author: GALLAGHER, O. J.

text:
    HOLT v. WILSON.
    No. 1284.
    Court of Civil Appeals of Texas. Waco.
    Dec. 15, 1932.

      R. B. Cross, of Gatesville, for appellant.
    T. R. Mears, of Gatesville, for appellee.
   GALLAGHER, O. J.

Appellant, P. D. Holt, is the editor, publisher, and owner of a newspaper called the Gatesville Messenger. Appellant, in September and October, 1931, instituted and caused to be conducted what is known as a circulation campaign, which was under the management of Mr. S. Clark Pulks. Certain prizes were offered to canvassers participating in said campaign. The first prize was an automobile and the second a trip to California, or, at the election of the winner, $200 in cash. Other prizes of less value were offered, but consideration of the same is not relevant to the issues involved in this case. Canvassers were invited to contest for said prizes, and the same were to be awarded according to the number of credits or votes earned by them respectively. Each cash subscription secured and paid over to the management carried with it a certain number of credits or votes. The campaign was divided into three periods. The first period lasted three and a half weeks, the second period two weeks, and the third or last period only one week. Each period ended with a calendar week. Subscriptions taken and credits or votes based thereon had greater value during the first period than the second, and during the second period than the third. During the first and second periods all subscriptions were paid direct to Mr. Eulks and credits or votes based thereon awarded to the respective contestants. During the last period all reports of subscriptions received by the several contestants and their claim for credits or votes ^accruing by reason thereof were required to be deposited by each respective contestant in a sealed ballot box at a local bank. The declared purpose of such provision was that no one, not even Mr. Fulks, should know the actual credits or votes earned by each of the several contestants during said last period. A number of prominent citizens were appointed to act as an advisory board, the declared function of which was to decide any question of sufficient importance to be referred thereto. A committee from such board was to act in canvassing the credits or votes and awarding prizes.

The management of the campaign published in an issue of the paper dated October S, 1931, an article apparently designed to inspire greater effort on the part of the several contestants. The provisions of said article material to the issues involved in this ease were a request that all contestants should submit their respective reports at the office of the paper by 12 o’clock midnight Saturday, October 10,1931, and an affirmative statement that the “second period” would close at midnight on said day, and that after such close no more reports would be accepted by the management, but should be placed in said sealed ballot box. All the several contestants acted' on said notice and reported subscriptions secured during said period, and claimed the credits or votes promised therefor. All said reports except one made for Mrs. Johnson by her husband, Mr. Francis Johnson, were shown to have been presented to the campaign manager, Mr. Fulks, at the office of the paper before 12 o’clock midnight upon that date. The testimony with reference to the exact time Mr. Johnson tendered to Mr. Fulks said report for his wife at said office- was conflicting. Appellant contended that said report, though actually received and the credits or votes based thereon awarded to Mrs. Johnson after midnight, was tendered to Mr. Fulks by Mr. Johnson before midnight, and received and audited later, because he, said Fulks, was then actually engaged until after midnight in receiving and auditing reports of other contestants and awarding credits or votes thereon. Appellee contended that Mr. Johnson never tendered said report at said office until after midnight, and that the subscriptions then reported should have been awarded only the decreased credits or votes that they would have been entitled to had they been deposited in said sealed ballot box. It is apparently conceded that the third or last period ended at 4 o’clock p. m. Saturday, October 17, 1931. At that time the management furnished to a committee from the advisory board a list of the several contestants and the number of credits or votes which had been awarded to each of them for reports submitted prior to the third or last period. Said committee then opened said sealed ballot box, audited the reports contained therein, and awarded proper credits or votes to the several contestants. The credits or votes so awarded were then added to the list furnished by the management. On the basis of such totals, Mrs. Johnson had the highest number of credits or votes and appellee, Miss Elsie Wilson, the next highest. The committee thereupon awarded the automobile to Mrs. Johnson, and a trip to California, or $200 in money, as desired, to appellee. The testimony does not show whether an automobile had been selected and purchased by appellant as first prize prior to the award or not, but it is conceded that an automobile of the kind and quality promised was *by the management delivered or caused to be delivered to Mrs. Johnson. Appellee, claiming that she was entitled to the first prize, refused to accept the second prize, and demanded that appellant deliver to her an automobile of the kind and quality promised, which demand was refused.

Appellee thereafter filed this suit against appellant for the sum of $717, which she alleged was the value of the automobile promised as the first prize in said contest. She based her claim that she had won the first prize on her contention that the report of Subscriptions taken by Mrs. Johnson during the second period was not tendered to Mr. Fulks until after midnight on October 10, 1931; that under the rule announced and published two days before Mr. Fulks had no right to receive the same; that his action in doing so was wrongful and collusive; and that the subscriptions embraced in said report should have been placed in the sealed ballot box and awarded the lesser number of credits or votes allowed for subscriptions found in said box at the end of the third or last period. She alleged in that connection that, had this been done, she, appellee, would have had at the close of the campaign a larger number of credits or votes than Mrs. Johnson, and would have therefore won the first prize, and would have been entitled to said automobile. Such further recitals of pleadings and facts as may be necessary to a full understanding of the issues of law hereinafter discussed will be made in connection therewith.

The case was tried to a jury. It was admitted that the report filed by Mrs. Johnson about midnight on October 10,1931, embraced twenty-three five-year subscriptions. The undisputed testimony showed that said report was received and credits or votes awarded thereon to Mrs. Johnson at the rate allowed for such subscriptions during the second period; that, had credits or votes been allowed to her thereon only at the rate for the third or last period, appellee and not Mrs. Johnson would have had the greatest number of credits or votes of all the contestants, and would, under the terms of such contest, have been entitled to the first prize. Appellant, at the close of the testimony, moved for an instructed verdict, which was refused. The court submitted to the jury for determination a single issue, which issue and the answer thereto were as follows: “Do you find that Francis Johnson, husband of Mrs. Eleanor Johnson, appeared at The Messenger office with twenty-three five year subscriptions and offered to report the same to the campaign manager on or before twelve o’clock P. M., October 10, 19S1?” Answer: “No.”

Neither party objected to such submission or requested the submission of any other issues or charges. The pleadings of the parties and the undisputed testimony showed that each contestant was paid a certain percentage of the amount of cash collected for subscriptions, and that contestants winning prizes were required to return the same or account therefor at the delivery of the prizes won. The testimony further showed without contradiction that the value of the automobile promised as first prize was $717, and that the total commissions received -by appellee amounted in the aggregate to $74.42. The court deducted the same from the value of the automobile, and rendered judgment against appellant in favor of appellee for th,e remainder, $042.58, from which judgment appellant has perfected this appeal.

Opinion.

Appellant presents an assignment of error in which he complains of the action of the court in overruling a plea of abatement interposed by him. He alleged in said plea that only one automobile was promised by appellant, and that, the same having been awarded to Mrs. Johnson and delivered to her, she was a necessary party to the suit. The action of the court on said plea and appellant’s exception thereto are preserved and presented by bill of exceptions only. In the absence .of an order thereon entered of record, we are without authority to review the action of the court in the premises. Jenkins v. Jenkins (Tex. Civ. App.) 50 S.W.(2d) 341, 342, par. 2; First Nat. Bank v. Herrell (Tex. Civ. App.) 190 S. W. 797, 798, par. 3; Seastrunk v. Kidd (Tex. Civ. App.) 53 S.W. (2d) 678, 680 (first column). However, we are of the opinion no error is shown by said bill. Appellant admittedly delivered said automobile to Mrs. Johnson. Appellee, if in fact entitled thereto, was not required to pursue the same, but had a right to treat such delivery as a breach of contract by appellant and sue for the value thereof. Crim v. Lukenbill (Tex. Civ. App.) 21 S.W.(2d) 83, 85, par. 3. In the cases cited by appellant, the right or title to the property, as distinguished from a recovery of its value, was in issue. Had appellant deemed Mr. and Mrs. Johnson proper parties to the suit, he could have himself impleaded them. Labor Bank & Trust Co. v. Adams (Tex. Civ. App.) 23 S.W. (2d) 814, 815, par. 3. He had ample time to do so. Appellee’s petition was filed October 22, 1931. The term of court at which trial was had did not convene until the llth day of January, 1932.

