author: CRITZ, J. CURETÓN, C. J.

text:
    GATTEGNO v. THE PARISIAN et al.
    No. 1587—5958.
    Commission of Appeals of Texas, Section A.
    Nov. 9, 1982.
    Kemp & Nagle and Harold Potash, all of El Paso, for plaintiff in error.
    C. W. Croom, M. V. Ward, and Whitaker & Peticolas, all of El Paso, for defendants in error.
   CRITZ, J.

We adopt the statement of the nature and result of this case as contained in the opinion of the Court of Civil Appeals. It is as follows:

“The Parisian, a mercantile corporation, brought this suit against I. Gattegno and John T. Muir for damages, and allege, in substance, the following: That plaintiff was in lawful possession under a lease as a tenant of John T. Muir, the owner of the premises, using same as a millinery establishment and place of business, and had been for a year or more before the matters complained of occurred; that I. Gattegno, doing business under the name of Sheldon Jewelry Company, was also a tenant of John T. Muir, in the same building, and was occupying a room adjoining that of plaintiff; that ap-pellee was occupying said rooms under a lease from Muir to Ernest and assigned' to appellee; that said lease contained the following covenant: ‘The space and openings overlooking the corner room from the mezzanine floor shall be enclosed with invisible glass,’ meaning that the space and opening overlooking the corner room' from the mezzanine shall be closed with opaque and translucent glass; that said provision in said lease created in plaintiff an easement for light through said space and opening overlooking the corner room and the mezzanine floor; that defendant Gattegno unlawfully caused to be laid metal laths and strips, boards, and plaster across the said; space and opening, thus shutting out the light, and' making plaintiff’s rooms and place of business to become dark, with the result that plaintiff’s business was thereby damaged; that the nature of plaintiff’s business required a well-lighted room' in order to display its merchandise; that as a direct re-, suit of closing said lights plaintiff’s- business decreased, stating the gross sum per month, and the aggregate amount for the time stated, which amount represents the total loss of profits, at the end of which time plaintiff sold, the business. Plaintiff alleged as further ground of damage that, had said window not been closed, it would have continued to make a like profit to the end of said lease, in 1933; as a third ground for damage, plaintiff sued in the alternative for the diminished value of the lease for the unexpired time.

“Gattegno answered by general demurrer, special exceptions, general denial, made Muir a cross-defendant, alleging that he was a lessee of Muir without notice of any provision in plaintiff’s lease relative to the opening in said windows as alleged, pleaded an agreement with Muir to the effect that the said windows, or opening at the mezzanine floor, should be covered by a steel and plaster partition, in order to partition said storeroom from the adjoining premises (occupied by plaintiff); that said partition was made with the consent of Muir and his agents, the landlord agreeing to pay for same; that said repairs were necessary for his jewelry business; that said repair was wholly upon his part of the leased premises, the invisible glass being left and in no wise disturbed. Gattegno asked for judgment over against Muir in the event judgment should be against him.
“Muir having been dismissed out of the suit, except as to the cross-action, we need not state his answer to the suit.
“The case was tried to a jury and submitted upon special issues. The jury found: (1) Gattegno alone, or in connection with others, constructed, or caused to be constructed, the metal lath strips and plaster partitions complained of by plaintiff; (2) that such partitions intercepted the light from the premises rented by plaintiff from Muir; (3) that plaintiff was damaged by reason of such interception of the light; (4) the difference in value between plaintiff’s business just before and just after the construction of the partitions complained of was $1,250; (5 and 6) the interception of the light caused plaintiff to lose business and profits in the operation of its store in the sum of $1,250; (7 and 8) the value of plaintiff’s lease was diminished by reason of the construction of partitions complained of to the extent of $1,250; (9) the glass partitions complained of were not -covered, or caused to be covered, by Muir or his agents, either alone or in connection with Gattegno; (10) Muir’s agent did no more with reference to the construction of the partitions than to pay the cost of the same.
, “(4) Submitted by Gattegno. Gattegno know at the time his lease was delivered to him that plaintiff’s lease on the adjoining premises contained the provision: ‘All space above partition wall on North side of said room and 'openings overlooking the corner, room from the Mezzanine floor to be enclosed with invisible glass.’
“Judgment was entered in favor of plaintiff and against defendant Gattegno. for $1,-250, and. against Gattegno’s cross-action against Muir.”

The judgment of the trial court was in all things affirmed by the Court of Civil Appeals. 35 S.W.(2d) 483. Gattegno brings error.

Opinion.

The trial court submitted the controversy between The Parisian and Gattegno to the jury on special issues. This charge contained the following instruction: “The burden of proof in this case rests upon the plaintiff, and before it will be entitled to recover it must establish the material allegations of its petition by a preponderance of the evidence, that is to say, by the greater weight of credible evidence.”

Gattegno objected to the above charge on the ground that it was a general charge and submitted a question of law. We have repeatedly condemned the above charge in cases submitted on special issues. Davis v. Morris (Tex. Com. App.) 13 S.W.(2d) 63; Western U. Tel. & Tel. Co. v. Rutledge (Tex. Com. App.) 15 S.W. (2d) 210, 211; Duron et al. v. Beaumont Iron Works (Tex. Com. App.) 9 S.W.(2d) 1104.

As said by the writer in the Rutledge Case, supra: “The jury are not concerned with, nor are they presumed to know, what facts are essential to be found to entitle the plaintiff to recover. * * * Also the charge as given is clearly a general charge in violation of article 2189, R. C. S. of Texas 1925.” The fact that the court so framed each question as to require an affirmative answer to be based upon a preponderance of the evidence does not cure this error or render it harmless. This is evident because the charge is a general one and in effect tells the jury that they may concern themselves with the effect of their answers. This error must result in a reversal and remand of this case.

Since the case must be reversed on the matter above discussed, we deem it sufficient to express our views in a general way as to the suit between the defendant Gat-tegno, and the cross-defendant, Muir. It will be noted from the statement we have made that The Parisian sued Muir and Gattegno for damages arising out of a tort. The plaintiff amended and finally sought judgment against Gattegno only. The defendant Gat-tegno pleaded over against Muir and prayed that if any recovery should be awarded the plaintiff against him he have judgment over against Muir for a like amount. Also Gat-tegno’s pleadings set out the facts, and contains a prayer for. general and equitable relief. The trial court peremptorily instructed a verdict for Muir on this cross-action. The Court of Civil Appeals holds that there was no error in such ruling. This holding is based upon the further holding that, under our law there Is no right of contribution between joint wrongdoers. We think this holding of the Court of Civil Appeals is error as applied to this case. Lottman v. Guilla (Tex. Com. App.) 288 S. W. 123.

The evidence is conclusive that if any wrong was committed against The Parisian by building the wall in question here so as to cut off its light, Gattegno and Muir were joint tort-feasors in the commission thereof. It follows that in so far as the rights of Parisian were involved both defendants were originally jointly liable to it. (Muir has been released by Parisian as will later appear.) The evidence is conflicting on the issue as to whether Muir was an active or a passive wrongdoer as between him and Gattegno. If the testimony of Gattegno is believed as between each other they were both active.

In connection with the above, Gattegno testified: “These windows were not closed by me and under my direction, but Mr. Coles’ instructions.” Gattegno testified to other facts, which if believed by the jury would justify a fact finding that Muir, through his agent, Coles, was active with Gattegno in the transaction complained of by Parisian. On the other hand, if the testimony of Coles is believed, Muir, as between him and Gat-tegno, was merely a passive wrongdoer. In this connection Coles testified in substance that he did not agree or undertake to agree to the closing of the windows in question at the time the lease contract with Gattegno was signed. Coles further testified that he did not close the windows or order them closed, but that he agreed for Gattegno to close them at his insistence on his (Gat-tegno’s) own responsibility, but at Muir’s cost.

Our statute, article 2212, R. C. S. 1925, provides: “Any person' against whom, with one or more others, a judgment is rendered in any suit on an action arising out of, or based on tort, except in causes wherein the right of contribution or of indemnity, or of recovery, over, by and between the defendants is given by statute or exists under the common law, shall, upon payment of said judgment, have a right oi action against his co-defendant or co-defendants and may recover from each a sum equal to the proportion of all of the defendants named in said judgment rendered to the whole amount of said judgment. If any of said persons co-defendant be insolvent, then recovery may be had in proportion as such defendant or defendants are not insolvent; and the right of recovery over against such insolvent defendant or defendants in judgment .shall exist in favor of each defendant in judgment in, proportion as he has been caused to pay by reason of Such insolvency.”

Under the common law the general rule is that there is no right of contribution between defendants who are joint wrongdoers; this rule is subject to the further common-law rule that where some of the defendants are actively guilty of the wrong, and some are merely passively guilty, those who are merely passive have the right to require those who are active to reimburse them for any amount they may have to pay to the plaintiff. A reading of the above statute demonstrates that its evident purpose is to change the common-law rule as applied to joint tort-feasors who are equally guilty as between each other. In other words, under the above statute, where two, persons are both actively guilty, or both passively guilty, of a tort which damages a third person, and the third person sues and recovers from them both, jointly and severally, if one pays the entire judgment he is entitled to have his codefendant contribute to him one-half such amount.

It is clear that had The Parisian sued both Gattegno and Muir and asked and obtained a judgment against' both of them jointly and severally, and had it been found that both defendants were equally guilty, and had The Parisian then collected such judgment from Gattegno alone, he (Gattegno) would have, had the right of contribution to the extent of one-half from Muir., This being the case, we think when The Parisian sued Gattegno alone he had the right to retain Muir in the suit and compel him to contribute the same as though he had been sued by The Parisian. In other words, we do not believe that Gattegno should be defeated of his right of contribution, if any he. had, from Muir simply because the plaintiff did not see fit to seek a judgment, against Muir. Under this view.of the case the trial court erred in delivering a peremptory charge to the jury in favor of. Muir on Gattegno’s cross-action against him.

