The case was a very complicated one, requiring the greatest simplicity and brevity in its submission to the jury, consistent with fairness and justice. Submission of all the theories and evidentiary issues urged by appellants would have provoked a travesty upon trial by jury, and we conclude that the case was rationally and reasonably and fairly tried, submitted, and determined.

Accordingly the judgment is affirmed.


text:
    TEXAS ELECTRIC SERVICE CO. v. ANDERSON et al.
    No. 12730.
    Court of Civil Appeals of Texas. Fort Worth.
    Nov. 12, 1932.
    Rehearing Denied Dec. 10, 1932.

      T. R. Boone and E. T. Duff, both of Wichita Palls, for appellant.
    E. W. Napier, of Wichita Palls, for appel- . lees.
   LATTIMORE, J.

This is an appeal from a judgment in favor of various members of the family of Oda Anderson for damages against appellant for his death. Appellant owned a “high line” by which it delivered electricity for profit. The lease of the Buckeye Petroleum Company was operated by electricity bought from and delivered by appellant. An auxiliary line of appellant ran from its high line to a pole, which there is disputed evidence to show was appellant’s, and thence into the “power house” of the Buckeye Company where it was connected to the meter which measured the 'electricity and at which point same was delivered to the Buckeye Company and from which meter, on the “customers’ side,” lines of the Buckeye Company carried the electricity to the various points of use. Prom this power house a line for electricity ran out and may have been attached to appellant’s pole above mentioned and thence away from the high line and the Buckeye Company’s lease over a hill. Contest was made over where it connected with the source of electricity and to whom it belonged. At the time of this accident it had been severed just over the hill, the remainder beyond had disappeared. A "telephone line some five feet high ran under it.

With the passage of time these abandoned electric wires sagged until they were close to, or in contact with, the telephone wire. The deceased lifted the telephone wire to pass beneath it and the contact of the telephone wire with the electric wire carried the electricity through his body, killing him. '

On trial before a jury the following issues were submitted and answers returned:

“1. Do you find from a preponderance of the evidence that the defendant knew prior to the first day of October, 1925, of the dangerous condition of the wires in question? Answer: Yes.
“2. If you have answered special issue No. 1 ‘no’ you need not answer this issue, but if you have'answered such issue ‘yes’ then do you find from a preponderance of the evidence that a reasonably prudent person, situated as the defendant was situated, knowing of such condition would have continued to transmit electric current to said wires? Answer: No.
“3. If you have answered special issue No. 2 ‘yes’ you need not answer this issue, but if you have answered such issue ‘no’, then do you find from a preponderance of the evidence that the defendant’s continuing to transmit electric current into said wires was a proximate cause of the death of O. B. Anderson? Answer: Yes.
“4. Do you find from a preponderance of the evidence ■ that the defendant owned the wire which came in contact with the telephone wire, prior to and on October 1st, 1925? Answer: -.
“5. If you have answered special issue No. ■4 ‘no’ you need not answer this issue, but if ’you have answered such issue ‘yes’ then do you find from a preponderance of the evidence that a reasonably prudent person, situated as the defendant was situated, would have discovered the dangerous condition of said wires prior to October, 1925? Answer: Yes.
“6. If you have answered special issue No. 5 ‘no’ you need not answer this issue, but if you have answered such issue ‘yes’ then do you find from a prepbnderance of the evidence that the defendant’s failure to discover the dangerous condition of said wire, if they did fail to do so, was a proximate cause of the death of O. B. Anderson? Answer: Yes.
“7. If you have answered special issue No. 1- ‘yes’ and if you have also answered special issue No. 4 ‘yes’ then do you find from a preponderance of the evidence that the defendant was guilty of negligence in failing to remove said wire? Answer: Yes.
“8l If you have answered special issue No. 7- ‘ncT, you need not answer this issue, blit if you have answered such issue ‘yes’ then do you find from a preponderance of the evidence that such negligence, if any, was a proximate cause of the death of O. B. Anderson? Answer: Yes.
“9. Do' you find from a preponderance of the evidence that O. B, Anderson’s death was not the result of an unavoidable accident? Answer: It was not an unavoidable accident.
“10. What sum of money do you find from a preponderance of the evidence, if paid now in cash, would reasonably compensate the plaintiffs for the death of their father; and in this connection you are instructed that you cannot allow anything for their sorrow or mental anguish, or loss of companionship, but you can only take into consideration the present pecuniary value of the support, moral and intellectual training that the plaintiffs would have received from their father during their minority had he lived, and you shall apportion such amount among the plaintiffs in such manner as you find from a preponderance of the evidence would be just and proper?
“Edmond Anderson, $3,500.00; Earl Anderson, $3,500.00; Freeland Anderson, $3,500.00; Sarah Anderson, $4,500.00.
“Special requested charge No. 17. Do you find from a preponderance of the evidence that the two electric light wires that Came in contact with the telephone wire (if they did) was connected at the power house on .what is known as ‘the customers’ side’ of the meter? Answer: -”