Appellant assailed appellee’s petition by general and special exceptions, all of which were duly overruled and the action of the court thereon entered of record. Such action is presented as ground for reversal. The first contention advanced is that appellee did not specifically allege that Mrs. Johnson accepted the terms of the published offer to contestants, acted thereunder, and was .bound thereby. In determining the sufficiency of a petition, even on general demurrer, the same must be read in the light of the allegations of the party assailing the same. Clem Lumber Co. v. Elliott Lumber Co. (Tex. Com. App.) 254 S. W. 935, 936, par. 1, and authorities there cited. Appellant alleged affirmatively that Mrs. Johnson was a contestant, and that she did in fact comply with the requirements of the published notice of October S, 1931, hereinbefore recited. Appellant’s second contention is that the notice published October 8th, declaring that the second period would end at midnight on October 10th, and that no reports would be received by the management after that time, constituted a material change in the original plan of the contest, and that appellee’s petition was insufficient because it failed to allege that the several contestants acted thereunder or became in any way bound thereby. The pleadings of the parties hereto, considered together, did allege, in substance at least, that both Mrs. Johnson and appellee attempted to conform, and did conform, to the requirements of said notice. However, since the second period admittedly embraced the two weeks ending October 10th, and since the calendar week, in the absence of some specific stipulation, necessarily ended at midnight Saturday, we are unable to see that said published notice materially varied the terms of the contract. Appellant’s third contention is that, since appellee in effect admitted in her petition that the twenty-three five-year subscriptions secured by Mrs. Johnson and reported as aforesaid were in fact secured during the second period of the campaign, appel-lee, in order to state a cause of action, should have further alleged affirmatively that, if any contestant failed to report by midnight on October 10th, such failure would forfeit the right to have his or her credits counted in the second period at the rate allowed therefor during such time. There was attached to the pleadings of one or both of the parties all the rules and regulations promulgated for the government of the contest, including a copy of the notice published October 8, 1931. The original rules promulgated by appellant for the government of said contest provided that during the entire last period all final collections and reserve credits should be deposited in the sealed ballot box above referred to, and the number of credits or votes awarded upon such subscriptions and collections should he according to the schedule of credits or votes allowed for such period. There was no intimation in such original rules that a contestant might at his or her option withhold the report of subscriptions taken during the second period and afterwards deliver them direct to the campaign manager, Mr. Fulks, and receive credit therefor. Such action would have defeated the declared purpose of the sealed ballot box, which Wasi that no one, not even Mr. Fulks, should know the strength of the various contestants after the close of the second" period. Such action was, however, expressly prohibited by the notice of October 8th. Said notice stated specifically that, after midnight October 10th, no reports would be received by the campaign manager from any contestant. No other course, according to the terms of said notice, was left to contestants failing to report before midnight on October 10th except to deposit their respective'reports and collections in such sealed ballot box and to receive credits according to the schedule allowed for said third period. We do not think appellee was required to allege in terms that a contestant failing to comply with said notice forfeited the right to have his or her votes counted at the rate allowed for the second period. Appellee’s pleadings charged clearly that Mr. Fulks received the report of subscriptions secured by Mrs. Johnson after midnight on October 10th, and in doing so violated the terms of the published, notice of October 8th, to appellee’s prejudice.

Appellant presents an assignment of error in which he asserts that the court erred in refusing his request for an instructed verdict. He contends thereunder that the rules of the contest as hereinbefore recited, given a fair and reasonable construction, would allow all subscriptions actually secured during the second period to be reported and credits thereon awarded at the rate promised for such period, regardless of when the same were reported. The rules and requirements of the contest were in writing or in print, and couched in language chosen by appellant, or by his representative, Mr. Fulks. When ap-pellee acted thereon by entering the contest and complying with the prescribed requirements, a contract arose between her and appellant, which was in legal effect a written one. The construction of an unambiguous written contract is for the court. Shepherd v. White, 11 Tex. 346, 358; Cook v. Dennis, 61 Tex. 246, 249; San Antonio Machine & Supply Co. v. Allen (Tex. Com. App.) 284 S. W. 542, 543, par. 2. A written contract must be construed according to its terms where no mistake in the agreement as written is pleaded. Collier v. Robinson, 61 Tex. Civ. App. 164, 129 S. W. 389, 391, second column (writ refused); Brotherhood of Locomotive Firemen and Enginemen v. Williams (Tex. Civ. App.) 291 S. W. 301, 304, pars. 4 and 5, affirmed (Com. App.) 298 S. W. 535. A contract must of course be construed most strongly against the party thereto who selected the language used and tendered it to the opposite party to be accepted or rejected as he might see fit. Pledger v. Business Men’s Accident Ass’n of Texas (Tex. Com. App.) 228 S. W. 110, 113, par. 2. The published notice of October 8th stated specifically that the second period would close at midnight on October 10th and that after such close no more reports would be accepted by the management, but all such reports must be placed in the sealed ballot box. The construction contended for by appellant is excluded by the very language of such notice.

Appellant further contends under said assignment that, even if Mrs. Johnson’s report was in fact tendered for the first time after midnight on October 10th, since such tender was within fifteen or twenty minutes thereafter, the same constituted a substantial compliance with the requirements of said notice. Time may be of the very essence of a contract, and we think it was made so by the express provisions of said notice. Garrison v. Cooke, 96 Tex. 228, 231 et seq., 72 S. W. 54, 61 L. R. A. 342, 97 Am. St. Rep. 906; Upham v. Gamble (Tex. Civ. App.) 44 S.W.(2d) 1011, 1013, par. 2; Bes Line Construction Co. v. Woods, 37 Tex. Civ. App. 414, 84 S. W. 378, 379 et seq. (writ refused); City of Houston v. Kapner, 43 Tex. Civ. App. 507, 95 S. W. 1103, 1106; Barber Asphalt Paving Co. v. Loughlin, 44 Tex. Civ. App. 580, 98 S. W. 948, 949 ; Palo Pinto County v. Beene (Tex. Civ. App.) 199 S. W. 866, 867, par. 1; Dayvault & Newsome v. Townsend (Tex. Civ. App.) 244 S. W. 1108, 1110, par. 1. Actual, and not substantial, compliance was required of Mrs. Johnson.

Appellant further contends under said assignment that the action of Mr. Fulks in accepting Mrs. Johnson’s report and awarding full credits thereon after midnight on October 10th, if he did do so, was the. exercise of power and discretion reserved in the rules originally promulgated, which provided that, should any question arise, the decision of the management would be absolute and final, and that canvassers entering the contest should agree to abide by such provision. The rules did contain said provision, and appellee testified she had agreed to abide thereby. The effect of the provision so quoted was to attempt to invest appellant, acting through his agent or representative, Mr. Fulks, who conducted the campaign, with final and conclusive authority to determine all questions, both of fact and law, which might arise during the progress of the contest, and to deny contestants access to the courts to establish and enforce their rights. Such provision was therefore invalid, and cannot be interposed in bar of appellee’s demands. Long v. Chronicle Publishing Co., 68 Cal. App. 171, 228 P. 873, 876, par. 8; Dozier v. City of Gatesville (Tex. Civ. App.) 4 S.W.(2d) 131, 133, par. 2, and authorities there cited.

Appellant assails the sufficiency of the evidence to support the finding of the jury on the issue submitted. Appellant’s manager Fulks testified that Mr. Johnson presented his wife’s report in person at the office of the paper, as required by the terms of said published notice, ten or fifteen minutes. before midnight on October 10th. He was corroborated on this point by the testimony of his wife and Mr. Johnson. It cannot be said that any of said witnesses were whoily disinterested in the controversy. Appellee testified that she arrived at the office of the paper about 11:30 that-night; that she finished making her report about 11:45; that she did not know whether Mr. Johnson appeared in person and tendered his wife’s report after she left or not. Miss Bond testified that she arrived at the office about 11:30 and made her report immediately after appellee had reported. There was testimony that said witness was making her report when the clock struck 12. She did not see Mr.- Johnson there that night. Clarence Howell testified that he entered the office of the paper about three minutes to 12 ? that he followed Miss Bond in making his report ; that he left about ten or twelve minutes after 12 o’clock; and that he did not see Mr. Johnson there. W. T. Howell, a brother of Clarence Howell, testified that he was in front of or in the office from about ten minutes to 12 until his brother finished making his report, and that he did not see Johnson there. Mrs. Osborn testified she sat in a car near the front door of the office from ten minutdS to 12 until after her son, Clarence Howell, had finished his report, and that'Johnson did not enter the office during that time. The testimony introduced by appellee therefore covered the entire time from 11:30 until ten or twelve minutes after midnight, and negatived the presence of Mr. Johnson in the office of the paper during such time. Appellee’s witness Howell testified that he entered a protest to the action of Mr. Eulks in accepting Mrs. Johnson’s report after midnight, and that Eulks did not then claim that it had been tendered before midnight, but represented that it only embraced two or three subscriptions, and could not affect the final result. It was peculiarly within the province of the jury to pass upon the credibility of the witnesses, determine the weight to be given to their testimony, and solve conflicts therein. The rule for determining whether the court erred in refusing to set aside a finding for lack of sufficient support in the evidence is that, in passing upon such contention, the court must consider the evidence in the aspect most favorable to such finding. Eastham v. Hunter, 98 Tex. 560, 565, 86 S. W. 323; Williams & Chastain v. Laird (Tex. Civ. App.) 32 S.W.(2d) 502, 505, par. 1 (writ refused) and authorities there cited; Stone v. City of Wylie (Tex. Com. App.) 34 S.W.(2d) 842, 845, par. 6, and authorities there cited. We cannot say that the finding of the jury was without sufficient support in the evidence.

