author: MeCLENDON, Chief Justice.

text:
    STATE HIGHWAY COMMISSION OF TEXAS et al. v. TENGG.
    No. 7919.
    Court of Civil Appeals of Texas. Austin.
    Feb. 15, 1933.
    James Y. Allred, Atty. Gen., and A. R. , Stout, Asst. Atty. Gen., for appellants.
    A. M. Felts, of Austin, and G. P. Morgan, of Austin, for appellee.
   MeCLENDON, Chief Justice.

Appeal from an interlocutory order overruling a motion to dissolve a temporary injunction issued on behalf of Edward Tengg against the state highway commission, its members and chief engineer, the state board of control, and its members.

Tengg was awarded the contract covering the electrical equipment and fixtures for the Highway building which was being constructed under the appropriation of Reg. Sess. 42d Legislature, 1931 (page 710, c. 286, § 1), which provided for joint action of the two departments in the planning and erection of the building. The controversy involved in the cause grew out of the following provision of the contract: “It is agreed that the Contractor and Subcontractor shall pay the current prevailing wage scale on all work or contracts or sub-contracts on the project, except as to common unskilled labor which shall be paid not less than thirty cents (30⅜) an hour for actual time.”

The order appealed from restrains the several defendants:

“From enforcing or attempting to enforce upon the plaintiff, the Eight Dollar per day wage scale for skilled laborers used in the progress of his work upon the new State Highway Building, now under construction, and from interfering with the plaintiff, Edward Tengg, in carrying on his work upon said building under the current prevailing wage scale, or from interfering with the plaintiff in the progress of his work, or from disorganizing or attempting to disorganize or cause dissatisfaction and dissention among his laborers directly, or from holding up or refusing to allow the plaintiff his estimates as per the terms of his contract; or from doing any other thing that would have the force and effect of compelling the plaintiff to pay said Eight Dollar per day wage scale, or any other wage scale above the current prevailing wage scale. * * *

“Said defendants may retain back, at all times, fifteen per cent of the contract price and enough additional funds of the contract price to pay any legal claims in writing that are duly presented, as provided by law.

“Said defendants * * * shall do no act or thing that will have the force or ef-feet in anyway of violating the terms of plaintiff’s contract, or any part thereof. * ⅜ *

“Said defendants and departments and each of them shall do no act or thing that will in any event breach the terms of plaintiff’s contract, or any part thereof, and they and each of them are enjoined from holding up or refusing to allow plaintiff his estimates, as per the terms of his contract, except as stated herein.”

Appellants’ contention in the main is that the suit is one in effect to enforce a contract against the state, which is not maintainable, and plea in abatement upon that ground should have been sustained. With the exception of that portion of the order relating to interference with appellee’s laborers, which will be discussed later, we sustain this contention.

The general rule involved in appellants’ contention is not questioned; but appellee contends that the suit here is one only against the officers of the state, to prevent illegal acts on their part; and that the state has no litigious interest in the controversy, since to constitute such interest “the State must be in a position to lose some money on the outcome of the suit, or suffer some inconvenience as a result thereof.” The exact point which appellee makes in this regard is that, since the state has made a valid contract, at a stipulated price, secured by bond for its performance, “the State’s money is not involved in the suit,” and the case is not brought within the rule “that in order to constitute a suit against the State the suit must be one that imposes a liability against, the State.”

In the view we take of the case, it is not material whether the quoted provision of the contract is valid. Appellee’s contention that it is invalid is predicated upon the holding in Christy-Dolph v. Gragg (D. O.) 59 E. (2d) 766. The question there concerned the validity of a criminal statute; which the decision held invalid for uncertainty. Here we have an express provision of a contract, voluntarily entered into by both contracting parties.

The verified answer of appellants was to the effect that at the time the bids were opened the board and commission (due to previous complaints against appellee regarding his treatment of skilled and unskilled labor) made it known to him “that if his bid was to be accepted or if said contract was to be awarded- to him that he must at all times pay the prevailing wage scale for all laborers except as to common unskilled labor, which was to be paid for,” at not less than 30 cents an hour; that the board and commission were assured that he would go even further and pay the “prevailing union wage scale * * * in the City of Austin,” and appellee filed with the board and commission an affidavit to that effect; that the contract was awarded upon these representations, which “were a part of and the controlling consideration in the awarding and execution of said contract”; that appellee has not carried out said provision, but has breached and violated it; that he has filed affidavits with the commission stating that he has complied with the contract, when in fact “he has in operation a system among the men working under him whereby -they are paid a certain amount for a full day’s work; but that said plaintiff requires said laborers to sign a statement in writing stating that they worked only a part of the day, when in truth and in fact, they have worked the entire day”; that under this system ap.-pellee pays his skilled laborers only half the sum to which they are entitled under the contract.

As stated above, it is not essential to the issues before us whether the contractual stipulation in dispute is legally enforceable. The issue here is whether its enforcement can be had through the courts. This question is one of application of well-established general principles to the particular situation before us; and it would not be profitable, we think, to attempt a review and analysis of the authorities. Extensive case notes upon the subject will be found in 44 I/. R. A. (N. S.) 189 et seq., and 42 A. L. R. 1464 et seq. Texas cases upon the subject are collated on page 1468 of the latter.

The rule which controls here is stated by our Supreme Court (Mr. Justice Pierson writing) as follows: “A suit against officers a state, to require them to perform acts which constitute a performance of a contract by the state, is in effect a suit against the state itself. A suit against officers of a state, the purpose or effect of which is to establish the validity of a contract of the state, or to enforce through them the performance of a contract of the state, or to require acts to be performed by them which would impose contractual liabilities upon the state, is a suit against the state. Thomson v. Baker, 90 Tex. 163, 38 S. W. 21; Jernigan v. Finley, 90 Tex. 205, 38 S. W. 24; League v. De Young, 2 Tex. 497; Hosner v. De Young, 1 Tex. 764; Treasurer v. Wygall, 46 Tex. 447; Antoni v. Greenhow, 107 U. S. 769, 2 S. Ct. 91, 27 L. Ed. 468; 36 Cyc. 916; 25 R. C. L. p. 413, § 50.” Herring v. Bank, 113 Tex. 264, 253 S. W. 813, 814.

The following language by the Court of Appeals of New York is peculiarly apropos the instant controversy: “The State cannot be compelled to proceed with the erection of a public building, or the prosecution of a public work at the instance of a contractor with whom the State has entered into a contract for the erection of a building or the performance of the work. The State stands, in this respect, in the same position as an individual, and may at any time abandon an enterprise which it has undertaken, and refuse to allow the contractor to proceed, or it may assume the control and do the work embraced in the contract, by its own immediate servants and agents, or enter into a new contract for its performance by other persons, without reference to the contract previously made, and although there has been no default on the part of the contractor. The State in the case supposed would violate the contract, but the obligation of the contract .would not be impaired by the refusal of the State to perform it. The original party would have a just claim against the State-for any damages sustained by him from the breach of the contract, and although the claim could not be enforced through an action at law, the remedy by appeal to the legislature is open to him, which can, and it must be presumed will, do whatever justice may require in the premises. This remedy is the only one provided in such a case, and this is known to the party contracting with the State, and the courts cannot 'say that it is not certain, reasonable and adequate.” Lord v. Thomas, 64 N. Y. 107.