It is thus apparent that so much of liability as was predicated upon ownership of the electric wires, or control over their connection with appellant’s line, cannot be a basis for the judgment which must rest wholly on answers to issues one, two, and three. We have then, from the standpoint of this appeal, this situation: The appellant was selling its product, a proper commercial product, but one which was quite dangerous if not properly handled, and delivering it to the purchaser. The purchaser was, as this appellant knew, allowing it to be used in a dangerous manner. The liability for negligence of an electric distributor furnishing electricity for profit to be carried by the purchaser on poles and wires of purchaser’s own. for injuries occurring by the defective wires, etc., of such purchaser, which defects were known to the distributor who thereafter continued to deliver such electricity into these wires, seems to be established by the trend of authorities in this state. International Electric Co. v. Sanchez (Tex. Civ. App.) 203 S. W. 1164. However, the cases cited in that opinion do not support it except by dictum. Likewise the dictum of San Antonio Gas & Electric Co. v. Ocon, 105 Tex. 139, 146 S. W. 162, 164, 39 L. R. A. (N. S.) 1046: “But actual notice ⅜ * * must have been shown. This arises from the fact that the Gas & Electric Company was under no obligation ⅜ ⅜ * to see that the wire was properly strung, except when the electric current was on.’’ (Italics ours.) '“We do not wish to be understood as holding'that this rule” (non-liability for dangerous sagging line of another) “is-applicable; in so far as it relates to the electric current and as to injuries received by third parties from such current, for we think a different rule applicable in such case, but solely upon the ground that ‘electricity is a silent, deadly, and instantaneous force; and one who uses it for profit is bound to exercise care corresponding to the dangers incident to its use.’ ” In that case the injured person was dragged from his vehicle by the wire but not injured by electricity. The cases of other states with two exceptions contain numerous like expressions.

To the claim that appellant knew of this dangerous situation, appellant replied that it did not know of it and that the only peráon who should have foreseen this situation was the owner of the idle electric line, and requested the issue whether the acts of the owner of the wire, on allowing it to sag so as to come in contact with the telephone wire, was the sole proximate cause of the accident. If the owner allowed the wire to sag and was negligent or indeed was malicious in doing so, it would not excuse the appellant. Indeed, the very liability of the defendant did not arise until such sagging took place. It is true that in a remote sense this question requested involved the finding that defendant did not know of the dangerous situation, but such a remote inference to be drawn from such a finding appears to us too unworthy of justifying a new trial. The law authorizing special verdicts was enacted to obviate prejudice and emotional verdicts by requiring the jury to find the ultimate facts at issue. Its value was at once recognized so that now almost all jury verdicts in civil cases are on special issues. Of late, a trend appears in the appellate courts to multiply and increase the issues which a jury must pass on until it takes a Philadelphia lawyer on the jury to furnish a verdict that will answer the requirements. Jurors, laymen, not schooled in the law, ordered to the jury room by a trial judge who is by the law gagged against aiding them, wade through the bewildering maze of special, issues, often seventy-five or eighty in many cases, and many of them to their minds contradictory, wholly unable to cope with the unnecessary situation. Those of us who have had to endure this situation on the trial bench of recent years wonder if, and hope, the end of it is in sight.

If the appellant knew at all of the dangerous situation, the evidence is undisputed that it knew of same in ample time to remedy the same, hence the submission of such issue was unimportant. Appellant complains of issue No. 1 as assuming that the condition of the wires was dangerous, but the grave of Oda Anderson is eloquent if a silent answer that same were indisputably dangerous. The charge in this did not assume a disputed issue. 'We think that the issue, however, did not confine the issue of what the “dangerous condition” of the wires was, to the condition alleged in the pleadings to have been proven to defendant, and that on another trial this question should be confined to the identical conditioh alleged.

Special issue No. 10 assumed that the plaintiffs would have received support and training from the deceased had he lived, and that the jury was in favor of awarding some sum to the plaintiffs and this was error. Gulf, C. & S. F. R. Co. v. Phillips, 85 Tex. Civ. App. 337, 80 S. W. 107; Northern Texas Traction Co. v. Peterman (Tex. Civ. App.) 80 S. W. 535.

Special issue No. 9 was erroneous in that the negligence of “either party” does not ■meet this situation under the court’s definition of “unavoidable accident.” The plaintiffs, each, were a “party,” if the term was used in its legal sense. If in its common dictionary use, then there were several “parties” involved — Oda Anderson, the Buckeye Company, the owner of the electric wire, the owner of the telephone wire, the defendant, Perry — and which of these constitute the two meant by “either” is left in doubt.

We think no reversible error is shown to admitting in evidence the portions of the pleading alleging ownership by defendant of .the auxiliary line connecting the Buckeye Company to the high line, in as much as the appellant had produced a witness whose testimony as to who paid for the building of it undoubtedly left the- inference that it did not belong to appellant. It is unimportant, however, in as much as the appellant undisputa-bly had control of same at the time of the accident.