We have considered all the other assignments presented by appellant as ground for reversal, and have reached the conclusion that none of them require or justify such action. The judgment of the trial court is therefore affirmed.


source: Caselaw Access Project

author: ALEXANDER, J.

license: Public Domain

text:
    AUSTIN v. DE GEORGE.
    No. 1249.
    Court of Civil Appeals of Texas. Waco.
    Nov. 25, 1932.
    Rehearing Denied Dec. 29, 1932.

      Renfro, Ledbetter & McCombs, of Dallas, for appellant.
    McCormick, Bromberg, Leftwich & Carring-ton, of Dallas, for appellee.
   ALEXANDER, J.

This action was brought by Dr. Florence W. Austin, a feme sole, against Nick De George, to recover damages for personal injuries sustained by her in an automobile collision at a street intersection in the city of Dallas, the automobile in which plaintiff was riding was being driven by her agent, and was proceeding in a southern direction on Munger boulevard. The defendant’s car was proceeding in a western direction on Victor street, and was undertaking to cross Munger boulevard at the time of the collision. The jury, in answer, to special issues, found the defendant guilty of several acts of negligence which proximately caused the collision and fixed the amount of plaintiff’s damages at ⅞1,000.. The jury also found that at the time of the collision plaintiff’s agent was driving plaintiff’s car at a negligent rate of speed in excess of twenty miles per hour; that he was negligent in doing so, and such negligence directly and proximately contributed to cause plaintiff’s injuries; that said agent saw and realized the approach and entry of the defendant’s car into the street intersection in question in time, by the exercise of ordinary care, to have brought his car to a stop before the collision took place; and that his failure to so stop' the ear prior to the collision was negligence which proximately contributed to cause the injury to plaintiff. Judgment was for the defendant* and the plaintiff appealed.

It is admitted that the driver of. plaintiff’s car was her agent and that on the occasion in question the plaintiff and said agent were engaged in a joint enterprise. Consequently, if the ease was otherwise properly tried, the finding of the jury that plaintiff's agent, for whom she was responsible, was guilty of negligence which proximately contributed to the injury, constituted a complete bar to plaintiff’s right to recover, even though the defendant was guilty of negligence which proximately caused the injury.

Special issue No. 22, as submitted to the jury, was as follows: “Do you find from a preponderance of the evidence that the driver of the car in which plaintiff was riding, at the time and on the occasion in question, saw and realized the approach and entry of defendant’s car, in the intersection in question, in time, by the exercise of ordinary caré, to have brought his car in which plaintiff was riding to a stop before said collision took place?” to which the jury answered, “Yes.”

The plaintiff objected to said issue on the ground that it was multifarious and submitted to the jury in one question several issues, to wit: (a) Whether the driver saw the proximity and the approach of the defendant’s car, (b) whether he realized that defendant’s car was entering the street intersection, (c) in time to have stopped and avoided the collision by ordinary diligence. This issue does involve several elements of fact, but whether it involves more than one ultimate issue is a more difficult question. An issue is not to be condemned as multifarious merely because it groups more than one element of fact therein, so long as it involves only one ultimate issue. It frequently happens that the ultimate fact issue being submitted is made up of more than one fact element. Sometimes it requires the grouping of several facts to make up the ultimate issue or controlling fact. Speer’s Law of Special Issues, § 187. In the ease of Fox v. Dallas Hotel Co., 111 Tex. 461, 210 S. W. 517, 522, the Supreme Court said: “Each group of facts pleaded by defendant in error, which, standing alone, would, if proven, constitute a complete defense to plaintiff in error’s suit, presented an issue. It was the statutory right of defendant in error to have the issue presented by each complete plea submitted separately to the jury, just as plaintiff in error had the right to have submitted each issue, entitling her to recover, which she pleaded and proved.”

In the case of City of Abilene v. Moore (Tex. Civ. App.) 12 S.W.(2d) 604, 606 (writ refused), the court said: “Where the combination of two facts is necessary to constitute negligence, and neither one of the factg stated alone would do so, it would not be required of the trial court that he single out each evi-dentiary fact and then group them himself after the jury had returned its answer. But where two facts must concur in order to constitute negligence, those facts should be grouped in order to have a finding on the ultimate issue, which is the negligence of the party.’?

A charge very similar to the one here under consideration was approved in Houston, E. & W. R. Ry. Co. v. Hough (Tex. Civ. App.) 260 S. W. 233 (writ dismissed). See, also, Texas Electric Ry. v. Jones (Tex. Civ. App.) 262 S. W. 131, par. 4; Clifton Mercantile Co. v. Gillaspie (Tex. Civ. App.) 7 S.W. (2d) 906, par. 4. We are inclined to believe that the issue is not multifarious.

However, if it be conceded that the issue here under consideration does involve more than one ultimate issue of fact, we do not think the error therein complained of requires a reversal of the case. Both the plaintiff and the driver of her car testified that they saw defendant’s car turn into Victor street and proceed toward and enter the street intersection in question, and that when they were forty or fifty feet away they knew and realized that the defendant was going to attempt to cross the street intersection. Therefore the only disputed issue involved in the question was whether the driver of plaintiff’s car realized such danger in time to have stopped his car, by the exercise of ordinary diligence, and to have avoided the injury. It has been held in numerous eases that, even though an issue as submitted to the jury involves more than one question, yet, if the evidence is undisputed on all questions involved therein except one, the issue is not multifarious. Wichita Falls, R. & Ft. Worth Ry. Co. v. Emberlin (Tex. Civ. App.) 274 S. W. 991; Texas Employers’ Ins. Ass'n v. Sloan (Tex. Civ. App.) 36 S.W.(2d) 319, par. 6; Texas Employers’ Ins. Ass’n v. Coulter (Tex. Civ. App.) 35 S.W. (2d) 1082, par. 1; Texas Employers’ Ins. Ass’n v. Drummond (Tex. Civ. App.) 267 S. W. 335, par. 5, affirmed (Com. App.) 279 S. W. 1116; City of Abilene v. Moore (Tex. Civ. App.) 12 S.W.(2d) 604 (writ refused).

Moreover, the jury found, in answer to other special issues, that the driver of plaintiff’s car was driving at a negligent rate of speed, and that such negligence proximately contributed to bring about the injury. There' was evidence that the plaintiff’s car was being driven at from thirty-five to forty miles per hour. The answer of the jury to these issues defeated the plaintiff’s right to recover inde-1 pendent of the finding of the jury in answer to special issue No. 22, and the error, if any, in the form of said special issue No. 22, became immaterial. Brown v. Dallas Gas Co. (Tex. Civ. App.) 42 S.W. (2d) 869, par. 1 and cases there cited.

The appellant complains of the action of the court in failing to define the term “contributory negligence.” Such term was not used in the court’s charge, and it was not necessary for the court to define the term.

The appellant was a physician, and the jury found that she was responding to an emergency call at the time of the collision. It is her contention that since she, under such circumstances, was exempted by Penal Code, art. 791, from.the provisions of Penal Code, art. 789, making it unlawful to drive in a city at a rate of speed in excess of twenty miles per hour, she could not be guilty of negligence by driving in excess of twenty miles per hour. Article 791 does provide that article 789 shall not apply to physicians responding to emergency calls, but it does not undertake to provide that a physician under such circumstances shall not be guilty of negligence if hé drives at a dangerous rate of speed. Article 791 has the effect only to nullify article 789 in so far as it would otherwise apply to physicians when they are responding to emergency calls. In so far as plaintiff is concerned, it is the same as though no statute had been enacted regulating the speed of automobiles. In the absence of any statute on the subject, a physician is bound to exercise the same degree of care as any other person, and,-if-he fails to exercise the degree of care that an ordinarily prudent person would have exorcised under the same circumstances, he. is guilty of negligence even though he does not violate the provisions of any statute. 5 Tex. Jur. 694; Grammier-Dismukes Co. v. Payton (Tex. Civ. App.) 22 S.W.(2d) 544; Wichita Falls Traction Co. v. Jeter (Tex. Civ. App.) 48 S.W. (2d) 372; Morrison v. Antwine (Tex. Civ. App.) 51 S.W.(2d) 820, par. 3, and cases there cited.

Counsel for appellee,. while cross-examining appellant, asked her if she did not have another collision while driving another car just three days prior to the collision in question. The question was objected to on the ground that the evidence was immaterial, irrelevant, and prejudicial. The objection was overruled, and the witness answered the question in the affirmative and stated further that a drunk man ran his car against her car. This evidence, if inadmissible, would not require a reversal of the case. While on first presentation it may appear to be prejudicial in that .it indicates that appellant was a careless driver, yet, when it is remembered that the appellant was not driving the car when the action here unuer consideration occurred, it will be seen that it had no ’harmful effect. Hpwever, we think the evidence was admissible. Other evidence in the record showed that' appellant sustained a broken rib and other injuries in the first accident. It was ajjpellee’s contention that the injury" to appellant’s4foot, for-which she was suing in this case, was sustained in the first collision. . The appellee was entitled to introduce this evidence for the purpose of sustaining this contention. 13 Tex. Jur. 375-171; St. Louis S. W. Ry. Co. v. Johnson, 100 Tex. 237, 97 S. W. 1039.