Further discussing the above matter, it is obvious that Muir, as a joint wrongdoer with Gattegno, is at least a proper party to the suit in so far as the rights of the plaintiff The Parisian are concerned. (This statement does not take into consideration a release from The Parisian to Muir we shall later discuss.) This being the case, he is also at least a proper party as concerns the right of Gattegno to contribution from him under the provisions of the above statute. Without saying that Muir was a necessary party to the plaintiff’s case in the sense that it could not be tried without him, it is obvious that he was certainly a proper party in the sense that Gattegno had the right to have him', retained in the case that he might be bound by the plaintiff’s judgment in order to enforce his (Gatt^gno’s) statutory right .of contribution, as between equal wrongdoers. Lottman v. Cuilla, supra.,

Since this case must be retried, there is another matter already referred to by us which is disclosed by the record which we deem it expedient to refer to. We infer from the record before us that originally The Parisian sought recovery from both Gattegno and Muir, and while the suit was pending in the district court The Parisian, with others, executed and delivered to Muir the following instrument in writing:

“Whereas, John T. Muir leased two storerooms in his building at the corner of Mills and Mesa Streets in the City of El Paso, one to the Sheldon Jewelry Company and one to A. L. Earnest; and
“Whereas, thereafter, A. L. Earnest brought suit against the Sheldon Jewelry Company claiming that it had erected a partition which darkened' the store-room leased by Earnest and so injured the business of the said A. L. Earnest; and,
“Whereas, A. E. Earnest desires to sell and dispose of his leasehold of said storeroom ' and has requested the said' John T. Muir to cbnsent thereto:
“Now, therefore, in consideration of the premises, the said John T. Muir, acting through his agents, Á. P. Coles & Bros., does agree that the said A. E. Earnest may transfer and assign his leasehold to W. C. Porter; this transfer not to affect or change any other provision of said lease; and the said A. 1⅛ Éai'iüest .does release and discharge the said John T. Muir from any claims or causes of action' arising, or which might arise, against the said Muir growing out of the érOctión ' arid completion of said partition. T¿i's release shall not release or discharge any cause of action Of the Earnests .against Sheldon Jewelry Company, or I. Gattegno.
⅛' Gene Earnest, mother of A. E. Eárntest, being interested ’in said leasehold and, bugiriess,' executes this document to evidence her agreement to 'r'elease John T. Muir from any cause of action she might have. ....
. “Witness our hands, this 26th day of Nov. 1929.,
. “[Signed] A. E. Ernest
“[Signed], Mrs. Gene Ernest
“The Parisian
“Gene Ernest
“By Prest.
“Attest Secy.. A. E. Ernest [Signed] [Seal of The Parisian.]”-

We further infer from the - record that áfter-the execution and delivery-of the above instrument' The ' Parisian" filed its ■ third amended petition and sought recovery^ of Gat-tegno alone. ■

The legal effect of the above instrument is to' release Muir from all liability 'to The Parisian for 'all damages resulting from the alleged wrongful acts complained of in' this Suit. The instrument expressly recites that Gattegno is not released'or discharged. The consideration for the above release is Muir’s consent, as the landlord, for The Parisian et al. to transfer their lease to one W. C. Porter.

The legal effect of the above release, in the form, under the circumstances, arid for the consideration executed and delivered, is not presented to us for review by any direct statement under the assignment under discussion, but it is involved in the assignment complaining of the ruling of the Court of Civil Appeals holding no error was committed by the trial court in giving a peremptory charge for Muir on Gattegno’s cross-action against him. For the reasons stated we shall not attempt a ruling which is complete in all events with reference to the legal effect of this release. It is sufficient to say that it cannot affect Gattegno’s rights under the statute, article 2212, supra, against Muir. Therefore, if it be found that Gat-tegno and Muir are both active tort-feasors as between each other, the release having discharged Muir as to all liability to The Parisian, has at least discharged one-half its damages. If it be found that Muir was merely passively guilty of the tort -complained of, the release has discharged The Parisian’s damages to the extent of the value of the consideration paid therefor. This is true because The Parisian is not entitled to a double recovery for the same wrong. If the value of the consideration for the re? lease is more than one-half the damages suffered by The Parisian, it can in no event have a double recovery, and this is true regardless of any issue of active or passive negligence between Gattegno and Muir.

Finally, as to the controversy between Gat: tegno and Muir, we wish to say that, while Gattegno has assigned error in this court and in the Court of Civil Appeals touching the giving by the trial court of the peremptory charge in favor of Muir on Gattegno’s cross-action against him, he has not presented in this court or in, the Court of Civil Appeals either by statement or argument all the matters we have discussed relating thereto. We think, however, that our discussion is proper in order to insure against any error regarding these matters on another trial in the district court. -

We recommend that the judgments of the Court of Civil Appeals and of the district court be both reversed, and the cause remanded to the district court for a-new trial.

CURETÓN, C. J.

Judgments of the district court and Court of Civil Appeals both reversed, arid' cause remanded, as recommended by the Commission of Appeals.

We approve the holdings of the Commission of Appeals on the questions discussed in its opinion.'


source: Caselaw Access Project

author: LEDDY, J. CURETON, C. J.

license: Public Domain

text:
    HUDDLESTON & WORK et al. v. KENNEDY et al.
    No. 1355—5918.
    Commission of Appeals of Texas, Section B.
    Oct. 26, 1932.
    E. A. Watson, of Crosby ton, and Charles E. Coombes, of Stamford, McCormick, Brom-berg, Leftwich & Carrington, of Dallas, and T. R. Odell and J. Fred Wright, both of Throckmorton, for appellants.
    Murchison & Davis, of Haskell, and B. F. Reynolds and Jeff A. Fowler, both of Throckmorton, for appellees.
   LEDDY, J.

The statement and questions aré as follows:

“The above Case is pending in our court on motion for rehearing. G. E. Huddleston and H. Work, composing the partnership firm of Huddleston & Work, were the general contractors under a contract with the State of Texas, acting through the State Highway Department, for the construction and irh-provement of a certain state highway in Throckmorton County. They furnished an indemnity bond for the faithful performance of their contract, as provided in article 5160, R. S. 1925. Subsequent to the making of the contract the contractors sub-let certain portions of the work to W. M. Harrison as sub-contractor, and other portions thereof to Douglas & Sons as sub-contractors. Each of the sub-contractors entered upon and commenced the performance of the work, but after a period of a few weeks each abandoned the contract After the abandonment by the sub-contractors various of the appel-lees filed claims with the State Highway Department for labor performed for, and material furnished to the sub-contractors. These claims so filed with the Highway Department were asserted as liens upon the amount due by the State to the general contractors by virtue of articles 5472a and 5472b, Vernon’s Annotated Texas Statutes. At the time these-various claims were filed with the State Highway Department partial payments had already been made to the general contractors, but a substantial balance was still owing on the contract. The Highway Department withheld funds due the general contractors on account of the claims so filed' by appellees, whereupon the general contractors executed a release bond as provided by the Acts of 1929, Forty-first Legislature, p. 452, chap. 211, brought forward in 1930 Cumulative Annual Pocket Part of Vernon’s Annotated Revised Civil Statutes of Texas, as article 5472 — 1. Appellant, Union Indemnity Company, was the surety on this release bond. The bond was payable to those appellees who had filed claims with the Highway Department, and was conditioned as required by the above cited statute. Upon the filing of the bond the impounded funds were paid by the State Highway Department to the general contractors. Thereafter, the instant suit was instituted by Earl Kennedy against Huddleston & Work and Union Indemnity Company. Each of the payees named in said bond, except Thompson Hardware Company, intervened in the suit, and certain appellees who were not named in the bond, also intervened.
“In their several pleadings the appellees undertook to set up a two-fold cause of action. They first sought to recover upon the general contractors’ original bond given in compliance with amended article 5160, R. S. 1925. Union Indemnity Company was surety on this bond, as well as upon the release bond. They sought secondly to recover on the release bond executed under the terms of article 5472 — 1.
“Upon the authority of Indemnity Insurance Co. v. South Texas Lumber Co. (Tex. Com. App.) 29 S.W.(2d) 1009, and Fidelity & Deposit Company of Maryland v. Prassel Sash-& Door-Company (Tex. Civ. App.) 24 S.W.(2d) 539, the trial court denied appel-lees any recovery upon the original bond furnished under the provisions of article 5160, but-awarded judgment upon the release bond executed under article 5472b — 1. The judgment of the trial court denying recovery under the- first mentioned bond is not challenged in this court. No cross-assignments of error were' filed below and it is conceded here that the judgment in that respect was correct.
“Huddleston & Work and Union Indemnity Company brought the case to this court, complaining of the -judgment rendered against them on the release bond. The appeal calls for a construction of articles 5472a and 5472b, Vernon’s Annotated Statutes. In our original opinion we affirmed the judgment of the trial court as to all appellees who performed labor for, or furnished material to the sub-contractors. In re-considering the questions on motion for rehearing we have concluded that the importance of the question (involving, as it does, the construction of new statutes) is such that an authoritative decision thereon should be obtained. We therefore deem it advisable to certify for. your decision the following questions:
“First: Is the lien provided for in article 5472a available to those only who file written notices of their claims before any payment is made to the general contractor?
“Second: Does the lien given in said article inure to the benefit of those who perform labor for and furnish material to a sub-contract-or, and which labor and material enter into the improvement provided for by the original contract?”

The questions certified in this ease are passed upon by this commission in the case of Allen Smith et al. v. Texas Company, this day decided, 53 S.W.(2d) 774.

The conclusion there reached requires that the first question certified be answered in the negative and the second in the affirmative, and we so recommend.

CURETON, C. J.

The opinion of the Commission of Appeals is adopted and ordered certified.


author: LEDDY^ J. CURETON, C. J.

text:
    BUTLER v. COLE.
    No. 1370—5955.
    Commission of Appeals of Texas, Section B.
    Nov. 9, 1932.
    Sam D. Snodgrass, of Temple, for plaintiff in error.
    John B. Daniel, of Temple, for defendant in error.
   LEDDY^ J.

Plaintiff in error' sued defendant in ■ error to recover damages alleged to have been sustained by reason of the latter’s fraud in inducing him to exchange certain corporate shares for a residence situated in the city of Temple.

Upon a trial, the jury answered all special issues submitted in favor of plaintiff in error, and judgment was thereupon rendered for him in the amount of damages- found.

Special issues Nos. 1 to, 5, inclusive, required the jury to answer whether defendant in error made- five separate false representations with reference to the real estate he was exchanging for,.,plain tiff in error’s shares of stock. Special issue. No.' 1 demanded an answer as to whether defendant in error falsely represented to, plaintiff in error that the residence he was exchanging was located within four blocks of Scott & White’s Hospital in the city of Temple.

