author: SMITH, J.

text:
    AL & LLOYD PARKER, Inc., v. CAMERON COUNTY LUMBER CO. et al.
    No. 8918.
    Court of Civil Appeals of Texas. San Antonio.
    Nov. 30, 1932.
    Rehearing Denied Jan. 18, 1933.
    H. L. Faulk, of Brownsville, for appellant.
    Greenwood & Lewis and Lee O. Cox, all of Harlingen, for appellees.
   SMITH, J.

The Al Parker Securities Company, a corporation, sold a tract of land to J. A. Schul-gen, reserving the vendor’s lien to secure the payment of Schulgen’s note for the balance due upon the purchase price of the land.

Schulgen built a house on the land with materials purchased from appellee, the Cameron County Lumber Company, for which he gave the latter a materialman’s lien to secure his note for $1,500. This note was also executed purportedly in behalf of Al & Lloyd Parker, another corporation, by J. L. Parker, its president.

This action was brought by the lumber company against Schulgen and Al & Lloyd Parker to recover of them the amount of the note and to foreclose the materialman’s lien against those defendants, as well as the Al Parker Securities Company, holder of the vendor’s lien. The Al & Lloyd Parker Company will be hereinafter referred to as the Parker Company, or as appellant, the Al Parker Securities Company as the securities company, and the lumber company as appellee.

In its original pleading appellee sought to fix liability upon appellant as surety upon Schulgen’s note, but in its trial petition asserted that liability to be that of “joint maker, principal and/or guarantor” of said note.

The Parker Company sought to avoid liability in toto upon the defenses that the execution of the note by or for it was ultra vires of its corporate powers; that the note was void for want of consideration, and the corporation had never received any benefit therefrom.

Upon the trial the court ruled against the Parker Company’s contentions, and rendered judgment against it for the amount of the note. The eourt also ruled against the lumber company’s contentions that (1) its mechanic’s lien was superior to the vendor’s lien as against the house constructed of the materials furnished by the lumber company; and (2) that it was entitled to share ratably in the security, or else to the removal and sale of the improvements and the proceeds appropriated to its claim. The Parker Company and -the lumber company have brought up separate appeals, which, on motion, have been consolidated under the above style and number.

Schulgen owned the legal title to the land, which constituted his homestead. The securities company held the vendor’s lien against the land. The Parker Company had no interest either in the land or in the lien or the notes secured thereby, or in the improvements placed on the premises by the lumber company for Schulgen. The Parker Company and the securities company were separate and distinct corporations.

The Parker Company was chartered for the declared purpose of “improving land situated within Water Control & Improvement Districts, water improvement districts, levy improvement districts, drainage districts and to own, improve, sub-divide and sell lands as provided for under chapter 54 of the Acts of the Regular Session of the 41st Legislature of the State of Texas [Vernon’s Ann. Civ. St. art. 1302, subd. 91a].”

The record shows conclusively that the Parker Company was an indorser on the note purely as an accommodation to Schulgen, one of its employees. It is obvious that such an indorsement-was ultra vires as being wholly without the scope of the indorser’s corporate powers,' and, being without consideration as well, is in direct contravention of statutory inhibition. Article 1348, R. S. 1925; 10 Tex. Jur., p. 882, § 247; W. C. Bowman Lumber Co. v. Pierson, 110 Tex. 543, 221 S. W. 930, 11 A. L. R. 547; Northside Ry. v. Worthington, 88 Tex. 562, 30 S. W. 1055, 53 Am. St. Rep. 778.

It is true that a corporation may be estopped to plead ultra vires “where the corporate funds or assets have been augmented by money or other property received by virtue of the transaction.” 10 Tex. Jur., p. 902, § 260.

But a party may enforce such estoppel only when he shows that the benefit derived from the transaction by such corporation was direct and material. It is not sufficient to show an indirect or merely incidental or negligible benefit. 10 Tex. Jur. pp. 855, et seq., §§ 225, et seq.; Lbr. Co. v. Pierson, supra; Ry. v. Worthington, supra.

Appellee has not brought the case within the rule of estoppel. For this purpose it relies upon the contention that the Parker Company and the securities company are “family corporations”; the stock of both of which is owned almost wholly by two brothers, Al and Lloyd Parker; that the securities company owned a first lien upon the land benefited by the improvements secured by the mechanic’s lien note indorsed by the Parker Company, which improvements were secured through that indorsement; that appellant was in debt to Schulgen, its employee, in the sum of $1,800, and was therefore interested in seeing him get the improvement.

None of the considerations, nor all of them combined, meet the requirement of the rule stated. The fact that appellant’s allegedly related corporation would be benefited by an enhancement of the value of its security, an indirect benefit within itself, is certainly too remote to estop appellant from asserting its plainly obvious defense of ultra vires. The fact, if it is a fact, which is doubtful, that appellant was indebted to Schulgen, its employee, has no force whatever, as a matter of course.

Appellee contends that its officials had, no actual knowledge of the existence or separate identities of the two corporate appellants in the transactions involved, and pleads this in bar of the defense of ultra vires. The law is against the contention; for one dealing with a corporation is charged with notice of its charter purposes and the .general scope of and limitations upon its corporate powers. 10 Tex. Jur. p. 862, § 233; Fitzhugh v. Franco-Texas Land Company, 81 Tex. 306, 16 S. W. 1078. The president of appellee corporation represented it in .this transaction, and ought to have known that the president of appellant corporation had no power to bind his principal to an obligation obviously ultra vires. He was apprised by the signature, Al & Lloyd. Parker, Inc., that the indorser was a corporation.

