author: JONES, C. J.

text:
    SCOTTINO v. LEDBETTER.
    No. 11090.
    Court of Civil Appeals of Texas. Dallas.
    Jan. 7, 1933.
    Leake, Henry & Young, of Dallas, for appellant.
    W. L. Thornton and John W. West,’ both of Dallas, for appellee.
   JONES, C. J.

In a district court of Dallas county, appel-lee, Forrest Ledbetter, a minor, recovered judgment against Joe Scottino, appellant, in the sum of $3,750, damages for personal injuries received by appellee while in appellant’s employ. The appeal has been duly perfected to this court, and the following are the essential facts:

Appellant owned and operated the “Top Notch Bakery,” in the, city of Dallas, and appellee, a minor, was working in the bakery as an employee of appellant. Appellee, on the occasion in question, was nineteen years of age and prosecutes this suit through Mrs. Carl E. Lewis, as next friend. Appellant operated the bakery on the first floor of a two-story building situated on Bole street in the city of Dallas, and lived,with his family in the second story of such building. According •to appellant’s testimony, he employed only two persons in his business, to wit, appel-lee, who worked in the bakery, and one other person. According to appellee’s testimony, there were four persons employed in connection with appellant’s business. Under a proper submission by the court, the jury made a finding, on this conflicting testimony, that appellant had as many as three employees working in his business at the time appel-lee was injured. This finding of the jury, being on conflicting testimony, we adopt and find as a fact that appellant had as many as three employees working in his business at such time.

On November 20, 1927, appellee was engaged in the performance of a duty of his employment and was operating the dough brake machine, rolling flour dough to be used in making dumplings, and while engaged in this business one of his hands was caught in the roller of such machine and was so badly mangled that amputation below the elbow joint became necessary. Appellant did not carry compensation insurance under the Workmen’s Compensation Law (Rev. St. 1925, art. 8306 et seq., as amended), and hence the suit filed by appellee was a common-law action for damages.

Appellee alleged that he suffered the injuries on the occasion in question through the negligence of appellant on two specified acts of negligence, viz.: (a) T-hat appellant was guilty of negligence in operating the dough brake machine without a guard rail around the machine roller; and (b) that while ap-pellee was engaged in the work of rolling the dough, appellant negligently shoved him aside, through which act appellee was caused to lose his balance and his hand thereby was thrown into the roller of the dough brake machine and his injury resulted. Each of, said grounds of negligence was alleged to have been a proximate cause of appellee’s injury.

Appellant, in his answer, denied the existence of each of the alleged grounds of negligence, and pleaded the defenses of contributory negligence and assumed risk.

The evidence offered by appellee tended to prove both grounds ofalleged negligence, and also that appellant had as many as three employees, and thereby was legally entitled to carry compensation under the Workmen’s Compensation Law.

Appellant’s evidence tended to disprove both of the alleged acts of negligence, and also to establish the fact that he did not have as many as three employees at the time of ap-pellee’s injuries, and hence could not secure compensation insurance, and therefore was not denied the common-law defenses of contributory negligence and assumed risk pleaded by him in his answer. Other, than the facts that the dough brake machine was not equipped with a guard rail and that appel-lee was injured to the extent of losing his right hand, all of the essential facts to warrant a recovery rested on disputed evidence. These essential facts were submitted in the form of special issues to the jury and a verdict rendered thereon:

The findings of the jury on these special issues are as follows: (1) Appellant was not guilty of negligence in the failure to equip the dough brake machine with a guard rail; (3) appellant pushed appellee into such proximity to the roller of the dough brake machine as that his right hand passed between said rollers; (4) such act of appellant was negligence; (5) such negligence was a proximate cause of appellee’s injury; (6) on the day appellee was injured appellant had in his employ in his bakery business as many as three employees who worked in such business; (10) the sum of $3,750 is assessed as compensation for appellee for his injuries. Special issues Nos. 7, 8, and 9 submitted the defensive issues of contributory negligence and assumed risk, respectively, but were not answered because of the instruction of the court that they be answered only in the event of a negative answer to special issue No. 6. The various grounds on which appellant urges a reversal of this case will appear in. the discussion herein. On each of these grounds appellant properly assigned error and in a proper manner presents each to this court.

Section 2 of article 8306, R. S. 1925, provides that the provisions of the Workmen’s Compensation Law “shall not apply to actions to recover damages for personal injuries nor for death resulting from personal injuries sustained by domestic servants, farm laborers; ranch laborers, nor to employees of any firm, person or corporation having in his or their employ less than three employees. * * * ” Section 1 of article 8306 abolishes the defenses of contributory negligence, the negligence of a fellow employee, and assumed risk. It therefore appears that, if appellant had as many as three employees working in his business, he is deprived in this suit of the common-law defenses specifically named in said section 1 of article 8306, and that no other penalty is inflicted by law upon an employer of labor for a failure to carry compensation insurance. It necessarily follows that, if none of these common-law defenses, under the evidence, have application to the ground of negligence made the basis for the judgment in favor of appellee, the law depriving appellant of such defenses inflicts no.penalty on him whatever, and the fact that error may have been committed in submitting the issue as to the number of appellant’s employees becomes immaterial for the reason that the same rule of law would apply whether he had two or more than two employees. Appellee placed one ground of recovery upon the alleged negligence of appellant in his failure to have provided a guard rail on the dough brake machine, but the jury, by the finding that appellant’s failure in this respect was not negligence, eliminated this issue from the case against appellant. On this ground of recovery alleged by appellee, there would have been the common-law defense of contributory negligence and also of assumed risk, if appellant had less than three employees. If he had as many as three employees, the statute above quoted would have deprived him of this defense. While we cannot agree with appellant that the evidence does not raise the issue that appellant had the requisite number of employees to bring him within the provisions of the Workmen’s Compensation Act, yet, if appellant be correct and the undisputed evidence shows, as appellant contends, that he had only two employees, that the court erred in submitting such issue to the jury, and that the finding of the jury is without support in evidence, still as to this ground of recovery appellant can show no injury whatever because of the finding of .the jury in his favor.

The other ground of recovery is based on the alleged negligence of appellant in purposely shoving appellee, and that thereby he was caused to place his hand into the dough brake machine from which his injury resulted. The evidence on this ground of recovery does not raise the issue either of contributory negligence, assumed risk, or the negligence of a fellow employee. In other words, the submission of this ground of recovery to the jury as an issue would be the same whether appellant had three or less than three employees in his business. We therefore conclude that the assignments of error in respect to this issue do not show reversible error.

While appellee was on the witness stand and being interrogated by his lawyer, he was asked, “Did you ever learn from Scottino himself whether he had compensation insurance out there that would protect his employes if they were injured?” To which the witness responded: “All I have to say is, when I lost my hand, he said ‘Don’t worry, I have everything covered; I have insurance; you will be taken care of.’ That was the time I lost my hand.”

Before the question propounded was answered, appellant objected on the ground that any reference to insurance or indemnity was immaterial and irrelevant, and after the witness had made the above answer, appellant moved to strike same out, on the ground that: “The answer creates the impression that the defendant had indemnity insurance, and was protected by indemnity, and that some insurance company was standing behind the defendant’s responsibility, when absolutely there was nobody standing behind him at all.” The court overruled the objection made by appellant prior to the answer, and overruled the motion to strike out the answer, but instructed the jury, in effect, that they would draw no inference, from the answer, that appellant carried indemnity insurance, and to consider the answer only on the issue as to the number of employees appellant had in his business. It was stated by counsel for appel-lee that the court could instruct the jury that appellant did not carry indemnity insurance, and frequently stated by appellant’s attorney in the presence of the jury that it would be shown that appellant had no character of insurance. Appellant also filed a motion requesting the court to withdraw the case from the jury and to declare a mistrial, because of ■this evidence. This motion was overruled.

We are inclined to the opinion that no reversible error is here presented. Appellee was an employee of appellant, who was operating a business not exempted from the provisions of the Workmen’s 'Compensation Law, unless there were less than three employees working for him in such business. Appellee’s contentions are that appellant had as many as three employees in his business, and di'd not carry compensation insurance. The only cause of action open to appellee, if appellant did not carry compensation insurance, was the common-law action instituted by appellee, and it was necessary for him to show that appellant did not carry compensation insurance in order to maintain such common-law action. The question, therefore, was upon a material issue and not objectionable, because its only effect was to develop the fact that appellant did not carry compensation insurance. It was clearly brought to the attention of the jury, both by the claim of appellant and the claim of appellee, that appellant did not carry indemnity insurance. This being made clear to the jury, although the answer of the witness was not directly responsive and carried with it the suggestion that there might be indemnity insurance, still, in view of the facts above stated, we do not see any prejudicial error tp appellant. The assignment of error in this respect is overruled.

A more serious question is presented by the assignment of error complaining of alleged misconduct of the jury and. the ruling of the trial court in respect thereto. In his motion for a new trial, appellant alleged, in effect, that the jury, before passing upon any of the special issues, considered the question as to whether appellee was entitled to recover damages for his injury, and each juror voted that, in his opinion, appellee was entitled to damages. The evidence of three jurors was heard by the court- on this plea of misconduct, and the court made a finding of fact on this issue by adopting, as stating the facts in respect to this issue, the testimony of W. H. Cullom, foreman of the jury. This testimony, as set out in the court’s findings, is as follows: “Before we answered any of the special issues submitted to us, we took a vote to determine whether the jury thought that the plaintiff, Forrest Ledbetter, was entitled to have damages in some sum against the defendant, Scottino, and my best recollection is that the jurors were unanimous that Ledbetter was entitled to some damages. Following the taking of that vote, the jury then proceeded to answer the special issues and did answer them.”