The jury were instructed that, if they answered all or any of issues 1, 2, 3, 4, and 5 “Yes,” then, to answer issues Nos. 6 and 7, which issues and the jury’s answers thereto were as follows:

■ . “Issue 6. Do you find’ from a preponderance of the evidence that such representation, or representations, if any, referred to in tte foregoing five special issues, or any of tliem were made, if made, by the said Cole to said Butler as a material inducement to the latter to enter into said exchange of properties between them involved in this suit? Answer ‘Yes’ or ‘No.’ ” Answer: “Yes.”
“Issue 7. Do you find from a preponderance of the evidence that plaintiff Butler would not have entered into said exchange of properties with defendant Cole had such representation, or representations, if any, not been made by the said Cole? Answer ‘Yes’ or ‘No.’ ” Answer: “Yes.”

The Court of Civil Appeals reversed the judgment of the trial court and remanded the cause for another trial upon the ground that said court should not have submitted special issue No. 1 over the objection that no damages were shown to have resulted from the representation that the real estate involved was located within four blocks of Scott & White’s Hospital, as there was no evidence adduced showing whether such real estate would have had a greater value if located the represented distance from the hospital instead of seven blocks, as it was in fact situated.

We think the holding of the Court of Civil Appeals in this respect was a proper one, as it is conceded that the record is devoid of any evidence tending to show the property would have had any greater value if it had been located as represented by defendant in error.

With the finding of the jury in answer to special issue No. 1 eliminated, it is clear that the remaining findings of the jury are not sufficiently complete to sustain the judgment rendered by the trial court. It will be observed that issue No. 6 requested the jury to answer whether “such representation or representations, if any, referred to in the foregoing 5 special issues (which included special issue No. 1), or any of them, were made, if made, by the said Cole to, Butler as a material inducement to the latter to enter into an exchange of properties between them involved in this suit.”

The jury’s affirmative answer to this question means simply this: That, because of the fraudulent representations found in answer to issues 1, 2, 3, 4, and 5, which included issue No. 1, which was improperly submitted, or because of one of the five representations, not identified, but which may have been issue No. 1, plaintiff in error was induced to exchange his property with defendant in error.

Had all five issues covering the fraudulent representations been properly submitted, the jury’s answers to special issues Nos. 6 and 7 would have furnished a complete basis for a judgment in favor of plaintiff in error. It would be mere speculation for us to say that the jury would have answered issues Nos. 6 and 7 as it did had it not been for its giving consideration to the fraudulent representation found in answer to special issue No. 1.

But it is asserted that under the rule announced in Ormsby v. Ratcliffe, 117 Tex. 242, 1 S.W.(2d) 1084, it should be presumed, in support of the trial court’s judgment, that it found plaintiff in error was induced to make the exchange of his property with defendant in error upon the latter’s false representations shown to have been made by the jury’s answer to issues Nos. 2, 3, 4, and 5.

The doctrine announced in the above case has no application to a situation such as is here presented. The trial court’s charge in this case would have been a proper one if all of the issues submitting fraudulent representations had been supported by the pleadings and the evidence, but, with issue No. 1 lacking support in the evidence, issues Nos. 6 and 7 were submitted in an erroneous form. The rule announced in Ormsby v. Ratcliffe has never been extended so as to justify a presumption that the trial court has made a finding necessary to support its judgment upon an issue which has been fully submitted to the jury, but in an erroneous way. Under the statute (article 2190, R. S. 1925) construed in Ormsby v. Ratcliffe, a presumption that an issue has been found in favor of the judgment can be indulged only when the same has not been submitted nor request made for its submission. Here the issues upon which it is sought to imply findings by the trial court have been submitted and actually found by the jury. Manifestly under such circumstances the provisions of the statute relied upon can afford no relief.

The case of Price v. D’Yarmett (Tex. Civ. App.) 27 S.W.(2d) 616, in which a writ of error was refused, is relied upon to sustain plaintiff in error’s contention. The opinion in that case shows a situation materially differing from that shown by the record in this ease. There the jury found that certain false representations were made by the defendant which the plaintiff believed to be true at the time she signed the contract and which materially induced her to execute it. The court held that it would imply a finding on the unsubmitted issue that the plaintiff would not have signed it but for the false representations. Moreover, the court determined, and we think correctly, that the findings actually made were sufficient to support' the judgment for the plaintiff, • but, if not, it was merely stated the presumption would be indulged that the trial court found, in support 'of its judgment, the unsubmit-ted issue that plaintiff would not have executed the contract but for the fraudulent representations made by the defendant.

In the case at bar we have findings by the jury in its answers to special issues Nos. 6 and 7 on the very issues upon which the presumption is sought to be indulged. While the jury’s findings upon these issues are not sufficient to support the judgment rendered in favor of plaintiff in error, it is not because of a failure to submit such issues or the absence of findings thereon. They have been submitted and specific findings made by the jury. The judgment for the plaintiff is not justified simply because the jury in making its answers to issues Nos. 6 and 7 may have based the same upon its findings in whole or in part upon what we have determined to he an immaterial issue.

We recommend that the judgment of the Court of Civil Appeals reversing and remanding the cause for another trial be affirmed.

CURETON, C. J.

The judgment of the Court of Civil Appeals is affirmed, as recommended by the Commission of Appeals.


text:
    PAYTON v. LOUSTALOTT et al.
    No. 1379—5969.
    Commission of Appeals of Texas, Section B.
    Nov. 9, 1932.
    Holland & Cousins, of Beaumont, and Roy Johnson, of Galveston, for plaintiff in error.
    Stewart & Damiani and Noble Carl, all of Galveston, for defendants in error. ■
   LEDDY, J.

This was an action of trespass to try title, brought in statutory form, by plaintiff in error against defendants in error, to recover the title and possession to four acres of land out of the Martin Dunman survey, in Galveston county, Tex.

It was also alleged that at the time that defendants in error first took possession of the land in controversy they did so as tenants of plaintiff in error’s predecessor in title, with an agreement to restore possession of said land upon demand; that plaintiff in .error, the owner of said land in fee simple, has been refused possession after proper demand.

Defendants in error answered by general denial and a plea of not guilty. They also asserted a cross-action against plaintiff in error in which it was alleged that they were the owners of the land under the ten and twenty-five year statutes of limitation. They prayed for judgment vesting the title and possession to said land in them and removing the cloud cast upon their title by plaintiff in error’s claim.

The case' was tried to a jury. Upon the close of plaintiff in error’s testimony, the jury, in obedience to a peremptory instruction, returned a verdict in favor of defendants in error. Thereupon the trial court rendered judgment that plaintiff in error take nothing by reason of his suit, and that defendants in error, under their cross-action, recover the land in controversy.

Upon appeal, the Court of Civil Appeals reformed the judgment of the trial court by eliminating so much of the same ás awarded defendants in error a judgment for the land involved, and. the judgment for defendants in error, as thus reformed, was affirmed.

The evidence adduced by plaintiff in error did not show any record title in either party to this controversy. Plaintiff in error contends that, notwithstanding this fact, he was entitled to a judgment for the land involved for two reasons: First, that by establishing prior possession in his father, John Payton, Sr., he, as heir of his father, was entitled to recover as against the defendants in error who were mere trespassers; and, second, that, the defendants in error’s entry upon the land-being permissive, their occupancy thereof was as tenants of plaintiff in error’s predecessor in title.

It is the settled law of this state that a tenant cannot hold possession derived from his landlord and contest his title to the land. Casey v. Hanrick, 69 Tex. 48, 6 S. W. 405; Word v. Drouthett, 44 Tex. 371; Tyler v. Davis, 61 Tex. 674.

Equally well settled is the doctrine that, where a plaintiff in an action of trespass to try title shows priority of possession of the land involved and no title is found in the defendant, the plaintiff by virtue of such possession is entitled to judgment. Kolb v. Bankhead, 18 Tex. 229; Wilson v. Palmer, 18 Tex. 592; Alexander v. Gilliam, 39 Tex. 228 ; Duren v. Strong, 53 Tex. 379; Williams v. Chew (Tex. Civ. App.) 19 S.W.(2d) 68.

The theory upon which a plaintiff in an action of trespass to try title who has established prior possession is permitted to recover as against a trespasser is that such possession raises a presumption of ownership. Watkins v. Smith, 91 Tex. 589, 45 S. W. 560; Pacific Express Co. v. Dunn, 81 Tex. 85, 16 S. W. 792; Webster v. Mann, 52 Tex. 416; 38 Cyc. 1201, and authorities there cited.

This presumption of ownership is but a rule of evidence and not of property, and may therefore be rebutted. Watkins v. Smith, supra ; Bates v. Bacon, 66 Tex. 348, 1 S. W. 256; Austin v. Espuela Land, etc. Co., 34 Tex. Civ. App. 39, 77 S. W. 830; Boyd v. Miller, 22 Tex. Civ. App. 165, 54 S. W. 411.

Plaintiff in error, John Payton, Jr., as the heir of his father, was only entitled to recover by establishing ownership in his father based upon the presumption arising from the- latter’s prior right of possession. The evidence adduced in behalf of plaintiff in error affirmatively shows that his mother, Mary Payton, was in possession of this land as owner at the time defendants in error entered into possession.

Mary Payton, the surviving wife of John Payton, Sr., testified that she and her husband and son, John Payton, plaintiff in error, prior to 1899, moved upon a 34-acre tract of land, of which the land in question was a part; that her husband “lent the land” involved in this suit to defendants in error in 1893,. upon their promise that possession would be restored upon demand; that demand was made by her in September, 1928; and that it was refused by defendants in error.

She further testified: “My husband lent Mr. Loustalott the ground to work and farm. I was present and sitting right on the front gallery when he lent it to him, but I could not exactly tell the time it was.”

Again she testified: “After Mr. Loustalott had fenced this- property, we talked about his promise for the use of it, and he said whenever I got ready for it he would give it back to me. * * * I have lately asked him to return my land or move his fence. I went to him and he was fixing up a corner post, and I asked him ‘Gus, are you going to take any more of my land in?’ and he said ‘By God, I know it is your land, but prove it.’ * * * Before this last statement by Mr. Loustalott where he said it was mine and he was going to make me prove it, he said it was my property and whenever I wanted it he would give it to me. * * * My husband and John and I were there three years before Mr. Loustalott went there. We were living on this 34 acre tract, a part of the Martin Dunman Survey, and I paid my taxes on it every year.”