The exception to the argument of appellee to the jury on the admissions in that pleading was taken to a long speech, most of which was undoubtedly proper. No rule of the trial court on any of it that may have been unfair was invoked.

In view of another trial it is not necessary to. pass on the fairness of the amount of the verdict,

Eor the errors pointed out the judgment of the trial court-is reversed and the cause is remanded.


author: BARCSUS, J. ALEXANDER, J.

text:
    TEXAS MUT. LIFE INS. ASS’N v. MORRIS.
    No. 1171.
    Court of Civil Appeals of Texas. Waco.
    Nov. 17, 1932.
    Rehearing Denied Dec. 22, 1932.
    Richey & Skeehy, of Waco, for appellant.
    Taylor, Atkinson & Earmer and Munroe & Holt, all of Waco, for appellee.
   BARCSUS, J.

■ This suit was instituted by appellee against appellant on a policy of insurance for $2,-500 issued by appellant on the life of Tom O. Morris, father of appellee, together with 12 per cent, penalty and attorney’s fees. The cause was tried to a jury, submitted on special issues, and resulted in judgment being entered for appellee for the amount of the policy, together with 12 per cent, penalty and $500 attorney’s fees.

Appellant complains of that portion of the judgment which permitted appellee to recover interest and attorney’s fees; his contention being that it is 'not such an insurance company as comes within the purview of article 4736 of the Revised Statutes, which authorizes the recovery of a,12 per cent, penalty and attorney’s fees for failing to pay promptly a loss which occurs under a policy. We sustain this assignment. This identical question was passed on and appellant’s contention sustained by the Supreme Court in the case of Logan v. Texas Mut. Life Ins. Ass’n, Appellant, 51 S.W.(2d) 288.

• Appellant further contends that the trial court committed error in refusing to grant a new trial because of the misconduct of the jury and because one of the jurors was not qualified, in that he was biased or prejudiced against appellant at the time he was chosen as a juror. The record shows that each of the jurors on voir dire was asked the question as to whether he had any bias or prejudice in favor of or against either of the parties to the litigation, to which they answered “No.” After the jury retired to consider their verdict, R. W. Lyons, one of the jurors, was elected as foreman. Immediately thereafter, and before the jury began its deliberation, said juror stated in the presence of the other jurors, “Well, let’s get busy — let’s get through with it. I know Mr. Perot is a crook anyhow —let’s get through with it.” Mr. Kaufman, one of the other jurors, then said to Mr. Lyons, “Uncle Bob (Lyons) you should not have said that — that wasn’t in evidence and that doesn’t come in evidence at all.” To which remark, according to Mr. Kaufman, Mr. Lyons said, in substance, “It didn’t make any difference, everybody knew Mr. Perot was a crook anyway.” The juror Behringer testified that Mr. Lyons, in reply to Mr. Kaufman, stated in substance, “Well everybody had done decided what to do anyway.” It appears there was no disagreement among the jury as to the verdict they should return, and they answered the four issues submitted by the court in about fifteen or twenty minutes. Each of the jurors who testified stated that the remark of the juror Lyons had no effect upon their verdict. Some of the jurors did not hear the remark. Others only heard the reprimand by the jur- or to Mr. Lyons, but did not remember what Mr. Lyons said in reply.

The record shows that Mr. Perot was the man in active charge and control, and was the principal owner of appellant corporation. Under the evidence he had the direct and personal supervision of all of the matters, especially those at issue, under the facts in this ease; the controlling issue being whether appellant had notified Mr. Morris, the deceased, of a death assessment which had been levied on November 10, 1930, about six weeks before the death of Mr. Morris, and which Mr. Morris failed to pay.

Section 15, article 1, of our Constitution, provides that the right of trial by jury shall remain inviolate. Subdivision 4 of article 2134 of the Revised Statutes provides that any person shall be disqualified to serve as a juror in any particular case who has a bias or prejudice in favor of or against either of the parties. The important question, therefore, to determine in this case is, Was Mr. Lyons as a matter of law a qualified juror? It appears that none of the jurors was asked on his voir dire about his relationship with or knowledge of Mr. Perot or as to his bias or prejudice against him. Unquestionably, if the juror had been asked about his feeling toward Mr. Perot and if he had said he thought Mr. Perot was a crook, the trial court would have sustained a challenge as to said juror for cause. If, as a matter of fact, the juror went into the jury ■box with the belief that Mr. Perot was a crook, same disqualified him under the Constitution and statutes of this state from serving as a juror in this case. Makey v. Dryden (Tex. Civ. App.) 128 S. W. 633 (error refused); Rhoades v. El Paso & S. W. Ry. Co. (Tex. Com. App.) 248 S. W. 1064, 1065, 27 A. L. R. 1048; Burge v. State, 117 Tex. Cr. R. 141, 35 S.W.(2d) 735, 736; T. & P. Ry. Co. v. Elliott, 22 Tex. Civ. App. 31, 54 S. W. 410; Kansas City Life Insurance Co. v. Elmore (Tex. Civ. App.) 226 S. W. 709, par. 5; G., C. & S. F. Ry. Co. v. Dickens, 54 Tex. Civ. App. 637, 118 S. W. 612.