It seems plain to us that the proceeding is one in which the action of the state’s contracting. agencies in the. performance of a state contract is sought to be controlled and directed through the processes of the courts. The propriety of the action of the state officials is beside the question. The only proper forum for relief is the Legislature, unless and until that body should give its consent to litigate the issues in the courts.

While the state agencies have the power to direct the manner of performance of the contract, even to the extent of discontinuing the work in its entirety, we do not think they can lawfully interfere directly with appellee’s laborers. We therefore think proper that portion of the order temporarily enjoining appellants from “disorganizing or attempting to disorganize or cause dissatisfaction and dissention among his (appellee’s) laborers directly.” That portion of the order is therefore left undisturbed..

There is an allegation in the’ petition to the effect that appellants “have threatened to, and are in fact preparing to pay said workmen direct and deduct the amount so paid * * * from plaintiff’s pay.” It is not stated in what manner this threat is proposed to be carried out. The appropriation for the highway building is from the state highway fund, which can only be drawn upon through treasury warrants. Appellee-has a direct interest in this fund to the extent of the amount of his contract, and can prevent a diversion thereof to others not legally entitled thereto. Terrell v. Middleton (Tex. Civ. App.) 187 S. W. 367 (error refused) ; Sherman v. Cage (Tex. Civ. App.) 279 S. W. 508; Johnson v. Ferguson (Tex. Civ. App.) 55 S.W. (2d) 153. The trial court’s order does not specifically deal with this phase of the case. In so far as it may by implication be construed as prohibiting issuance of such warrants, it is left undisturbed.

There is one other matter to which we direct attention. Article 5, § 3 of the Constitution, in part reads: “The legislature may confer original jurisdiction on the supreme court to issue writs of quo warranto and mandamus in such cases as may be specified, except as against the governor of the state.”

R. S. art. 606 reads: “Mandamus suits may be brought in the Supreme Court against the Board [of Control], but no other suit shall be brought against the Board of any other character, except in the District Court of Travis County. No temporary injunction shall ever issue against the Board except upon notice and hearing.”

We think the original jurisdiction thus conferred upon the Supreme Court is exclusive; and jurisdiction is denied any other court to compel affirmative action of the board. The trial court’s order is in form restraining only; however, that portion of it which enjoins appellants “from holding up or refusing to allow plaintiff his estimates, as per the terms of his contract, except as stated herein,” is tantamount to a mandate that estimates be allowed; and to the extent it affects the board is within the exclusive jurisdiction of the Supreme Court.

Except in the above respects in which the order appealed from is left undisturbed, the temporary injunction is dissolved; and the cause is remanded to the trial court for further proceedings not inconsistent with the views above expressed. Costs of appeal are taxed against appellee.

Temporary injunction in part undisturbed ; in part dissolved. Cause remanded.


source: Caselaw Access Project

author: O’QUINN, Justice.

license: Public Domain

text:
    ORANGE & N. W. R. CO. v. HARRIS et al.
    No. 2177.
    Court of Civil Appeals of Texas. Beaumont.
    Feb. 9, 1933.
    Rehearing Denied March 8, 1933.

      O. R. Sholars, of Orange, W. G. Reeves and Chas. T. Butler, both of Beaumont, and Andrews, Streetman, Logue & Mobley, of Houston, for appellant.
    Dies, Stephenson & Dies, of Orange, for appellees.
   O’QUINN, Justice.

Appellees sued appellant for damages for personal injuries to Luther Harris resulting from a collision between an automobile in which he was riding and a freight car which partially obstructed a street crossing in the city of Orange. From a judgment for said appellee, this appeal was taken.

Appellees alleged that at about 7 o’clock p. m. on December 16, 1927, Luther Harris and a lady, Nellie Morris, were driving along College street in the city of Orange, Tex., and suddenly collided with a flat car operated by appellant which obstructed and occupied all but about 4 feet of the street crossing where said street crossed the railway line of appellant; that as the result of said collision said Luther Harris was thrown violently against the steering wheel and dashboard of the automobile, thereby causing him the injuries complained of in his petition.

Appellee alleged that his injuries proximately resulted from the following acts of negligence on the part of appellant:

(1) In permitting the flat car to obstruct and remain on the public street crossing for more than five minutes, in violation of an ordinance of the city of Orange, which ordinance was pleaded by appellee. It was further alleged that said act of appellant was negligence per se.

(2) In stationing said flat car on said railroad track so that it obstructed all of said street crossing, but about 4 feet, same being at a point where a great many people traveled in different directions constantly.

(3) In failing to place a sufficiently bright •light on or near said flat car or other signal to notify and warn the public and those traveling over said street of the presence of said car on said crossing.

(4) In failing to have some one stationed at or near said flat car to notify and warn persons traveling said street over said crossing of the presence of said flat car.

(5) In failing to use such means and exert ordinary care, under the circumstances, as would prevent persons traveling on and over said crossing from colliding with said flat car.

Appellant answered by general demurrer; special exceptions to paragraphs 3 and 4 of appellee’s petition, being that portion wherein was pleaded the ordinance of the city of Orange relative to trains obstructing street crossings for more than five minutes; general demurrer; and a plea of contributory negligence on the part of appellee Luther Harris, consisting of the following:

(a) In driving his automobile upon the public highway with poor or ineffective brakes.

(b) In driving his automobile upon the public highway with poor or insufficient lights.

(c) In driving his car at a dangerous and unlawful rate of speed, and at a rate of speed greater than a person of ordinary prudence would have under the same or similar circumstances.

(d) In driving his car without keeping, or causing to be kept, a proper lookout for obstructions which might be upon the highway.

(e) In driving his car at such speed that it could not be stopped with the means at hand in time to avoid a collision with any object which might first be discovered when it should come within the reasonable view or range of his headlights.

(f) In failing to so control the speed of his car as that it could be stopped with the •means at hand within the length of open highway before him which he knew to be free from and clear of obstruction.

(g) In failing to bring his car under proper control when he knew, or in the exercise of ordinary care should have known, that he was approaching a railroad track which might be obstructed by ears.

(h) Violation of an ordinance of the city of Orange making it unlawful to operate an automobile on and over the streets of said city at a greater speed than 12 miles per hour. To this plea a special exception was sustained.

The case was tried to a jury upon special issues, in answer to which they found: (a) That appellant was not guilty of negligence in leaving and permitting the flat car to occupy that portion of College street which it did occupy at the time of the accident; (b) that appellant was guilty of negligence in failing to have some one stationed at or near the flat car at the time of the collision to warn persons traveling the street of the presence of the flat ear on said crossing, and that such negligence was the proximate cause of the injuries sustained by the appel-lee.

By their answers, the jury acquitted ap-pellee of each and all of the acts of contributory negligence charged against him, and awarded him the sum of $10,000 damages.

Judgment was rendered in accordance with the verdict of the jury. Motion for a new trial was overruled, and the case is before us on appeal.

At the close of the evidence, appellant presented to the court its special charge No. 1 for an instructed verdict in its favor, which was refused. Appellant’s first nine assignments of error complain of the refusal of this charge as error. This contention is urged upon the ground (a) that no actionable negligence on the part of appellant proximately resulting in appellee’s injuries is shown; and (b) that appellee was guilty of contributory negligence as a matter of law, and that such negligence was the sole cause of his injuries.