She further testified: “At the time Mr. Loustalott went on this land in 1893, it was vacant land and he then erected a fence and built him a house, and there, was no objection on my part at that time to his doing that. He built his fence right on his line between me and him. The fences have not been kept up by Mr. Loustalott all of these years. He took his fence down on his field and put it around my land what my husband lent him when he borrowed it from him. * * * We had no use for the land to work and I was not supposed to close my land in and let Mr. Lous-talott take it away and steal it from me. * * * j had not surveyed the land of mine enclosed in Mr. Loustalott’s land, but I know it was 140 feet.”

Henry Sullivan was the only other witness offered by plaintiff in error. His testimony as to the ownership of the land is as follows: “I am acquainted with the location of the southeast corner of old lady Payton’s land, and I am acquainted with the present location of Mr. Loustalott’s fence. ■* * * The point counsel marks ‘A’ on' the "map represents old lady Payton’s corner. * * * With reference to the square tract marked on the map ‘Mary Payton’s 34 acres,’ the Pay-tons were living right here when Mr. Lous-talott moved over there in the house marked ‘Payton.’ ”

This witness further testified: “Mr. Lous-talott said he got the land from old man Pay-ton and moved over there to give his horses pasture room in there twelve years ago. He said T know that is Molly Payton’s land, but by God, I am going to keep it.’ * * * Up to that time he had never set up any claim to the land.”

We think the above evidence conclusively rebutted any presumption arising that John Payton, Sr., was the owner of this land. The testimony that he “lent the land” to defendant in error is not inconsistent with the fact that this was Mary Payton’s separate property, as the law at the time this transaction occurred vested the control and management of the wife’s separate property in the husband. Article 2967, R. S. 1895.

The evidence was sufficient to warrant a recovery of the land in controversy by Mary Payton, if she had been the plaintiff, but it did not authorize a recovery by John Pay-ton, Jr., as he cannot be an heir of his mother while she is living.

Had the evidence merely disclosed that plaintiff in error’s father and mother moved on this land and thereafter permitted defendant in error to occupy a portion thereof, the presumption would be justified that the land was community property, and plaintiff in error would have been entitled to recover it as an heir of his father. This presumption, however, cannot be indulged in the face of the direct and positive testimony showing that the land sought to be recovered was in fact owned by Mary Payton.

In an action of. trespass to try title where the plaintiff attempts to show title by prior possession in his predecessor in title, a decree in his favor is unwarranted if he fails to connect himself with such possession. Benavides v. Garcia (Tex. Civ. App.) 283 S. W. 611.

Defendants in error did not apply for á writ of error; hence the judgment of the Court of Civil 'Appeals reversing the trial court’s judgment awarding them the land under their cross-action is final. First Nat’l Bank of Mt. Calm v. Roller et al. (Tex. Com. App.) 14 S.W.(2d) 834.

We recommend that the judgment of the Court of Civil Appeals be affirmed.

CURETON, C. J.

The judgment of the Court of Civil Appeals is affirmed, as recommended by the Commission of Appeals.


author: SHARP, J. CURETON, C. J.

text:
    SOUTHERN PUB. CO. v. FOSTER.
    No. 1597—5980.
    Commission of Appeals of Texas, Section A.
    Nov. 9, 1932.

      Sleeper, Boynton & Kendall, of Waco, for plaintiff in error.
    W. R. Poage and Joseph W. Hale, both of Waco, for defendant in error.
   SHARP, J.

This is a suit for libel. W. S. Foster sued the Southern Publishing Company for damages growing out of the publication of a matter connecting him with a suit filed in the district court of McLennan county. The case was submitted to the jury upon special issues and based upon the findings of the jury to the special issues a judgment was entered in favor of plaintiff in the sum of $2,500. The Court of Civil Appeals affirmed the judgment of the trial court. 36 S.W.(2d) 231.

At the conclusion of the evidence, plaintiff in error requested the court to instruct the jury peremptorily to return a verdict in its favor. This request was denied.

Plaintiff in error contends that the defendant in error has no just basis for an action for damages because the matter published was not libelous, and therefore no recovery could be allowed therefor. Wade H. Nesbitt, as plaintiff, filed a suit in the Nineteenth district court of McLennan county against the Central Texas Publishing Company et al. for damages in the sum of $10,800. The pertinent parts of the original petition filed in that suit read as follows:

“Now comes Wade H. Nesbitt, who resides in Bosque County, Texas, hereinafter called plaintiff, and filed this the First Count of his original petition, complaining of Central Texas Publishing Company, a corporation with its domicile in Waco, McLennan County, Texas, of which W. S. Foster, who resides in Mc-Lennan County, Texas, is President, upon whom service of citation may be had herein; H. W. Bleam, who resides in Tarrant County, Texas, T. D. Walling, who resides in Bell County, A. J. Hubbard, who resides in Mc-Lennan County, and Sanger Motor Company, a corporation of which Asher Sanger is President, upon whom service of citation may be had, hereinafter styled defendants, and for cause of action, plaintiff respectfully represents to the Court: * * *

“Wherefore, plaintiff sues and prays the Court that the defendants each be cited in terms of law to appear and answer this petition, and that upon final hearing hereof, he have judgment against the defendants jointly and severally for his said damages in the sum of Ten Thousand Eight Hundred and No/100 ($10,800.00) Dollars in event he is not permitted to recover on his cause of action set forth in the first count hereof, and for such other and further relief, general and special, legal and equitable as to the Court may seem necessary and proper.”

The reporter for plaintiff in error which printed and circulated the Waco Times Herald, a newspaper in McLennan county, seeing the petition filed in the case of Nesbitt v. Central Texas Publishing Co. et al., in the district court of McLennan county, prepared for his paper for publication a report thereof, which is the basis for defendant in error’s recovery in this suit. The alleged libelous statement published in the paper on January 29, 1929, with respect to the above suit, reads as follows:

“Damage Suit Filed vs. Waco American
“Circulation Contest Drawn Into Courts
“A suit against the Central Texas Publishing Company .et al. growing out of a circulation contest recently sponsored by the Waco American, a daily newspaper published by that company was filed this morning in the 19th District Court by Wade H. Nesbitt, a contestant. Those named in the suit are W. H. Bleam, W. S. Foster, T. D. Walling, F. L. Dennison, A. J. Hubbard and the Sanger Motor Company. Nesbitt asks judgment against the defendants jointly and” severally for alleged ddinages.”

The gist of defendant in error’s contention is that, inasmuch as he was described in the petition filed by Nesbitt as being the president of the Central Texas Publishing Company, a corporation, upon whom service could be had for the company, and was not sued personally as one of the defendants; that a report of the suit as published stated that those named in the suit were H. W. Bleam, W; S. Foster, and others; that Nesbitt asked for judgment against the defendants jointly and severally for alleged damages; and that when this publication is considered in connection with other matters previously published relating to the actions of W. H. Bleam, one of the defendants — it constitutes a foundation for an action for libel.

The sole question for decision in this ease is this: Is the foregoing publication libelous, and can a recovery for damages be permitted to rest thereon? In 1901 the Legislature of this state announced the rule with respect as to what would constitute libel by the enactment of article 5430, R. S. 1925, which reads: “A libel is a defamation expressed in printing or writing, or by signs and pictures, or drawings tending to blacken the memory of the dead, or tending to injure the reputation of one who is alive, and thereby expose him to public hatred, contempt or ridicule, or financial injury, or to impeach the honesty, integrity, or virtue, or reputation of any one, or to publish the natural defects of any one and thereby expose such person to public hatred, ridicule, or financial injury.”

The Legislature has seen fit to amend the íaw pertaining to privileged matters that shall not be made the basis of any action for libel without proof of actual malice. In 1927, tile Fortieth Legislature (chapter 80, § 2) amended the law and enacted what is now article 5432, Vernon’s Annotated Revised Civil Statutes of the state of Texas, which in part reads as follows:

“The publication of the following matters by any newspaper or periodical shall be deemed privileged and shall not be made the basis of any action for libel.
“1. A fair, true and impartial account of the proceedings in a court of justice, unless the court prohibits the publication of same when in the judgment of the court the ends of justice demand that the same should not be published and the court so orders, or any other official proceedings authorized by law in the administration of the law.”

The rule is established that, when the language used in the publication is ambiguous so that extrinsic evidence is needed to determine its -character as to its being actionable or not actionable, if a jury is demanded to try the cause, it is the duty of the court to submit to the jury, under proper instructions, the issue as to whether or not the language used is libelous. If the publication standing alone is clearly libelous, it is the duty of the court to instruct the jury accordingly. Cotulla v. Kerr, 74 Tex. 89, 11 S. W. 1058, 15 Am. St. Rep. 819; Guisti v. Galveston Tribune, 105 Tex. 497, 150 S. W. 874, 152 S. W. 167; Newell, Slander & Libel (4th Ed.) pp. 278, 294, §§ 239, 254.

On the other hand, if the language used in the matter published is clear and unambiguous and manifestly wanting in. a defamatory meaning and shows on its face that it is not libelous, it is the duty of the court to so construe the language. In determining the question whether the publication was libelous or not, the words used in the publication must be construed as a whole, giving to all the words contained therein their ordinary meaning as read and construed by persons of ordinary intelligence. Express Publishing Co. v. Keeran (Tex. Com. App.) 284 S. W. 913; Cranfill v. Hayden, 97 Tex. 544, 80 S. W. 609; Cotulla v. Kerr, supra; Guisti v. Galveston Tribune, supra; Moore v. Leverett (Tex. Com. App.) 5-2 S.W.(2d) 252; Newell, Slander and Libel (4th Ed.) p. 291.