On cross-examination the witness testified:

“The answer to each special issue is what I believed under the facts and law of the ease, as submitted to the jury, by the court, was the correct answer to each such special issue.
“I did not feel that I was bound and compelled to answer any special issue either ‘yes’ or ‘no’, by reason of the vote taken by the jury as to whether Ledbetter was entitled to damages.
“In other words, my answer, and the answers of the other jurors was my independent judgment and finding in answer to each special issue.
“Such answers were made after d,ue deliberation, one by one, after a vote taken on each issue.
“I am not sure but that the vote taken on the question of damages prior to answering the issues was only a tentative vote to see where we stood on that one proposition.
“The entire jury, so far as I know, and I am speaking for myself as well as the others, based their answers to each special issue on the facts as we heard them from the witness stand. In other words, we were seeking to answer the special issues according to the evidence as submitted to us under the ruling of the court, and the law as given to us in the court’s charge.
“Mr. H. R. Milheuser, one of the jurors, after being first duly sworn, testified 'substantially the same as Mr. W. H. Cullom, to whose testimony, reference is here made for a substantial statement of the testimony of Mr. Milheuser.
“The court finds that such testimony is true, and is a fact.
“Mr. S. M. Haley, one of the jurors, after being first duly sworn, testified substantially the same as Mr. W. II. Cullom, to whose testimony reference is here made for a' substantial statement of the testimony of Mr. Haley.
“The court finds that such testimony is true, and is a fact.”

At the hearing, appellant testified that he endeavored to talk to two other members of the jury besides those who testified, and that they refused to give him any information as to what occurred in the jury room, and the court finds this testimony to be correct. The trial court also sets out the conclusion of law on the evidence offered, as follows:

“The court finds as a matter of law that a fair construction of the testimony given by the jurors, Cullom, Milheuser and Haley, and by the defendant, Scottino, does not show an agreement to be bound by the ballot taken and complained of by the defendant, and therefore does not constitute misconduct of the jury on the trial of this case, and does not show that any harm resulted to the defendant, or probably resulted to the defendant.
“The court further finds as a matter of law that such facts do not constitute misconduct of the jury that would entitle the defendant to a now trial in this case.”

The leading case on this question, and the one on which appellant relies, is that of Simmonds et al. v. St. Louis, B. & M. Ry. Co., 29 S.W.(2d) 989, by the Commission of Appeals, and expressly approved by the Supreme Court.

If the facts, as above set forth, bring the instant case within the rule of law announced in the reported case, then the overruling of appellant’s motion for a new trial on this ground shows such an abuse of discretion by the trial court as will call for a reversal of this case.

The holding in the reported case is based on a construction of article 2189, R. S. 1925. This article contains the following provision: “In all jury cases the court may submit said cause upon special issues without request of either party, and, upon request of either party, shall submit the cause upon special issues raised by the pleadings and the evidence in the case. Such special issues shall be submitted distinctly and separately. Each issue shall be answered by the jury separately.”

In the reported case, it appears as a fact that when the jury retired they agreed, before making a finding on any of the special issues submitted, that the plaintiff ought not to recover, and further agreed that the special issues submitted should be answered in such a way as would cause a judgment to be rendered’ for defendant, and then proceeded to carry out this agreement by making answers to the special issues in harmony with their expressed view as to the merits of the case. This was held to be misconduct of the jury, in that, it violated the spirit of the statute above quoted. It is held in this case that, under this statute, it is the duty of the jury to answer each issue submitted distinctly and separately, without any regard as to the legal effect of such answers. This holding, we think, is undoubtedly correct and aptly expresses the intention of the Legislature in the enactment of this statute. Whenever a juror answers a question submitted in a special issue, with the distinct purpose in view that his answer shall have a preconceived legal effect as to the judgment to be rendered, he violates the clear intention of this statute, and is guilty of misconduct. On the other hand, though a juror may entertain the opinion that the one or the other of the parties to the litigation should prevail, yet, if he considers each special issue without regard to the legal effect of the answer to be made, but solely from the viewpoint of arriving at a correct conclusion under the evidence as to the disputed issue of fact he as a juror is considering, and agrees to the verdict on such special issue solely from the viewpoint of the evidence, he is not guilty of misconduct, because of a preconceived opinion as to the merits of the case.

Do the facts of this case sustain the findings of the trial judge, and bring the ease within the rule that absolves the jury from misconduct? We are inclined to the opinion that they do.

A careful reading of the case of Simmonds et al. v. St. Louis, B. & M. Ry. Co., supra, as well as the cases therein cited, shows that' the finding of misconduct of the jury was not based on the fact that the jurors entertained and expressed the view that one of the parties was entitled to judgment in his favor, but was based on the agreement of the jury to return an answer to the special issues submitted that would require a judgment in harmony with the view that they had expressed before any consideration of the special issues. There is no implied prohibition in this statute against a juror’s entertaining a view as to which party should recover in the cause under consideration, but the implied prohibition is against the juror’s considering what would be the legal effect of a finding in respect to the view he entertains on the merits of the case. Each of the three jurors testified, in effect, that in. reaching a conclusion on each of the special issues, he did so without regard to the legal effect of the answer made, and the trial court found as a fact that the evidence heard upon this motion does not show an agreement to be bound by the ballot taken and complained of by defendant. The evidence, in our opinion, clearly authorized such finding and is therefore controlling on this court. St. Louis, B. & M. Ry. Co. v. Cole (Tex. Com. App.) 14 S.W.(2d) 1024. All assignments of error in respect to the alleged misconduct of the jury are overruled.

It necessarily follows that, in our opinion, no reversible error was committed by the trial court, and the judgment should be affirmed.

Affirmed.


source: Caselaw Access Project

author: ALEXANDER, J.

license: Public Domain

text:
    ST. LOUIS SOUTHWESTERN RY. CO. OF TEXAS v. HOMAN.
    No. 1310.
    Court of Civil Appeals of Texas. Waco.
    Jan. 12, 1933.

      R. B. Cross, of Gatesville, and Ramey, Calhoun, Marsh & Higgins, of Tyler, for appellant.
    T. R. Mears, of Gatesville, for appellee.
   ALEXANDER, J.

The plaintiff’s automobile which was being driven by plaintiff’s son was damaged in a collision with one of defendant’s trains at a railway crossing. The plaintiff sued the railway company to recover for damages to the automobile. The verdict of the jury on special issues was favorable to the plaintiff, and judgment was entered accordingly. The defendant appealed.

The pleadings and evidence raised issues of negligence on the part of the defendant’s employees who were operating the train and issues of contributory negligence on the part of plaintiff’s son who was driving the automobile. At the conclusion of the evidence, the defendant requested the court to submit to the jury the issues of contributory negligence. The court did submit these issues, but in connection therewith instructed the jury, in effect, that, in the event the jury found that the defendant’s servants were negligent, and that such negligence was the proximate cause of the collision, the jury should not answer the issues as to contributory negligence. The defendant objected to this manner of submitting the issues “because as worded the issue of contributory negligence is not submitted to the jury at all if they (the jury) find defendant was negligent and such was the proximate cause.” The jury found that the defendant’s servants were negligent, and that such negligence proximately caused the collision, but, as instructed by the court, did not answer the issues as to contributory negligence. The defendant assigns this as error.

The trial court apparently proceeded on the theory that, if the negligence of the defendant’s servants was the proximate cause of the collision, no further finding was necessary, and that the plaintiff was entitled to judgment. This theory is not correct. It is well settled that contributory negligence is a complete defense to an action to recover for injuries negligently inflicted, and, even though a defendant be guilty of an act of negligence which is a proximate cause of the injury, yet if the plaintiff is himself guilty of an act of negligence which proximately contributes to his injury, he cannot recover. 45 C. J. 940; Feille v. San Antonio Traction Co., 48 Tex. Civ. App. 541, 107 S. W. 367; Alexander v. M., K. & T. Ry. Co. (Tex. Civ. App.) 287 S. W. 153, par. 2; St. Louis, B. & M. Ry. Co. v. Moss (Tex. Civ. App.) 203 S. W. 777, par. 3. The mere fact that the jury found that defendant’s servants were negligent and that such negligence was the proximate cause of the collision did not necessarily constitute a finding that the plaintiff’s son, who was driving the automobile, was not guilty of contributory negligence which proximately contributed to bring about the collision; and the defendant therefore was entitled to have the jury answer the issues with reference to the contributory negligence of plaintiff’s son, even though the jury found that the negligence of defendant’s servants wds the proximate cause of the collision. I. & G. N. R. Co. v. Neff, 87 Tex. 303, 28 S. W. 283; I. & G. N. R. Co. v. Edwards, 100 Tex. 22, 93 S. W. 106; Texas Traction Co. v. Wiley (Tex. Civ. App.) 164 S. W. 1028, par. 8; Austin Street Railway Co. v. Heflin (Tex. Civ. App.) 158 S. W. 1040; Chicago, R. I. & G. Ry. Co. v. Pipes (Tex. Civ. App.) 33 S.W.(2d) 818.