In Makey v. Dryden, supra, the court held that the juror was disqualified as a matter of law from sitting in a case where a negro was a party when he stated in the jury room to other jurors, “You are a strange kind of a white man that would give a negro anything against a white man. I would not give a damn negro anything” — emphasizing his feelings by striking the desk with his fist.

In Rhoades v. El Paso & S. W. Ry. Co., supra, the court stated: “Among the reasons which disqualify a juror in a particular case under the provisions of article 5117 [now article 2134] is the fact that such juror has a bias or prejudice in favor of or against either of the parties to the suit. In such cases it is not necessary that the disqualifying bias or prejudice shall relate solely to the party personally, but it may also relate to such party’s case as presented for trial before the jury.”

In T. & P. Ry. Co. v. Elliott, supra, the court held that a juror who was related within the third degree to the wife of one of the parties to the suit was as a matter of law disqualified, since another subdivision of the same statute disqualifies any person from sitting on a jury who is related by consanguinity or affinity within the third degree to either party to the suit.

In Burge v. State, supra, the court, in holding that a juror who was a brother of the principal witness against him, was as a matter of law disqualified because he was not an impartial witness, stated: “In Steagald v. State, 22 Tex. App. 464, 3 S. W. 771; Massey v. State, 31 Tex. Cr. R. 371, 20 S. W. 758, it was held that ‘impartial means not partial ; not favoring one party more than another, unprejudiced, disinterested, equitable, just.’ ”

In Kansas City Life Insurance Co. v. Elmore, supra, the court held that a juror who was a neighbor and friend of the insured and of the insured’s wife, who was plaintiff in the suit on the insurance policy, and who pos-' sessed a friendly feeling for them, and who stated that he would like for the plaintiff to win, but who further stated that he could and would go into the jury box with a free and impartial mind, was not a qualified jur-' or, and reversed said cause because the insurance ‘ company was forced to take said juror over its protest.

We think, under the facts as revealed by. the record in this case, the juror Mr. Lyons was disqualified from sitting as a juror’ in this case.

Appellee contends that appellant was negligent in not. ascertaining the fact that said witness did entertain said opinion of Mr. Perot before it accepted him on the jury, and that under the testimony the statement by said juror did not in any way influence the verdict of any of the jury. While each of the jurors who testified he heard the remarks of Mr. Lyons stated that he was not influenced thereby, said remarks were of such a character and coming from such a source that it is almost humanly impossible for a party to say that same did or did not have any effect upon their deliberations. Said statement should not have been made to the jury. As has been often said, the right of parties litigant to a fair and impartial trial before an unbiased and unprejudiced jury should and must be, in so far as possible, maintained inviolate by our courts. Our statutes provide that a person who entertains bias or prejudice against or toward one of the parties litigant is not a qualified, juror. Our courts uniformly hold that, if one juror is disqualified, the parties have been deprived of their constitutional or statutory right to a fair and impartial trial. We think the trial court erred in refusing to grant appellant a new trial because of the disqualifications of the juror Lyons.

The judgment of the trial court is reversed, and the cause remanded.

ALEXANDER, J.

(dissenting).

I do not believe that this case should be reversed on account of the alleged errors pointed out in the main opinion.

The Supreme Court in the case of Logan v. Texas Mutual Life Insurance Association, 51 S.W.(2d) 288, held that the appellant herein (appellee in that case) was not liable for the penalty and attorney’s fees provided for under Revised Statutes, article 4786. It will be noted, however, that the Supreme Court based its decision on the fact that, under its finding in that case, appellant was a mutual relief association and was operated 'without profit. In this case it appears without dispute that O. B. Perot owns the appellant corporation, as stated in the majdrity opinion, and it is further shown beyond dispute that said association is not a mutual relief association operated without profit, but is op-, erated for the profit of Mr. O. B. Perot, its owner, president and general manager. Under the provisions of Revised Statutes 1895, article 3096, the article under which the appellant asserts its right to an exemption from the law regulating insurance companies generally, it was provided that, if such association was operated for profit to its officers, it should be amenable to the law regulating insurance companies. In the case of Farmer v. State, 69 Tex. 5G1, 7 S. W. 220, it was held that, if a mutual relief association such as was referred to in article 3096 was operated for profit to its officers, it was subject to the law regulating insurance companies generally. ' .Moreover, the appellant association was incorporated in. 1905, and said article 3096 was repealed in so far as it applied to associations incorporated under the laws of Texas by the Acts of the Legislature 1895, p. 97, § 25 (Revised Statutes 1895, article 3096y), long prior to the incorporation of appellant association, and said association never acquired any rights under said article 3096.