In Newell, Slander and Libel (4th Ed.) p. 291, the rule is announced in the following language: “Where the words can bear but one meaning, and that is obviously not defamatory, no innuendo or other allegation in the pleadings can make them so, and no action lies. No parol evidence-is admissible to explain the meaning of ordinary English words, in the absence of special circumstances showing that the words do not bear their usual signification. 'It is not right to say that a judge is to affect not to know what everybody else knows — the Ordinary use of the English language.’ ”

In the light of the foregoing rules, the court must determine if there is any evidence to support the judgment. When the above article is read and construed in the sense that ordinary readers would understand it, and this is made the test, we think it must be held that the language used in the publication complained of, when construed as a whole, constitutes no basis for an action for libel. This being true, the trial court should have instructed the jury to return a verdict for plaintiff in error.

We therefore recommend that the judgments of the trial court and the Court of Civil Appeals be reversed, and that judgment be entered herein in favor of plaintiff in error.

CURETON, C. J.

Judgments of the district court and Court of Civil Appeals both reversed, and judgment rendered for the plaintiff in error.


author: GRITZ, J. OURETON, O. J.

text:
    GIRARD FIRE & MARINE INS. CO. et al. v. FARMER et al.
    No. 1586—5956.
    Commission of Appeals of Texas, Section A.
    Nov. 9, 1932.
    E. G. Senter, of Dallas, for plaintiff in error.
    • Thompson, Knight, Baker & Harris, George S. Wright, and Coffman & Coffman, all of Dallas, for defendants in error.
   GRITZ, J.

■ Tlie facts of this case are undisputed; hence only a question of law is involved. As shown by the record before us, one G. P. Collins owned certain property in the city of Dallas, Tex. Gaulding Mortgage Company held a mortgage or deed of trust on this property to secure the payment of an indebtedness in the principal sum of $2,500 owed by Collins. The mortgage in question required the owner to keep the improvements on the property-insured against loss by fire for the benefit of the holder as his interest might appear.

In obedience to his contract above, and for his own benefit as well, Collins took out three policies of fire insurance covering the improvements on the above premises aggregating $3,500. Each of these policies contained the usual loss payable clause in favor of Gaulding Mortgage Company.

After the happening of the above events, and while the above three policies were in force, Collins sold and conveyed the property in question' to Mrs. Gladys Farmer. Mrs. Farmer either assumed or took the property subject to the loan and debt held by the mortgage company. At the time she purchased the property, Mrs. Farmer expressly told Collins that she would not take over any of his insurance, but would get her own insurance through another agency. Thereupon Mrs. Farmer took out a policy of insurance in Gir-ard Fire & Marine Insurance Company, hereafter called the Girard Company, in the sum of $4,050. This policy also contained the loss payable clause in favor of the mortgage company.

All four policies above mentioned are Texas standard policies.

After the happening of the above events, and with all four policies uncanceled and in force so far as time of coverage was concerned, the property insured was damaged by fire in an amount in excess of $4,050.

The case was tried on an agreed statement of facts, and we here copy from same as follows:

“Shortly after the fire Mrs. Farmer called the Gaulding Mortgage Company over the phone advising that company of the fire, and that the Girard Fire & Marine Insurance Company had issued the $4,050.00 above described to her. A few days later Mrs. Farmer went to the office of the Gaulding Mortgage Company and was then advised by the Gaulding Mortgage Company -that there was some interest in arrears on the mortgage, and. Mrs. Farmer left the policy of the Girard Fire & Marine Insurance Company with the Gauld-ing Mortgage Company as security for the mortgage held by it.
“On the 14th day of September, 1928, Mrs. Gladys Farmer executed and filed with Gir-ard Fire & Marine Insurance Company proof of loss, which was acceptable to the Girard Fire & Marine Insurance Company. On the 22nd day of November, 1928, Gaulding Mortgage Company executed and delivered to each of the three companies carrying the G. P. Collins insurance a proof of loss, to which no objection was made, each of said companies "taking the position, however, that there was no liability under its policy.
“In April, 1929, Mrs. Gladys Farmer, the assured under the Girard Fire & Marine Insurance Company policy, executed written transfer to the Gaulding Mortgage Company of any and all claims she had against Girard Fire & Marine Insurance Company under the policy of insurance issued by said company, as security for the Gaulding Mortgage Company mortgage on the-property described in said policy.
“After the fire the Pacific Fire Insurance Company, the London & Maneashire Insurance Company, and the Mercantile Insurance Company each claimed there was no liability under the respective policies issued by said companies to the assured named in said policies or to Mrs. Gladys Farmer, and all parties to this- cause agree that that claim is correct, the Girard Fire & Marine Insurance Company claiming, however, that the companies carrying the Collins insurance were liable for the whole amount of the mortgage, and that the Girard Fire & Marine Insurance Company was liable only for the difference between the mortgage and the damage of $4050.00.
“On June 3, 1929, in consideration of the amount then due upon said mortgage the Gaulding Mortgage Company transferred to Geo. S. Wright as trustee for the three insurance companies carrying the Collins policies said deed of trust notes and mortgage securing the same and all claims that it might have against the Girard Fire & Marine Insurance Company under Its policy, No. D-1034.
“And on the same date Mrs. Gladys Farmer, the assured named in Girard Fire & Marine Insurance Company policy, transferred all rights or claim she might have against said Girard Fire & Marine Insurance Company to said Geo. S. Wright as trustee for said three insurance companies, and the amount of money paid by said Geo. S. Wright as trustee for said three insurance companies was not made as a payment under said policies, but as a purchase as trustee for said three insurance companies of said deed of trust notes and mortgage securing the same.
“In open court the Girard Fire & Marine Insurance Company, through its counsel, stated that no claim was made by the Girard lire & Marine Insurance Company that its policy of insurance was void, but that its position was that the companies carrying the policies in the name of Collins were liable to the mortgagee to the extent of the mortgage debt, and that the Girard Fire & Marine Insurance Company was responsible to Mrs. Gladys Farmer only for the difference between the mortgage debt and the amount of loss and damagé. The plaintiff and the intervenor, Geo. S. Wright, trustee, stated to the court that they claimed that the Girard Fire & Marine Insurance Company was liable for the $4050.00 with interest, under the facts in the case Geo. S. Wright as trustee and assignee being entitled to $3048.84 as of date November 15, 1929, and Mrs. Gladys Farmer being entitled to $1244.-16 as of date November 15, 1929.”

Under the above record, the district court rendered a judgment against the Girard Company for the full amount of its policy $4,050. This judgment was apportioned $1,244.16 to Mrs. Farmer and $3,048.84 to the trustee. In other words, the district court held the Girard Company liable for the entire loss. On appeal by the Girard Company, the Court of Civil Appeals, in an opinion on rehearing, in all things affirmed the judgment of the district court. 36 S.W.(2d) 282. The Girard Company brings error.

From what has been said it appears that this suit involves a dispute-between the first three insurance companies who issued policies to Collins and the Girard Company who issued the policy to Mrs. Farmer.

At this point it will be noted that the three Collins policies each contained the following stipulation: “On payment to such mortgagee of any sum for loss or damage hereunder, if this company shall claim as to the mortgagor, or owner, no liability existed, it shall, to the extent of such payment, be subrogated to the mortgagee’s right of recovery and claim upon the collateral to the mortgage debt.”

From the statement we have made, it is evident that, at the time this case was tried in the district, court, Wright, as trustee for the three companies who issued the Collins policies, held the claim of Mrs. Farmer against the Girard Company, so far as its liability on the mortgage was concerned. Such trustee also held the claim of the mortgage company against Mrs. Farmer, and against the property and the Girard Company to the same extent. . Under such circumstances, the trustee is asserting the right to collect from the Girard Company the mortgage debt taken over by him from the mortgage company.

When the fire occurred, the Girard Company had no defense to any claim of Mrs. Farmer for the full amount of its policy. She had refused to take over the Collins policies, and had taken out her own insurance, as she had a perfect right to do. The three companies carrying the Collins insurance each had a complete defense to any claim by either Collins or Mrs. Farmer. This was because Collins had sold the property to Mrs. Farmer, and such policies had never been transferred to her. By virtue of the mortgage clause above quoted, the only right the mortgage company had against the three companies who had issued the Collins policies was to require them to take up its mortgage debt. This they did; but, in view of the fact that they were not in any way liable to Mrs. Farmer, their purchase of said debt did not extinguish it, but left it in full force so far as any rights she had were concerned.

* It appears from what we have said that the three companies who had issued the policies to Collins owed him no liability, and also they owed no liability to Mrs. Farmer. The mortgage clause above quoted, in legal effect, provides that, if the companies issuing them owe no liability to the mortgagor or owner on account of any loss or damage to the property, on payment of such mortgage, they should be subrogated to the rights of the mortgagee, etc. We have already demonstrated that these three companies owed no duty to either Mrs. Farmer or to Collins. It follows, since the Girard Company owed Mrs. Farmer the duty to pay the amount of the policy by paying the mortgage to its holder, and paying to her the balance, that it owed the trustee of the three companies who issued the Collins policies, as the holder of the mortgage debt, the amount thereof, and owed Mrs. Farmer the balance. The trial court and Court of Civil Appeals both so adjudged.

The Girard Company contends that, since its policy contains the same clause as is above quoted and discussed, it has the same rights as the first three companies. This contention must be overruled as to that company because the mortgage clause contained in its policy cannot apply in this case. This is because the Girard Company did owe the qwner a liability, and such clause only applies in cases where the insurer owes no liability to the owner.

We recommend that the judgment of the Court of Civil Appeals and district court be both affirmed.

OURETON, O. J.

Judgments of the district court and Court of Civil Appeals both affirmed, as recommended by the Commission of Appeals.


author: SHAEP, J. CURETON, C. J.

text:
    PARIS & G. N. RY. CO. et al. v. STAFFORD.
    No. 1589—5963.
    Commission of Appeals of Texas, Section A.
    Nov. 9, 1932.
    E. T. Miller, of St. Louis, Mo., Edgar Wright, of Paris, and Goree, Odell & Allen, of Fort Worth, for plaintiffs in error.
    John F. Sturgeon, of Pampa, Sizer & Gardner, of Monett, Mo., and Sturgeon, Birmingham & Sturgeon, of Paris, for defendant in error.
   SHAEP, J.