By issue No. 10 the court ashed the jury what sum of money would compensate plaintiff for the loss he sustained by reason of the damage to his car. This issue was not followed by any appropriate instruction as to the measure of damages to be applied. Ordinarily, in a case of this kind, the measure of damage is the difference, if any, between the reasonable market value of the automobile immediately prior to the collision and its reasonable market value, if any, immediately after the collision, or the value of the amount salvaged therefrom. Chicago, R. I. & G. Ry. Co. v. Zumwalt (Tex. Com. App.) 239 S. W. 912, par. 1. The court, in submitting the damages to the jury, should instruct the jury as to the measure of damages to be applied. In view of another trial, we suggest that the court either submit two issues, one inquiring as to the market value of the automobile immediately before the collision and its market value, if any, immediately after the collision, .and from the answers of the jury to these issues determine the amount, if any, to be awarded to plaintiff, or that the court by some other appropriate instructions advise the jury as to the measure of damages to be applied.

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


author: VAUGHAN, J. ROONEY, J.

text:
    WORSHAM-BUICK CO. v. ISAACS et al.

    No. 10740.
    Court of Civil Appeals of Texas. Dallas.
    Sept. 10, 1932.
    Appellee’s Motion for Rehearing Oct. 22, 1932.
    Further Rehearing Denied Dec. 19, 1932.
    Touchstone, Wight, Gormley & Price, of Dallas, for appellant.
    Chamberlain, Green & Wade, of Dallas, for appellees.

       Writ of error granted.

   VAUGHAN, J.

This is an appeal from a judgment rendered September 17, 1929, in favor of appellee Mrs. Mettie K. Isaacs for $11,500, and her son, appellee Alfred Isaacs, for $500, against appellant, Worsham-Buick Company, a private corporation, known at date of judgment as Morris-Buick Company, as damages for the death of R. W. Isaacs, the husband and father of appellees, who is alleged to have been killed September 9, 1928, through the negligent operation of an automobile charged to have been driven by an employee of said appellant.

Under a full statement of this case as to the issues presented by the pleadings and the facts established by the evidence, the two-material questions upon which the right of appellees to recover against appellant entirely depended were certified to the Supreme Court March 7, 1931. On June 9, 1932, said ques-. tions were answered, the effect thereof being to hold that there did not exist in favor of ap-pellees, or either of them, a cause of action against appellant. Worsham Buick Company v. Isaacs et al., 51 S.W.(2d) 277, which see for a full statement and discussion of the case. Therefore, under the holdings of our Supreme Court, supra, the judgment of the district court is reversed, and judgment is here rendered that appellees take nothing by their suit against appellant, and that the costs incurred in all courts in this case be, and the (Same are. hereby adjudged against appellees.

Reversed and rendered.

On Appellees’ Motion for Rehearing.

Appellant assumed to prosecute this appeal, with effect, upon two propositions, viz.:

“First proposition: In a suit by the family of R. W. Isaacs, deceased, to recover damages for his death based upon an allegation that he was run over and killed by the negligent operation of a car owned by the Worsham Buick Company, the defendant, Worsham Buick Company was entitled to an instructed verdict in its favor where the evidence showed that the car in question was being driven by one Al Simpson, an employee in the service ■department, on a certain Sunday when he was off duty and where the evidence further showed that at the time of the accident Simpson was not engaged in the discharge of any duty for Worsham Buick Company but on the contrary was driving said ear to a picnic solely for his own pleasure.
“Second proposition: In a suit brought by a widow and children to recover damages for the death of their husband and father, alleged to have been killed through the negligent driving of an automobile of the defendant, it was error for the trial court in the face of defendant’s duly presented objections, to refuse to instruct the jury that in answering the issue as to the amount of damages sustained by the plaintiffs, the jury should not take into consideration and allow damages for any grief, mental pain and anguish or loss of society suffered by the plaintiffs.”

The scope and effect of this appeal, as viewed' by appellant’s attorneys, is fairly presented by this quotation from appellant’s brief, viz.: “The attorneys for plaintiffs evidently recognized that there was nothing to their first theories of recovery for at the conclusion of the testimony plaintiffs made a motion for an instructed verdict, the ground of which was that the defendant had entrusted to Al Simpson one of its automobiles ■ bearing a demonstrator number and that at the time of the accident Simpson was not using same for demonstration purposes, it being urged by plaintiffs in the motion that the use of a demonstrator automobile for purposes' other than demonstration, rendered the defendant liable as a matter of law for any damages caused by the operation of the car even though the facts showed that Simpson was using the ear on Sunday for his own personal pleasure and was doing nothing which was in any way connected with his employment for the defendant. The court submitted to the jury only issues of damages in favor of Mrs. Isaacs and Alfred Isaacs. The jury answered $11,500.00 for Mrs. Isaacs and $500.00 for Alfred Isaacs. The court then proceeded to render judgment in favor of plaintiffs for these sums reciting in the judgment that there were no controverted issues for the jury so far as liability was concerned. Defendant excepted to the charge of the court for many reasons, among others on the ground that no issues at all should be submitted to the jury but an instructed verdict should be given for the defendant. The trial court held with the plaintiffs on their contention that permitting Al Simpson to drive a ear bearing a demonstrator number for his own personal pleasure on Sunday made the defendant liable as a matter of law for any resulting damage, regardless of any question of proximate cause connected with the accident.”

Appellees, in their brief, after briefly setting out the five grounds of negligence alleged to have been committed on the part of Al Simpson, as the agent of appellant in the course of his employment, followed same with the statement: “Proof was offered on all such theories by plaintiffs, sufficient to carry the case to the jury on each and all, but at the close of the testimony the uncon-troverted evidence showing that on some of such theories, the defendant was liable, as a matter of law, the plaintiff moved that the court so hold, and to submit to the jury only the question and measure of damages. This motion being sustained by the court, only the measure of damages was submitted to the jury.”

Therefore, this court did not look beyond the briefs of the parties to ascertain the condition of the record in any other respects until the submission of appellees’ motion for rehearing. The record discloses that, in addition to the ground of negligence upon which we based the questions certified, and upon the answers thereto, the judgment, reversing and rendering this cause in favor of appellant, ap-pellees, among other additional grounds of negligence, alleged the following: “Moreover, said defendant, corporation, was guilty of wrongful acts and conduct and negligence in that as such owner of such machine and potentially dangerous instrumentality, it intrusted to Allen J. Simpson such machine and permitted him to take the same from the premises of the defendant, and consented that he so take it, and to use, drive, control and operate such machine over and along the public streets of the city of Dallas, Texas, knowing at the time that said Allen X Simpson was an unfit and incompetent person to have and use or to drive, control and operate such machine over and along the public streets of the said city of Dallas, Texas, and knew that said Allen X Simpson was in the habit of becoming under the influence of intoxicating liquors, and knew that he had on previous occasions driven and operated automobiles in defendant’s custody over the streets of said city while under the influence of intoxicating liquors, and knew that while so driving one of its automobiles he had wrecked such automobile on account of being drunk and reckless and unfit to operate such an instrument when in such condition, yet, the defendant, corporation, so knowing the above facts intrusted said' automobile to said Simpson, and the said Allen X Simpson while in control of said automobile and while same was in operation over and along the public streets of the city of Dallas, Texas, operated, and caused same to be operated, at a speed of about 70 miles per hour and far in excess of the speed allowed by law, at which time said Allen J. Simpson (as Well as any other person who may have been an occupant of such car) was drunk and under the influence of intoxicating liquors, and that by reason of the negligence of said defendant and said Allen -X Simpson aforesaid, proximately caused the collision between said Buick and said Isaacs’ car and Isaacs’ death resulted as a direct result of the injuries then received by said R. W. Isaacs.”

Appellant insists that the right to recover on this 'ground of negligence was waived by appellees in their motion for an instructed verdict,, in that, this ground was not urged therein as one upon which the right to the instructed verdict was based, and further because a special issue thereon was not submitted by the court nor requested by ap-pellees to be submitted. -Appellees formally iset out in said motion for an instructed verdict, under separate allegations, each and every ground pf negligence alleged by them, and although insistihg especially that they were entitled to an-, instructed verdict as to' liability on the ground of negligence, alleging, in effect, that appellant was a dealer in automobiles, and as such had accepted the benefits of article 6686, -R. S. 1925, as amended by the 40th Legislature, p. 296, c.' 211, Acts of 1927 (Vernon’s-Ann. Civ. St. art. 6686), and as such dealer had knowingly intrusted said automobile to Simpson for operation on the public streets, displaying such dealer’s license plate, and thereby, as a matter of law, iSimp-son was their agent and was operating such automobile for their us'e and benefit, whereby appellant became, and was, responsible for the alleged negligent acts of said Simpson causing the death of said Isaacs, and was es-topped from denying the agency- of the. said Simpson, his employment, and that he was acting within the scope of his employment at the time he committed the alleged negligent act which resulted in the death of said Isaacs. Following said grounds, they closed with this provision: “In making this motion the plaintiffs do so without waiving any of the other of the grounds alleged by it as a basis of liability in the event the court should fail to sustain the foregoing grounds or any of them, but insists that since they have shown liability as a matter of law that the court should only submit the issue to the jury as to the. measure of damages.” • ...