Furthermore, the appellant was incorporated under Revised Statutes 1895, art. 642, subd. 46. At the time of the incorporation of said association, said subdivision read as follows: Subdivision 46: “For the organization of fire, marine, life and livestock insurance companies.”

Thereafter in 1907 said subdivision was amended so as to read, in part, as follows: “Subdivision 46. For the organization of fire, marine, life and livestock insurance companies; * * * and provided further, that all insurance companies mentioned in this subdivision shall be in all other respects subject to and shall comply with all of the provisions of Title 58, of the Revised Statutes of Texas, and any and all laws supplementary to or amendatory thereof.” Acts 1907, c. 150, § 3! '

The above section did not authorize -the creation of any other kind of a corporation except an insurance company, and it is apparent that, since the section under which the appellant was incorporated did not authorize the creation of any other kind of corporation except an insurance company, it must necessarily be an insurance company, and is subject to the law regulating insurance companies. As said by the Supreme Court in the case of Fidelity Mutual Life Ass’n v. Harris, 94 Tex. 25, 57 S. W. 635, 638, 86 Am. St. Rep. 813: “The rule is recognized that a corporation derives all its powers from the law which creates it, and that its transactions, wherever they may occur, must be within the powers conferred by that law.” Moreover, by said amendment of 1907, the Legislature provided that all such associations should be subject to the law regulating insurance companies as it then existed and as it might thereafter be amended. The insurance law was amended in 1909 by the enactment of Revised Statutes 1925, article 4736, making all insurance companies liable for penalties and attorney’s fees. Since the appellant is operated for profit, it has funds out of which it can pay such penalties and attorney’s fees, and is liable therefor.

I recognize that, if the juror Lyons entertained a prejudice against Mr. Perot at the time he went into the jury box, he was not a fair and impartial juror, and the case should be reversed. However, upon the hearing on the motion for new trial, this juror testified that he did not remember having made the statement attributed to him. On such hearing he testified positively that at the time he was accepted as a juror in the case he had no bias or prejudice against Mr. Perot. He had previously had some dealings with Mr. Perot, but his dealings had always been satisfactory. The evidence introduced during the trial was sufficient to have created, for the first time, the prejudice evidenced by the statement alleged to have been made in the jury room. If in fact the juror entertained no prejudice against Mr. Perot at the time he was accepted as a juror, as testified to by him, the fact that he may have acquired such prejudice from the evidence during the trial would not require a reversal of the case. Griffin v. State (Tex. Cr. App.) 53 S. W. 848; Albright v. Smith (Tex. Com. App.) 288 S. W. 178; Allbright v. Smith (Tex. Com. App.) 5 S.W.(2d) 970. The trial court heard the testimony, and was in a better position to determine the weight to be given thereto. The fact that the trial court refused a new trial raises the presumption that that court concluded that the evidence was not sufficient to establish that the juror Lyons was prejudiced at the time he entered the jury box.


author: FUNDERBURK, J.

text:
    MARYLAND CASUALTY CO. v. STEVENS et al.
    No. 1016.
    Court of Civil Appeals of Texas. Eastland.
    Nov. 18, 1932.
    Rehearing Denied Dec. 16, 1932.
    Dallas Scarborough, of Abilene, and Cantey, Hanger & McMahon, Warren Scarborough, and J. A. Gooch, all of Fort Worth, for appellant.
    George Sergeant and E. E-. Clack, both of Dallas, and T. A, Bledsoe, of Abilene, for ap-pellees.
   FUNDERBURK, J.

Frank Stevens, for an injury received by him on October 31, 1928, as the result of his horse stepping into a pipeline ditch in a public highway-, and falling with and upon him, thereby breaking several ribs and crushing his chest, made claim against the Magnolia Pipeline Company, the owner of the pipe line, for damages. The ‘claim was, on or about December 12, .1928, by compromise agreement, settled for $275; the agreed damages were paid, and a full release executed and delivered. The release purported to include any subsequently developing injury or damage. Frank Stevens, at the time of said injury, was employed as .¿n oil lease -pumper for D. 15. Reading, who had provided compensation insurance in favor of his employees with Maryland Casualty Company as the insurer. Stevens made no claim for compensation insurance. On February 7, 1928, be died. After-wards Ms wife, Mrs. Ania B. Stevens, and his minor children, Levall Stevens, Henry Keller Stevens, and Sherwood Stevens, presented to the Industrial Accident Board a claim for compensation insurance on the ground that Stevens’ death had resulted from the above-described injury. The board awarded compensation at the rate of $17.31 per week for a period of 360 weeks. * In due time, and after proper notice, Maryland Casualty Company filed this suit in the district court of Taylor county to set aside the award. The defendants filed a cross-action, reasserting their claim as the legal beneficiaries of thel said Frank Stevens for compensation insurance for his death. The cross-action, in addition to other necessary and proper averments, alleged, in effect, that Stevens had been in the employ of said Reading only a short while, and had not worked substantially the whole of the year immediately preceding such injury, and that the average daily wages of employees of the same class, working substantially the whole of the year immediately preceding the injury, were $5.50 per day. Compensation was claimed in a lump sum on the basis of $5.50 per day for 360 weeks, and was allowed on the basis of $5 per day for said term. From the judgment in said suit, Maryland Casualty Company has appealed.