This suit was filed by Pearl Stafford, ad-ministratrix of the estate of Cecil Stafford, deceased, against the Paris & Great Northern Eailway Company and the St. Louis, San Francisco Eailway Company to recover damages for herself and minor children growing out of the death of Cecil Stafford, an employee of the railway companies, on account of the derailment of the train near Paris, Tex., on September 9, 1927. The suit was brought under the Federal Employers’ Liability Act (45 USCA §§ 51-59). The case was submitted to the jury upon special issues, and based upon the answers made to the special issues, the trial court entered judgment for the plaintiffs for $20,000. An appeal was made to the Court of Civil Appeals at Texar-kana and the judgment of the trial court was affirmed. 36 S.W.(2d) 331.

In substance, plaintiffs alleged: (1) That a short time prior to the injury to Cecil Stafford, three colored boys, while operating a Ford car on the highway and while making the turn or curve to cross over the railroad track near the switch stand, ran into and struck the switch stand with the car, and by reason of the deteriorated condition of cross-tie to which the switch stand was spiked, and by reason of the defective condition of the switch and switch stand, the attachments and fastenings thereof, and by reason of being set upon one tie instead of two, the switch stand was moved and the top part thereof was slightly leaned or shoved over, and its fastenings and attachments loosened. (2) That these facts were known to the defendants, or by the exercise of proper care could have been known in time to have avoided the injury and death of Cecil Stafford; that the defendants failed to exercise ordinary care to maintain the switch, switch stand, and connections and the ties under the main line trade in a reasonably safe condition; and that on account of the condition of the ■tie, switch stand, and its connections, they were insufficient to safely carry the weight of locomotive and train being operated on the main line track.

The defendants, in addition to their general denial and pleas of assumed risk, in substance, pleaded as follows: That if the death of Cecil Stafford was not caused toy an unavoidable accident, then his death was caused solely by the intervention and independent acts of third parties, over whom the defendants had no control, in knocking down, displacing, and attempting to replace the switch stand located on defendants’ property, doing so in such manner that the switch points were not placed against the rails, causing the derailment of defendants’ train on a spur track located on defendants’ property, and the accident resulting in the death of Cecil Stafford; that the acts of the third parties were unknown to defendants, or their employees, and that the accident occurred within a short time prior to the injury of Cecil Stafford by the derailment of defendants’ train; that the defendants did not know .of same and could not, by the exercise of ordinary care, have learned of same in time to have prevented the injury and death of Cecil Stafford, and that they are not liable therefor.

At the conclusion of the evidence, plaintiffs in error requested the court to instruct the jury peremptorily to return a verdict in their favor. This request was denied.

Plaintiffs in error contend: (1) That the plaintiff in this case failed to prove any actionable negligence against the defendants; (2) that the plaintiff did not prove that any negligent act of the defendants was a proximate cause of the derailment of the train; (3) that the proof conclusively shows that the acts of the negroes in knocking over the switch stand and attempting to reset it was the direct and proximate cause of the derailment of the train; and (4) that the defendants could not reasonably foresee or anticipate that the switch stand would be knocked down and would be replaced so that the target would indicate a clear track, whereas the improper replacement of the stand left an open switch.

The precise question before us for decision is this: Is there any evidence which authorizes a finding that the railway companies, under all the circumstances, ought to have anticipated that, by reason of the construction of the switch stand and its location, some one driving a car upon the highway would leave the highway and strike the switch stand, change its location, and cause the wreck of a train, as was done in this case?

The controlling facts are as follows: Going north from Paris the state highway for some distance parallels the railroad track, and at Trout Spur crosses the railroad track at right angles. Approximately 50 feet north of the highway and at the south end of a switch track there was located a switch stand. About 30 minutes before the derailment three negroes traveling north on the highway in a Ford truck ran off the highway at the curve, over and across a ditch, onto the railroad right of way and up the embankment, where they struck the switch stand and knocked it over. They attempted to replace the switch stand, and at the time of the derailment the stand was in an upright position, and the target showed clear. The record shows that the stand was placed in an improper position by the negroes, which left the switch points open about two inches, resulting in a condition that caused the derailment. The testimony further shows that on the day before the derailment the switch in question was used by the crew on a freight train in setting a car on the switch; that the switch was then all right and that it operated properly; that this same freight train passed over the track in the early morning of the day of derailment and the track was clear then and in proper order; that the section foreman inspected the switch stand on the day of the wreck and that it was in good shape. The testimony also shows that when the locomotive struck this open or cocked switch the wheels on one side followed the main line rail, and the wheels on the other side followed the east spur rail until the spread between the two rails was too great, when the wheels on one side dropped off and onto the ties. The engine then turned over. Witnesses who had observed the switch about thirty minutes prior to the wreck testified that the stand was ‘ in proper position and the points were pressing against the rails. The track was examined immediately after the derailment, and it was found from the marks on the ties that the wheels of the locomotive left the rail about 20 feet north of the switch, from which point on the track was torn up. At th.e switch stand,' and for a distance of about 2'0 feet, the track was intact. The switch tie was in its proper place and functioning properly. The switch braces were holding and the track was in proper alignment at and near the switch, but the points were about 2 inches from the rails, the same distance the switch stand had been set out of its proper position.

The rule is well settled that foreseeableness or anticipation of injury is an essential element of proximate cause, and this doctrine is well supported by both federal and state decisions. T. & P. Ry. Co. v. Bigham, 90 Tex. 225, 38 S. W. 162, 163; G., C. & S. F. Ry. Co. v. Bennett, 110 Tex. 270, 219 S. W. 197, 198; Trinity & B. V. Ry. Co. v. McDonald (Tex. Com. App.) 208 S. W. 912; San Antonio & A. P. Ry. Co. v. Behne (Tex. Com. App.) 231 S. W. 354; Union Stockyards v. Peeler (Tex. Com. App.) 37 S.W.(2d) 126; St. Louis, S. F. & T. Ry. Co. v. Green (Tex. Com. App.) 37 S. W.(2d) 123; Chicago & N. W. Ry. Co. v. Bower, 241 U. S. 470, 36 S. Ct. 624, 60 L. Ed. 1107; Missouri Pac. Ry. Co. v. Aeby, 275 U. S. 426, 48 S. Ct. 177, 72 L. Ed. 351; Atchison, T. & S. F. Ry. Co. v. Calhoun, 213 U. S. 1, 29 S. Ct 321, 322, 53 L. Ed. 671; Milwaukee & St. P. Ry. Co. v. Kellogg, 94 U. S. 474, 24 L. Ed. 256; Cole v. German Savings & Loan Society (C. C. A.) 124 F. 113, 63 L. R. A. 416; Davis v. Schroeder (C. C. A.) 291 F. 47; Engle v. Director General of Railroads, 78 Ind. App. 547, 133 N. E. 138, 140; Cleveland, C., C. & St. L. Ry. Co. v. Clark, 51 Ind. App. 392, 97 N. E. 822. Many other decisions could be cited.

In order for defendants in error to recover in this cause, the rule that established negligence does not give rise to a cause of action under the Federal Employers’ Liability Act (a) if there was a direct, independent, and efficient intervening cause, or (b) if the consequences should not reasonably have been' foreseen or anticipated, must be overruled. The law does not impose the rule upon the railroad companies that they could foresee or reasonably anticipate, and that they were required to anticipate or to provide for trespasses upon their property by persons in no way connected with the service or employment of the companies. On the contrary, the law imposes the presumption that the negroes involved in ' this controversy and all other persons would refrain from committing trespasses upon the right of way of the railroads. The railroad companies had the right to indulge in this presumption and to calculate the natural and probable result of its acts and omissions upon this supposition. The companies could not assume anything else, for it would be impossible, impracticable, and inequitable to predicate and administer the rights and remedies of persons upon the theory that those persons entirely disconnected with the companies would either violate the laws or disregard their duties by trespassing upon the rights and property of others. Such a rule finds no place in the administration of justice.

But it is contended that the railroad companies permitted the tie or ties upon which the switch stand rested to become .decayed and that this negligence caused the injury. If we concede that the tie or ties were decayed and that this was negligence, we are still confronted with the proposition: Would this act be deemed the proximate cause, where an independent and disconnected agency, like the ear leaving the highway and striking the switch as it did here, has supervened and brought about the result? If the fact of the intervention of an independent agency, under all the circumstances, ought to have been foreseen, then the negligence in permitting the tie or ties to become decayed would be actionable.

Under both the federal and state authorities above cited, the condition of the ties cannot be justly regarded as the proximate cause of the death of Cecil Stafford. The test of this question is: Ought the railroad companies and its agents to have reasonably foreseen that as the consequence of some one leaving the highway and hitting and misplacing the switch. stand, which caused the derailment of the train causing the injury of Stafford, or like injury to some other employee in his situation would probably result? No one representing the railroad companies could have regarded it other than a mere guess or conjecture, at best, that some one driving a car on the highway would leave the highway, cross a deep ditch, climb up an embankment, and strike a switch stand 50 feet from the highway and displace it, which-would derail a train passing over the spot within thirty minutes thereafter and injure the employees operating the train.

In answer to the foregoing question we quote from some of the authorities that have spoken upon this precise question. In At-chison, T. & S. F. Railway Company v. Calhoun, supra, the Supreme Court of the United States said: “The rules of law are reasonably well settled, however difficult they may be of application to the varied affairs of life. In this case undoubtedly the plaintiff’s injury was traceable to the original negligence, in the sense that it would not have occurred if the plaintiff had not been separated from his mother. Nevertheless, that negligence may not be the cause of the injury, in the meaning .which the law attributes to the word ‘cause’ when used in this connection. The law, in its practical administration, in eases of this kind regards only proximate or immediate, and not remote, causes, and, in ascertaining which is proximate and which remote, refuses to indulge in metaphysical niceties. Where, in the sequence of events between the original default and the final mischief an entirely independent and unrelated cause intervenes, and is of itself sufficient to stand as the cause of the mischief, the second cause is ordinarily regarded as the proximate cause and the other as the remote cause.”

In the case of Engle v. Director General' of Railroads, supra, the following language is used: “⅜ ■ * * On the other hand, if the agency intervening was one over which the original tortrfeasor had no control, and which was not put in motion by the original wrongful act; and if the character of the intervening agent, and the manner of the intervention, where such as, under the circumstances,, could not reasonably have been expected to occur in the ordinary course of nature and according to common experience — then such independent agency so intervening will be treated as the sole proximate cause, and the original wrongful act will be treated as only a condition.”