These assignments are overruled. The record discloses that the collision occurred at the crossing of College street and the Orange & Northwestern Railroad track in the city of Orange. The street was paved, and the paved portion was some 18 feet wide. There were earthen shoulders on each side of the paved part several feet wide. The' railroad track crossed the street at right angles and on a level. The railroad employees had been moving two flat cars loaded with creosoted pilings to the city docks. It was what is known as a “twin load”; that is, the piling was so long it required two flat cars on which to load them. In moving this load of piling, one of the flat ears was derailed over the street crossing. In attempting to pull it back from over the crossing, the drawhead of one of the cars pulled out, and the car could not be moved further. The flat car as thus left covered from about 10 to 14 feet of the paved portion of the street crossing. In other words, there were from 4 to 8 feet of the paved portion of the street crossing left unobstructed, according to the estimate of witnesses. Several testified that they measured it, and it was exactly 4 feet. When the flat car could not be further withdrawn from over the street crossing, the train men left it with a white light lantern set on the drawhead of the car, while an employee went to get a red light to place on the end of the car. While this employee was gone after the red light, appellee came along in his automobile driving toward the city proper, at about 14 miles per hour. That was about 7 o’clock p. m., December 16, and it was dark and cloudy, had been raining, but was not then raining. There was an are light, hanging very low, some 64 feet from- the crossing in front of a store. Appellee was approaching from the side of the store, and drove under this low-hanging arc light going toward the track. He testified that he had not seen the flat car before lie drove under tlie arc light, and that, when he drove under the light, it blinded him so that he could not see objects just ahead of him, and that he continued going toward the crossing at about the rate of 14 miles per hour, and was not aware of the presence of the flat car until his automobile collided with it. He was driving on his right. The flat car obstructed the crossing on his right, and he would have had to make a sharp turn to the left of the street to have gotten to the unobstructed portion of the crossing, which, as before stated, was variously estimated to be from 4 to S feet of the paved part of the street. There was no one at the end of the flat car on the crossing to warn him of the presence of the flat car. The street was one very much used at all hours, and the track was in frequent use by the railroad, but very seldom at night. Ap-pellee was. well acquainted with the crossing; had been driving over it for years in going from and returning to his home. He testified that, while he was familiar with the railroad track at the crossing and of its use, he hád never before seen it in use at night. During the time the employees of the railroad were endeavoring to remove the flat car from the crossing, many persons in automobiles approached the crossing and were flagged and directed around the stalled car, and several 'automobiles in trying to pass had gotten partially off of the paved portion and bogged down and had to be pushed out. This all occurred in the presence of the employees of appellant. It had actual notice of the close and careful driving that had to be exercised by those passing to get safely around the flat car, even before dark.

The jury acquitted appellant of negligence in leaving the flat car on the crossing for the night, but found it guilty of negligence in failing to have some one stationed at the flat car on the crossing at the time of the collision to warn persons traveling over said crossing of the presence of said flat car. The question of negligence on the part of appellant, proximately causing appellee’s injuries, was one of fact, and the pleadings and the evidence raised this issue, and so it must have been submitted to the jury.

Contributory negligence, as a matter of law, can exist only when the facts are such as that reasonable minds can reach but •one conclusion. When there is such state of facts that reasonable minds, in considering ■them, can reach different conclusions, then whether there is such contributory negligence is a question for the jury. We think the facts and circumstances are such that reasonable minds could draw different conclusions as to whether appellee, under all the facts and circumstances, acted as a person of ordinary prudence and caution would have under the^ same or similar circumstances. ’The issue was properly submitted to the jury.

Appellant’s tenth assignment of error asserts that the court erred in refusing its special charge wherein it was requested that the court charge the jury that, as a matter of law, it was the duty of appellee Harris, knowing that his vision of the street in front of his automobile was obscured by the overhead street light under which he passed, to slow down the speed of his car and control same so that he might avoid a collision with any object in the street over which he was driving, and which object could not be seen by him by reason of the glare of the street light during the time that his vision was blinded by the glare of such light.

This assignment is but another way of saying that appellee was guilty of contributory negligence as a matter of law in not slowing down the speed of his car, or stopping the car before going on toward the fiat car on the crossing. We have just held that, under the facts and circumstances, contributory negligence, as a matter of law, did not exist, and, if at all, it must be determined as a fact by the jury. Furthermore, it cannot be said as a matter of law that any one or more things that appellee did or failed to do were prima facie the failure to use such care and caution as a reasonably prudent person would have exercised under like circumstances. Gulf, C. & S. F. Railway Co. v. Shieder, 88 Tex. 163, 30 S. W. 902, 28 L. R. A. 538; Missouri Pac. Railway Co. v. Lee, 70 Tex. 501, 7 S. W. 857, 859. In the case last cited, the defendant railway company asked instructions to the effect that it was the duty of the deceased to make use of his senses of sight and hearing to discover an approaching train, ■ and that, if he was injured by reason of failing to look, when by looking before driving upon the track he could have seen the approaching train, recovery could not be had. In passing upon this question the Supreme Court said: “Our courts have refused to recognize as the duty of the trial judge to attempt to define duties, neglect of which would be negligence, in the absence of statutory definitions of duties, disregard of which is negligence as matter of law. '*■ * * What is due care under a given group of facts must be determined by the jury by applying the rule as to what, in their judgment, a man of ordinary prudence would have done under the attendant circumstances.”

Moreover, the requested charge was in the nature of a general charge relating to the consideration by the jury of the special issues to be found by the jury, and hence improper. Freeman v. Railway (Tex. Com. App.) 287 S. W. 902; Cameron, Compress Co. v. Jacobs (Tex. Civ. App.) 10 S.W.(2d) 1040, 1043 (writ refused). The assignment is overruled.

The eleventh assignment complains that the court erred in refusing to'give appellant’s special issue No. 20, which inquired as to whether or not appellee’s injuries were the result of an unavoidable accident. This contention is based upon the argument that it was not shown that appellant knew that the street light would produce a blinding effect upon persons traveling under said light in approaching the crossing, and that, if appel-lee was not negligent, as a matter of law, the evidence raised an issue of fact as to whether the accident was, under all the facts, and circumstances, an unavoidable accident, and should have been submitted to the jury.

We think that the facts and circumstances exclude such issue. An unavoidable accident occurs only when neither party is guilty of negligence — in other words, when negligence in no degree can be attached to the conduct of either party — the absolute absence, of any negligence. The jury found appellant negligent in not having some one stationed at the crossing to warn persons approaching the crossing of the presence of the flat car over the crossing. • The crossing was much used at all hours by persons traveling along the street. Appellant knew this. It was at night, dark, and the ear was dark in color, and covered the major portion of the crossing. During the time the employees of the railroad had been endeavoring to pull the flat car from over the crossing, many persons had approached the crossing and were flagged and directed around the stalled ear, and some of the automobiles in trying to pass had gotten partially off the paved portion and bogged down and had to be pushed out. This all occurred in the presence of the employees of appellant. It had actual notice of the close and careful driving that had to be exercised by those passing to get safely around the car even before dark. The flagging was done by some outsiders who were at the scene of the accident. This must have been known to appellant’s employees. When the drawhead of the car pulled out and further attempts to move the car were abandoned after dark, a small lantern with white light was placed by appellant on the drawhead of the car and an employee sent to get a red light to put on the end of the car. While this employee was gone after the red light, appellee came along and ran into the flat ear. We think that this unusual state of affairs, not to be anticipated by travelers, but known to appellant, called for some one to be stationed at the crossing to warn travelers of the danger of the stalled car. The nature of the crossing, as it usually existed, was not such as to require the constant stationing of a flagman at it to warn persons of danger, but the necessity for such flagman was created by the unusual happening of the stalled car upon and over the crossing, at such hour on a dark night, and the constant use of the street at all hours which must have been known, or at least should have been anticipated, by appellant. The jury’s finding of negligence was amply supported by the evidence. If the accident complained of could have been prevented by either party, by the use of means suggested by common prudence, it was not uhavoidable. Dallas Ry. & Terminal Co. v. Darden (Tex. Com. App.) 38 S.W.(2d) 777.