Appellee insists that its mechanic’s lien should have been satisfied by a decree giving- it the right to participate proportionately with appellant in the proceeds of the forced sale of the property involved;, but this contention is defeated by the fact that the property constituted the homestead of the Schulgens. State Trust Co. v. Morrison (Tex. Com. App.) 282 S. W. 214; C. D. Shamburger Lumber Co. v. Holbert (Tex. Civ. App.) 34 S.W.(2d) 614.

The judgment appealed from will be reversed in so far as recovery was decreed in favor of the lumber company against appellant, Parker Company, as indorser upon the note, and judgment will be here rendered that appellee take nothing as against said appellant, who shall be discharged with its costs in this and the trial court. In all other respects the judgment will be affirmed, at the cost of the lumber company.

Reversed and rendered in part; in part affirmed.


source: Caselaw Access Project

author: SELLERS, J.

license: Public Domain

text:
    EMPLOYERS’ LIABILITY ASSUR. CORPORATION, LIMITED, OF LONDON, ENGLAND, v. WILLIAMS.

    No. 4242.
    Court of Civil Appeals of Texas. Texarkana.
    Oct. 21, 1932.
    Rehearing Denied Nov. 3, 1932.

      W. B. Handley and Chas. J. Shaeffer, both of Dallas, for appellant.
    Caldwell, Gillen, Francis & Gallagher, of Dallas, for appellee.

       Writ of error granted.

   SELLERS, J.

This is an action brought by T. W. Williams, appellee, agaihst the Employers’ Liability Assurance Corporation, Limited, of London, England, appellant, by -way of an appeal from a final award of the Industrial Accident Board in which T. W. Williams set up that he was injured in the course of his employment, on February 27, 1931, with the Arkansas Drilling Company; that the Employers’ Liability Assurance Corporation was the insurer of the Arkansas Drilling Company under the provisions of the Workmen’s Compensation Act of Texas; that as a result of the injury so received, he was totally and permanently disabled, and also prayed for a lump-sum settlement. The case was tried to a jury upon special issues, and upon the findings of the jury, judgment was rendered against the appellant, awarding the appellee 401 weeks’ compensation at the maximum of $20 per week, but denying him a lump-sum settlement. From this judgment the appellant had duly prosecuted this appeal.

The appellant complains upon this appeal of the jury’s answer to special issue No. 7 as being unsupported by the evidence. The issue submitted, together with instructions given in connection therewith, is as follows:

“What do you find and believe from a preponderance of the evidence was the average weekly wage of plaintiff, T. W. Williams, in the year next preceding the 27th day of February, 1931, during the days, if any, that he worked as a laborer doing the work of a rough neck on oil well drilling rigs? Answer in dollars and cents, if any.” Answer: “$34.62.”
“In determining the plaintiff’s average weekly wage in this case the rule is to multiply his daily wage by 300 and divide the sum total by 52. The result will be plaintiff’s average wage.”

Subdivision 1 of section 1, article 8309, provides: “If the injured employee shall have worked in the employment in which he was working at the time of the injury, whether for the same employer or not, substantially the whole of the year immediately preceding the injury, his average annual wages shall consist of three hundred times the average daily wage or salary which he shall have earned in such employment during the days when so employed.”

The appellee testified that he was employed by the Arkansas Drilling Company in Gregg county on February 14,1931, as a rough neck, and that he was injured while in the employ of said company on February 27, 1931; that said company paid him at the rate of $6 per day and that he worked seven days jn the week; that prior to going to work for this company in Gregg county, he worked for Raybon & Long Drilling Company at Luling, Tex.; that he worked for them about ten months of the year immediately preceding the injury at the same kind’ of work he was performing at the time he was injured and at the same pay. He also testified about working for. the Magnolia Company for about' thirty days at the same bind of work and for the same pay in the year immediately preceding his injury. His work for the Magnolia Company took him to various points in Texas.

Similar evidence in a number of casés has been held sufficient to support the jury finding of the average weekly wage of an employee under the above quoted provision of article 8309. Texas Indemnity Insurance Co. v. Carson (Tex. Civ. App.) 21 S.W.(2d) 691; New Amsterdam Casualty Co. v. Harrington (Tex. Civ. App.) 283 S. W. 261; Texas Employers’ Insurance Ass’n v. Price (Tex. Civ. App.) 300 S. W. 667; Norwich Union Indemnity Co. v. Wilson (Tex. Civ. App.) 43 S.W.(2d) 473.

But appellant’s contention as stated in 'its brief is: “The word ‘employment’ in subdivision 1 of section 1 of article 8309 means the work, which the employee is performing at the time of the injury at the place in which he is engaged. That is, that the locality of. the employment must be taken into account.” With this contention we cannot agree. If it had been the intention of the Legislature to limit the evidence of an injured employee to that of work performed in the same or neigh-, boring locality in determining the average weekly wage under subdivision 1 of section 1 of article 8309, it certainly would have said so as it did in subdivision 2 of the same section of the article where another method of arriving at the average weekly wage of an employee is provided for when the average weekly wage cannot be established under the first subdivision. We think the evidence sufficient to support the jury’s finding.

There are a number of assignments complaining of certain argument made by appel-lee’s counsel to the jury. We have carefully considered each of the assignments and have concluded that none of them present reversible error.

The judgment of the trial court is affirmed.


author: STANFORD, J.

text:
    HALE v. HANNAH et al.
    No. 1313.
    Court of Civil Appeals of Texas. Waco.
    Jan. 12, 1933.
    W. D. Lacey, of Centerville, for appellant.
    Seale & Seale, of Centerville, for appellees.
   STANFORD, J.