The Bigham Case, above cited, is one of the outstanding cases in this state. Discussing this very question in that case, Chief Justice Gaines reviewed the many authorities bearing upon this subject and announced the rule which controls in this state. After discussing the different phases of the rule, he said: “* * * But it seems to us that, as applied to the law of negligence at least, 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. In other words, it ought not to be deemed negligent to do or to fail to do an act, when it was not anticipated and should not have been anticipated that it would result in injury to any one. To require this is to demand of human nature a' degree of care incompatible with the prosecutions of the ordinary avocations of life. It would seem that there is neither a legal nor a moral obligation to guard against that which cannot he foreseen, and under such circumstances the duty of foresight should not be arbitrarily imputed.”

Again quoting the rule announced in Milwaukee & St. P. Ry. Co. v. Kellogg, supra, it .was said: *“* * * The question always is, Was there an unbroken connection? Would the facts constitute a continuous succession of events so linked together as to make a natural whole, or was there some new and independent cause intervening between the wrong and the injury? It is admitted that the rule is difficult of application. But it is generally held that, in order to warrant a finding that negligence or' an act not amounting to wanton wrong is the proximate cause ■of an injury,’ it must appear that the injury was the natural and probable consequence •of the negligence or wrongful act, and that it •ought to have been foreseen in the light of 'the attending circumstances.’ ”

Chief Justice Gaines also in that opinion summed up the judgment of the court in the following oft-quoted language: “In our opinion, nothing short of prophetic ken could have anticipated the happening of the combination of events which resulted in the injury of the person of the plaintiff.” He further said: “s ⅜ ⅜ And, since it was clearly out of the range of reasonable probability that an injury to the person of any one should result, it should be held, as a matter of law, that the negligence of the company gave no right of action for such injuries.”

Where suit is based upon the violation of a statute, the action would fail without showing of the proper causal connection be-teen the negligence and the injury. Mr. Justice Greenwood stated the rule in the case of Waterman Bbr. Co. v. Beatty, 110 Tex. 227, 218 S. W. 363, 364, as follows: “There .is no doubt that it is essential to the maintenance of an action for damages for a personal injury, founded on the violation of a statute, to ■establish, not only a violation of the statute, but that the violation was the proximate cause of the injury. Though the' violation of the statute would be negligence per se, the action would fail without a showing, of proper ■causal connection beteen the negligence and the injury. Shearman & Redfield, Baw of Negligence (Street’s Ed.) § 27; T. & P. Railway Co. v. Bigham, 90 Tex. 225, 38 S. W. 162; Spokane & I. E. R. Co. v. Campbell, 241 U. S. 510, 36 S. Ct. 683, 60 B. Ed. 1125; Stirling v. Bettis Mfg. Co. (Tex. Civ. App.) 159 S. W. 916; Elk Cotton Mills v. Grant, 140 Ga. 727, 48 B. R. A. (N. S.) 656, 79 S. E. 836. It follows that there was the same necessity for a proper application of the thoroughly settled law of proximate cause in this case as in the ordinary negligence case involving no violation of a statute.”

The rule is generally recognized that whether a certain result could be anticipated from a given act or omission is usually a question of fact and becomes a question of law only when but one reasonable conclusion can be drawn from the facts. In the case of Western & A. R. Co. v. Hughes, 278 U. S. 496, 49 S. Ct. 231, 232, 73 L. Ed. 473, the Supreme Court of the United States announced the rule applicable to cases arising under the Eederal Employers’ Biability Act in the following language: “* * * That it is the duty of the judge to direct the verdict when the testimony and all inferences which the jury could justifiably draw therefrom would be insufficient to support a verdict for the other party, Elliott v. Chicago, M. & St. P. Ry. Co., 150 U. S. 245, 37 L. Ed. 1068, 14 S. Ct. 85; A. B. Small Co. v. Lamborn & Co., 267 U. S. 248, 254, 69 L. Ed. 597, 600, 45 S. Ct. 300; and that this federal rule must be applied by state courts in eases arising under the Federal Employers’ Biability Act, Chicago, M. & St. P. Ry. Co. v. Coogan, 271 U. S. 472, 474, 70 L. Ed. 1041, 1043, 46 S. Ct. 564; Gulf, M. & N. R. Co. v. Wells, 275 U. S. 455, 457, 72 L. Ed. 370, 371, 48 S. Ct. 151; Toledo, St. L. & W. R. Co. v. Allen, 276 U. S. 165, 168, 72 L. Ed. 513, 515, 48 S. Ct. 215.”

In the case of Gulf, M. & N. R. Co. v. Wells, 275 U. S. 455, 48 S. Ct. 151, 153, 72 B. Ed. 370, it is said: “In short, we find that on the evidence and all the inferences which the jury might reasonably draw therefrom, taken most strongly against the Railway Company, the contention that the injury was caused by the negligence of the engineer is without any substantial support. In no aspect does the record do more than leave the matter in the realm of speculation and conjecture. That is not enough. Patton v. Texas & P. R. Co., 179 U. S. 658, 663, 45 B. Ed. 361, 364, 21 S. Ct. 275; Chicago, M. & S. P. Ry. Co. v. Coogan, supra [271 U. S.] 478 ([70 B. Ed. 1045], 46 S. Ct. 564).”

In principle the case in hand cannot be distinguished from the cases above cited where a recovery was denied. The inescapable conclusion is that the act of the negroes in hitting the switch stand and displacing it was the direct and proximate cause of the derailment of the train, and that the railroad companies will not be held to have foreseen such an unusual happening. The active cause which produced the derailment of the train and the death of Stafford was wholly independent of the negligence, if any, of the railroad companies and wholly disconnected from it. A judgment in this cause, in the face of this record, can'only be based upon theory, conjecture, and speculation as to what caused this wreck or what might have caused it. Judgments are not allowed to rest on such basis.

It further appearing that this case has been tried twice and has been fully developed and no useful purpose can be served by remanding the case for a new trial, we recommend that the judgments of the Court of Civil Appeals and of the district court be reversed, and that judgment be entered herein for plaintiffs in error.

CURETON, C. J.

The judgments of the district court and Court of Civil Appeals are both reversed, and judgment rendered for plaintiff in error, as recommended by the Commission of Appeals.


author: LATTIMORE, J.

text:
    VILLA et al. v. STATE.
    No. 15353.
    Court of Criminal Appeals of Texas.
    Nov. 2, 1932.
    S. B. Carr, of Floresville, for appellants.
    , Lloyd W. Davidson, State’s Atty., qf Austin, for the State.
   LATTIMORE, J.

Conviction for assault to murder; punishments, six and two years in the penitentiary respectively.

Appellants were jointly charged with making an assault upon one Gurkasch with their malice aforethought, and with intent to kill and murder him. The record shows that both appellants pleaded guilty. The court told the jury in his charge to find each of the defendants guilty as charged in the indictment and assess the punishment of each at confinement in .the penitentiary for any number of years not less than two nor. more than fifteen, as the jury might determine. The appellants were father and son, the son being a seventeen year old boy. The jury fixed the punishment of the father at six, and that of the son at two, years.

By an act which became effective April 17, 1931, which is chapter 61, Acts of the Regular Session of the 42d Legislature (Vernon’s Ann. P. C. art. 1160, § 2), it is provided that upon the trial of any person for assault with intent to murder, the court, in its charge to the jury, shall define malice aforethought, and in a proper case murder without malice, and instruct the jury touching the application of the law to the facts. It is further provided in said act that if the jury find that the assault was committed without malice, the penalty assessed shall be not less than one nor more than three years confinement in the penitentiary. In his charge to the jury in this case the learned trial judge failed to take any note of this change in the law of assault with intent to murder, and it becomes our duty to determine whether, even though no exception was taken to the failure of the court to give such charge, the failure is such as will demand of this court a reversal of the judgment.

In the ease of Martin v. State, 36 Tex. Cr. R. 632, 36 S. W. 587, 38 S. W. 194, we held that a plea of guilty to murder does not embrace a confession of guilt of murder of the first degree. We further held in said case, that the court should instruct the jury as to the elements of murder of the first degree,’ and, if necessary, murder of the second degree,. and that in this regard the trial should proceed under a plea of guilty as under a plea of not guilty. In the case of Harris v. State, 76 Tex. Cr. R. 131, 172 S. W. 975, 977, this court said: “If the defendant pleads guilty, and the facts should develop that he is not guilty, but acted purely in self-defense, it would be the duty of the court to see that no-conviction was had, although a plea of guilty was entered.” In the case before us we are convinced that it was an error for which the case must be reversed, to fail to submit to the jury an instruction in regard to malice aforethought, and to further instruct them that unless they believed the assault in question was upon malice aforethought, or in case they had a reasonable doubt of such fact, the punishment of the parties accused should be by confinement in tile penitentiáry for not less than one nor more than three years.

We further call attention to the fact that both appellants testified that-they acted in self-defense. While this conclusion is opposed by the testimony of the prosecuting witness, and we' have no disposition, to change the uniform holding of this court that a plea of guilty admits all criminative facts — .we must not disregard the further fact that the object of court procedure is to arrive at the truth and justice of every casé, and it occurs to us that where ignorant foreigners, such as these appellants, with little understanding of our court procedure and its consequence, enter pleas of guilty and then take the stand and testify to states of facts which, if true, entirely refute and overcome such pleas — it would appear that a better procedure would have been in such case to have the pleas of guilty withdrawn and the case concluded upon the entry of a plea of not guilty.

Eor the error of the court in failing to instruct the jury in accordance with the terms of the amended law on assault to murder, ab'ove referred to, the judgment will be re-, versed and the cause remanded.


author: CHRISTIAN, J.

text:
    SLATON v. STATE.
    No. 15329.
    Court of Criminal Appeals of Texas.
    Nov. 2, 1932.
    Moore & Wilson, of Amarillo, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, J.

The offense is burglary; the punishment, confinement in the penitentiary for two years.