The twelfth and thirteenth assignments of error challenge the correctness of the court’s definition of “proximate cause.” The court defined proximate cause as follows: “You are instructed that the term ‘proximate cause’, as that term is used in the charge, means a moving and efficient cause, without which the injury in question would not have happened; an act or omission becomes as proximate cause of an injury whenever such injury is the natural and probable consequence of the act or omission in question and one that ought to have been foreseen by a person of ordinary care and prudence in the light of -attending circumstances. It need not be the sole cause, but it must be a con-" curring cause which contributed to the pro--duction of the result in question and but for which the said result would not have occurred.”

Appellant objected to this charge on the grounds:

“(a) Said-charge apparently refers to certain happenings, matters or things which might have reasonably been anticipated as a natural and probable consequence of some other condition, fact or happening, which is not stated nor referred to in said definition, and without the statement of which said charge is vague, indefinite, uncertain and unintelligible.”

“(b) Because the definition of ‘proximate cause’ contained in the charge * * ⅜ incorrectly defines ‘proximate cause’ in failing to state that in order for a cause of an injury, such cause must, in a natural and continuous sequence, unbroken by any new cause, produce an event, and must be such a cause as the event would not have occurred without the existence of the cause defined as a ‘proximate cause.’ ”

We overrule these assignments. The definition contained all the necessary elements of the term defined. This exact charge was given in West Texas Coaches, Inc., v. Madi (Tex. Civ. App.) 15 S.W.(2d) 170, and approved by the appellate court. See, also, Texas & P. Railway Co. v. Bufkin (Tex. Civ. App.) 46 S.W.(2d) 714 (writ dismissed); Texas-Louisiana Power Co. v. Bihl (Tex. Civ. App.) 43 S.W.(2d) 294.

The fourteenth and fifteenth assignments complain that the court’s definition of “contributory negligence” was insufficient and misleading. The charge reads: “Contributory negligence is such an act or omission 'on the part of the plaintiff, or one claiming to be injured, as amounting to a want of ordinary and proper care and prudence as concurring or cooperating with some negligent act or omission, if any, of defendant, is the proximate cause of the injury.”

The assignments are overruled. The definition was neither misleading nor insufficient. Koons v. Rook (Tex. Com. App.) 295 S. W. 592, 595; see volume 13, Encyclopedic Digest, Texas Reports, Michie (E), p. 177; Id. val. 21, (E) p. 759. As we understand appellant’s objection to the court’s definition of contributory negligence, it is that it contained the term “contributing cause,” and that this term itself had a well-defined meaning in law, and, when used in connection with the term “contributory negligence,” should also have been defined. It will be noticed that there is no such expression in the court’s charge.

Assignments 16 to 19, inclusive, assert that the court erred in submitting special issue No. 3 to the jury as to whether or not appellant was negligent in not placing some one at the derailed flat car on the crossing to warn persons approaching the crossing of the presence of the flat car, for the reason, appellant says, that there was no evidence raising such issue, and that the finding of the jury in answer to said issue is not supported by the evidence. These assignments are overruled. What we have said in discussing appellant’s eleventh assignment as to “unavoidable accident” disposes of the assignments here urged, but we will again refer to the situation. We again say that the nature of the crossing, as it usually existed, was not such as to require the constant stationing of a flagman at the crossing to warn persons approaching said crossing of possible danger, but that the unusual happening, and circumstances attending it, all known to appellant and not known to the public, proper care and foresight upon the part of appellant in discharge of its duty to the public called for the placing of a flagman at -the crossing until the obstruction was removed. The crossing in question was one much used at all hours by the public, the derailment occurred late in the evening, and appellant’s employees endeavored to remove the car from the crossing until dark,»and, because the drawhead of the car pulled out, had to abandon it for the night, leaving it obstructing the major portion of the crossing— the unobstructed portion being from 4 to 8 feet of the paved portion of the crossing, according to varying estimates of the witnesses. The night was dark, it had been raining, but was not at the time of the collision, about 7 o’clock p. m. December 16th. During the time efforts were being made to remove the flat car, persons approaching the crossing were flagged and directed around the protruding cars, and it required careful driving by those passing in order to get safely around the obstruction in the daytime, and at least one or more of the cars got partially off of the paved part of the crossing and bogged down and had to be pushed out. All these facts were known to appellant’s employees in charge of said freight car. When efforts ceased to remove the flat car, a small trainman’s lantern with white light was placed on the drawhead of the car, and another employee went to get a red light to put on the end of the car on the crossing. While he was gone after the red light, the accident occurred. This unusual state of affairs existing at this much-traveled crossing, not to be anticipated by travelers, but known to appellant; called for the placing of a flagman at the crossing to warn travelers of the danger of the stalled flat car. The evidence not only raised the issue, but amply supports the jury’s finding on same.

The thirtieth and thirty-first assignments urge that the jury’s answer to special issue No. 4, finding that the negligence of appellant in failing to place a flagman at the crossing to warn persons approaching said crossing of the presence of the flat car was the proximate cause of appellee’s injuries, has no support in the evidence, and is against the great weight and vast preponderance of the evidence. What we have said above in discussing the jury’s answer to special issue No. 3 and the assignment relative to contributory negligence on the part of appellee disposes of these assignments. They are overruled.

Assignments 20, 21, 22, 23, 32, 33, 34, and 35 assert that the jury’s answers to special issues Nos. 5, 7, 9, and 11 (relating to contributory negligence on the part of appellee, and which were all answered “No,” thereby acquitting appellee of any contributory negligence) were without support in the evidence. These assignments are overruled. We have already discussed and overruled appellant’s contention that appellee was guilty of contributory negligence as a matter of law. The issues bearing on contributory negligence were raised by the pleading and the evidence, were properly submitted, and the findings of the jury are amply supported by the evidence.

The thirty-ninth assignment urges that the court erred in overruling appellant’s motion for a judgment on the answers of the jury to the special issues submitted. The insistence is upon the grounds (a) that the jury found appellant was not negligent in leaving the flat car on that portion of the street obstructed by it; and (b) that the jury’s finding that appellant was guilty of negligence in not placing some one at the flat car to warn persons approaching the crossing of the presence, of the flat car on the crossing, and that such negligence was the proximate cause of appel-lee’s injuries, were findings on immaterial issues, and that such findings were not such as would support a judgment. The facts have been rather fully set out and discussed. The findings mentioned are not upon immaterial issues, but upon final and determining issues necessary to a judgment. The assignments are overruled.

The assignments asserting error in the court’s charge relative to the elements the jury might consider in arriving at the damage, if any, that should be awarded appel-lee, are overruled. We think the charge free from the criticisms of appellant, and that said charge was clear, concise, and a correct application of the law.