Appellant’s first proposition presents the question of whether the settlement and release by Stevens of his claim for damages against the Magnolia Pipeline Company precludes the right of the appellees as his legal beneficiaries to recover compensation insurance for his death resulting from the same accident and being an outgrowth of the same injury. Material to the consideration of this question, we quote the following provisions of the Workmen’s Compensation Raw:

“Where the injury for which compensation is payable under this law was caused under circumstances creating a legal liability in some person other than the subscriber to pay damages in respect thereof, the employee may at his option proceed either at law against that person to recover damages or against the association for compensation under this law, but not against both, and if he elects to proceed at law against the person other than the subscriber, then he shall not be entitled to compensation under this law. If compensation be claimed under this law by the injured employee or his legal beneficiaries, then the association shall be subrogated to the rights of the injured employee in so far as may be necessary and may enforce in the name of the injured employee or of his legal beneficiaries or in its own name and for the joint use and benefit of said employee or beneficiaries and the association the liability of said other person, and in case the association recovers a sum greater than that paid or assumed by the association to the employee or his legal beneficiaries, together with a reasonable cost of enforcing such liability, which shall be determined by the court trying the case, then out of •the sum so recovered the association shall reimburse itself and pay said cost and the excess so recovered shall be paid to the injured employee or his beneficiaries. The association shall not have the right to adjust or compromise such liability against such third person without notice to the injured employee or his beneficiaries and the approval of the board, upon a hearing thereof.” R. S. 1925, art. 8307, § 6a.

“The following words and phrases as used in this law shall, unless a different meaning is plainly required by the context, have the following meanings, respectively: * * * Any reference to any employe herein who has been injured shall, when the employe is dead, also include the legal beneficiaries, as that term is herein used, of such employe to whom compensation may be payable.” R. S. 1925, art. 8309, § 1.

It may be conceded in the outset that, unless the Workmen’s Compensation Raw (R. S. 1925, arts. 8306 to 8309, as amended)', makes provision to the contrary, the effect of the release given by Stevens was to cut off any right of action by the appellees against the Magnolia Pipeline Company under the death statute (i. e., R, S. 1925, arts. 4671-4678). Thompson v. Ft. Worth & R. G. R. Co., 97 Tex. 590, 80 S. W. 990, 1 Ann. Gas. 231; St. Rouis) S. W. R. Co. v. Hengst, 36 Tex. Civ. App. 217, 81 S. W. 832; Blount v. Gulf, C. & S. F. R. Co. (Tex. Civ. App.) 82 S. W. 305. Upon the same condition- it would also seem logically to follow that appellant would thereby be cut off from any right of subrogation. From these consequences, considered in connection with the statutory provisions above, and particularly of the definition, of employee to include legal beneficiaries, appellant argues that the effect of the release was likewise to cut off appellees’ right to compensation insurance.

If it should be granted that the Workmen’s Compensation Raw has made no change in the effect of a release of a right of action at law, as' such effect was declared in Thompson v. Ft. Worth & R. G..R. Co., supra, and that, because of that effect appellant can avail itself of no right of subrogation as provided for in said article 8307, § 6a, it does not necessarily follow, we think, that appellees would be precluded from their right to recover compensation insurance. In passing upon the question here‘presented, we shall merely assume, without deciding, that the effect of the release was such as to preclude the appellees from asserting any cause of action against the Magnolia Pipeline Company and to preclude the appellant from asserting any such cause of action under a claim of subrogation.

The Workmen’s Compensation Law, in no uncertain terms, creates a cause of action for compensation insurance in favor of the legal ■beneficiaries of a deceased employee for the death of the employee. That cause of action, for all practical purposes, is separate and distinct from the cause of action for compensation which the same statute just as certainly creates in favor of the injured employee. Texas Employers’ Ins. Ass’n v. Morgan (Tex. Com. App.) 295 S. W. 588; Texas Employers’ Ins. Ass’n v. Morgan (Tex. Civ. App.) 289 S. W. 75; Milwaukee Coke & Gas Co. v. Industrial Commission, 160 Wis. 247, 151 N. W. 245, 248 ; 28 R. C. L. p. 783. These causes of action consist largely of common elements. They are each dependent up-ojn the existence of the same accident, the same resulting injury, sustained in the course of employment. The only practical difference is that the employee’s individual cause of action covers the full extent of the injury except his death, and the cause of action of the beneficiaries is for the death only. Notwithstanding the near approach to identity of these two causes of action, they are so distinct that the employee can, by no act or deed, release or affect the cause of action belonging to the legal beneficiaries. Such is the plain holding of the authorities above cited.