Moreover, another witness later testified to the same facts without objection. This cured'any error committed by the court in admitting the evidence in the first instance.-Slayden v. Palmo, 108 Tex. 413, 194 S. W. 1103; Wolf v. Wolf (Tex. Civ. App.) 269 S. W. 488, par. 15 ; Hart v. Harrell (Tex. Civ. App.) 17 S.W.(2d) 1093, par. 5.

The jury found that the driver of appellant’s car had the same under control, but further found that he was driving at a negligent rate of speed. The appellant contends that these findings are in conflict. This contention was overruled in the case of Manlove v. Lavelle (Tex. Civ. App.) 235 S. W. 324.

We Have considered all other assignments, and find same without merit.

The judgment of the trial court is affirmed.


author: SMITH, J.

text:
    SCHAWE et al. v. GILES et al.
    No. 8932.
    Court of Civil Appeals of Texas. San Antonio.
    Nov. 30, 1932.
    Rehearing Denied Jan. 4, 1933.
    E. B. & Howell Ward, of Corpus Christi, and R. E. MeKie, of San Marcos, for appellants.
    Kleberg & Eckhardt, John C. North, and M. G. Eckhardt, Jr., all of Corpus Christi, for appellees.
   SMITH, J.

This action was brought by Mrs. Malinde Schawe, now deceased, against O. B. Carver and H. R. Giles to enforce specific performance of a contract to purchase six water front lots in the city of Corpus Christi, or, in the alternative, to recover damages for the breach of that contract. At the conclusion of the trial the court below directed the jury to return a verdict against the executors of Mrs. Sehawe’s estate, who had been substituted as plaintiffs. The executors, Wharton and Harry Schawe, have appealed.

In all the negotiations culminating in the alleged contract Mrs. Schawe was represented by M. O. Flowers and appellees by Dr. H. R. Giles.

The alleged contract, initiated by a long-distance telephone conversation between Mowers and Giles on April 7, 1926, is embraced in the following correspondence between those gentlemen:

“M. O. Flowers,
“Lockhart, Texas,
“April 7, 1926.
“Dr. H. R. Giles
“Corpus Christi, Texas
“Dear Sir:
“This is to confirm our conversation covering the sale to you by Mrs. C. T. Schawe, the six lots being lots Nos. 1 to 6, inclusive, in Water Block numbered 13 'on the Beach Portion of Corpus Christi. The deed to be made to you and O. B. Carver for a consideration of $36,000.00, $18,000.00 cash on delivery of the deed and the remainder to be covered by three vendor’s lien notes of $6,000.00 each, due in one, two and three years from their date and to bear interest from date, April 8th 1926, until paid at the rate of 7% per annum. Am sending the abstract of title to the Guarantee Title Company at Corpus to be supplemented to date and examined by them for you and deal to be closed within ten days from April 8th, on their examination.
“I neglected to tell you in our conversation that Theodore Schawe has permitted some poor persons named Finney to erect a small tent or shack on one of these lots with the understanding that he could occupy the land until sold and then move his shack off. Theodore is writing him to move his traps and I am sure that you will make no objections, for I understand what the man has has no value except bo himself. Please write me your confirmation, and oblige,
‘Wours very truly,
“[Signed] M. O. Flowers.”
“April 10, 1926.
“Mr. M. O. Flowers,
“Lockhart, Texas.
“My dear Sir:
“Your letter of April 7, 1926, to hand confirming sale to myself and O. B. Carver of Block No. 13, Beach Portion of City of Corpus Christi, being 6 lots facing on Water Street with full riparian rights and situated between Power and Palo Alto streets and known as the Mrs. C. T. Schawe property. We confirm the purchase of said property at said prices and terms as mentioned in your said letter of April 7, 1926; but if agreeable to you and Mrs. Schawe we should like to have the three (3) north lots deeded to Dr. H. It. Giles and the three (3) south lots to O. B. Carver, making separate Y/L notes covering each lot. Mr. Carver and myself are both perfectly responsible and having paid half in cash separate notes against each lot for $3,000.00 being three (3) notes for $1,000.-00 each would be perfectly good and just as well secured and in case of re-selling would simplify matters for us.
“This confirmation of purchase is conditioned on occupant vacating property with his shack, which am sure he will do when requested as stated by Mr. Theodore Schawe.
“Please write me at once if it will be satisfactory to deed the lots as mentioned and if so we can get the Guaranty Title Co. draw the papers and submit to you for approval, all of which can be done by the time title is examined. Our cash is ready as soon as title and etc. is approved and ready.
“Please write me at once. With kindest regards,
“Yours very truly, H. R. G.”
“April 13,1926
“Dr. H. R. Giles
“Corpus Christi, Texas
“Dear Sir:
“Answering your letter of April 10th, in which you confirm the purchase of the six lots from Mrs. O. T. Schawe, will state that I have conferred with Mrs. Schawe and that she is willing to deed the three north lots to you and the three south lots to Mr. O. B. Carver, retaining the three notes against each lot separately as stated in your letter, the deeds and notes to be prepared there but without expense to Mrs. Schawe. When the deeds are prepared you will send' them to me and I will get them executed by Mrs. Schawe and returned as heretofore. The abstract was sent by express on the 8th and I received notice today that it had not been delivered early Monday morning and I have asked the express company to trace it.
“I am notifying Mr. Feeny by letter that if he wants his shack to get it off of that lot It seems he was given permission by one of the Schawe boys to put a tent on the lot and that he might have the use of it for such purpose until further notice and they did not know until Theodore went down there that he had built a shack on it. He has been charged no rent and I am sure he will nob make any objection to vacating it.
“Yours very truly M. O. Flowers.”

Appellees defended upon the grounds that there was no meeting of the minds of the parties upon the essentials of the contract; that the written memoranda of the alleged agreement was not sufficient to constitute a contract under the statute of frauds; that, even if a contract was made, appellants had not met the obligations thereof, in that they could not give title to riparian rights as provided in the agreement, and did not tender possession free from the occupancy of the man Finney; and that appellants did not tender separate conveyances to Carver and Giles, as provided in the contract.

We have reached the conclusion that the court erred in directing á verdict against ap: pellants.

The question of whether the minds of the parties met in a definite agreement upon all essentials of the proposed contract must be determined from the express language as well as the whole context of the three letters quoted. Or, as better stated in Central State Bank v. Godfrey (Tex. Com. App.) 29 S.W.(2d) 1015, 1018: “In order to say that this series of letters shows a concluded contract, the letters must be taken together and construed as an integral whole, and the result must show that the point was reached in the negotiations where the parties understood each other and that the terms proposed by one were acceded to by the other. Patton v. Rucker, 29 Tex. 402; Summers v. Mills, 21 Tex. 77.”

So tested, it easily becomes apparent that the contract here provides, besides the description and price of the property, and the details of working out and completing title, as follows:

1. The title was to be passed in one conveyance of the six lots to appellees, jointly; or, at the option of appellants, in separate conveyances of three designated lots to each of the appellees, 'with their joint notes in the first case, or separate notes in the second.

2. The title to be conveyed was to include “full riparian rights” belonging to such property.

3. The caretaker of the property, Finney, was to vacate and remove his shack from the premises upon completion of the sale. '

Much is said by appellees of the indefiniteness or uncertainty of the agreement concerning the method of conveyance and division of deferred payments of the purchase price. It is obvious from the plain language, of the contract that the parties specifically and definitely agreed that the conveyance should he by one deed to appellees jointly, and that the deferred payments should he evidenced by the joint notes of appellees, and secured by the vendor’s lien upon the whole property. It is' true that after expressly agreeing to the foregoing stipulation appellees requested the . vendor to convey the property in two deeds each to three lots to appellees separately ; the deferred obligations to be evidenced by the separate notes of the appellees and secured by separate liens accordingly. But this departure from the contract was but a mere request, and not a condition, in which the vendor acquiesced, provided appellees would prepare the necessary papers, without expense to the vendor. ' This request was not pursued by appellees by a tender of the required papers. ' It was but an incident' to the contract and had no vital influence thereon. It is obvious from the correspondence that the parties so regarded it at the time, and so is it obvious from the record at large that it was set up in this-litigation as an afterthought.

We overrule appellees’ objection to the alleged, contract as being insufficient under the statute of frauds. ' We think the correspondence clearly expresses a complete and definite contract, without offense to any requirement of the statute of frauds.

■There is no merit in appellees’ contention of a failure of the condition in the contract for “full riparian rights” accompanying the property. The record shows that all the riparian or. littoral rights, incident to water front property such as this, will pass unimpaired to ap-pellees with the conveyance tendered them by appellants.

Nor is there any merit in appellees’ contention that appellants breached their obligation to rid the premises of the presence of Finney, the caretaker. At least, the record presents a question of fact upon that issue, which the court erred in withholding from the jury.