Therefore, in so far as shown by said motion, appellees did not waive therein the submission of an- 'issue on any of-- the other grounds of negligence alleged by them as a basis of appellant’s liability. Appellant urges that the court having failed to submit, and appellees not having requested the court to submit, an issue calling for a finding upon the ground of negligence, viz., that appellant knowingly intrusted the automobile to said Simpson, an unfit and incompetent person to have and use, or to drive and control, over and along the public streets of the city of Dallas, and who was in the habit of becoming under the influence of intoxicating liquor, and was so intoxicated, etc., the submission of said issue was waived. That it was, as a prima facie proposition, the duty of the court to have submitted this issue, we think must be conceded under the following testimony:

Alfred Isaacs, son of appellee, Mrs. Mettie Isaacs and the deceased, R. W. Isaacs, testified as follows: “I remember the occasion of the collision between a Buick sedan and my father’s ear at the intersection of Knigh,t and Brown streets in September, 1928; I was driving father’s car at the time, a Stude-báker Phaeton. I first saw the other car just before it hit us; at that time my car had just barely nosed out into the intersection, had gotten through the intersection, that is the front of my car was barely in the intersection of the street there. The other car came from Maple Street o'r Maple Avenue. T don’t know -how fast it was going, but it was going so fast that I just got a glimpse -of it and it hit us. It was roaring awfully loud. I’ believb it was the left hand side, the front left hand side of the Buick that hit our car and it practically completely demolished the front of the automobile and knocked the motor block clear up out of the hangers and cracked it. It hit right on the right front wheel and spun, the ear around, I don’t know how many times and when it stopped, we were facing west on Knight Street. There was a big crowd of people around there and I asked someone who was driving the car and they pointed out someone, Mr. Simpson. I asked if he was driving the car. Simpson had liquor on his breath. When I saw him, he was drunk, lie was not staggering, it was so crowded around there that he couldn’t stagger, but from all outward appearances lie was drunk.”

J. M. Worsham testified as follows: ‘'During 1928, I was with the Worsham-Buick Company as dealer and was president of the company. The business of the Worsham-Buick Company was as dealers in this territory. I knew Mr. A1 Simpson; he worked for me for many years. During September 1928 he was Service Manager and I think he had been for probably about three years.”

W. P. Slaughter, a witness for appellees, testified as follows: “I have lived in Dallas about three years, I was on the police department in 1928; I remember the automobile accident in question, reached the place of the accident soon after it occurred at Knight and Brown streets.”

As to appellant’s car driven by Simpson, the witness testified: “There was a man standing to the left of the street right there at Knight and Brown street, standing straight up and another man holding him. The man that was being held gave his name as A1 Simpson and I took charge of him because he was drunk. I have had experience with drunk men and I tell the jury that this man was drunk. We put him in jail, and filed on him for driving while intoxicated.”

Charles' K. Cohn, a witness for appellant, testified: “I was connected with Worsham-Biiick Company in September 1928 in the capacity of Sales Manager. I knew a man by the name of A1 Simpson in September 1928, ■he was working for Worsham-Buick Company as service superintendent.”

This witness further testified that on the 8th day of September, 1928, said Simpson applied to him (witness) for and obtained permission to use, on the following Sunday, for his (Simpson’s) own personal pleasure, the car in question, which was a new car owned by appellant which Simpson was driving at the time of the collision that resulted -in the death of R. W. Isaacs.

E. C. Beaton, a witness for appellees, testified: “In 192S, I lived at the corner of Knight and Brown streets, I remember an accident that occurred between a Studebaker and a Buick automobile, it was on Sunday. I heard the car coming and went to the door just as it struck. It was the Buick car I heard coming; it came from towards Maple Avenue. Its fast speed was the cause of my starting to the door, I heard the car hit the interurban track and I thought it turned over from the way it sounded and by the time I got to the door he struck the Studebaker in front of the house; the Studebaker was practically still at the time he hit it. I should judge he (the driver of the Buick) was going somewhere around eighty miles an hour. I went right on out and picked the gentleman up off the street and helped the fellow out of the automobile that turned over, the Buick. I don’t remember his name, but I would know the man if I were to see him. I know a drunk man when I see him and this man was what I would call a drunk man. I stayed there with the man until the officers came and gpt him, I turned him to the officer.”

W. D. Prather, a witness for appellees, tes-, tiffed in part as follows: “I have worked for the Worsham-Buick Company and am acquainted with J. M. Worsham, I worked there something like seven or eight months, I worked there the same time A1 Simpson did in the sales department with him, during the time I worked there Mr. Worsham was in and out of the service department. I don’t remember the date of the accident that A1 Simpson had on Knight and Brown street hut I remember reading about it in the paper. I know that I worked there after that. I know that A1 Simpson drank liquor there all the time about the place. On one occasion while I was working there, A1 took one of the customer’s cars out while drunk and had a wreck and brought it in the shop and. fixed it up and I went to Mr. J. M. Worsham and told him of the occurrence, about A1 getting drunk and tearing up the car and told Mr. Worsham that if he didn’t fire Kim or make him quit using cars that he was going to kill somebody. Mr. Worsham replied that he knew that A) was drinking all the time, but he was too good a man and making too much money and he couldn’t afford to fire him. Mr. Worsham did not fire him. To my knowledge, he worked after that four or five weeks. I quit working there before this present accident occurred.”

H. E. Smith, a witness for appellant, testified as follows: “I have seen A1 take a drink of intoxicating liquors, but not at the place of business; I never saw him at the place of business when his appearance indicated to me that he was drinking.”

E. H. Ivey, a witness for appellees, testified: “I have been in Dallas since 1919. I am a mechanic and work for the Bradshaw Motor Company. I worked for the Worsham-Buick Company in 1923 and a part of 1924 and part of 1928. During that time A1 Simpson 'Worked there part of the time as shop foreman and as Service Manager. I worked under him and in his department both times I was there. I have seen A1 Simpson drinking over at the shop and have seen him under the influence of liquor. I have seen Simpson with intoxicating liquor there at the place of business while he was there. T have seen A1 Simpson with liquor in his locker room. A1 drank promiscuously and pretty heavy, he was shop foreman when I went to work there, I knew that he was fired in October, 1928, but he came back here just before I came here from Los Angeles. Regardless of when it was, I would say that A1 Simpson drank oyer tliere regularly on the job.”

. Appellant complains of the judgment; ap-pellees insist that same should be sustained. The effect of this situation must be detei--mined by the provisions of article 2190, R. C. S. 1925, as amended by the 42d Legislature, c. 78, p. 120, Acts of 1931 (Vernon’s Ann. Civ. St. art. 2190). The first provision of this act requires that all the issues made by the pleadings and evidence shall be submitted by the court; the second provision limits the effect of the first provision, in that,, a party complaining of the judgment cannot urge the failure to submit an issue as ground for reversal of the judgment, unless the submission of the issue so involved was by such party requested in writing; by the third provision, an issue not submitted and not requested to he submitted is to be regarded and acted upon as found by the trial court in such manner as tó support the judgment rendered, if there should be evidence to sustain such finding; and the fourth provision confers upon a party requesting the submission of an issue to urge, for the first time after verdict, that the evidence was insufficient to warrant the submission of same.

What is the converse of the effect of the second provision of article 2190, supra, we think is important to be considered as bearing in an appreciable measure, upon the effect that should be given to said provision, as applicable to the attitude occupied by the parties litigant to this appeal. Such converse effect, we think, is that failure to submit an issue which, if submitted and found in favor of the prevailing party, would have sustained the judgment rendered by the trial court, should be deemed a ground only for the reversal and remanding of a cause, although the submission of the omitted issue was not requested in writing by the prevailing party; he not complaining of the judgment. This would prevent the application of the doctrine of election predicated upon the selection by a plaintiff, of the theory upon which his cause was submitted to a jury, as he would in effect occupy the position of a party who had requested the submission of an issue in writing, urging for the first time after verdict, that the evidence was insufficient to warrant its submission. This, we think, but a just and reasonable rule of procedure whereby the philosophy of the law of judicial determination is regarded and not merely the shadow thereof, viz.: To ob•tain a fair, comprehensive, and impartial legal trial whereby the rights of the parties shall be fully and orderly ascertained and enforced. The theory upon which the trial court (whether based upon any one or all of the five grounds of negligence alleged) held, as a matter'of law that, under the evidence introduced, appellant was liable on account of and for the negligent acts alleged, and established by evidence, to have been committed by A1 Simpson, would not, and did not, support such conclusion.

The fact that appellees erroneously selected the wrong theory upon which to submit their case to the jury — upon which they were not entitled to recover — and pursued such theory until it was adjudged by the appellate courts that a recovery could not be sustained thereon, as such right never existed under such theory, should not deny to appellees a trial upon that theory of their case presenting a meritorious cause of action, which, if established, would secure to them the relief to which they are or may be entitled; appellant not having suffered any loss or injury, nor appellees benefited by the trial and submission of the cause on such wrong theory. To this effect, on principle, is the holding in the following cases: St. Louis S. W. R. Co. of Tex. v. Seabold (Tex. Civ. App.) 277 S. W. 229; Dallas Hotel Co. v. Davidson (Tex. Com. App.) 23 S.W.(2d) 708; Federal Surety Co. v. Smith (Tex. Com. App.) 41 S.W.(2d) 210; International G. N. R. Co. v. Casey (Tex. Com. App.) 46 S.W.(2d) 669; State v. Texas Mut. Life Ins. Co. of Texas et al. (Tex. Civ. App.) 51 S.W.(2d) 405; Dallas Ry. & Ter. Co. v. Fuchs (Tex. Civ. App.) 52 S.W.(2d) 685.