It is quite obvious that these two causes of action, distinct each from the other, are both entirely different causes of action from any existing at law, or under the death statute, against a third party in favor of the injured employee or the said beneficiaries. If the employee cannot, by releasing his cause of action, for compensation, thereby release or in any manner affect the cause of action of his beneficiaries for compensation, then how can it be contended that his release of another and different cause of action against a different person could have such effect? What reason exists, or could exist, for holding that,, while a release by an employee of his cause of action for compensation cannot release or affect the cause of action of his legal beneficiaries for compensation, yet a release by the employee of another and different cause of action from that of either of these existing against an entirely different person will release the cause of action of his beneficiaries for compensation? Such a reason, if it exists, would, of necessity, have to be found in the provisions of the law itself. Certainly the law does not expressly declare any such consequence. The only reason suggested is that, unless such effect be given to the release, then appellant, while held to a liability to pay compensation, would be deprived of its right of'subrogation. The argument assumes that for appellant to be deprived of its right of subrogation would be so manifestly unjust that, in order to avoid such a consequence, the law should, under such circumstances, be ■construed to deny the right of appellees to compensation directly contrary to the plain provision of the law. The argument is not at all convincing. The right of subrogation here involved is purely a creature of the statute. The validity of the Workmen’s Compensation Law, as a legislative enactment, was not dependent ,upon the creation in favor of an insurer of a right of subrogation. .If, therefore, under a particular state of facts, the right of subrogation is not available, it cannot properly be said that the insurer has been deprived of the right, but the right in such case simply does not exist. Reference in said section 6a of article 8307 to “employee” who has been injured, as respects the question now under consideration, cannot, by reason of the context, include the legal beneficiaries. Such is the necessary effect of the holhing that the employee’s release of his cause of action for compensation would not release or affect the cause of action of his legal beneficiaries for compensation. Upon these considerations we have reached the conclusion that appellant’s first proposition cannot be sustained.

The conclusions above stated render it unnecessary to discuss at any length a number of other propositions which are controlled by the same principle. It follows, for instance, from what has been said, that appellant has lost no right of subrogation. The right under the circumstances either never existed or it remains unimpaired. Whether the one or the other is the case is an immaterial question in the instant suit. It is unimportant in this case that the injuries received by Stevens may have been the result of the negligence of a third party. No third party is before the court. No issue of negligence is involved. The court therefore committed no error in refusing to submit to the jury issues relating to negligence. There was no error in excluding from the evidence going before the jury the release in question, offered for the purpose of showing that appellant had lost its right of subrogation or was estopped to assert its statutory right against the negligent third party. There was no error' in refusing to admit the testimony of Hicks Thompson to the effect that he had settled the claim of Frank Stevens against the Magnolia Pipeline Company and that Frank Stevens had made claim against said company. The testimony was immaterial to the issues in this.case, at least as regards the purposes for which it was offered, since proof of such facts could not affect the right of the appellants to claim compénsation insurance. There was likewise no error in excluding the statement of said Hicks Thompson filed with the Industrial Accident Board to the effect that Stevens had told him^ while the settlement negotiations between the Magnolia Pipeline Company and Stevens were going on, that he (Stevens) was not in the course of his employment at the time he was injured, but that he was chasing a colt in a country road. The statement was, as to the appellees, hearsay, and inadmissible for that reason. There was no error in refusing to give appellee’s requested special issues Nos. 3 and 4. They related to negligence of the Magnolia Pipeline Company, which, as said before, was an immaterial maiter.

Other propositions urged will now be noticed briefly. The evidence clearly raised an issue for the jury as to whether the death of Stevens was the result of the accident on October 31, 1928. The same is true as to the issue of whether the injury was received by Stevens while in the course of his employment. There was no such preponderance of the evidence to show the contrary as would justify our holding that the evidence was insufficient to'support the verdict of the jury.

Appellees’ own pleading, by necessary implication, showed that the accident and consequent injury occurred in Taylor county. Appellees were not required to offer testimony to prove apy fact alleged or admitted, or necessarily implied from the allegations in the plaintiff’s petition. If, therefore, there was no testimony to show that the injury was received in Taylor county, as to which we do not stop to inquire, it is wholly immaterial for the reason stated.

The contention cannot be .sustained that there was no evidence that notice of the injury was given as required by law. The law only requires notice of injury to be given “unless the association or subscriber have notice of the injury.” D. E. Reading was the subscriber. Uevall Stevens testified that he told said Reading about the injury to his father the next day after the accident. The injury was received on October 31,1928, and the claim for compensation was filed with the Industrial Accident Board on April 24,1929. The claim was therefore filed within the six months time prescribed by law.