It is not our purpose to foreclose any question of fact, by what .has been said in •this: hurriedly written opinion.. The question of possession is one of fact, as may be other questions affecting the diligence of the parties in meeting the requirements of the contract in the matter of timely making, removing, or meeting objections to title, and the waivers thereof. But of course the .matter of construing the contract, in the absence of allegations and proof of ambiguity, fraud, accident, or mistake, is one purely of láw, to be resolved by the court without the aid of a jury.

Because of the errors, pointed out, the judgment is reversed and the cause remanded.


text:
    SCHWARZ v. SPRINKLE.
    No. 8961.
    Court of Civil Appeals of Texas. San Antonio.
    Dec. 21, 1932.
    Carter & Stiernberg, of Harlingen, for appellant.
    ' S. L. Gill and O. N. McNeil, both of Ray-mondviUe, for appellee.
   SMITH, J.

As a result of a collision of their motor vehicles on a highway in Willacy county, E. F. Schwarz and F. D. Sprinkle sued each other for damages, one by direct and the other by cross action. As usual in such cases, each party accused the other of operating his car on the wrong side of the roadway, as well as of other acts of negligence, and charged that such acts caused the accident. A jury found against Schwarz, who has appealed.

Schwarz pleaded Sprinkle’s negligence in four separate acts, and supported the pleading with material evidence. In answer to special issues the jury found: (1) That the “collision was not the result of an unavoidable accident”; (2) that appellee was “operating his truck on his right side of the highway at the time and place of the accident” ; (3) that appellant was “operating his car on his left side of the highway.” The jury thereupon answered “defendant” to these two issues:

“Special Issue No. 4. Who do you find, from a preponderance of the evidence, was not at the time and place of this collision operating his car or truck in a careful and prudent manner, if either?
“Special Issue No. 5. Was either plaintiff or defendant negligent in the operating of his car at the time and place of this collision? If so, name which one, plaintiff or defendant.”

.No other issues were submitted except as to the amount of damages.

The issue of proximate cause was not submitted to the jury, and appellant’s request for such submission was refused by the court.

It will be observed that the court submitted the issues of negligence in one general question, although appellant pleaded four separate and specific acts of negligence against appellee. The court submitted none of those acts, except that of driving upon the wrong side of the roadway. Appellant objected to this character of submission and timely requested that the other three acts charged be submitted, but the court refused. Under the testimony the jury could have found against appellee upon either or all of those issues, and, so finding, could have further found that such negligence proximately caused the collision, in which event appellee could not have recovered. In such situation, under positive current decisions of' oiir Supreme Court, the action of the trial court in submitting all questions of negligence in one issue and in refusing to submit specific acts of negligence alleged, and in rendering judgment in the absence of a finding of proximate cause, was reversible error. International-Great Northern R. Co. v. casey (Tex. Com. App.) 46 S.W.(2d) 669; Kansas City, M. & O. R. Co. v. Perry (Tex. Com. App.) 6 S.W.(2d) 111, 114; France v. Graves (Tex. Civ. App.) 48 S.W.(2d) 438, and authorities there cited; Southern Iron & Mach. Co. v. Portugal (Tex. Civ. App.) 53 S.W.(2d) 685.

Reversed and remanded.


text:
    FAIRBANKS et al. v. HAYES-SAMMONS HARDWARE CO., Inc.
    No. 8955.
    Court of Civil Appeals of Texas. San Antonio.
    Dec. 21, 1932.
    G. D. Fairbanks, of Brownsville, for plaintiffs in error.
    Strickland, Ewers & Wilkins, of Mission, for defendant in error. •
   SMITH, J.

Hayes-Sammons Hardware Company, a corporation, brought this action on open account against Margaret McAllen Fairbanks and A. M. Fairbanks, alleged to be husband and wife, the husband being joined “pro for-ma” only, by express language in the petition. The defendants failing to answer, after apparently proper service, judgment was rendered against both of them indiscriminately for the amount sued for, and they have brought up the case on writ of error.

The initials of the husband were alleged in the petition to be A. M. Fairbanks, the citation was issued for service upon A. M. Fairbanks, the officer’s return shows service upon A. M. Fairbanks, judgment was rendered against A. M. Fairbanks. It is contended by plaintiffs in error that the true initials of the husband are “G. D.” and not “A. M.,” but the record does not disclose this to be so except by an affidavit imbedded in the body of the petition for writ of error, where it can have no controlling influence upon the record. Nevertheless, the fact of the misnomer is so fully conceded by defendant in error in its brief and oral argument that it cannot be ignored here. There is no statement of facts in the record, or written findings or conclusions by the trial judge.

We are of the opinion that the. record does not support the judgment against either of the plaintiffs in error.

Defendant in error joined the husband (whatever his initials ■ are) pro forma only, thereby cutting itself off from any right of affirmative recovery against him, and defendant in error freely concedes that such judgment cannot stand.

There was no allegation in defendant in error’s pleadings to show that the debt sued on was incurred in behalf of the wife’s separate estate, nor is there any other allegation of fact sufficient to charge her separate estate or render her personally liable, and therefore the personal judgment against her cannot stand. Speer’s Law of Marital Rights, § 458.

It is not deemed necessary to pass upon the questions raised by the misnomer of the husband. It may be said certainly, however, that there is no presumption of law that A. M. Fairbanks is the same person as G. D. .Fairbanks, and there is no pleading, even if there was evidence, that they are the same. Nor may default judgment be rendered against the one on process served upon the other, in the absence of a showing that they are in fact the same.

The judgment is reversed and the cause remanded.


author: FLY, C. J.

text:
    CAMERON COUNTY et al. v. FOX et al.
    No. 8938.
    Court of Civil Appeals of Texas. San Antonio.
    Dec. 7, 1932.
    Rehearing Denied Jan. 4, 1933.
    See, also (Civ. App.) 42 S.W.(2d) 653.
    H. L. Faulk, of Brownsville, for appellants.
    West & Hightower and Davenport, West & Ransome, all of Brownsville, for appellees.
   FLY, C. J.

Cameron county, through its county judge, sought to recover of James J. Fox, H. M. Skel-ton, John P. Scanlan, and American Surety Company of New York, taxes alleged to have been collected and appropriated by Fox, as collector of taxes for the county and two drainage districts.

Through an amended petition and several answers filed herein, the cause has been so complicated and obscured that it is difficult to unravel the mazes and arrive at a plain statement of the issues.

It was alleged that Fox was tax collector for the county and drainage districts from 1919, up to the. time of filing suit, which date has not been revealed, as would have been proper in the amended petition. It was sought to recover the taxes which had been collected by Fox, which he claimed to have paid to Skelton on a contract held by him to collect back taxes. The sum of $4,484 was paid by the surety company, and Scanlan, the district clerk, seems to have appropriated that which was in custodia legis and disappeared. The court rendered judgment that the county take nothing as to Fox and the surety company and that Skelton recover the sum of $4,484 from Scanlan, the clerk, and his surety, the American Surety Company.

The first seven propositions contend that the county having denied the claim of Skelton in July, 1920, and Skelton not having filed suit for same until October, 1928, his claim was barred by limitation. When the county denied the claim of Skelton in 1920 and refused payment, the statute began to run. Afterwards, snore than four years before Skelton filed his answer and cross-action, Fox, as collector, refused to pay him the $4,484 on his claim and stated to him that the county had instructed him not to pay the debt. Fox held it and paid it into court on orders therefrom, and it was placed in the hands of Scanlan to be held as in custodia legis. After Scanlan absconded with the money the American Surety Company, as. the surety on his bond, became liable. Skel-ton having forfeited his claim by limitation, the money of course was the property of the-county and the county should have recovered it. The only answer made by Skelton to the-plea of limitation is that the trial judge had determined that he had earned the amount deposited in the court, which is no answer whatever. The only question is: Had four-years elapsed without action upon the part of Skelton to recover the amount he claimed from the county? Skelton stated that he had not been paid anything since 1922. The suit was instituted on October 28, 1928. By a calculation of the items constituting the $4,484, it is evident that the claim must have accrued before 1920. Skelton knew at least six years before he filed his answer claiming the-commissions, that the county had denied him any further payments. The statute of limitation began to run against the contract, by the admission of Skelton, in 1922, when Fox told him he had been instructed not to pay him any more on the contract.

It is the judgment of this court that the judgment be reversed; that appellants recover of John P. Scanlan and the American Surety Company the sum of $4,484, with 6 per cent, interest thereon from January 8, 1929, when it was paid to Scanlan; that Skel-ton recover nothing on his cross-action; and. that nothing he recovered against Pox or his surety. It is further ordered that the costs he paid by H. M. Skelton, John P. Scanlan, and the American Surety Company.


author: WALKER, C. J.

text:
    NALL v. MALLEY et ux.
    No. 2420.
    Court of Civil Appeals of Texas. Beaumont.
    Dec. 15, 1932.
    E. L. Nall, of Beaumont, for appellant.
    E. M. Venable, of Beaumont, for appel-lees.
   WALKER, C. J.