This suit was by E. J. Hale, as administrator of the estate of Jordan Hannah, deceased, against John Hannah and others to cancel and set aside a certain deed to them by the substitute trustee under a certain deed of trust executed by said Jordan Hannah and his wife, Cora Hannah, to the Federal Land Bank; said deed of trust covering the 100 acres of land in controversy. To this petition the defendants, John Hannah and others, filed their answer in which they excepted generally to plaintiff’s original petition, a general denial, and further answered that the said Jordan Hannah, together with his wife and children, resided upon the land, using and occupying same as their homestead prior to, and at the time of, the death of the said Jordan Hannah. They alleged that it was true that Jordan Hannah and his wife executed their deed' of trust to the Federal Land Bank covering the land in controversy, and that said deed of trust lien was given by said parties for, and to secure, the purchase money due upon same, and that the same was a good and valid subsisting lien upon said land; that default had been made in the payment of one of the notes described in plaintiff’s original petition, and that they had purchased said land at the trustee’s sale in regular order and according to law and in accordance with the provisions of the deed of trust executed to the Federal Land Bank, in which said deed of trust it was provided that the trustee, or substitute trustee, had power to sell upon default in payment of any of said installments of said note described in plaintiff’s original petition; that said deed of trust as executed was one with an interest, and that the power to sell was not abrogated upon the death of the said Jordan Hannah. The defendants alleged that, said land and premises in controversy being the homestead of said Jordan Hannah during his life and at his death, the probate court obtained no jurisdiction over said land and premises, and it was unnecessary for the Federal Land Bank to file its claim with the administrator of said estate in order to collect same.

Thereupon the plaintiff, E. J. Hale, as administrator, filed certain pleadings which he styled his first supplemental petition, and in which he pleaded as follows: That Jordan Hannah left surviving him a wife, Cora Hannah, who was his lawful wife and was residing with him as such on the land in controversy at the time of his death; that no minor children survived Jordan Hannah; neither were there any unmarried daughters living with said Jordan Hannah at the time of his decease; that Cora Hannah as the surviving wife of Jordan Hannah is entitled to have set apart to her the land described in paragraph 3 of plaintiff’s original petition filed in said cause as her homestead, subject to the purchase-money lien described in said deed of trust; that it was necessary for the Federal. Land Bank to present its claim to the administrator. before the claim could be paid, and that such claim was presented and allowed to be paid in due course of administration, but that the deed mentioned in the original petition would interfere with the orderly administration of the estate of Jordan Hannah, deceásed. Thereupon the defendants urged their general demurrer to plaintiff’s original petition and also to plaintiff’s supplemental petition, all of which was by the court sustained, and, plaintiff refusing to amend, the trial court rendered judgment for defendants.

Opinion.

The record shows that Jordan Hannah and' his wife, Odra Hannah, owned and occupied as their homestead the said 100 acres of land, in May, 1923, and that said Hannah and wife continued to own and occupy said land as their homestead up to the time of the death of the said Jordan Hannah about 1932, and that the surviving wife, Cora Hannah, continued, and still lives upon said land as her homestead. It also appears there was, and is, -no other property that belonged to Hannah and wife or to either of them. The probate court had no jurisdiction, and could acquire none, over this homestead, except possibly to set apart said homestead for the use and benefit of the surviving Wife, but this was unnecessary in this case, 'as the said surviving .wife was already in possession, using and occupying same as her homestead. This being true, there was no necessity for an administration — in fact, there was nothing of which the administrator could acquire' jurisdiction to be administered. The balance due the Federal Land Bank of Houston for purchase money for the property in question could and can be collected by sale under the power contained in the deed of trust by such trustee or substitute trustee. Not only were appellant’s pleadings insufficient to authorize an administration upon the homestead of Jordan Hannah, deceased, but same could not have been amended so as to authorize such relief, and it is also true that appellant’s pleadings were wholly insufficient as a basis for setting aside the trustee’s deed referred to in said pleadings. Constitution of Texas, art. 16, §§ 50, 52; Rev. Civ. St. art. 3499; Rev. Civ. St. art. 3495; Wiener v. Zweib, 105 Tex. 262, 141 S. W. 771, 147 S. W. 867; Slay v. Gose (Tex. Civ. App.) 233 S. W. 348; Greene v. Cass County State Bank (Tex. Civ. App.) 7 S.W.(2d) 620, 621; Childers v. Henderson, 76 Tex. 664, 13 S. W. 481; Cline v. Niblo, 117 Tex. 474, 8 S.W.(2d) 633, 66 A. L. R. 916; Johnson v. Hampton, 117 Tex. 580, 8 S.W.(2d) 640; Zwernemarnn v. Von Rosenberg, 76 Tex. 522, 13 S. W. 485.

The trial court was correct in sustaining appellees’ demurrers and special exceptions and in rendering judgment for defendants.

Said judgment is hereby affirmed.


text:
    TEXAS & N. O. R. CO. v. BARROW.
    No. 4259.
    Court of Civil Appeals of Texas. Texarkana.
    Nov. 10, 1932.
    Rehearing Denied Dec. 1, 1932.
    E. A. Landman, of Athens, B. M. McMahan, of Greenville, and Baker, Botts, Andrews & Wharton, of Houston, for appellant.
    Carpenter & Harris, of Greenville, for ap-pellee.
   SELLERS, J.