As to appellant’s second proposition, we do not think that special issues Nos. 1 and 2 are subject to the criticism presented thereby, based on the failure of special issue No. 1 to affirmatively instruct the jury not to consider the elements of grief, mental pain, anguish, and loss of society suffered by Mrs, Mettie IC Isaacs as the result of the death of R. W. Isaacs, and to consider only pecuniary loss, if any, of the said Mettie IC. Isaacs, and as to special issue No. 2, because same failed to contain similar instructions as to appellee Alfred Isaacs.

We think that the above attack upon the court’s charge will be amply answered by quoting its material provisions, viz.:

“This case is submitted to you upon the following special issues, which you will answer from the preponderance of the evidence, that is, the greater weight and degree of credible testimony before you without regard to the effect your answers may have upon the judgment in this case. ¡
“Special issue No. 1: What sum of money-do you find and believe from the preponderance of the evidence, if paid now in cash, would reasonably compensate the plaintiff, Mrs. Mettie IC. Isaacs for the present value of the pecuniary aid, if any, she would have received from the said R. W. Isaacs had he not been killed, and for the reasonable and necessary doctors and nurses bills, if any?
“Special Issue No. 2: What sum of money do you find and believe from a preponderance of the evidence, if paid now in cash, would reasonably compensate the plaintiff Alfred Isaacs for the present' value of the pecuniary aid, if any, lie would have received from the said R. W. Isaacs, from the time of the accident in question until June 25, 1929, had he not been killed?
“You are further instructed that while deliberating upon your verdict you will not mention, refer to or take into consideration, by mental reservation or otherwise, any matter, fact or circumstance, other than the testimony that has been produced upon the witness stand and the law as given you in the charge by the court, all of which I instruct you, you must strictly observe and obey.”

We are of the opinion that we can safely assume that the personnel of the jury possessed sufficient mental capacity to readily understand the plain, everyday, commonly accepted meaning of the above language, and were guided in their deliberation upon their answers to the special issues submitted by the plain positive terms of said charge, and that thereby every protection that would have been vouchsafed to appellant, if said issues had been submitted in the manner and form desired by it, were secured to appellant under the given instructions. Said assignments are therefore overruled.

Therefore, appellees’ motion for rehearing is granted, the judgment heretofore entered reversing and rendering this cause in favor of appellant is set aside, and judgment now rendered reversing and remanding this cause to the trial court for further proceedings.

Motion granted; cause reversed and remanded.

On Further Rehearing.

ROONEY, J.

The motions for rehearing, now under discussion, were disposed of by the court before Judge VAUGHAN, late Associate Justice (who had charge of the record), retired from the bench, and the task of stating, for the court, reasons why the motions were overruled was given the writer. A short résumé of the ease at this juncture is deemed appropriate.

The action is one for damages by Mrs. Isaacs for herself and on behalf of her son, Alfred (a minor at the time of his father’s death), and her married daughter, Mrs. Trib-ble, for injuries resulting in the death of R. W. Isaacs, husband and father of appellees, caused by the alleged negligence of appellant. Mr. Isaacs died as the result of injuries received when the automobile in which he was riding, was struck and demolished by an automobile belonging to appellant, driven by one A1 Simpson, appellant’s service superintendent. The evidence is to the effect that Charles K. Cohn, appellant’s sales manager, having control of its new cars in stock, permitted Simpson to take one out on a Sunday for personal use, who while intoxicated operated the ear recklessly and negligently, colliding with the car in which Isaacs was seated, inflicting upon him injuries from which he died. The grounds of negligence alleged are, in substance: (a) That Simpson was at the time appellant’s agent, acting within the scope of his employment, therefore liability was established under the doctrine of respondeat superior (this ground was not sustained by evidence, hence will not be considered further); (b) that as a question of law, appellant was chargeable with Simpson’s negligence, because permitted to use and operate the automobile in violation of article 6686, R. S. 1925, as amended, in that, being under a dealer’s license and number plate issued to appellant, was not operated for demonstration purposes (this ground was sustained by evidence, but the answer of the Supreme Court to certified questions removed it as a ground of recovery, as shown hereafter) ; (c) also, that appellant was guilty of actionable negligence, in that Simpson, an unfit, incompetent, reckless driver, addicted to the habitual use of intoxicating liquors, was permitted by appellant’s vice principals, with knowledge or notice of Simpson’s unfitness, incompetency, recklessness, and dissipation, to use and operate the car upon the crowded highways of the city of Dallas.

The issues last mentioned, while not established by uneontroverted evidence, were sufficiently supported to raise jury questions, to the effect that, with knowledge or notice of the facts above mentioned, Cohn, acting within the scope of his authority, was guilty of actionable negligence, binding upon appellant, in permitting Simpson to use and operate the automobile at the time and under the circumstances; that Worsham, president and general manager, was guilty of actionable negligence, binding upon appellant, in failing, after knowledge of the facts above mentioned, to take the necessary steps to prevent Simpson from obtaining the automobile for personal use upon public highways.

At the conclusion of the evidence, the court took the question of liability from the jury on the idea that, under the pleadings and un-controverted facts, plaintiffs were entitled to recover their damages, to be determined by the jury, and only submitted that one question, that is, the assessment of damages, and on their findings, rendered judgment against appellant, from which the appeal was prosecuted.

On original submission, for the reasons stated by Judge VAUGHAN in the opinion delivered October 22, 1932, we certified to the Supreme Court, for its adjudication, the question, which at that time was thought to be decisive of the controversy, that is, the question whether or not Simpson’s use and operation of the automobile upon the highways of the city of Dallas in violation of article 6086, R. S. 1925, as amended, by permission of appellant, would fix its liability as a matter of law. Answering the question, the Supreme Court announced the law to be that, under the facts, no liability existed (see report of case on certificate, 51 S.W.(2d) 277); therefore, in harmony with the law as announced by the Supreme Court, we reversed the judgment of the trial court and rendered judgment for appellant (see opinion by Judge. VAUGHAN, delivered September 10, 1932). Eater, this judgment was set aside, on motion for rehearing by appellees, and after further consideration, for reasons stated in the opinion by Judge VAUGHAN, delivered October 22, 1932, the case was reversed and remanded for further proceedings.

This brings us to the motions for rehearing, under consideration. Appellees contend that, instead of remanding the cause, tlje court erred in not affirming the judgment in their favor, because: (a) Appellant having urged only one ground for reversal, that is, that the court erred in not instructing a verdict in its favor, and as this contention was denied, this court should have affirmed the judgment. Appellees are in error, appellant also assigned error and properly briefed the contention that the court erred in its charge on the measure of damages, in that, the jury was not instructed that, in making the assessment, nothing could be allowed plaintiffs for grief, mental anguish, or loss, of society.

The court’s charge reads: “What sum of money do you find and believe, from the preponderance of the evidence, if paid now in cash, would reasonably compensate the plaintiff, Mrs. Mettie IC Isaacs,- for the present value of the pecuniary aid, if any, she would have received from the said R. W. Isaacs had he not been killed, and for the reasonable and necessary doctors and medical bills, if any.” A similar submission, in so far as applicable, was made as to Alfred Isaacs, the son of deceased. Appellant urged exceptions to this charge, on the ground that the jury was not told that in assessing damages they could not consider the elements of grief, mental pain and anguish, or loss of society. Error was also assigned and the matter is properly before us for consideration.

At a former day, we overruled appellant’s contention in this respect (see opinion by Judge VAUGHAN filed October 22, 1932), but on reconsideration, have concluded that such holding was error. In Gulf, C. & S. F. R. Co. v. Conley, 113 Tex. 472, 475, 260 S. W. 561, 32 A. L. R. 1183, the Supreme Court held that articles 1971 and 1985 (now 2185 and 2190) were designed to accomplish the same • purpose, and should be construed together, to the effect that the failure to submit a particular issue can be reviewed only when a special charge thereon is tendered and refused, but that such is not the ease with reference to a defective, erroneous, or incomplete statement of the law or issue; that in the latter instances, the objection mentioned” in the statute (now article 2185) takes the, place of and is tantamount to the tender of a special issue and renders such offending charge open to review.

After the charge was objected to, we think the court erred in giving same without correction. Charges, couched in general language such as was employed by the court in the instant case,, were held erroneous (presenting reversible error) in International & G. N. R. Co. v. McVey, 99 Tex. 28, 87 S. W. 328; Gulf, O. & S. F. R. Co. v. Farmer, 102 Tex. 235, 115 S. W. 260; Hines v. Kelley (Tex. Com. App.) 252 S. W. 1033.

Because of the error just considered, the ease will have to be reversed and remanded, unless appellant shows reasons why judgment should be rendered in its favor, and basis for such relief must be found to exist, if at all, in its assignments of error. Appellant reduces its assignments' (forty-two in number) to two propositions: One, that the court erred in submitting the measure of damages. This matter we have just considered. The other is that the court erred in not instructing a verdict in its favor because the evidence showed that, at the time of the accident, the automobile was being driven by A1 Simpson while off duty and solely for his own pleasure. If this statement comprehends all the evidence on the question of liability, the position of appellant would be well taken, but such, in our opinion, is not the case. On the question of appellant’s negligence whether or not (through its vice principals, Worsham and Cohn) in not preventing, or by ’ permitting, Simpson to use the car for the purpose and under the circumstances mentioned, the evidence, -although conflicting, was, in our opinion, sufficient to raise jury issues.