By their petition filed in this case, appel-lees alleged that they were the owners of certain real estate in the city of Beaumont; that appellant held notes against this property in the sum of more than $1,700; that appellant was about to foreclose his lien against this property; and further, certain facts as a basis for enjoining appellant from foreclosing his lien. On the facts alleged, they made the following prayer: “Wherefore plaintiffs pray that they be granted a writ of injunction against defendant, and that he be enjoined and restrained from selling-said property as aforesaid, or any part thereof. That defendants be cited to appear and answer this petition, and that on final hearing defendants be enjoined from making such foreclosure and said sale for a period of ninety days from the date of filing this petition, and for such other relief general and special as plaintiffs may show themselves entitled.”

Upon presentation of their petition to the district judge of the Fifty-Eighth district court of Jefferson county, he indorsed thereon his fiat, as follows:

“State of Texas, County of Jefferson
“At Chambers This 27th day of October, 1932.
“The above petition having been presented to and heard by the judge of the 58th District Court of Jefferson County, Texas, at chambers, this 27th day of October, 1932, and it appearing to him from the facts stated therein that the plaintiff, applicant is entitled to a temporary restraining order, that same is within complainants allegations and prayer, that delay will not be injurious to either party, and that justice may be sub-served thereby, it is accordingly ordered that the clerk of this court issue a temporary restraining order, operative until and pending the hearing below ordered, restraining defendants from selling or in any way disposing of the property described in said petition upon plaintiffs executing a good and sufficient bond, with two or more sufficient securities in the sum of $100.00 conditioned as the law requires. The Clerk shall quote this fiat and embody such order in a writ, which shall also require defendants to appear in court on the 15 day of Nov. 1932, to show cause why injunction should not be granted upon such petition as set forth in the prayer thereof.”

Appellant perfected his appeal from the above order by filing in the trial court his ap* peal bond on the 28th day of October, 1932, and by filing the transcript in this cause on the 28th of October, 1932.

Opinion.

We sustain appellees’ motion to dismiss this appeal on the ground that the order appealed from is a temporary restraining order and not a temporary injunction. A temporary restraining order will not support an appeal. For a discussion of the distinction between a temporary restraining order and a temporary injunction see the opinion of this court in C. V. Terrell et al. v. Alpha Petroleum Company, 54 S.W.(2d) 821.

Appeal dismissed.


author: WALKER, C. J.-

text:
    MORRIS v. SANDERS et al.
    No. 2300.
    Court of Civil Appeals of Texas. Beaumont.
    Dec. 19, 1932.
    Rehearing Denied Dec. 21, 1932.
    E. C. Gaines, of Austin, for appellant.
    Z. L. Foreman, of Livingston, and J. J. Collins, of Lufkin, for appellees.
   WALKER, C. J.-

On or about the 20th day of March, 1931, appellant, Earl Morris, was operating a truck-between the town of Livingston, Polk county, Tex., and the city of Houston, Harris e'ounty, Tex., over Highway No. 35. On the day' in question he stopped his truck in the town of Cleveland, when the deceased, S. S. Sanders, the husband of appellee Lucy Sanders, boarded the truck for the purpose of being transported to the town of Shepherd. While attempting to leave the truck at Shepherd, Sanders fell under the wheels of the truck and received severe injuries, from which he died. Appellee pleaded the following explanation of Sanders’ presence on the truck: “That on or about the aforesaid date the deceased, S. S. Sanders, either by invitation of defendant, or with the permission of defendant, either gratuitously or for hire granted the deceased S. S. Sanders, the privilege of riding either as a passenger or as a guest on the motor freight truck of defendant from the town of Cleveland over Highway 35 to the town of Shepherd, San Jacinto County, Texas.”

Appellant has made the fallowing summary of the jury’s findings, which reflect the grounds of negligence pleaded by appellee and the defensive issues pleaded by appellant:

“That deceased was riding on the truck by permission of defendant.
“That defendant knew deceased was riding on the truck from Cleveland to Shepherd soon after leaving Cleveland and before reaching Shepherd.
“That defendant failed to use ordinary care to stop the truck to allow deceased to safely alight.
“That such failure to use ordinary care was a proximate cause of the injuries.
“That defendant required deceased to alight from the truck at Shepherd while it was moving.
“That so requiring deceased to alight was negligence.
“That such negligence was a proximate cause of the injuries.
“That Sanders was riding on the truck in a perilous position. '
“That the'defendant knew of the perilous position of deceased before the injury.
“That after defendant knew of the position of the deceased, he did not realize that deceased would not be able to save himself from danger.
“That plaintiff was damaged in the sum of Five Thousand ($5,000.00) Dollars.
“That Sanders did not conceal himself on said truck.
“That Sanders did not fail to inform the defendant that he wanted to get off from the truck before the accident.
“That Sanders undertook to jump from the truck while it was in 1 motion.
“That his act in undertaking to jump from the truck while in motion was negligence.
“That such negligence was not the proximate cause of the injuries.
“That Sanders did not fail to ask the defendant to stop the truck and let him get oft.
“That after the, truck was slowing down Sanders failed to wait until it- had stopped before jumping off.
“That such failure to wait and such jumping off was negligence on the part of Sanders.
“That such negligence was not a proximate cause of the injuries.
“That Sanders was not stealing a ride.
“That at and immediately before Sanders jumped from the truck the defendant did acts and words calculated to cause him to so jump.”

On the verdict, judgment was entered in appellees’ favor, from which appellant has duly prosecuted his appeal to this court.

Opinion.

Appellant’s exceptions to the allegations of appellees’ petition, copied above, ex-pláining the presence of deceased on the truck, were properly overruled. This pleading was not duplicitous, but was an alternative pleading of her grounds of recovery, as permitted by Supreme Court Rule 4, for district and county courts. 142 S. W. XVIII.This rule is as follows: “The plaintiff, in the original petition, * * * may state all of his facts, so as to present together different combinations of facts, amounting to a cause or causes of action, as has been the usual practice; or he may state the cause or causes of action in several different counts, each within itself presenting a combination of facts specifically amounting to a single cause of action. * ⅜ * ” Our construction of this pleading and of rule 4 has support in Floyd v. Patterson, 72 Tex. 202, 10 S. W. 526, 13 Am. St. Rep. 787.

The court did not err in refusing to instruct a verdict in appellant’s favor, on the ground that there was “neither pleading nor evidence nor finding whatever that defendant was guilty of any wilful or wanton act intended to injure deceased.” While appellant construes the evidence as making the deceased a trespasser on the truck, for the purpose of this proposition, he concedes that the issue was raised either that the deceased was an invitee or a licensee. We think the evidence clearly raised both these .issues in favor of appellee. Appellant’s proposition does not correctly state the law of the relation that existed -between appellant and the deceased, on the theory that the deceased was a licensee or invitee. On this theory of the case, appellant owed deceased the duty of exercising ordinary care for his protection. Gulf, C. & S. F. R. Co. v. Walters, 49 Tex. Civ. App. 71, 107 S. W. 369; Lovett v. Gulf, C. & S. F. R. Co., 97 Tex. 436, 79 S. W. 514; Article 6701b, Vernon’s Ann. Civ. St., Acts 1931, 42d Leg., c. 225; 25 R. C. L. 793; La Rose v. Shaughnessy Ice Co., 197 App. Div. 821, 189 N. Y. S. 562; Grabau v. Pudwill, 45 N. D. 423, 178 N. W. 124; Munson v. Rupker (Ind. App.) 148 N. E. 169, affirmed on rehearing (Ind. App.) 151 N. E. 101; Mitchell v. Raymond, 181 Wis. 591, 195 N. W. 855; Black v. Goldweber, 172 Ark. 862, 291 S. W. 76; Bennett v. Bell, 176 Ark. 690, 3 S.W.(2d) 996; Marple v. Haddad, 103 W. Va. 508, 138 S. E. 113, 61 A. L. R. 1248; Gurdin v. Fisher, 179 Ark. 742, 18 S.W.(2d) 345; Perkins v. Galloway, 194 Ala. 265, 69 So. 875, L. R. A. 1916E, 1190; Id., 198 Ala. 658, 73 So. 956. Since ap-pellee’s rights matured prior to the effective date of chapter 225, Acts of Regular Session, 42d Legislature, p. 379, “Absolving Private Operators of Motor Vehicles from Responsibility for Passenger’s Injuries,” it is not necessary that we give that act construction.

We overrule appellant’s contention that there was “no evidence whatever that defendant requested deceased to alight from said truck, while moving, at Shepherd.” The evidence is undisputed that deceased jumped off the truck, while it was moving, and was run over by the truck and fatally injured. In support of our conclusion that the issue was raised against appellant that he requested deceased to alight from his truck while it was in motion, Brady Besser testified that appellant told him that he gave deceased permission to ride on his truck. Besser further testified as follows:

“He also said that he told him he had a pretty heavy load, the brakes was not working very good and he could not stop there but he could slow up and he could jump off. * * *
“Mr. Morris said he told the old darkey the brakes were not working, and it was hard to stop, but he would slow up for him. Mr. Morris said he told the old negro the brak.es were not working good, but he would slow up and for him to jump off.
“Then he told me that when he got to Shepherd, Sandy the old negro jumped off and fell and the truck rolled over him as he was slowing up. He said that when he got to Shepherd and slowed up, the negro jumped off and the track rolled over him and he stopped. I don’t know what he told the negro, but I am telling you what he told me he told him, that before he got to Shepherd he told the negro as he slowed up to jump off * * * I am telling you that Morris said he had done said that before he got to Shepherd. Morris did not tell me that when he got to Shepherd and was slowing up he told the negro to jump off. No,. Morris did not say .that after he got to Shepherd and as he was slowing up at Shepherd, he told Sandy to jump off; he did not say where it was, he told me that. He did not state where it was he told Sandy to jump off.”