The appellee brought this suit to recover damages for an ejectment from one of appellant’s trains at Groesbeek, Tex., by its conductor when appellee had a valid ticket entitling him to passage on such train to En-nis, Tex. *

Briefly, the facts are that appellee, J. W. Barrow, purchased a round trip ticket from appellant’s depot agent at Quinlan, in Hunt county, to Austin, on or about September 9, 193.1, the ticket being good for thirty days. On September 11th the appellee left Austin on his return trip to Quinlan, and when he reached Bremond, a station on appellant’s road, appellee left the train and went from Bremond to Marlin to see his brother who was sick. Appellee returned from Marlin to Bremond and boarded one of appellant’s trains about 2 o’clock in the morning of September 12th for Ennis where he would have to change trains for Quinlan.. Soon after boarding the train at Bremond, the conductor called for appellee’s ticket which ap-pellee delivered to him. The conductor refused to accept the ticket, on the ground, as testified to by appellee,-, that it was out of date and void. Appellee told the conductor the fact's about the ticket, but he still refused to accept it, telling appellee that he would have to pay' his fare or be put off the train. Appellee offered to give the conductor his watch or a cheek’, 'but the conductor refused to accept either.' Appellee also assured the conductor that,, if he would carry him until daylight, he' would wire and get the money to pay his fare. This request' was also refused. Appellee found a dollar bill in his pocket, gáve that to the conductor, and the conductor agréed to carry appellee to' Groes-. beck, a station on appellant’s line of railroad, and told appellee he would have to get off there. According to instructions • from the conductor, appellee did get off at Groesbeck shortly áftér 2 o’clock in'the morning. Ap-pellee was a stranger in Groesbeck, but secured some one to cash his check for $2, and boarded another one of appellant’s trains in about one hour from the time he had been put off the. first train for Ennis where he made the same' connection for Quinlan that he would have made oh the first train. Appel-lee is a banker and merchant of Quinlan and had been for’a long time. He testified that he was put off the train like a common hobo; that the putting him off the train injured his nervous system, causing him to become sick and remain in be.d for a day or so; and that he had not completely recovered from the injury to. his nervous system to the date of trial. Appellee’s evidence in respect to being nervous and sick was corroborated by evidence of other witnesses.

The case was submitted to a jury which returned a verdict for appellee for $500, and also, upon instructions from the court, the jury allowed appellee the extra fare paid which was $3.18, and judgment was entered for appellee in accordance with the verdict of the jury. From this judgment the appellant has duly prosecuted this appeal.

Appellant assigns as error the court’s failure to submit to the jury in its charge the appellant’s affirmative defense which, .it is claimed, was both alleged and supported by evidence. The defense about which complaint is made as alleged by appellant is as follows: “Further answering, the defendant says that plaintiff had a ticket which from wear or other causes, either or both, had become so defaced as to become unintelligible to defendant’s conductor in charge of train boarded by plaintiff.”

The conductor testified that he refused to take the ticket because it was defaced. Just how or when the ticket was defaced or mutilated was neither alleged nor proven. .

Our conclusion is that neither the pleadings nor evidence raised a defense to appel-lee’s cause of action. The pleading and evidence would have had to go further and show that the ticket was defaced or mutilated through some fault of appellee. Koch v. New York City Ry. Co. (Sup.) 95 N. Y. S. 559; Houston & T. C. Ry. Co. v. Crone (Tex. Civ. App.) 37 S. W. 1074. It would seem from the ease of Houston & T. C. Ry. Co. v. Crone, supra, that, even though appellee in this case presented the conductor a mutilated ticket, it was the duty of the conductor to accept the statement of appellee as to its validity until he found out that-such statement was not true. In this case the evidence shows conclusively that the conductor refused to accept appellee’s statement as to the validity of his ticket and that the conductor made no investigation whatever to see if the statement was true.

Appellant complains that the verdict is excessive. We have not undertaken to set out all the evidence, but it is our opinion that when it is all considered it is ample to support the jury’s finding of damages in the sum of $500. There is evidence of humiliation, nervousness, and even sickness, for all of which appellee had a right to recover, and we would be authorized to set aside the verdict only when it is so large as to make it probable at least that it was a result of passion, and the amount allowed in this case, under the evidence, could not come within that rule. Chicago, R. I. & G. Ry. Co. v. Carroll (Tex. Civ. App.) 151 S. W. 1116.

The judgment of the trial court is affirmed.


author: HALL, C. J.

text:
    COLTHARP et ux. v. DICKENS NAT. FARM LOAN ASS’N.
    No. 3920.
    Court of Civil Appeals of Texas. Amarillo.
    Nov. 23, 1932.
    Rehearing Denied Jan. 25, 1933.

      James A. Stephens, of Benjamin, for appellant.
    W. D. Wilson, of Spur, for appellee.
   HALL, C. J.

This is a suit in trespass to try title instituted by appellee against appellants to recover a quarter section of land in Dickens county and described in the petition, and by a second count it sought to foreclose certain liens if denied a recovery of the land in fee.

The appellants pleaded not guilty, and certain special matters not necessary to be mentioned here.

Upon the trial the appellee introduced a complete chain of title from the agreed common source down to itself. After both parties had closed in the introduction of evidence, the court directed the jury to find for appellee under the first count in the petition, and, based upon the verdict, rendered judgment for appellee for the title and possession of the land sued for.

It appears that the land had been sold by the trustee named in a deed of trust, and the trustee’s deed had been acknowledged before a notary public by the name of Reed.

The main contention made here is that the court erred in admitting the trustee’s deed conveying the land to appellee because the deed had been acknowledged before a party who was interested in the transaction.

The two propositions are mere abstractions and do not complain of any error committed in any ease by any court; but since the errors assigned are more definite, we have decided to consider them.

The second assignment of error challenges the action of the court in directing a verdict for the appellee.

James B. Reed, the notary who took the acknowledgment of the trustee, testified: That in October when he took the acknowledgment he was working for the appellee upon a monthly salary, and as an employee had charge of the collections; that his compensation depended upon the amount of the business done, and that the Federal Land Bank, which is not connected with this suit, compensated him for his services; that he was just a hired hand of the Federal Land Bank and owned no interest at all; that as secretary he got one-fourth of the dividends paid by the Federal Land Bank; that the local board had nothing to do with the matter of his salary; that he was secretary and treasurer of the appellee association at the time the instrument was acknowledged; that at the time he took the acknowledgment he was not a stockholder in either the Federal Land Bank or the Dickens National Farm Loan Association, nor was he a director and had no pecuniary interest in the appellee association; that he was merely an employee and had no pecuniary interest whatever in the transaction evidenced by the deed; that the validity or invalidity of the deed meant no commissions to him or any pecuniary interest either way; that he had no interest at the time of the transaction and has had none since; that his compensation consisted in part of transfer fees and loan fees; that he did not get any fees or anything from the transaction involved in this suit, nor was it understood that he should get anything.