Several of Simpson’s fellow employees testified that he drank intoxicating liquors on certain occasions, two gave testimony to the effect, that he kept liquor in a locker at his place of work, drank there and would get under its influence. One of these, Mr. Prather, testified that, prior to the accident, he told Mr. Worsham, general manager, that Simpson had taken out a customer’s car and while drunk wrecked it, and warned Worsham that, if he did not discharge Simpson, or prevent him from using cars, he would kill some one; that 'to this warning Wor-sham replied that he knew Simpson drank liquor, but he could not be discharged because he was a valuable man and made money for the company.

There is no direct evidence that Cohn knew of Simpson’s habits of dissipation, nor that Worsham was apprised of these facts other than as stated above; yet,' they associated with Simpson at appellant’s place of business, and neither Cohn nor Worsham, while on the stand, disavowed such knowledge; 'Cohn simply said that, when he consented to the use of the car, he did not smell liquor, or notice anything about Simpson indicating that he was drinking; Worsham’s testimony on the issue was confined alone to a denial of the facts testified to by the witness Prather, above stated. These facts and circumstances, in our opinion, would warrant jury findings that both Cohn and Worsham knew of Simpson’s habits of dissipation; at all events, we think these jury questions were raised, that is, whether or not Worsham,-under the circumstances, negligently failed to take necessary steps to prevent Simpson from obtaining appellant’s car for personal use upon the public highways; also whether or not Cohn, under the circumstances, was negligent in permitting Simpson to take out and use the car on the occasion. If either Worsham in not preventing, or Cohn in permitting, Simpson to obtain and use the car, was guilty of actionable negligence, appellant would, in our opinion, be liable. Neither the question of agency, nor whether at the time Simpson was acting within the scope of his employment, is involved, but the question is: Did appellant owe any duty to individuals who might be upon or traveling over highways, to exercise reasonable care to see to it that those to whom it intrusted its ears for use upon the public highways, are competent sober drivers? We think appellant did owe such duty, and if, through its failure to discharge same, Simpson was permitted to obtain its car, and becoming drunk, by reckless, abandoned driving collided with the ear in which Isaacs was riding, killing him, appellant would be liable. As these issues were supported by evidence, the court did not err in refusing to direct a verdict for appellant.

The facts of the ease, we think, bring it within the doctrine announced in well-considered case of Waldo v. Galveston, etc., Ry. Co., 50 S.W.(2d) 274, with full citation of authorities, by Judge Leddy for the Commission of Appeals, the holdings of the; latter, on the questions discussed, were dxpressly approved by the Supreme Court.

In- harmony with these views, tne motions for rehearing are overruled. " '

Overruled.


author: SMITH- j.

text:
    SAN PATRICIO COUNTY v. MAXWELL et al.
    No. 9113.
    Court of Civil Appeals of Texas. San Antonio.
    Nov. 30, 1932.
    Rehearing Denied Jan. 18, 1933.
    - Boone & Raymer and Allen V. Davis, all of Corpus Christi, for appellant.
    H. S. Bonham, of Corpus Christi, W. B: Moss, of Sinton, .and Gaines, Gaines & Roberts, of San-Antonio, for appellees.
   SMITH- j.

The' appeal is from an order granting a temporary injunction upon complainant’s bill, without notice or hearing.

It was alleged by appellees as plaiñtiffs below that the commissioners’ court of San Patricio county had obtained from the state highway commission a designation of state highway No. 9, over a specific route through the lands of three local citizens, Hughes, Lane, and Horn; that the landowners and the commissioners’ court could not agree upon the compensation to he paid for the lands to he taken and the incidental damages, whereupon (instead of resorting to condemnation proceedings provided by law for such contingencies) the parties resorted to statutory arbitration to determine the amounts to be paid the landowners ; that the arbitrators met, deliberated, and agreed upon awards to each of the landowners in amounts aggregating approximately $10,000, the arbitration papers were filed in the district court of San Patricio county, where jthe awards were reduced to judgments in favor of the respective landowners against the county; that the county did not appeal from such judgments, but has since instituted, and is now prosecuting, proceedings in the same court to set them aside, which proceedings are still pending.

It was further alleged that, subsequent to the arbitration proceedings and the entry of judgments on said awards, the commissioners’ court have induced the state highway commission to designate another and different route for said highway No. 9, so that, as so redesignated, or to be redesignated, said highway will not traverse the lands of Hughes, Lane, and Horn, but will avoid them, and that by this process the commissioners’ court seeks to abandon the former route over said .lands and pursue another.

Now this injunction, granted upon said allegations, restrains the commissioners’ court from abandoning the route first designated (over the Hughes, Lane, and Horn lands) and from procuring the right of way over the newly designated route around said lands, until the district court renders final judgment upon the county’s motions to set aside the judgments based upon the arbitrators’ awards. The injunction was sought and granted upon the ground, in effect, that it will be cheaper and therefore to the best interest of the county to abide by the route first selected, rather than to adopt and procure another.

This action was not brought directly by Hughes, Lane, and Horn, but by J. 0. Maxwell and nine other “tax-paying” citizens of the county.

It is apparent from the bill on which the writ was granted that highway No. 9 is a properly designated “State Highway” over which the highway department has control, and that the county commissioners’ court are acting for and in behalf and under the control of that department in procuring the right of way for said highway, as provided in article 6674n, as amended by the Forty-First Legislature (Acts 1930, 41st Leg., 5th O. S., p. 243, c. 79, § 1 [Vernon’s Ann. Civ. St. art. 6674n]). It follows, therefore, and is apparent from the petition below, that the power of designating, the route of highway No. 9, with reference to the lands of Hughes, Lane, and Horn, rests in the highway department, and not in the commissioners’ court, and that the state highway commissioners are necessary parties to any litigation affecting the exercise of that power. Heathman v. Singletary (Tex. Com. App.) 12 S.W.(2d) 150, 153; Central Power & Light Company v. Willacy County (Tex. Civ. App.) 33 S.W.(2d) 476, and authorities there-cited; Cunningham v. Koons (Tex. Civ. App.) 33 S.W.(2d) 761.

Moreover, it is apparent that, in the matter of designating in detail the routes to be followed by state highways, the actions of the highway department, being discretionary acts purely administrative in their nature, cannot be directed by the courts or halted by them except in possible extraordinary situations not disclosed here. And, even where the department has first designated a detail in a route, such as in this ease, it may subsequently revoke its order thereon and relocate the route so long as nothing has been done thereunder, such as making contracts for construction of the highway or the creation of vested rights in others. Heathman v. Singletary, supra. Here nothing had been done which could create vested rights in others.

Again, no rights had accrued to ap-pellees which entitled them to the relief sought and granted, for the acts complained of by appellees “being governmental acts, and being untainted by fraud and unassailed on account of any accident or mistake occurring in their performance, they are valid. They cannot be assailed by any private citizen under such circumstances, unless and until the citizen has pleaded and proven a condition of affairs demonstrating that he has a personal interest in the subject-matter relating to a transaction between himself as such private citizen upon the one hand and the government on the other.” Heathman v. Singletary, supra. Clearly under that wise rule appellees have no right of action in the ease made.-

The judgment is reversed, the injunction dissolved, and the cause dismissed at the cost of appellees in both courts. Cunningham v. Koons, supra.

Dismissed.


author: FLY, O. J.

text:
    STATE ex rel. OSBORNE et al. v. CITY OF McALLEN et al.
    No. 8956.
    Court of Civil Appeals of Texas. San Antonio.
    Dec. 21, 1932.
    Rehearing Denied Jan. 25, 1933.
    Eugene N. Catlett, of McAllen, and Carl & Leslie, of Edinburg, for plaintiffs in error.
    E. A. McDaniel and T. O. Mitchell, both of McAllen, for defendants in error.
   FLY, O. J.

This is a quo warranto action instituted by Oliver C. Aldrich, district attorney of Seventy-Ninth judicial district, for the state,' upon the relation of R. H. Osborne and other citizens, to declare an extension ordinance of the bounds of the city of McAllen null and void and to prevent, any attempt to collect taxes in the extended bounds or performing other acts of authority over same; The court denied all the relief sought and held the ordinance of the city of McAllen extending its boundaries is legal and binding. The following facts were found by the trial court and are adopted by this court, as its conclusion of facts:

“McAllen was a duly incorporated city and had duly adopted charter bringing it under chapter 13, title 28, of the Statutes of Texas, known as the home rule amendment.
“In pursuance of its Charter provision it did on November 3rd, 1927, pass an ordinance bringing in the territory in question and after having advertised the same in the names and for the length of time as requested by its Charter that the said ordinance became final and the territory described in Plaintiffs’ petition was declared to be a part of and embraced in the territorial limits of the City of McAllen, that the proposition was not submitted to the vote of the people.
“A part of such new territory lies within Hidalgo County Irrigation District No. 3, and the balance thereof in Hidalgo County Water Control and Improvement District No. 1. And the same is subject to a tax levy in each of said districts.
“All of the territory embraced in said extension is suitable for city purposes. The most of the territory embraced in said extension has been cut up into additions to the City of McAllen and was, at the time of said extension, and maps thereof made, showing the same to be divided into city lots and blocks, streets and alleys. A great many city residences are and were built in this addition. In 1920 McAllen was a city of about 5000 population and had for its city limits 1 mile square, in 1927 it had reached a population of about 9000 people. The territory taken in lies immediately adjacent to said city and is in every way suitable for city purposes."