Appellant is in error in his propositions that the findings of the jury, (a) that deceased was guilty of negligence in jumping from the truck while it was in motion, and (b) that after the truck began to slow down deceased was guilty of negligence in jumping from the track before it stopped, convicted deceased of contributory negligence as a matter of law; and that the court erred in refusing to render judgment in his behalf on these findings. To establish the defense of contributory negligence, appellant was under the burden, not only of convicting deceased of negligence, but, as a separate issue, to establish by a jury finding that such negligence was a proximate cause of his death. On this issue, in Texas & N. O. R. Co. v. Harrington, 235 S. W. 188, 192, the Commission of Appeals said: “Where a plaintiff and defendant are each guilty of negligence, it is a question of fact for the jury as to which negligence is the proximate cause of the injury. That rule is well settled. See, Wells Fargo & Co. v. Benjamin, 107 Tex. 331, 179 S. W. 513; Trochta v. Railway Co. [Tex. Com. App.] 218 S. W. 1038.”

Without reviewing the evidence, it is our conclusion that the jury’s verdict convicting appellant of negligence in the several respects reflected by the verdict, as summarized above, was “not contrary to the overwhelming weight of the testimony.”

The testimony of Besser, copied above, refutes the proposition that there was “no evidence” that defendant requested deceased to alight from his truck while it was in motion. There was abundant testimony to support the findings that deceased was riding upon appellant’s truck with his permission, and that appellant knew that deceased was riding on his truck from Cleveland to Shepherd. On these issues the following testimony is found. in the record:

“Brady Besser called by the plaintiff testified that he used to work for defendant and was working for him at the time of his accident, but had since moved to Oklahoma, from which place he came as a witness at the expense of the plaintiff. He further testified that there had been some trouble between him and defendant about the time he quit work for defendant relating to some goods being taken from a freight truck under his charge. This witness testified, T believe it was the next morning aRer the accident that I had a conversation with Mr. Morris. He came out of the café, and what he said to me was, that the old negro asked for a ride and he told him that he did not have room in the cab, and it was a mighty dangerous place on the back, a mighty dangerous place to ride, and he was not allowed to give permission to ride. He also said that he told him he had a pretty heavy load, that the brakes was not working very good and he could not stop there but he could slow up and he could jump off. He said he finally said he could ride there, but it was a pretty dangerous place. But he told him he could ride.’
“ * * The witness Hardy Purvis, called by plaintiff, testified that he was an officer and had lived in Polk County many years, that he knew Earl Morris and was driving along the road and stopped at the place of the accident immediately after it occurred and further said ‘while talking to Mr. Morris he told him how the accident happened, he said the old negro used to work for him and he knew him.’' And he said ‘It is what I get for letting him ride, and doing something I would not let the drivers do.’ I think he said the negro got on the truck down the road at Cleveland; he said he told him to crawl on back there. If he said anything about telling him to jump off or anything I don’t recall.”

No error is shown by the following bill of exceptions: “Be it Remembered that on the trial of the above styled and numbered cause and while Honorable Z. L. Foreman, one of the attorneys for plaintiff, was making the closing argument to the jury, he addressed certain of the jurors by name and in doing so addressed the following jurors by name: Mr. Kelly, Mr. Hon, Mr. Chrisman, ,Mr. New-san, Jim Moore and Mr. Cook, addressing Mr. Kelly personally three times, and the others one time each, using the expressions ‘You know, Mr. Kelly,’ and ‘isn’t that true, Jim Moore.’ And thereupon defendant’s attorney arose and advised the court that counsel was so addressing the jurbrs individually, and personally, and that he desired to take a bill of exceptions to said action; and thereupon the court instructed- the jury that they would not-consider ‘these personal references,’ and defendant here now presents his bill of exceptions with the request that the same be examined, allowed and ordered filed as a part of the record in this case.”

The impropriety — if it was an impropriety —in addressing certain of the jurors personally, under the facts reflected by the bill, was rendered harmless by the court’s instruction to the jury 'to disregard the personal reference.

There being no error, it follows that the judgment of the lower court should be affirmed, and it is accordingly so ordered.

Affirmed.


author: LAWHON, J.

text:
    ROY v. EAST TEXAS SECURITIES CO.
    No. 2290.
    Court of Civil Appeals of Texas. Beaumont
    Dec. 8, 1932.

      McCall & Boyls, of Beaumont, for appellant.
    Lewis Lanier, of Jasper, for appellee.
   LAWHON, J.

Appellant, a resident of Jefferson county, brought suit against appellee, a corporation, having its domicile in Jasper county. Eor cause of action appellant alleged that, appel-lee had converted to its use an automobile of the value of $300, and that such conversion took place in Jefferson county.- Appellee duly filed a plea of privilege, claiming the right to be sued in Jasper county, such plea stating that no exception to exclusive venue in the county of one’s residence existed in this cause. Thereafter, and within the time provided by law, appellant filed a controverting affidavit, claiming that venue was properly fixed in Jefferson county by reason of a trespass being committed in the conversion of the automobile. Thereafter appellee filed a plea to the jurisdiction of the trial court to hear and determine the plea of privilege, alleging that prior to the filing of this suit the appellant had filed in the same court a suit against appellee on the same cause of action, and that appellee filed its plea of privilege, which was controverted, and that a hearing was had on this issue, and that at such hearing appellant offered no evidence, and that, after appellee had moved the court to transfer the cause to Jasper county, and after the court had indicated his intention to sustain the plea of privilege, the appellant took a nonsuit, and that such former proceedings constituted res ad-judicata of the plea of privilege in the case under consideration. The court sustained this plea to the jurisdiction, and in the judgment of the court, after reciting the former proceedings, as above indicated, found that before the announcement of any decision the plaintiff stated that he desired to take a non-suit, and that such suit was thereupon dismissed, and finds that these facts adjudicated the issues of venue, and ordered the case transferred to the county court of Jasper county, and this appeal is prosecuted from the aforementioned judgment.

There is ho statement of facts, but a bill of exceptions shows that only the plea to the jurisdiction was heard.

Appellant contends that the proceedings referred to herein are not res adjudicata as to venue in Jasper county, and we sustain this contention. Appellee relies on Old v. Clark (Tex. Civ. App.) 271 S. W. 183, and Watson Co. v. Cobb Grain Co. (Tex. Com. App.) 292 S. W. 174. In the case of Old v. Clark the trial court heard evidence on the issue of venue, raised by the plea of privilege and controverting answer, and, after such hearing, sustained the plea of privilege and transferred the case to the county of defendant’s residence. The plaintiff gave notice of appeal, but never did take any further action in the case. He thereafter brought another suit in the county of -his residence on the same cause of action, and the defendant again filed a plea of privilege, which was controverted, and on this state of facts the Dallas Court of Civil Appeals held that the first judgment adjudicated the issue of venue. We think this decision correctly announced the law, but the state of facts before us are not similar to the facts in that ease. In the case under consideration the court heard no evidence and rendered no judgment on the plea of privilege.

The case of Watson Co. v. Cobb Grain Co. was passing upon the question of whether the trial court had jurisdiction to allow a non-suit where a plea of privilege had been filed and no controverting answer had been filed. In an exhaustive opinion, Judge Short, of the Commission of Appeals, held that the trial court, having jurisdiction of the subject-matter, could allow a nonsuit to be taken where a plea of privilege had been filed but had not been controverted. There had been decisions by Courts of Civil Appeals to the contrary, and there were certain expressions in Craig v. Pittman & Harrison Co. (Tex. Com. App.) 250 S. W. 667, which might have been construed to hold that the trial court did not have jurisdiction to allow a nonsuit under such circumstances. However, in the Craig Case, the court was not dealing with a nonsuit, but was passing on a case where a judgment had been rendered against the defendant when there was an undisposed of plea of privilege on file. Judge Short correctly decided the case (Watson Co. v. Cobb Grain Co.), but stated that the judgment in the case being reviewed fixed the venue of any suit involving any subsequent controversy between the same parties on the same cause of action. As before stated, that case was dealing with a state of facts where a nonsuit was taken and where there was an uncontested plea of privi ilege on file. In the case under consideration, the plea of privilege was contested, and the court had the matter before it for consideration when the nonsuit was allowed.