This evidence does not show that he was disqualified to take the acknowledgment of the trustee, nor does it raise any fact issue to be submitted to the jury, and the court did not err in directing a verdict in favor of the appellee. Cory v. Groves Barnes Lumber Co. (Tex. Civ. App.) 32 S.W.(2d) 492; Gordon-Sewall & Co. v. Walker (Tex. Civ. App.) 258 S. W. 233; Creosoted W. B. P. Co. v. McKay (Tex. Civ. App.) 241 S. W. 549; Belcher Land Mortgage Co. v. Taylor (Tex. Com. App.) 212 S. W. 647; Stoker v. Fugitt (Tex. Civ. App.) 102 S. W. 743; Kutch v. Holley, 77 Tex. 220, 14 S. W. 32; Roane v. Murphy (Tex. Civ. App.) 96 S. W. 782.

The judgment is affirmed.


author: SELLERS, J. LEVY, J.

text:
    CITY OF TEXARKANA v. RHYNE.

    No. 4221.
    Court of Civil Appeals of Texas. Texarkana.
    Sept. 24, 1932.
    Rehearing Denied Nov. 17, 1932.
    Travers Crumpton and Wm. Hodges, both of Texarkana, for appellant.
    Elmer B. Lincoln and S. I. Robison, both of Texarkana, for appellee.

       Writ of error granted.

   SELLERS, J.

This suit was originally filed by the ap-pellee, Mrs. Allie Rhyne, against the appellant on the 23d day of December, 1930. The purpose of the suit was to recover damages which it was alleged were caused by the overflow of a lot owned by the appellee as a result of certain street improvements made by the city of Texarkana.

Several amended petitions were filed; the last being her third amended original petition, filed on the 10th day of November, 1931-In her last amended petition Homer Stephens and P. B. Baxter were made parties defendant.

For cause of action, she alleged in substance as follows: That she was the owner of lot No. 10 in block, No. 129 of the city of Tex-arkana, which was surrounded by Twelfth street on the south, Thirteenth street on the north, Texas avenue on the west, and Main street on the east.

Some time .prior to the year 1929 there ex- ' isted a large drainage ditch along the south side of Thirteenth street extending to and across the alley in block 129 and intersecting the east boundary line of lot No. 12 in block No. 129, at the corner of said lot, and the alley on Thirteenth street; that this ditch ran in a southwesterly direction from that point across lots 11 and 12 and into Texas avenue, and continued on in a southwesterly direction to its termination, some distance from that point. •

Some time during the years 1928 and 1929, the city of Texarkana, acting by and through its legally constituted officers and agents, covered over that portion of the' ditch along the south side of Thirteenth street between Main street and the corner of lot No. 12, and negligently failed to leave a sufficient opening to carry off the water which usually flowed through said ditch; that the city of Texar-kana failed to leave sufficient openings, or catch-basins, in said ditch to permit the flow of water from the adjacent territory into the ditch, and thereby caused the plaintiff's property to be overflowed and damaged in the manner described in her petition.

She further alleged that, as a result of the manner in which the ditch was walled and-covered over, her property was caused to overflow from ordinary rainfalls, resulting in the destruction of her shrubbery, fences, and some outbuildings.

There was located on said lot a residence used for rental purposes, and that by reason of the overflow complained of the rental value of said property had been reduced from $70 per month to not over $150 per year; that the foundation of this residence had been weakened and undermined as the result of water accumulating, washing, and standing under the same and rendered practically uninhabitable; that the damages and conditions complained of were of a recurring and continuing nature, and that it was necessary for the plaintiff to fill her lot with dirt to a depth of at least two feet, at a cost of $500; that it was necessary to raise her house and place thereunder an entirely new foundation at k cost of $1,250; that the expenditure for filling in the lot, raising the house, laying the foundation, constituted the only means by which said lot could be reclaimed from its uninhabitable condition caused by the acts and conduct of the city of Texarkana.

She prayed for damages for the destruction' of her shrubbery and some outhouses, and for the loss of rentals due to the reduced rental value of her house; also for cost of raising the house and filling the lot with dirt. The damages claimed as a result of these particular items aggregated $4,420.

The defendants Stephens and Baxter filed no answer.

The city of Texarkana answered by general and special exceptions, and general denial. The city also pleaded contributory negligence on the part of the appellee in failing to take proper precautions to minimize her damages after ascertaining that her property was subject to overflow and would be overflowed by water falling during ordinary rains.

In resportee to special issues, the jury found as follows:

(1) That in concreting the ditch along the south side of Thirteenth street between Texas avenue and Main street the city constructed the concrete walls closer together than were the natural banks of the original ditch.

(2) That in thus constructing the walls of the ditch the natural drainage of water through the ditch was obstructed.

(3) That the concrete covering placed by the city over the ditch was on a lower level than the original banks of the ditch.

(4) In thus eo'vering the ditch the natural drainage was obstructed and diverted.

(5) That the city failed to leave sufficient openings for water usually flowing into and through the ditch from ordinary rainfalls.

(6) That the failure to leave sufficient openings in the walls and covering of the ditch obstructed and diverted the natural drainage therein.

(7) That plaintiff’s property was caused to overflow from ordinary rainfalls as a direct result of the obstructions and diversions of the natural drainage of the ditch.