The. fortieth assignment of error challenges the amount of damages awarded by the jury as excessive, so much so as to indicate that the jury was controlled by bias, passion, prejudice, or some other improper motive. The verdict is for $10,000. The jury heard the testimony of the witnesses, describing appellee’s physical condition, his labor and earnings before and at the time of his injuries. They also saw the appellee when testifying, heard the evidence as to his suffering and loss of ability to work and earn wages or income after his injuries. He was twenty-three years old at the time of the trial, and there was much testimony as to his practically total, if not total, inability to work and earn money after the injuries, continuing up to the time of the trial, and in the future. They saw the witnesses and heard them testify, and they were the judges of the weight and credibility to be accorded to their testimony. We are not able to find evidence of bias or passion on their part. Under their oaths they said $10,000 would reasonably compensate this young man for his injuries, and we do not feel justified in saying the award should, for any reason, be disturbed.

The assignment saying the judgment should be overruled because the court refused a new trial is overruled.

No reversible error being shown, the judgment should be affirmed, and it is so ordered.

Affirmed.

COMBS, J., dissenting on rehearing, see 59 S.W.(2d) 217.


author: LOONEY, Justice.

text:
    DIAMOND STEEL HIGHWAY SIGN CO. et al. v. LATHAM.
    No. 11233.
    Court of Civil Appeals of Texas. Dallas.
    Feb. 18, 1933.
    Rehearing Denied March 11, 1933.
    Wm. M. Cramer, of Dallas, for plaintiffs in error.
    E. G. Senter, of Dallas, for defendant in error.
   LOONEY, Justice.

Since the record in this cause was filed, a number of motions have accumulated which will be disposed of at this time.

Plaintiffs in error ask that the case be reversed and remanded because, without fault or negligence, they have been deprived of a full and complete statement of facts. This contention is supported by bill of exception showing that, the statement of facts on file does not contain “certain exhibits (introduced in evidence), seventeen in number, which exhibits are necessary to make intelligible a good part of the evidence contained in said statement of facts.” The bill contains no recital indicating that either of the omitted exhibits bears upon or is related to any ground relied upon for reversal; the statement in the bill that “the exhibits are necessary to make intelligible a good part of the evidence” is simply an unsupported'conclusion.

The motion by plaintiffs in error to reverse and remand was met by a motion by defendant in error, praying, among other things, for mandatory process requiring the trial judge to complete the statement of facts, as provided by statute, etc. Action on these motions was deferred pending efforts on the part of counsel, to find and agree upon tlie missing exhibits as a supplement to the statement of facts, but no such agreement was reached; however, it appears that sixteen of the seventeen omitted exhibits were found, presented to the trial court and court stenographer, and were approved, as shown by the trial court’s certificate, as follows: “The exhibits above certified to are* hereby approved and ordered filed as a part of the statement of facts in said cause. This 19th day of September, 1932. Signed: Claude MeCallum, Judge, etc.” This supplemental statement has been filed in this court by defendant in error with request that it be considered as a part of the statement of facts in the cause. The missing exhibit is neither described, nor is its contents givi en; hence its materiality is not shown.

It is only where there is a showing that, without fault or negligence, a litigant has been deprived of a statement of facts material to his appeal, that he is entitled to a reversal of the judgment. 3 Tex. Jurisprudence, § 448, pp. 638, 639. Such showing has not been made by plaintiffs in error.

The trial court alone was authorized to correct or amend the statement of facts, and the supplement, authenticated by the trial judge and filed in this cause, obviates the necessity of issuing process to require the trial judge to perform acts, already performed, or to require the clerk to certify to this court the supplemental statement, already on file. In view of this situation, we overrule the motion by plaintiffs in error, to reverse and remand, also the motion by defendant in error to dismiss, to strike out the Statement of facts, and for the issuance of mandatory process for the completion of the statement of facts.

The record discloses that defendant in error, assuming erroneously that the trial court had jurisdiction, filed a motion setting up the insufficiency of the supersedeas bond, because of the insolvency of sureties, and, on hearing, the court sustained the motion and struck out the bond; thereupon, defendant in error caused the issuance of an execution on the judgment in his favor against plaintiffs in error for the recovery of money, and placed same in the hands of R. A. Schmid, sheriff of Dallas county, under which a levy upon property belonging to defendant the Diamond Steel Highway Sign Company was' made, and thereafter plaintiffs in error filed, in this court, an original proceeding for injunction to restrain defendant in error and the officers of court from enforcing or seeking to enforce the alleged superseded judgment. This application was not acted upon, because at this juncture defendant in error filed a proper proceeding in this court challenging the sufficiency of the supersedeas bonds (an original" and an amendment), and further, because of a statement by counsel for defendant in error, made in open court, that no action would be taken to enforce the judgment or execute process thereon until the question as to the sufficiency of the supersedeas bonds is finally determined.

The evidence before us shows conclusively that the bonds are wholly insufficient, in that, the sureties thereon are insolvent; it follows, therefore, that, unless plaintiffs in error shall, within twenty days after notice thereof, give an additional supersedeas bond, in like manner as the original, to be approved by the clerk of this court, an order will issue from this to "the trial court, directing or permitting the issuance of execution on the judgment and the enforcement thereof; however, the giving of a new supersedeas bond shall not release the liability of the sureties on the original bond or bonds heretofore executed and filed. Plaintiffs in error’s petition for injunction is denied.


author: BAUGH, Justice..

text:
    TEXAS & N. O. R. CO. v. ROBINSON.
    No. 7784.
    Court of Civil Appeals of Texas. Austin.
    Feb. 1, 1933.
    Rehearing Denied March 8, 1933.

      Baker, Botts, Andrews & Wharton, of Houston, and Smith, Brownlee & Goldsmith, of Austin, for appellant.
    O. W. Sandstrom, of Austin, for appellee.
   BAUGH, Justice..

Suit was for damages to a shipment of five ears of stock cattle over the Texas & New Orleans Railroad from Marble Falls to Austin, Tex., thence over the Missouri Pacific to Kyle, Tex. Only the initial carrier was sued. From a judgment in favor of Robinson, based upon jury answers to special issues, the railroad- company has appealed.

Appellee, no caretaker having accompanied the shipment, sought recovery in his first count under common-law liability of the carrier as an insurer, alleging that the cattle were delivered to it at Marble Falls in good condition, and delivered to the consignee aft Kyle with several head dead and others injured; and in the alternative, on specific grounds of negligence alleged. The case was tried and submitted to the jury on the specific grounds of negligence asserted. The railroad company defended, in addition to denials of the acts of negligence alleged, on the.grounds that the losses and injuries were due to the impoverished and weakened condition of the cattle, and to overloading same in the cars by appellee himself.

The jury found the appellant guilty of negligence in the following particulars: (1) Because of the length of time consumed in transporting said cattle from Marble Falls to Austin; (2) because of the length of time the cattle remained on the cars at Austin after arrival with knowledge by appellant of their distressed condition; (3) in the manner of switching the cattle at Austin before delivery of same to the Missouri Pacific Railway for carriage to Kyle; (4) that such negligent acts were proximate causes of the damages alleged.

The jury also found on the defenses pleaded that the plaintiff, Robinson, overloaded one of the cars shipped;- and that such overloading was a direct and proximate cause of the damages to the cattle in-that car.

Special issue No. 16 was: “What sum of money, if any, paid in hand to plaintiff at this time would justify and fairly compensate him for the damages, if any, sustained to- said cattle?”

To which the jury answered, $463.43.

Nowhere in said charge was the jury instructed not to include in their findings the cattle killed and injured in the cars, which they might find that Robinson had overloaded. Appellant also objected to question 16 as submitted for the reason that it did not eliminate from the jury’s consideration the damages due to appellee’s action in overloading such cars.