Appellant quoted evidence on the issue of lump sum allowance in connection with its proposition, by which it was contended that there was no proof authorizing the submission of that issue to the jury. Without restating the testimony, we merely express the opinion that the evidence was sufficient to raise an issue to go to the jury.

It is further insisted that there was no evidence to support the verdict of the jury wherein it was found that the average daily wage of an employee of the same class as the deceased and who had worked substantially the whole of a year immediately preceding October 31, 1928, in the same or similar employment in the same or neighboring place as that in which the deceased Stevens was working at the time of the accident, was $5 daily. It is contended that, in any case, the verdict and judgment were excessive, in that the evidence at most supported a finding of $2.50 per day. Under the definition of average weekly wages in article 8309, § 1, as applied to the facts in evidence, the daily wages received by Stevens at the time of his injury was wholly unimportant. Had he been working for substantially the whole of the preceding year in the same kind of employment, the daily wage he was receiving at the time of the injury would have been important only as a factor in determining his average daily wage or salary during such preceding year. But, having been employed for only about three months, neither the daily wage he was receiving, nor his average daily wage was of any importance whatever, since neither could form any basis for finding the “average weekly wages” upon which compensation is required to be computed.

The “average weekly wages”, were required to be determined as provided in paragraphs 2 and 5 of the definition. The only fact to be determined from evidence (all others being matters of simple computation), was “the average daily wage or salary which an employee of the same class working substantially the whole of such immediately preceding year in the same or in a similar employment in the same or a neighboring place, shall have earned in such employment during the days when so employed.” There was evidence tending to show that, throughout the year preceding the injury in question, persons were employed as oil lease pumpers in the vicinity of the place of injury. There was evidence to the effect that the Continental Oil Company, operating in the same field, paid its pumpers $150 per month. There was therefore ample evidence, we think, to support the verdict of the jury.

Appellant seems to attach importance to the fact that the $2.50 daily wage which Stevens was being paid at the time of his injury Was for four or five hours’ work per day, whereas the jury finding of $5 per day as the average daily wages of other employees was based upon full-time service, or at least for a greater number of hours per day. As has already been said, the actual wage per day being received by Stevens was wholly immaterial. It would therefore necessarily follow that, whether the $2.50 actual wage was paid for four or five hours’ work or for ten or twelve hours’ work, would likewise be immaterial. Had Stevens worked at the same employment for substantially the whole of the preceding year at $5 per day except the last day, when, by reason of a cut in wages, he received only $2.50 a day, it is clear the “average weekly wage” upon which compensation would have been computed would have been much more than the $2.50 per day he was receiving when injured. The result would have been the same had the evidence here shown that $5 per day was the prevailing wage received by other employees except for a cut to $2.50 the last day before the injury. The evidence showed no such cut, and therefore justified the finding that the $5 rate as an average remained in force throughout the entire year.

Had Stevens been working as a pumper for appellant continuously for a year or more, it would have been immaterial, that he may have been receiving $2.50 per day from appellant for four or five hours-’ work and an additional $2.50 from some other employer for four or five hours’ work. The law expressly requires his average daily wage to be based upon what “he shall have earned in such employment” (i. e., as a pumper), whether “for the same employer or not.” The law seeks to provide compensation for the loss of earning capacity in the particular class of employment, and that loss of capacity manifestly would not be shown by the amount received from a single employer for only a part time service in which a lower wage was paid because of that fact. Western Metal Supply Co. v. Pillsbury, 172 Cal. 407; 156 P. 491, Ann. Cas. 1917E, 390; In re Gillen, 215 Mass. 96, 102 N. E. 346, L. R. A. 1916A, 371.

The testimony of Levall Stevens, son of the deceased employee, and one of the beneficiaries, having a bearing upon the issue of whether the injury was sustained while in the course of employment, was properly admitted as a part of the res gestae. Maryland Casualty Co. v. Kent (Tex. Civ. App.) 271 S. W. 929; Royal Indemnity Co. v. Hogan (Tex. Civ. App.) 4 S.W.(2d) 93. We are aware of no rule which makes a distinction between interested witnesses or parties and other witnesses in testifying to facts generally admitted as a part of the res gestse. Any question of a distinction of that kind would be one going to the weight of the evidence or credibility of the witnesses and not to its admissibility.

We also hold that admission of the testimony of Mrs. Frank Stevens regarding the custom of Frank Stevens to go from the pump to the tanks in the discharge of his duty as pumper was admissible to show, with other facts and circumstances, that he received his injury while in the course of his employment.

There certainly could have been no error in defining the word “injury” as it is defined in the Workmen’s Compensation Law (article 8309, § 1), and such is the definition of which appellant complains.

If what has been said does not dispose of all of appellant’s propositions, then we think any not thus disposed of are not of sufficient importance to require separate discussion, and are therefore, without further comment, overruled.

Being of opinion that there was no error, and that the judgment should be affirmed, it is accordingly so ordered.