(8) That plaintiff’s property was injured as a direct result of such overflows.

Other issues and answers thereto were as follows:

(9) “What, do you find from a preponderance of the evidence, is the amount of damage, if any suffered by the plaintiff to her shrubbery, subsequent to December 23, 1928, by overflows from ordinary rainfalls, as' a direct result of such obstruction and diversion, if any, of the natural drainage of said ditch? Answer in Dollars and Cents. Answer: $100.00.”

(12) “What, do you find from a preponderance of the evidence, is the amount of damage, if any, suffered by the plaintiff in loss of rentals of her said property, if any, subsequent to December 23, 1928, by reason of premises overflowing from ordinary rainfalls, if dny, as a direct result of such obstruction and diversion, if any, of the natural drainage of said ditch? Answer in Dollars and Cents. Answer: $450.00.”

(13) “What, do you find from a preponderance of the evidence, is the fair and reasonable cost to fill in plaintiff’s lot with dirt to an elevation as free from overflow, if any, as before' such obstruction and diversion, if any, of the natural drainage of said ditch? Answer in Dollars and Cents. Answer: $100.-00.”

(14) “What, do you find from a preponderance of the evidence, is the fair and reasonable cost to raise and rebuild the foundation of plaintiff’s house to an elevation as free from overflow, if any, as before such obstruction and diversion, if any, of the natural drainage of said ditch? Answer in Dollars and Cents. Answer: $350.00.”

Upon those answers the court entered a judgment against the appellant, the city of Texarkana, alone, for the sum of $1,000 and costs of suit. Stephens and Baxter were dismissed from the suit, and the appellant has duly prosecuted this appeal.

Appellant’s first proposition asserts that under the pleadings and evidence the nuisance or condition which caused the alleged injuries to appellee’s property was permanent, and that the damages complained of were permanent and to the freehold estate, and therefore the correct legal measure of damages appellee was entitled to recover in this suit, if any, was the difference between the value of her house and lot immediately before the overflow and immediately after, and that the court erred in submitting a different measure of damages. .

Appellant undoubtedly asserts a correct proposition of law in this state, with respect to the measure of damages to be allowed in such case, but a glance at the petition of appellee upon which she went to trial will disclose that she does not assert a cause of action to the freehold estate itself, but, on the contrary, she only seeks to recover for -loss of rents, shrubbery, fences, injury to buildings, and the cost of filling in- her lot to prevent future overflows, etc. And the evidence offered at the trial was in reference to the damages to these various items. In such cases there seems to be a well-defined exception to the general rule which will permit a recovery for the damages to such items. The general rule and the exception is. found in Texas Jurisprudence, vol. 12, § 264, p. 453, and is as follows: “If a charge is authorized by the pleading and evidence, the jury should be instructed' to allow for permanent injuries to land and also for temporary injuries thereto. In an action for permanent injuries to realty, the charge should be to ascertain the difference between the market value of the land immediately before and immediately after the injury. Ordinarily such an instruction is properly given in case of the destruction of, or injury to, a building, a fence, sod or turf, shrubbery, timber or trees. But where no injury to the freehold is alleged, the jury may be instructed to allow the value of buildings, fences, trees, etc., destroyed, as if separated from the soil. * * * ”

In our opinion, the trial court was not only authorized to submit the case as he did, but, under the pleadings and evidence, it would have been error to. have submitted it under the general rule insisted upon by appellant. Houston & T. C. Ry. Co. v. Smith (Tex. Civ. App.) 46 S. W. 1046.

It is further insisted that, since the ap-pellee’s suit is for injuries to real estate caused by a permanent street improvement which was made by appellant more than two years prior to the filing of this suit for damages, no recovery can be had because of the two-year statute of limitation. This question has been so well settled in this state adverse to appellant’s contention that we deem it unnecessary to discuss the question further than to say that we reaffirm and adopt the ruling made in the case of City of Houston v. Houston E. & W. T. Ry. Co. et al., 26 Tex. Civ. App. 228, 63 S. W. 1056.

Appellant by appropriate assignments complains of the court’s refusal to submit to the jury its special requested issues on its defense of minimization of damages. The appellant in its answer pleaded as follows: “That if plaintiff’s property was damaged as alleged by her, such damage was the direct result of her failure to exercise, ordinary care for its protection against overflows after having acquired full knowledge of the surrounding physical conditions, and full notice that the opening left in the alley back of her property was insufficient, if it was insufficient, which defendant denies; that plaintiff’s lot is only about fifty (50) feet wide on its East end, adjoining the alley through which the water is alleged to have flowed, that plaintiff’s lot could have been fully protected from any overflow following an ordinary rainfall from said alley by the erection of an embankment, or wall, or some obstruction, at a small cost, along plaintiff’s east boundary line adjoining said alley, or by placing a tile or drain into Texas Avenue, or into, the ditch at the Northwest corner of her lot; that plaintiff negligently failed and refused to take any steps whatever to prevent, or reduce the damages that might be caused by water flowing onto her premises.”

The appellant s witnesses testified that such a wall could have been built for the small sum of.$76, and that a hole could have been cut into the large drainage ditch by two men in an hour or two.

The trouble we have in sustaining appellant’s contention is that it has failed to allege and prove a complete defense to appellee’s cause of action, in that there is no allegation or proof that in constructing such a wall as would divert the water from the premises of appellee there would be no damages to adjoining premises of neighbors. Nor is there allegation or proof that appellee had a right to cut a hole into the wall of the drainage ditch belonging to the city. Not having alleged and made proof of these matters, appellant’s defense would be incomplete, and the court did not err in failing to submit such issue to the jury. Austin & N. W. Ry. Co. v. Anderson, 85 Tex. 88, 19 S. W. 1025.