Appellant’s first contention is that by reason of these facts no judgment can be ren-' dered upon the findings of the jury in answer to question 16, and that a new trial should have been granted. This contention must be sustained.

It appears that most, if not all, of the damages complained of occurred to the cattle in two cars, both of which were claimed by the railway company to have been overloaded by appellee. Oar No. 62278 was found by the jury to have been so overloaded. In that car four yearlings were killed, one rendered worthless, and four others badly injured. The bill of lading bore the notation over ap-pellee’s signature, “overloaded at owner’s risk.” It is not controverted that appellee himself loaded the cattle on the ears at Marble Falls, and not the agents of appellant; and that the appellant’s agents protested such overloading at the time. The damages claimed by appellee from this one car, according to appellee’s testimony, amounted to approximately $250. His total claim was for $897.20. The jury allowed him a total damage of $463.43. In other words, of this total damage it is apparent that under the jury findings part was due to the negligence of appellant, and part to that of appellee. And it is likewise manifest that there is no way to determine what portion of the aggregate damage found was attributable to the negligence of the railway company and what part to that of appellee. Consequently the judgment cannot be sustained.

It is well settled that a shipper cannot recover for damages to his cattle resulting from his own acts in overloading the cars. Texas & P. R. Co. v. Edins, 36 Tex. Civ. App. 639, 83 S. W. 253; Massey v. Texas & P. R. Co. (Tex. Civ. App.) 200 S. W. 409; St. Louis S. W. R. Co. v. Anderson & Hileman (Tex. Civ. App.) 17 S.W.(2d) 473; 8 Tex. Jur. 502. The jury obviously found the total damage to the entire shipment, for all which appellant was not liable. Nor is there any finding, conceding that appellant was negligent, from which it may be determined the amount of such resulting damages for which the railway company was liable. This requires a reversal of the' case. Moore v. Moore, 67 Tex. 297, 3 S. W. 284; Gulf, C. & S. F. Ry. Co. v. Hathaway, 75 Tex. 557, 12 S. W. 999; Waco Cement Stone Works v. Smith (Tex. Civ. App.) 162 S. W. 1158.

Appellant also complains of the court’s definition of proximate cause. The trial court defined it as “a direct and immediate cause, without which the injuries and damages to the cattle complained of would not have happened.” Appellant objected to same because it did not include the added condition that such cause must be “unbroken by any efficient intervening cause,” citing Robertson & Mueller v. Holden (Tex. Com. App.) 1 S.W.(2d) 570, and Hulen v. Ives (Tex. Civ. App.) 281 S. W. 350. Such a definition is approved in the cases cited. While the definition given by the court would ordinarily be sufficient, if there be evidence of an independent or intervening agency between the negligence charged and the injuries sustained, which the jury might have found caused such injuries, the court should further qualify or extend such definition so as to cover it. In the instant case there was probably sufficient evidence to raise the issue of an intervening efficient cause, and the charge suggested can properly be given upon another trial.

We must also sustain appellant’s assignment relative to special issue No. 5, duly objected to before same was submitted to the jury. This issue read: “Was the defendant company guilty of negligence because of the length of time consumed by said train in coming from Marble Falls to Austin?”

Under the issues made both by the pleadings and the evidence, the time consumed in arriving at Austin was not in itself evidence of negligence on the part of appellant. The testimony showed that the cattle were loaded at Marble Falls at about 10:30 a. m., and arrived at Austin at about 7:25 p. m.; that appellee was informed by appellant’s agents that five or six hours were usually sufficient to make such run. It also appears that the train in question was a local freight, did its own switching at stations en route, and had no fixed schedule. Under such circumstances negligence could not be predicated upon lapse of time alone. The test was whether an unnecessary or unreasonable length of time, in the light of the circumstances, was consumed in making the trip. The jury found against appellee on his charge of rough handling of the cattle en route. There was a sharp issue drawn as to overloading by appellee of at least two cars, and the jury found that one of them was overloaded. The uncontradict-ed evidence of the conductor in charge was that six head of cattle were down in one car at Burnet, sixteen miles from Marble Falls, and about an hour and a half after they were loaded; that because the cattle were so crowded in that car it was necessary to unload part of them at Burnet before he could get the ‘distressed cattle on their feet. Others in the overloaded car No. 62278 were down at , Liberty Hill, and unsuccessful efforts made there to get them up. Obviously such delays, if due to appellee’s fault, or to the condition of tlie cattle, though they increased the time used in transit and delayed their arrival at Austin, were not delays for which appellant was responsible. The criterion of liability was not the length of time consumed en route, but whether under the circumstances such time so consumed was unreasonable, unnecessary, or due to want of ordinary care. We are inclined to the view that the question as framed carried with it the implication that the unusual length of time used in making the run to Austin might be considered by the jury as negligence; whereas the jury should have been confined to a finding of whether, under the facts shown, there was unreasonable and unnecessary delay en route; and, if so, whether such delay was due to appellant’s negligence.

The same contention is made by appellant as to issue 7 relating to the time consumed in unloading the cattle at Austin. There is no evidence, however, that appellee was in any manner responsible for such delay in, that. While the method of submission of such issue above suggested would perhaps be preferable, we deem extended discussion of this contention unnecessary.

Appellant also complains of the trial court’s charge on the measure of damages. Wé do not deem it necessary to set out nor discuss the matter here. Cattle shipment cases in which the measure of damages has been discussed are legion. And suffice it to say that the court’s charge in this respect accords with the holdings in numerous cases, unnecessary here to cite, and presents no material error.

For the reasons above set out the judgment of the trial court must be reversed, and the cause remanded for another trial.


author: STANFORD, Justice.

text:
    COMMUNITY THEATERS, Inc., v. WEILBACHER.
    No. 1322.
    Court of Civil Appeals of Texas. Waco.
    Feb. 2, 1933.
    Rehearing Denied March 16, 1933.
    Terrell, Davis, Hall & Clemens, of San Antonio, for appellant.
    Kilday & Howard, of San Antonio, for ap-pellee.
   STANFORD, Justice.

In this case is involved a lease contract, by the terms of which appellee leased to appellant certain property situated in San Antonio, Tex., for the consideration of $300 per month, to be paid in advance. The record shows that appellant became delinquent in the payment of rents for the months of January, February, and March, 1931, and that appellee, in order to collect said rents, filed suit against appellant; the number of said cause being 22153. Appellee recovered therein and said case was not appealed, and the judgment for said rents became a final judgment. Later, appellant again failed to pay rents for the next three months, same being for April, May, and June, 1931, and appellee again sued appellant for the rents for said months, the number of this last case being 22613, which last-named case is now on appeal, and is the one now before us for consideration.

Appellant contends that the verdict and judgment in cause No. 22153, the same being for rents for January, February, and March, 1931, constituted res adjudicata of the issues submitted in this case, No. 22613, notwithstanding the fact that the present case was a suit for rents accruing under said lease for the months of April, May, and June, 1931. The second point raised by appellant is that the argument of appellee’s counsel constitutes reversible error. These two question are raised in various ways under several assignments of error, and are the only material points involved in. this appeal.