The Plainview High School was burglarized after 7 p. m., October 10, 1931, and some money, rings, and jewelry taken from the. safe. Near midnight, G. W. Ford, who lived' a block west of the school, observed a car parked on the south side of his house, next to the curb. He reported this fact to the officers, who searched the ear and took it to the police station. At 4 a. m., appellant came to the police station and reported that his Chevrolet cabriolet had been stolen from him, stating that he had come to Plaipview with two boys, who drove with him to a filling station, where his car was serviced, and that, after his companions had left him, two men had jumped on his car with pistols and forced him to drive out in the country, where they robbed him, put him out, and took his car. The car appellant reported as having been stolen from him was the same car the officers had found near Mr. Ford’s house. After making his statement to the officers, appellant was placed under arrest and searched. The officers found in his watch pocket a key which fitted the ignition lock to the car, but none of the door keys or the other keys to the ear. It appears that at this time the officers had no knowledge or information that the schoolhouse had been burglarized. At the time of his arrest, there was visible on appellant’s clothes a whitish powder of some sort, which was not identified as asbestos or in any manner, except that one witness expressed the opinion that it was not talcum powder. Appellant was in possession of some Lucky Strike cigarettes, and there was in his car a box of Firestone Diamond Brand matches. Mr. Lass, the superintendent of the school, discovered in the afternoon of October 11th that the safe had been broken and the property heretofore mentioned taken from it. On the floor near the safe were some matches, both struck and unstruck, and also some Lucky Strike cigarette stubs. The matches were Firestone Diamond Brand. The inside of the safe door was filled with some sort of white chalky composition, which was identified as being asbestos. The powder from this substance was scattered over the floor. Appellant was pot in possession of any of the stolen property, nor was there found in the automobile any of such property. Part of the stolen property was found in the 'home of Mr. Dement, where it had been taken by Ernest Dement, who testified that he found it close to a telephone pole in an alley behind his house. Later Mr. Lass found more of the stolen property in the same alley. Appellant’s car had been found by the officers in this vicinity. It was in evidence that a filling station operator saw three men in the car in question at his station on Saturday evening prior to the burglary. He was unable to identify any of the parties as appellant. Appellant offered no testimony.

Appellant contends that the evidence is insufficient. The state’s attorney before this court expressed the opinion that the circumstances are insufficient to exclude every other reasonable hypothesis except that of the guilt of appellant. We think the circumstances fail to meet the demand of the law. The circumstances in the record raising a suspicion that appellant was the offender do not, in our opinion, meet the test of exclusion. In order to sustain a conviction based on circumstantial evidence, the circumstances must exclude every other reasonable' hypothesis except that of the guilt of the accused. Branch’s Annotated Penal Code, § 1877; Reed v. State, 113 Tex. Cr. R. 412, 22 S.W. (2d) 456.

The judgment is reversed, and the cause remanded.

PER CURIAM.

The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court


author: FLY, C. J.

text:
    HARDING v. FIRST FINANCE CORPORATION.
    No. 8880.
    Court of Civil Appeals of Texas. San Antonio.
    Oct. 26, 1932.
    Jesse G. Foster, of Raymondville, for appellant.
    Davis E. Decker, of Raymondville, for ap-pellee.
   FLY, C. J.

This suit was instituted by appellee against appellant to recover on a promissory note in the sum- of $8,010:45, and to foreclose a lien on certain lots in the town of Raymondville. The cause was heard by the court, without a jury, and judgment was rendered in favor of appellee for the amount of the note, $8,-040.45 principal, $1,043.38 interest, and $908.-37 attorney’s fees, making a total of $9,992.-20, and a foreclosure of the lien upon the lots in Raymondville.

The following facts found by the trial judge are adopted:

“The defendant, W. A. Harding, made, executed and delivered to Davis E. Decker, the note described in plaintiff’s petition, and the consideration for said note was valuable and has not failed.
“Defendant, W. A. Harding, made, executed and delivered to the said Davis E. Decker, the Trust Deed described in plaintiff’s petition for the purpose of securing the payment of said note.
“Said Davis E. Decker, before the maturity of said note, assigned, transferred and conveyed said note, together with the Trust Deed Lien securing the payment thereof, to the plaintiff, the First Finance Corporation. The said plaintiff paid to the said Davis E. Decker a valuable consideration for said note and lien, and is now the legal owner and holder of said note and lien, and same has not been paid the defendant or any one else.”

The findings are supported by the Statement of facts.

The court found that the note was transferred by Decker before maturity and for a valuable consideration. We overrule the first proposition which states that the note was transferred to appellee after maturity. This finding also disposes of the second, third, and fourth propositions. Appellee was an innocent purchaser of the note, before maturity, for value.

The judgment is affirmed.


author: SMITH, J,

text:
    METROPOLITAN CASUALTY CO. OF NEW YORK et al. v. MEDINA RURAL HIGH SCHOOL DIST. NO. 5.
    No. 8373.
    Court of Civil Appeals of Texas. San Antonio.
    Oct. 19, 1932.
    Rehearing Denied Nov. 16, 1932.
    Terrell, Davis, Hall & Clemens and W. D. Masterson, Jr., all of San Antonio, and N. C. Walker, of San Saba, for appellants.
    W. C. Baker, of Kerrville, and Morriss & Morriss, of San Antonio, for appellee.
   SMITH, J,

The Board of Trustees of Medina Rural High School District No. 5, in Bandera county, employed J. C. Ray to construct a school building for the district by virtue of a written contract. Ray did the work in pursuance of his own plans and specifications, and under his bond executed by the Metropolitan Casualty Company of New York as 'surety. Some time after completion and delivery of the building, certain defects in, the construction thereof developed, and the district brought this action for damages and recovered thereon against Ray and the surety. Both Ray and the surety have appealed.

The contract in question embraced a provision for arbitration as follows: “It is mutually agreed by tbe parties to tbis agreement that should misunderstandings arise as to the intent and interpretation of the drawings' and specifications, that such misunderstandings will be referred to a board of arbitration for adjustment. * * * It is mutually agreed by the parties to this agreement that they will abide by the decisions of such arbitration board, as just above mentioned, in matters and on points as might be referred to them. No matters involving points of law will be referred to an arbitration board.”

Neither party at any time invoked the provision for arbitration, and appellants urged that failure on the part of the district as ground for abatement of the action. Wé overrule this contention, embraced in appellants’ first proposition. No “misunderstandings” are shown by pleadings or evidence to have arisen “as to the intent and interpretation of the drawings and specifications,” and accordingly no occasion arose for resort to arbitration, within the contemplation of the contract. Moreover, the language of the contract was not such as to render resort to arbitration mandatory as a condition precedent to suit.

It appears that upon the completion of the building appellee went into possession and put the building to the uses for which it was constructed, and thereupon paid the contractor the balance of $2,311 due upon the contract price, which was more than the amount of damages recovered in this suit by appellee’ on account of the contractor’s breach of said' contract. It is contended by appellants that this final payment was premature and “constituted a material alteration of the building contract, and being made voluntarily and without the consent of the surety, released the surety from its liability on the bond.”

We overrule appellants’ contention.

The contract contained a provision that “upon final completion of the work, and upon evidence as demanded by owners that all claims for which they might be held liable have been satisfied, then the remaining ten per cent is due and shall be paid.”

It was provided in the bond: “And provided that any alterations which may be made in the contract, or in the work to be done under it, or the giving by the owners of any extension of time for the performance of the contract, or any other forbearance on the part of the owners of the principal to the other, shall not in any way release the principal and the' sureties, or either of them, their heirs, executors, administrators, successors or assigns, from their liability hereunder, notice to the sureties of any such alterations, extensions or • forbearance being hereby waived.”

The jury answered “No” to the question “Do you find from a preponderance of the evidence that the building was accepted by the plaintiff on or about December 29th, 1928, when final payment was made?”

The contract provision was that the final payment should be made upon, and therefore' could not be withheld after, final completion of the work, and assurance of the district that all claims for which it might be held liable had been satisfied. There is no contention that any claims were outstanding for which the district could be held liable, and, cer.Jairily the building had been finally completed. It is true, according .to jury findings, that it had not been completed in a workmanlike manner in all details; but it had been completed nevertheless. It was not stipulated in the contract that the district should withhold' final payment until the building was completed, free of all defects in construction, but only until it was “completed,” taking that word as it is usually understood. The district did not cut itself off from the relief here sought by making the final payment when it did. Especially is this so in view of the waiver embraced in the bond, and quoted above. We overrule appellants’ second and fourth propositions.

We do not think the court erred in refusing to allow appellants to ask the “jurors on their voir dire examination whether if it developed upon the trial that the work was in accord with the plans and specifications, but that there was an error in said plans and specifications, this fact would influence them in tfieir deliberations.” The question was at least far-fetched, was unreasonably speculative, and, if permitted, would have opened .up unwarranted and interminable expeditions into realms of conjecture, theories, and technicalities. The trial judge acted well within his discretion when he cut off such inquiries. We overrule appellants’ third proposition.

Appellant surety makes the further point that the defective workmanship of which appellee complains was open and visible to'all, and that when appellee took possession of the building upon its completion, and made the final payment to the contractor, it thereby waived its right to recourse upon the surety on account of the contractor’s breach of the building contract. This contention is predicated upon the theory that “the creditor owes the surety the duty of not voluntarily and negligently relinquishing funds or securities in his hands which he could lawfully apply to the debt involved.” This question was raised through requests by appellant for the submission of special issues designed to develop whether the defects in the contractor’s workmanship were “open and visible.” The court refused these requests. The uncontro-verted testimony was that appellee’s trustees were farmers and stockmen who had no technical knowledge or training which would enable them to discover or recognize said de-feets; that they made such inspection of the completed job as their experience and knowledge enabled them to make; that they could not discern and did not discover such defects, and took the contractor’s assurance that none existed. The defects were in the roof only, and did not become evident until subsequent rains developed them. The district trustees then complained to appellants, who assured them that the defects would be corrected, or paid for under the obligations of the bond. In view of these undisputed facts the court did not err in refusing to submit said special issues. Appellants’ fifth and sixth propositions are overruled.

.Appellants complain that the case was submitted upon special issues calling for findings as to whether the contractor did the particular work complained of in a “workmanlike manner.” Appellants’ objection to this submission was that the contractor’s obligation was to perform the work in accordance with the plans and; specifications, which issue was not submitted. We overrule this contention, embraced in appellants’ seventh proposition. The contractor was under the implied obligation to do all the work required of him, or performed by him, in a workmanlike manner, and his failure to do so rendered him, as well as his surety, liable for the resulting damages. This obligation was present, regardless of the primary obligation to perform the work in accordance with the specifications. Appellants’ seventh proposition will be overruled, and the judgment affirmed.