Article 3, section 17, Charter of Mc-Allen, is as follows: “When an ordinance has been passed by a majority vote of the board of Commissioners present and voting and signed by the .mayor, it shall be deemed a law.” The facts are that the ordinance assailed was passed on November 3, 1927, and went into effect thirty -days after publication. The final passage of the ordinance took place thirty days after publication, on May 21, 1927. At the meeting when the ordinance was finally passed there were present four commissioners and the mayor. T\yo of them voted in favor of the ordinance, one against, and the other did not vote. The mayor declared the passage of the ordinance by a majority of the commission. The section of the charter herein copied provided that an ordinance should become a law when- a majority of the board, present and voting, voted for the ordinance, As before stated, a majority of the board present and voting cast their ballots for the ordinance. The charter construes itself and is too plain for discussion. There is nothing in the charter compelling every member of the board present to Vote, and it would do violence to the plain language of the section. Two-thirds of the members voted for the ordinance. The case of State ex rel. et al. v. Etheridge et al. (Tex. Com. App.) 32 S.W.(2d) 828, turned on the language of article 961, Rev. St. 1925, which required a two-thirds vote of the city "council, and there is a difference between that statute and the section of the charter in question. The statute required a two-thirds vote ■ of the council; the charter required a two-thirds vote of the members present and voting. We hold that the ordinance was duly -adopted by the board of commissioners of .the city of McAllen. The first and second .propositions are overruled.

The mayor declared the ordinance carried and entered no protest against it, which would amount to an approval. It cannot be deemed necessary to the validity of an ordinance that it should be copied out of the minutes and signed by the mayor, but an approval of the minutes would amount to a signature to each ordinance. No proof was ..introduced to show that the minutes were not signed by the mayor. In the absence of such proof, it will be presumed that he signed and approved the minutes. The signature of the mayor was a mere clerical act and not essential to the validity of the ordinance.-

The fourth and fifth propositions are overruled. The change in the boundaries by a second ordinance did not constitute an admission that the original ordinance' was wrong. Such a proposition refutes itself. 'There is no strength in the claim that the two ordinances are conflicting, and if it were true it would not invalidate the original ordinance.

The judgment is affirmed.


author: SMITH, J.

text:
    BRADY v. HIDALGO COUNTY WATER CONTROL AND IMPROVEMENT DIST. NO. 12 et al.
    No. 8945.
    Court of Civil Appeals of Texas. San Antonio.
    Dec. 14, 1932.
    Rehearing Denied Jan. 25, 1933.

      . Brown & Bader, of Edinburg, for appellant.
    West & Hightower, of Brownsville, and D. . W. Glasscock, of Mercedes, for appellees.
   SMITH, J.

On December 3,1929, the board of directors of the Hidalgo county water control and improvement district No. 12 employed P. Brady as its purchasing agent and office manager, agreeing to pay him $100 per month for his services as such; thereafter, on February 11, 1930, said board further employed Brady as “assistant manager” of the district, at an “additional salary of $250 per month,” or an aggregate salary of $650 per month as “purchasing agent and office manager” and “assistant manager” ; and thereafter, on March '3, 1930, the board still further employed Brady as tax assessor and collector of the district •at an additional salary of $100 per month, or an aggregate salary of $750 per month as “purchasing agent and office manager,” “assistant manager,” and “tax assessor and collector.”

Brady entered upon- the several' employments and performed the pyramided duties at the pyramided salaries to the apparent satisfaction of the board of directors and at no great effort but considerable expense to himself, until May 1,1931, when the personnel of the board of directors was changed, whereupon shortly thereafter his employment was not only terminated,' but was repudiated in toto by the new board, who ordained the repudiation and cancellation of vouchers previously issued (but not paid) to Brady. The latter thereupon sued the district for the 'amount of those vouchers, plus further amounts due him for his salaries under the employment which had not been covered by ■voucher. • . i .

' • The district defended upon the grounds, as stated in its brief: “That the entirety of the indebtedness sued on was payable out of a construction fund which had never existed, failed to show that the amounts sued for were necessarily incurred in the creation and establishment and maintenance of the district, failed to show that either of the three claimed employments of appellant were necessary for the proper handling of the business and the operation of the district, its plant and/or improvements, and failed to show that appellant was legally qualified to hold the office of tax assessor and collector. Further, ap-pellees plead defensively that the indebtedness sued on was payable exclusively out of a construction fund and neither a construction fund nor a maintenance fund had ever existed, and that no construction bonds of the district had ever been sold; that the claimed indebtedness sued on was not at all incurred in the creation and establishment and the maintenance of the district; that the district had no business nor operations, nor plants, nor improvements, and had never had any of such, and appellant’s claimed indebtedness was not, and .could not'have been, necessary for .the proper handling of such, all of which appellant had always known; that appellant, together with the previous, directors of the district, together with other unknown persons, had formed, and all had become members of, a general conspiracy to loot and défraud the district, and all of appellant’s claimed indebtedness originated in, and resulted from, such general conspiracy; and that,' irrespective of such general conspiracy, the employment by such previous directors of appellant for the positions and for the salaries as stated was a gross abuse of discretion on the part of such directors, which appellant well knew; that there had been a total absence as well as a complete failure of consideration for the indebtedness claimed and by reason of the foregoing appel-lees denied liability for anything.”

The jury found that the district directors “grossly abused” their discretion in engaging Brady in each of said employments, and that Brady’s claim, except for salary as purchasing agent and office manager, were “results of a conspiracy to which he was a party.” The jury further found, upon the theory of quantum meruit, that $1,159.83 would reasonably compensate Brady for his services in all the several employments mentioned. Under the contract sued on, if valid, he was entitled to recover $13,993.33, according to his testimony. Upon the jury findings, the trial court rendered judgment denying ’any recovery tb Brady, who has appealed.

I,t is conceded that-the district was regularly created and organized. Its.-organization was decreed by a practically unanimous vote of the land-owning taxpayers residing within, the district, who by a like majority elected the members of the board of directors which employed Brady, and adopted a proposal to issue $5,500,000 in bonds to put the district.in. operation. Those bonds were issued accordingly, but by , that time the current financial depression set in and they could .not be; sold. They have never been sola.

There was no evidence to support' the jury finding that Brady’s claims weré; “results of a conspiracy to which he was a party.” The record shows, rather, that appellant was regularly employed by the board of directors in their apparent belief that the district would be correspondingly benefited by his services, on account of his apparently high standing as a business man of past large affairs, experience, and training. They particularly thought he would be of great value in advantageously disposing of the district bonds, in a market which had already begun to disintegrate.

Appellant had never heard of the district at the time of his first appointment, knew nothing whatever of its affairs or status or prospects, was acquainted with only one of the directors and with him only slightly. The board had appointed him upon the recommendation of one of the promoters of the district acting in Brady’s behalf, but without consulting him.

The record likewise shows that appellant accepted and entered into the employment in good faith, performed such of the duties as could be performed under the existing conditions, and held himself in readiness to do whatever else might come to hand to be done by him for the district.

It is true that because of the failure to dispose of the bonds there was but little that could be done by appellant in his several employments, but that was due to no negligence or fault of his own.

Nor was there any support in the evidence of the jury finding that the district directors “grossly abused their discretion” in employing Brady as they did. As a matter of law, it was quite beyond the province of the jury to say whether appellant should have been employed by the district, or to fix his salary. The board of directors, and not this jury, were elected by the people to determine those very questions.

It is true that the action of the board of directors in building and equipping an office and employing appellant and perhaps others proved to -be premature and improvident, but apparently it so turned out only .because of the unsalability of the bonds due to the financial depression. It is easily conceivable that but for that wholly unexpected calamity the district would have gone normally into 'operation and that this and like claims would never have been questioned or ■repudiated or litigated. It is easily conceivable that the board of directors of the district were justified by existing conditions in mailing haste to lay the groundwork for their activities, and that the interests of the district could be best served by employing an .able, experienced, and trained business man to take charge and direct those activities. 'Certainly the directors were elected by the taxpayers (who were to pay the district’s hills) for the very purpose of determining matters of policy such as that involved, to select and employ the necessary secretarial and (managerial assistants, and to fix their compensation. Those were purely administrative functions delegated to the directors by law and the vote of the taxpayers, and the courts may not usurp those functions, or interfere with the exercise thereof by those elected thereto except in extreme situations not presented here.

In short, the questions of the necessity for appointing a purchasing agent, an office manager, an assistant general manager, and a tax assessor and collector, or 6f combining all those functions in one employee, as well as the question of fixing the compensation of such employee, were to be determined by the board of directors elected by the taxpayers of tiie district with special reference to their fitness therefor, and not by a jury or a court. And the decision of the directors in such matters is conclusive, unless, indeed, it appears as a matter of law that the directors have acted clearly outside the scope of their lawful authority, and their decision is so grossly unreasonable or capricious or arbitrary as to amount to fraud as a matter of law. Certainly no such case is proven here in so far as it concerns the employment of appellant

Of course, the district has no funds, no assets, no income, no source of income, no present prospects of income. It can procure none except through the sale of its bonds, and of course appellant accepted this employment and entered into this contract with full notice that his pay must come out of the proceeds of the bond issue. For it seems obvious the district cannot levy taxes except to provide interest upon its bonds and sinking fund for the retirement of its bonds. Its operating expenses, .after construction expenses, must come from water rentals and service charges, which cannot precede, but can only follow, actual irrigation operations. And a judgment for appellant in this case would constitute a very doubtful asset, for its payment would have to await the sale of the- district bonds, at present but a remote and doubtful contingency. But with this the law is not concerned, and equity does not weep for appellant, who took these risks knowingly. The courts will concern themselves only in establishing the legal rights and remedies of the parties, and in prohibit; ing repudiation of lawful debts by individuals or corporations, public or private.