It is well settled in this state that when a specified sum of money is payable in installments, as the rent was in this case, each installment as it becomes due constitutes a distinct cause of action, for which suit may be maintained when payment is refused. The contract was clearly divisible and authorized a suit for each monthly installment of rent as it became due and was unpaid, and the former judgment mentioned was no bar to the present suit. Meacham v. O’Keefe (Tex. Civ. App.) 198 S. W. 1000; Racke v. Anheuser-Busch Brewing Ass’n, 17 Tex. Civ. App. 167, 42 S. W. 774; Williams v. Houston Cornice Works (Tex. Civ. App.) 101 S. W. 839; Great Southern Life Ins. Co. v. Johnson (Tex. Civ. App.) 13 S.W.(2d) 424; 34 C. J. 1154. It will be noted that in cause No. 22153, which was for the collection of rents for January, February, and March, 1931, the defendant pleaded in bar of plaintiff’s cause of action for rents the same months for which rent was sought to be recovered in that case, and all issues in that case, No. 22153, confined the jury to those three months. Therefore, the condition of the premises during the months for which rent was sought to be recovered in this case, No. 22613, was not, and could not have been, involved in said cause No. 22153. This being true, the findings of the jury in response to said issues in No. 22613 could not have been res adjudicata of the issues in said cause.

Appellant contends further that proper repairs were not made during the months of January, February, and March, and that water leaked into said building, etc. The record, however, shows that this condition was entirely remedied during the latter part of March, 1931, which was during the rental period of January, February, and March, and that since said time, including the months for which rent was recovered in this present ease, no water has been in the theater. This being true, said condition existing in the month of March was not involved in this case, but only the months of April, May, and June w.ere so involved. The only other contention is with reference to the doors, and the testimony of the plaintiff shows that same were fixed, and'the jury so found.

In cause No. 22163, which was to collect rents for January, February, and March, there was involved the issue of proper repairs, as well as rents for said months, and the jury allowed only $300 rent, the remaining $600 being applied to repairs to said building during said rental period of January, February, and March, placing said building in good condition and so not requiring additional repairs during the next rental period of April, May, and June.

As we view the questions of law involved in this case, the defenses set up by the appellant were wholly immaterial, as the covenant to pay rent on the part of appellant and, the covenant to repair on the. part of appellee were independent covenants, and the defendant could not defeat the plaintiff’s suit for rent by merely showing that plaintiff had not kept the premises in good condition. In Mitchell v. Weiss (Tex. Civ. App.) 26 S.W.(2d) 699, 700, the court says: “The covenant of the landlord to repair and the tenant’s covenant to pay rent are regarded as independent covenants unless the contract between the parties "evidences the contrary. Accordingly, the breach by the landlord of his covenant [if there was any] does not justify the refusal of the tenant to perform his covenant to pay rent.” This being true, there was but one judgment the court could have entered, under the pleadings and evidence in this case, and that is the judgment which was entered by the trial court. The general manager of the defendant, Mr. John T. Wilson, Jr., testified that the defendant is still in possession of the premises.

The next question raised by appellant is the alleged improper argument of counsel, complained of in defendant’s only bill of exception. This alleged improper argument was not objected to at the time it was made, nor until the motion for rehearing was presented. It it further true that counsel for appellant does not copy the whole of the argument alleged to be improper, but only excerpts from same. It is well settled that where the trial court has overruled an objection to alleged improper argument of counsel the appellate court will not interfere unless it appears the trial court abused its discretion in overruling same. Emberlin v. Railway Co. (Tex. Com. App.) 284 S. W. 639. “When in motion for new trial, complaint is made of argument in violation of this rule, the motion should not be granted on such complaint, unless the argument, under all the facts and circumstances in the case, was calculated to prejudice the rights of the complaining party.”

In the present case the court submitted to the jury special'issue No. 9, wherein, the court submitted for the determination of the jury whether the defendant had waived certain minor defects, particularly in the balcony, booth, and ceiling of the building. The undisputed evidence discloses that the defendant had operated the theater for which rent was recovered herein for some four years, with the balcony, booth, and ceiling in the same condition as constructed and as they now are, and that defendant never complained thereof. The evidence further showed that the defendant did not seek to avoid the lease until business began to fall off. The appellant did not see fit to object to 'counsel’s argument when made on November 25, 1931, when the argument was alleged to have been -made, nor call it to the court’s attention so that the matter could be passed upon while fresh in the minds of the trial judge and parties to the suit, but waited until the filing of the amended motion for new trial, which was filed December 21, 1931, at which time complaint was made of the argument for the first time, and this complaint made to isolated statements without showing the language or context of which said argument was a part. The appellant does not contend, nor does the bill reflect, that the statements set out in the bill, when construed with the other language used by counsel, were not a legitimate discussion of the evidence upon the issue of waiver which had been submitted to the jury by the court. The argument of which complaint is made was not abusive, it was not inflammatory, it was not outside the record, and, as we view this argument in connection with the entire case, it is thought said argument constitutes no proper ground for a reversal. Travelers’ Ins. Co. v. Peters (Tex. Civ. App). 3 S.W. (2d) 568, 573; St. Louis & S. F. Railway Co. v. Green (Tex. Com. App.) 37 S.W. (2d) 123; Gulf Refining Co. v. Youngblood (Tex. Civ. App.) 23 S.W. (2d) 622.

There were many other assignments, but it is apparent that all of them are wholly immaterial to any issue in this case.

Having examined all the assignments, and finding no reversible error, said case is affirmed.


author: LESLIE, Justice.

text:
    WOODSON MILL & ELEVATOR CO. et al. v. GRAHAM MILL & ELEVATOR CO.
    No. 1045.
    Court of Civil Appeals of Texas. Eastland.
    Feb. 3, 1933.
    Rehearing Denied March 10, 1933.
    Goggans & Allison, of Dallas, P. B. Carroll, of Spearman, and D.-T. Bowles, of Breckenridge, for appellants.
    E. S. Cummings, of Abilene, for appellee.
   LESLIE, Justice.

This is a suit on a verified account. . It was instituted by Graham Mill & Elevator Company, a corporation, against the Wood-son Mill & Elevator Company, alleged to be “a commercial partnership,” etc., composed of Chas. Abrams, A. B. Allison, Edward Horton, J. T. Pevey, Hugh Dickey, and Alex Dickey, Jr. The prayer was for judgment against the Woodson Mill & Elevator Company (if it be found to be a joint-stock company), and against the individual members jointly and severally, with execution to run first against the assets of the company and then against the individuals for the unpaid balance, if any.

The plaintiff alleged the indebtedness was for “flour, feed, maize, meal,” etc., sold by it to the Woodson Mill & Elevator Company at the instance and request of the latter’s agent and manager, Pete LeFeuvre. The defendant made general and special denials and specially pleaded that “no one purporting to act on behalf of defendants or the Woodson Mill & Elevator Company had the authority to make the purchases, herein sued for on credit, and further, that Woodson Mill & Elevator Company was a joint stock company, organized for the purpose of manufacturing and selling the products of wheat, corn and other grains, and not for the purpose of purchasing the same from other mills and re-selling them.”

Trial was before the court and jury, and, in answer to special issues, the jury found, from a preponderance of the evidence, (1) that Pete LeFeuvre was authorized to purchase the goods; (2) that the Woodson Mill & Elevator Company received the goods and merchandise; and (3) that said company retained the proceeds obtained Iby the resale of the goods and merchandise. On this verdict judgment was rendered for the plaintiff against Woodson Mill & Elevator Company, found to be a joint-stock company, and against the defendants individually, found to be stockholders at the time of the transaction.