Even if the facts in Watson Co. v. Cobb Grain Company were similar to the case under consideration, the expressions in that opinion, relied on by appellee, were not necessary to properly dispose of the case. The judgment -of the trial court was affirmed,- and the trial court had permitted the plaintiff to take a nonsuit. The effect of such nonsuit was not before the Supreme Court. The Supreme Court, in Atlantic Oil Producing Co. v. Jackson, 116 Tex. 570, 296 S. W. 283, Tas definitely decided that a plaintiff does not lose the right to take a nonsuit while an uncon-. tested plea of privilege is on file.

There was no adjudication of the issues involved in the plea of privilege and the controverting affidavit in the trial court, in the case relied on as res adjudieata. Judge Gaines, in Scherff v. Missouri Pacific Ry. Co., 81 Tex. 471, 17 S. W. 39, 40, 26 Am. St. Rep. 828, says: “ ‘A judgment, to have the authority or even the name of res judicata, must be a definitive judgment of condemnation or dismissal.’ Freem. Judgm. sec. 251, quoting Po-thier on Obligations. By dismissal, as here used, we understand not a mere nonsuit or discontinuance by the plaintiff, but a dismissal by the court upon the merits of the action.”

The case of Hewitt v. De Leon (Tex. Civ. App.) 5 S.W.(2d) 236, the opinion by Chief Justice Gallagher, is directly in point, and sustains our conclusions.

The appellant not having had the opportunity to introduce evidence on the issue of venue, the ease will have to be reversed and remanded. On another trial the burden will be on plaintiff to show a cause of action against the defendant, with venue in Jefferson county.

Reversed and remanded.


text:
    SMITH v. KENDRICK.
    No. 8906.
    Court of Civil Appeals of Texas. San Antonio.
    Nov. 30, 1932.
    Rehearing Denied Jan. 4, 1933.
    Birkhead, Beckmann & Stanard, of San Antonio, and Dougherty & Dougherty, of Bee-ville, for appellant.
    Alex F. Cox, of Beeville, for appellee.
   FLY, C. J.

Appellee sued appellant, alleging that they entered into a contract by which they agreed that appellee should seek to obtain oil and other minera! leases, to be taken in the name of appellant, and that appellant was to pay the expenses and when a lease was sold the amount realized over and above expenses was to be divided between the parties. Appellee alleged that leases had been sold and that part of the proceeds was $2,000, and he sought to recover that sum and to establish his right to one-half of any of the money obtained from any and all the leases procured by him. The cause was tried by jury and resulted in a verdict and judgment for $2,000 and one-half interest in the other leases. The evidence fully sustained the allegations of the petition and the verdict of the jury and judgment of the court.

Appellant admitted the purchase of the lease, and the jury having found the existence of the contract and its terms, it was not error to submit the question as to whether the lease was obtained and purchased' under the terms of the contract. That was purely a question of fact, and not of law, and the first proposition is without merit and is overruled.

The second proposition complains of the refusal of the court to give two special questions to the jury. The court stated in the first issue given all of the terms of the contract, which included every material point in controversy, and followed that issue with another which in substance submitted the question as to whether appellee procured the lease which was afterwards made to appellant. The two issues covered everything that was material, in the special issues sought to be submitted by appellant. The proposition is overruled.

The third proposition is technical and unfounded. The judgment was properly rendered for one-half of the leases remaining unsold. The testimony of appellee supports the judgment, which also followed the allegations in the petition.

There is no merit in this appeal, and the judgment is affirmed.


author: GRAVES, J.

text:
    SOUTHERN UNION GAS CO. v. MADELEY.
    No. 9783.
    Court of Civil Appeals of Texas. Galveston.
    Nov. 17, 1932.
    Royston & Rayzor, of Galveston, and A. T. McKinney, Jr., of Huntsville, for appellant.
    Robt. W. Dean and T. P. Buffington, both of Navasota, for appellee.
   GRAVES, J.

The appellee sued for personal injuries, alleged to have been sustained by reason of the appellant’s negligence, in that appellant dug a ditch at the end of appellee’s garage and along the alley adjacent thereto, in the city of Navasota, Tex., leaving in the driveway leading to the garage a pipe that was too heavy to be moved by the appellee, so that he could not drive in or out of the garage unless the pipe were moved or made stationary; that appellee, in assisting his son in getting his car out into the alley, was struck on the leg by the piece of heavy pipe, the resulting injury being thus proximately caused by appellant’s negligence, and the appellee being guilty of no, contributory negligence.

Appellant answered by general demurrer, special exceptions, and general denial, along with special defenses.

The court, after overruling the special exceptions, rendered judgment in favor of the appellee on the verdict of a jury in response to special issues, wherein it was found: First, that appellant strung the pipe along the alley in such a manner as to obstruct the entrance to appellee’s garage; second, that this was negligence; third, that such negligence was the proximate cause of the injury; fourth, that the appellee was guilty of no contributory negligence; fifth, that the injuries were not due solely to the negligence of the appellee’s son; sixth, that the appellee was damaged in a sum,of $5,-000; seventh, that a reasonably prudent person would not have foreseen that the pipe would roll out from under and away from the back wheels, and that the car was put in forward motion and passed over the pipe.

The uncontroverted testimony discloses these facts: That the large loose pipe was left in the alley across the doors to appel-lee’s double garage, the doors, however, being unobstructed by it and opening in the usual way; that appellee’s son backed the rear wheels of his automobile over this pipe, but the front wheels would not pull over it, instead causing the pipe to move with the car backward and forward as attempt was made to get the automobile on over it in either a forward or backward direction; that the appellee, after first observing this situation and in advance seeing his son in this predicament, then came out, looked things over, and told his son to refrain from further attempts to extricate the car until he could procure a crowbar; that the appel-lee returned with the crowbar and placed it in the ground on the side of the pipe closest to the front of the automobile, he himself standing behind the pipe, which he had scotched with the crowbar on the opposite side, and motioning to his son to pull the car -on over the pipe; that the son then applied. its power and pulled the automobile on over, the hack wheels — after passing over it — hurling .the pipe against appellee’s leg while he stood a short distance behind’ the pipe holding onto the crowbar.

On the coming in of this evidence in behalf of the appellee, the appellant requested a peremptory instruction in its favor, which the trial court refused, and in this court it assigns that action as error, contending that such evidence failed to show that the appellant’s negligence toward the appellee, if any, was actionable, since it thus undisputedly appeared that any negligence that it may have been guilty of was not the proximate cause of his injuries.

That contention is sustained; these authorities — cited in appellant’s brief — seem to us to conclusively establish the correctness of that conclusion upon the facts stated: Seale v. Railway, 65 Tex. 274, 57 Am. Rep. 602; Texas & P. Railway Co. v. Bigham, 90 Tex. 223, 38 S. W. 162, 163; Van Velzer v. Houston Land & Trust Co. (Tex. Civ. App.) 16 S.W.(2d) 865; Union Stock Yards v. Peeler (Tex. Com. App.) 37 S.W.(2d) 126; Gulf, C. & S. F. R. Co. v. Bennett, 110 Tex. 270, 219 S. W. 197; San Antonio & A. P. R. Co. v. Behne (Tex. Com. App.) 231 S. W. 354; Schaff v. Ellison (Tex. Civ. App.) 255 S. W. 680; Collins v. Railway, 110 Tex. 577, 212 S. W. 477, 222 S. W. 156; Payne v. Robey (Tex. Com. App.) 257 S. W. 873; Sears v. Railway (Tex. Civ. App.) 247 S. W. 602.

As the cited authorities make very clear, negligence is not actionable, unless at (the same time it be at least a proximate cause of the injury suffered, and the test of that is whether or not some such consequence from the act should reasonably have been foreseen by the party guilty of it. Our, Supreme ■ Court, through Chief Justice Gaines, put it this way in the Bigham Case, supra: “The rule is sometimes put upon the ground that to allow a recovery for injuries resulting from remote causes would lead to intolerable litigation. * * ⅜ A better ground for the rule is that a party should not be held responsible for the consequences of an act which ought not reasonably to have been foreseen. ⅜ * • * In our opinion, nothing short of prophetic ken could have anticipated * * * the combination of events which resulted in the injury of the person of the plaintiff.”

And so here, we think; prophetic ken would have been required to anticipate the denouement that resulted in this injury to the appellee; notwithstanding appellant’s negligent act in so leaving the pipe in the alley as a potential obstruction, it undisput-edly appears that his injury would not have occurred but for his own attempt to remove the car from astride it with the crowbar —this act of his own obviously constituting a new agency which, supervening over the originally wrongful one of the appellant in merely leaving the pipe there, brought about the unfortunate result. The most that appellant could properly be held to have contemplated was, perhaps, that either the ap-pellee, or some one else, might undertake to disengage the car from the pipe, but it could not reasonably have further anticipated that in such an attempt he, would break his leg through the use of a crowbar; appellant’s original act, negligent as it may be conceded to have been, was therefore too remote to legally constitute the proximate cause of this injury.

The other questions discussed in the briefs become immaterial, since this holding determines the merits of the appeal anyway; it requires a reversal of the judgment and the rendition of the cause in favor of the appellant; it will accordingly be so ordered.

Reversed and rendered.