We deem it unnecessary to discuss all appellant’s propositions of error. We will state, however, that each of the propositions has been carefully considered, and we have cop-cluded that none of them presents reversible error.

The judgment of the trial court is affirmed.

LEVY, J.

(dissenting).

It was affirmatively proven, as shown in .the opinion, that the city, in the purpose of regulating the flowage of water, as a public street improvement, walled and covered over with concrete a ditch. As a consequence of the negligent construction in rainfalls there was, as a constantly recurring grievance, overflow-age of water upon the adjoining lot of the appellee, which would stand upon a portion of the lot and up to and under the residence thereon, interfering with the use and enjoyment, and causing actual physical injury to the property. The evidence is affirmative that the overflowage of water on the lot was not occasional, but constantly recurring in rainfalls, causing injury to the property. The street structure complained of is permanent in its nature. As the constantly recurring overflowage of water in rainfalls injuriously affects, as it does, the entire property as a unit, and not the residence or the lot separately, the measure of damages applicable, it is believed, is the depreciation in the value of the property, and not the cost of raising the grade of the lot and of the foundation of the residence. Pacific Express Co. v. Lasker Real-Estate Ass’n, 81 Tex. 81, 16 S. W. 792; Rosenthal v. Taylor, B. & H. Rwy., 79 Tex. 325, 15 S. W. 268; Galveston, H. & S. A. Ry. v. Becht (Tex. Civ. App.) 21 S. W. 971; Denison & P. S. Ry. Co. v. O’Maley (Tex. Civ. App.) 45 S. W. 227; City of Paris v. Allred, 17 Tex. Civ. App. 125, 43 S. W. 62; 40 Cyc. p. 589 ; 27 R. C. L. § 51, p. 1122.


text:
    SWANSON et al. v. HOLT.

    No. 4256.
    Court of Civil Appeals of Texas. Texarkana.
    Nov. 16, 1932.
    Rehearing Denied Dec. 8, 1932.
    Underwood & Strickland, of Amarillo, and Allred & Brown, of Henderson, for plaintiffs in error.
    Margaret Clark, of Bongview, Chas. R. Crum, of Dallas, and McDonald, Grant & Cantwell, of Longview, for defendant in error.

       Writ of error granted.

   SELLERS, J.

This suit was by R. W. Holt in trespass to try title to an undivided one-eighth interest in 225 acres of land against A. J. Swanson, Willie Holt, R. E. O’Keefe, and L. A. Norris. The plaintiff alleged that the defendants Willie Holt and A. J. Swanson, induced him, through false and fraudulent representations as to the value of the land involved, to convey the land to Swanson for a grossly inadequate consideration, and that the other defendants, O’Keefe and Norris, purchased certain interests in the land from ' Willie Holt and A. J. Swanson with knowledge of the fraud practiced upon him by Willie Plolt and A. J. Swanson, and the plain-, tiff prayed for the cancellation of all the instruments under which the defendants claimed. There was trial before a jury which resulted in a verdict in favor of the plaintiff, and the court, in accordance with the verdict, on July 1, 1931, rendered judgment for the plaintiff, canceling as null and void the instruments under which the defendants claimed. The defendants filed motion for new trial which was overruled by the court on August 7, 1931, to which action of the court the defendants gave notice of appeal to this court, and thereafter, on September 1, 1931, filed an appeal bond; but the transcript was never filed in this court to perfect the appeal. The case is now before this court by writ of error; the petition and bond for the writ of error having been filed on February 6, 1932.

The disposition to be made of this appeal makes it necessary to take notice of a certain order of the judge who tried the case made on October 23, 1931, after the term of court at which the case was tried had ended, but providing that such order should be effective as of date of August 7,1931; same being the date the defendants’ motion for new trial was overruled. The order is as follows:

“On this 7th day of August, 1931, came on to be heard in open court the motion of the defendant, Robert E. O’Keefe, to modify, amend and correct the judgment herein, and the plaintiff being in court by his attorneys and the matter having been heard, it is considered by the court and adjudged that- the judgment made and entered herein should be modified and corrected in the following particulars, to-wit: Wherein in said judgment occurs the following:
“ ‘It is further ordered, adjudged and decreed by the Court that a certain mineral deed from Willie Holt and A. J. Swanson to Robert E. O’Keefe, dated March 13th, 1931, filed March 13,1931, signed March 13th, 1931, and witnessed by L. A. Norris and F. A. Swanson, and recorded in Deed Records of Gregg County, Texas, under original file #7927, be, and the same is hereby cancelled, vacated, annulled and decreed to be of no further force and effect and void, and the cloud east upon plaintiff’s title to the land and premises above described, by virtue of such instrument and the record thereof, be, and the same is hereby completely removed.’ The same appearing in said judgment as entered in Minute Book M, at page 305 from line 12 to line 19, and again from line 27 to line 34; it is ordered, adjudged and decreed that the same be amended, modified and changed by the addition of the phrase ‘in so far as the rights of the plaintiff are affected thereby’ after the words ‘and void’ so tliat the same, when amended, shall read as follows, to-wit:
“It is further ordered, adjudged and decreed by the court, that a certain mineral deed from Willie Holt and A. J. Swanson to Robert E. O’Keefe, dated March 13, 1931, filed March 13, 1931, signed March 13, 1931, and witnessed by L. A. Norris and F. A. Swanson, and recorded in Deed Records of Gregg County, Texas, under original file #7927, be, and the same is hereby cancelled, vacated, annulled and decreed to be of no further force- and effect and void, in so far as the rights of the plaintiff are affected thereby, and the cloud cast upon plaintiff’s title to the land and premises above described, by virtue of such instrument and the record thereof, be, and the same is hereby completely removed.’ »
"It is further ordered that this order take effect as of the 7th day of August, 1931.”