It is obvious that the judgment must ■be reversed. The case does not appear to be one for rendition here. The jury findings were manifestly without material support in the evidence, and obviously resulted from improper considerations. The record discloses much testimony that should have been excluded as being irrelevant to any legitimate issue in the case, such as the testimony as to the alleged machinations of its promoters before and after the organization of the district. Much fun was made by appellees of the kind- and number of household, office, and kitchen articles purchased hy the hoard for use in the temporary quarters of the district. Appellees likewise with more or less levity sought to show that the first hoard of directors, who employed appellant, were ignorant illiterate puppets of one Franklin and his cronies, who promoted the district, and this line of attack, skillfully conducted hy able and astute counsel, apparently prejudiced appellant’s case. But whether that point was established or not, those directors were elected by the taxpayers of the district, who likewise elected .the present complaining hoard, with practical unanimity, and presumably with full knowledge of the shortcomings, if any, of those ifor whom they voted. And in no possible event could appellant be charged with those shortcomings, for at the time of the election of the directors and of his appointment he had never heard of them or of the district. All such matters should have been excluded from evidence, since appellant was responsible for none of them, while their admission was clearly prejudicial to him, and no doubt induced the groundless findings of the jury.

So far as the present record shows, the district lawfully incurred the obligations herein sued upon. It accepted the resulting benefits, slight though they proved to be, and appropriated the same to its own uses, and yet seeks to repudiate those obligations. It is obvious that no individual or private corporation would be permitted to thus escape its solemn obligations, and we see no reason why public or quasi public corporations should not be held as rigidly, if not more rigidly, to such obligations.

The judgment is reversed, and the cause remanded.


author: LEVY, J.

text:
    BUCKHOLTS et al. v. ALSUP et al.
    No. 4264.
    Court of Civil Appeals of Texas. Texarkana.
    Dec. 1, 1932.
    Rehearing Denied Dec. 8, 1932.

      R. E. Bowling, of Pauls Valley, Okl., and B. W. Patterson, of Eastland, for appellants.
    M. G. Mell, of Gilmer, W. R. Abernathy, of McKinney, M. S. Church, and Prentice Wilson, both of Dallas, J. F. O’Brian, of Gilmer, and H. Tom Kight, of Claremore, Okl., for appellees.
   LEVY, J.

(after stating the case as' above).

The chief points presented for decision are that (1) the tax sale did not divest appellants of the title to their lands, but as to them was absolutely void, because the proceedings were against the unknown heirs of H. Alsup and did not include any other parties, either known or unknown, and because there were certain irregularities which were. enumerated; and (2) in the facts proven the appellants made proper and timely tender of the required amount of money, and they were legally entitled to redeem the land from the tax sale. As the conclusion reached upon the second point accomplishes an object of the suit and is conclusive of the appeal, a ruling uppn; the first point is entirely foregone as unnecessary, although presenting a serious question as to the validity of , the tax judgment and the sale thereunder.

- By'the findings of the court the plaintiffs, who are appellants here, were the owners of the land in fee simple when the tax suit was instituted, and were only divested of their title by reason of the-' tax suit and sale for delinquency in making payment. That the plaintiffs Were entitled to redeem the land from the foreclosure sale for taxes. That on July 3, 1931, the plaintiffs made proper tender to the private purchaser's of -the. land' at the tax sale of “an amount of money sufficient to'redeem said-property from.tax sale.” The,further findings pertinent to state were made:. - • .

“14. 'That on July 2-, 1929, the lands and premises were sold by the Sheriff of Upshur County, Texas, and the defendants, R. C. Barnwell and C. H.- Roberts, of Upshur County became the purchasers for Two Hundred and Ninety Six -Dollars and sixty seven cents ($296:67), and due return was made by the sheriff of Upshur County..
“15. That the sheriff’s deed was of date July 10, 1929, conveying the property to R. C. fearnweir'and C.'H. Roberts, the purchasers of said land.” ■

There was. evidence going to show and the court made the finding that the record of the tax -collector of Upshur' county has the entry that “on July 17,-1929, R. C. Barnwell and O.' H. Roberts ' paid to such Tax Collector the-ámount of their bid for said property and the' payment was endorsed on the delinquent tax records of Upshur County, Texas:”-

’ The controlling question, therefore, in this case is,- When land is sold under judgment of court for state and county taxes to private purchasers,. has the owner of such land, or any one having an interest therein, two years within which' to redeem the sáme from the day the property was actually bid off by the purchaser, or should this time be computed from the time the bidder at such salé pays the amount of money ? -The’ statutes -bearing upon the point involved and the requirements thereof are as here stated. By article 7328 (as amended by Acts 1927, 1st Called Sess., c. 99, § 1 [Vernon’s Ann. Civ. St. art. 7328]) it is provided that after a judgment is rendered foreclosing a tax lien for delinquency in payment of past due and unpaid taxes “an order of sale shall issue and the land sold thereunder as in other cases of foreclosure,”, and on the day appointed by the statute, “the sheriff shall sell the same.at public outcry to the highest bidder for cash.” Article 7330 (under Acts of 1897) provides: “In all cases in which lands have been sold, or may be sold, for default in the payment of taxes, the sheriff selling the same, or any of his successors in office, shall make a deed or deeds to the purchaser or to any other person to whom the purchaser may direct the deed to be made,” etc. But article 7328, supra (enacted in 1923), although bearing upon another situation, has the following wording: “The sheriff, in behalf of the State, shall execute a deed conveying title to said property .when sold and paid for.” Article 7284b, Vernon’s Ann. Civ. St., declares that: “Whenever land is sold under a decree and-judgment of court for taxes levied by or for the State, or by or for any County within the State, the owner of such property, or any one having an interest therein, shall have the right .to redeem the same at any time within two years from the' date of such sale, upon payment of double the amount paid by the purchaser at such sale; provided that the purchaser at such foreclosure sale, and his assigns, shall not be entitled to the possession of the property sold for taxes until the expiration of two years from the date of such sale.”

As may be seen from the statute, the limitation upon the right of the owner to redeem is made to begin “from the date of such sale.” The inquiry then is, What is meant by the words “from the date of such sale,” as used in the statute? They either mean the date of the auction when the property was knocked down to the'highest bidder, or they mean the time of the executed sale when the bid was complied with by the purchaser and he had the -right to have the legal title conveyed to him. The intention must govern. The tax foreclosure requires and includes not only an auction and a highest bidder, but also a compliance with the terms of the offer or bid. It. is quite manifest that the purchaser acquirr es no title to the property simply and solely by ■virtue of-the fact that it was knocked off to him as the highest bidder at the sale. Eor if he refuses to pay the money at once upon request, the sheriff has the.option and can resell the property under the same process. The very purpose of having the auction is the collection of the tax, and that purpose is not accomplished until there is payment in money of the offer or bid. And it is only on the actual payment in money of the bid by the purchaser that all authority of the sheriff to proceed further against the property will be at an end. Carter v. Munzesheimer (Tex. Civ. App.) 272 S. W. 277. The bidder is not entitled to his deed from the sheriff until he tenders and pays the amount of his bid, and until this is done he has no interest in the property. 24 Cyc. p. 49. The statute seems to imply that the deed to the property sold shall not be executed by the sheriff until paid for by the bidder. It is believed by proper construction there is no “sale” until the date the bidder at such sale has paid in cash the amount of his bid. By express provision of section 13 of article 8 of the Constitution of the state as relates to the summary remedy of tax sales, the limitation upon the right of the owner to redeem is made to begin “from date of purchaser’s deed.” It is thought to be only reasonable that the Legislature, in making provision for tax proceedings by judgment of the court, intended and meant the same executed sale as the “sale” required to be made. -

In this case it seems that the sheriff made official return touching the sale of the property on July 2d, with entry of the fact that the property was sold to the purchasers named. But it further appears that the deed to the purchasers was not executed and acceptance of the money had until July 10th. Ordinarily the acceptance of the money and the execution of the deed would have the effect of ratifying all that had been previously done, and relate back and make a sale effectual. But relatively to the fight of the owner to redeem the land the “sale,” in view of the purpose and intent of the statute, may not be considered as complete until actual payment of the amount bid by the bidder. Manifestly the statute did not intend that the limitation to the right to redeem should begin to run before the date the purchaser himself had actually paid out any money for the property. The purchaser acquires no title until he pays the amount of his bid. According to the recognized rule, the statutes which give the right to redeem are to be regarded favorably and construed with liberality. 2 Cooley on Taxation (3d Ed.) p. 1025; .Black on Tax Titles, § 350. It is believed the construction aboye given to the statute is supported by similar cases. Houston, E. & W. T. Ry. Co. v. Keller, 90 Tex. 214, 37 S. W. 1062; Wood v. Henry, 107 Ga. 389, 33 S. E. 410.

The proof showing the owners did all that was required to redeem the land, that fact required judgment in favor of appellants in the cancellation of the tax deed, and judgment for the purchasers for the amount of the tendered money. McGraw v. Potts (Tex. Civ. App.) 27 S.W.(2d) 550.

The judgment is reversed, and accordingly hero rendered. The appellees to pay costs of this appeal and of the trial court.