The first contention presented by the appeal is that the court erred in overruling the defendant’s special exception to the plaintiff’s petition on) the ground that it contained no allegation that the plaintiff was “duly incorporated” as required by law. Article 1999, R. S. 1925. Supporting this contention we are cited to the opinions in Way et al. v. Bank of Sumner (Tex. Civ. App.) 30 S. W. 497, and Womack Construction Co. v. Rhodes (Tex. Civ. App.) 283 S. W. 1108. We are familiar with these authorities, having had occasion to consider them in the ease of Texas & P. R. Co. v. Bufkin (Tex. Civ. App.) 46 S.W.(2d) 712.

If it be necessary for the plaintiff’s pleadings to contain the allegation “duly” in connection with its allegation of the fact of incorporation (concerning which we have doubts), nevertheless we find that the pleading under attack contained averments fully equivalent to the word “duly.” The ideal embodied in the word “duly” is specifically and fully comprehended in plaintiff’s pleading to the effect that “plaintiff * * * represents to the court that it is incorporated under and hy virtue of the laws of the State of Texas.” This is sufficient, even under Way v. Bank of Sumner. “Duly” in legal parlance means “according to law.” Among the definitions of the word to he found in Words and Phrases, First Series, vol. 3, page 2269, is the following: “The word ‘duly,’ as used in an averment that plaintiff is duly incorporated, imports but ai conclusion. It can relate alone to the formalities observed or nonobserved, as the case may be, in the creation of the corporation. The essential fact that plaintiff is incorporated is sufficiently alleged without the use of the word ‘duly.’ Bury v. Mitchell (Tex. Civ. App.) 74 S. W. 341.”

In Naylor v. First National Bank (opinion unpublished, but referred to in Bury v. J. E. Mitchell Co. (Tex. Civ. App.) 74 S. W. 341), an allegation by the plaintiff that “it is a corporation incorporated under the national banking laws of the United States,” etc., was held equivalent to an allegation that it was duly incorporated, and sufficient as against special exception. In Gill v. First Nat. Bank (Tex. Civ. App.) 47 S. W. 751, an allegation, in substance the same as in the Naylor Case, was also held in substantial compliance with the statute.

For the foregoing reasons, and upon these authorities, the first proposition is overruled.

It conclusively appears that the Woodson Mill & Elevator Company was a joint-stock company. Its purpose was “to maintain and operate a mill for the manufacture and sale or exchange of flour and meal and products of wheat, corn and other grains.” There is no dispute about LeFeuvre being the miller and manager of the company at the time of the transactions involved in this suit.

By the second proposition it is the contention of the defendant that the company at no time, by action of its board of directors, authorized said manager to go beyond the specific purpose of the organization and- buy “goods manufactured by other companies on a credit for the purpose of re-sale.” On this pha.se of the ease the evidence seems to conflict, and the jury found in favor of LeFeuv-re’s authority to purchase the goods “in the manner in which they were purchased.” This; furnishes sufficient basis for the judgment. .

However, if it could be plausibly maintained that LeFeuvre had no authority to purchase -the goods, the principle is well established. ..that, if one without authority assumes to 'act as an agent or if an agent exceeds his proper authority, the principal knowingly receiving and retaining the benefits of the transaction will be held liable. It conclusively appears from this record, as well as the findings of the jury, that the defendants so received and still retain the benefits of the purchase and the resale of the goods, effected by the manager, LeFeuvre. This fixes, their liability and it is of no importance whether the president of the company or the directors of the same gave the manager the right to purchase said goods on credit or not. Hayward Lumber Co. v. Cox (Tex. Civ. App.) 104 S. W. 403; Murchison v. Davis (Tex. Civ. App.) 4 S.W.(2d) 1016; Zimpelman v. Keating, 72 Tex. 318, 12 S. W. 177; American National Bank v. Cruger, 91 Tex. 446, 44 S. W. 278; Campbell v. Jenkins (Tex. Civ. App.) 34 S. W. 673; J. I. Case Threshing Machine Co. v. Beavers (Tex. Civ. App.) 261 S. W. 440-446; Henderson v. Ry. Co., 17 Tex. 560, 67 Am. Dec. 675; Home Insurance Co. v. Ft. Worth Grain & Elevator Co. (Tex. Civ. App.) 262 S. W. 870; Id. (Tex. Com. App.) 269 S. W. 432; Trammell v. San Antonio Life Ins. Co. (Tex. Civ. App.) 209 S. W. 786; Texas & G. R. Co. v. Whiteside, 55 Tex. Civ. App. 593, 119 S. W. 126; Merchants’ Ice Co. v. Scott & Dodson (Tex. Civ. App.) 186 S. W. 418; Lakeside Bridge & Steel Co. v. Duvall, 179 Ark. 963, 19 S.W.(2d) 1107; 21 R. C. L. p. 932, § 111, p. 919, § 99; Williston on Contracts, p. 531, § 278.

The foregoing authorities conclusively establish that a principal who accepts the benefits of an unauthorized act of a reputed agent cannot thereafter deny the agency. In D. Sullivan & Co. v. Ramsey (Tex. Civ. App.) 155 g. W. 580, 588, it is said to be “a principle of the highest form of justice that a principal will not be permitted to keep and enjoy the benefits arising from a repudiated agency without assuming the burdens imposed by the agency.” The circumstances of the case charge the defendants with the knowledge of LeFeúvre’s transactions with the defendant, and under all the circumstances it is immaterial whether he had specific authority to make the purchases or not. The defendant’s liability on the theory of ratification is clear. The second proposition is overruled.

By the third proposition the defendants complain that the court erred in overruling their special exception, as follows: “Defendants specially except to the plaintiff's first amended original petition for the reason that it contains matters which do not properly form, a part of an amended petition.” This exception points out no specific vice in the pleadings, and neither does the brief. It is without merit. However, an inspection of the pleadings fails to disclose that there is any such departure from correct pleading as would authorize the reversal of the judgment. If it could be regarded as a technical error, it should be regarded as harmless. Golden v. Odiorne, 112 Tex. 544, 249 S. W. 822.

The judgment of the trial court is correct; Eor the reasons assigned it will be affirmed.


text:
    WOODSON MILL & ELEVATOR COMPANY et al. v. BURRUS MILL & ELEVATOR COMPANY.
    No. 1046.
    Court of Civil Appeals of Texas. Eastland.
    Feb. 3, 1933.
    Rehearing Denied March 10, 1933.
    Goggans & Allison, of Dallas, P. B. Carroll, of Spearman, and D. T. Bowles, of Breckenridge, for appellants.
    E. S. Cummings, of Abilene, for appellee.
   LESLIE, Justice.

This is a companion case to that of Wood-son Mill & Elevator Company et al. v. Graham Mill & Elevator Company (No. 1045) 57 S.W.(2d) 943, this day decided by this court 'by written opinion therein. In substance the two suits are alike, the Graham Mill & Elevator Company being plaintiff below in 1045, and the Burrus Mill & Elevator Company plaintiff below in 1046. Both suits are against the Woodson Mill & Elevator Company for the purchase price of goods, wares, and merchandise sold to the Woodson Mill & Elevator Company under similar circumstances. The same propositions of law appear in the brief for the appellant in each of the two cases, and except as noted the records are substantially the same.

We make the same disposition of each proposition of law in this case as in 1045. The conclusion is that the judgment of the trial court in the instant case is correct and ought to be affirmed in accordance with our opinion in cause No. 1045. It is so ordered.