As we understand from plaintiff in error’s brief, the order, in fact, is a nunc pro tunc order entered October 23, 1931, for August 7, 1931. Without going into a discussion of the effect of this amendment on the judgment of July 1st, we deem it sufficient to say that, in our opinion, the amendment made no material change in the judgment. It neither conferred nor took away any rights of the litigants as adjudicated in the original judgment. '

If we are correct in our conclusion with respect to the order amending the judgment, then it follows under the authority of Mansel et al v. Castles, 93 Tex. 414, 55 S. W. 559, that the order should never have been made, and on this authority this appeal is disposed of without giving any effect whatever to the order mentioned.

When this record is examined without reference to the order amending the judgment, it is apparent at once that this court has no jurisdiction to entertain an appeal of this case. The judgment as reflected by the record was rendered on July 1, 1931, although possibly not entered on the minutes until August 7th thereafter. The petition for writ of error, as well as bond, were filed with the clerk of the trial court on February 6, 1932, more than six months after the rendition of the judgment, and lacking only one day of being six months after the judgment was entered on the minutes, and the date the motion for new trial was overruled. The statute fixing the time within which a writ of error may be Sued out in this state is as follows: “The writ of error, in cases where the same is allowed, may be sued out at any time within six months after the final judgment is rendered.” Rev. St. 1925, art. 2255.

This statute has been considered many times by the courts of this state, and by an unbroken line of authorities it has been held that the time in which to sue out a writ of error under the statute begins from the date of the actual rendition of the final judgment, rather than from the date the judgment is entered on the minutes or the date the motion for new trial is overruled. Kittrell v. Fuller (Tex. Civ. App.) 281 S. W. 575, and cases therein cited.

It is equally as well settled in the authorities referred to that the petition and bond for writ of error must be filed within six months from the date of rendition of final judgment in order to confer jurisdiction on this court.

The appeal is dismissed for want of jurisdiction.

On Motion for Rehearing.

The motion for rehearing is well presented, and objection may hot be found to the law points argued therein. The difference, as considered by this court, is that an amended or corrected judgment does not appear entered in the record. There appears in this case a final judgment rendered on July 1, 1931, in favor of the plaintiff canceling as null and void the instruments under which the defendants claimed. It further appears that thereafter, on- October 23, 1931, an order of the court was entered of record providing “That the judgment made and entered herein should be modified and corrected,” so far as pertains to a particular portion thereof, by “the addition of the phrase ‘insofar as the rights of the plaintiff are affected thereby,’ ” in respect to the mineral deed referred to of date March 13,1931, from Swanson and Holt to O’Keefe. It was expressly directed “that this order take effect as of the 7th day of August, 1931.” The order so made, as is manifest, is to the extent only of simply reciting so much of the judgment as needs correction and describing a particular amendment allowed to be made thereto and determining that it should be! corrected or amended only to conform to the terms of the order granting the correction or amendment. The order may not be viewed: as the correction of the first judgment, but in effect merely an order allowing an amendment of a portion of such judgment to be-made. The order was short of a judgment final in form. Fitzgerald v. Evans & Hoffman, 53 Tex. 461. The order for the amendment, although a prerequisite, is,.not alone a sufficient procedure for the purpose of correcting omissions or making amendment of the record of the first judgment. An amendment of a former judgment may be accomplished by entering the order therefor, as here done, and then following up such order by vacating or replacing the former judgment by new entry conforming or answering to the order of amendment. Coleman v. Zapp, 105 Tex. 491, 151 S. W. 1040; State ex rel. Rwy. v. Broaddus, 212 Mo. 685, 111 S. W. 508; Thompson v. Great Western Acc. Ass’n, 136 Iowa, 557, 114 N. W. 31; Den ex dem, Jones v. Lewis, 30 N. O. 70, 47 Am. Dec. 338. It becomes necessary to make a second or new judgment for the whole adjudication of the subject-matter altering and replacing the record' of the first judgment.

In the case cited of Luck v. Hopkins, 92 Tex. 426, 49 S. W. 360, there was formal judgment in full and at length entered of record replacing the former judgment. The judgment, too, was likewise corrected in form in the following cases, in full and at length further cited: Hall v. Read, 28 Tex. Civ. App. 18, 66 S. W. 809; Batson v. Bentley (Tex. Civ. App.) 297 S. W. 769.

In the present ease no new or other judgment was formally entered on the order of October 23d, and hence, as before held in the original opinion, the record stands here as having only the original final judgment duly entered on July 1, 1931. As quoted from the original opinion, “When this record is examined without reference to the order amending the judgment, it is apparent at once that this court has no jurisdiction to entertain an appeal of this case.”

The motion for rehearing is overruled.


author: LEVY, X

text:
    DIXIE MOTOR COACH CORPORATION v. GALVAN et al.

    No. 4277.
    Court of Civil Appeals of Texas. Texarkana.
    Nov. 23, 1932.
    Rehearing Denied Dec. 1, 1932.

      Leachman & Gardere, of Dallas, and Hiram G. Brown, óf Mt. Pleasant, for appellant.
    Williams & Williams,' of Mt. Pleasant, for appellees.

       Writ of error granted.

   LEVY, X

(after stating the case as above).

The appellant submits the following proposition, based upon the assignments of error and pleading stated, namely: “Where defendant pleads the negligence of its co-defendant as the sole proximate cause of the accident and injuries made a basis of a cause of action, it is error for the court to refuse special issues requested by. the defendant on sole proximate cause which were duly and timely requested and which were supported by both the pleadings and the evidence.”

Fault may not be found in the proposition that ordinarily one person is not liable for an injury which is the result solely of the negligence of another person who does not stand in such a relation to the former as to render the doctrine of respondeat superior applicable. He may excuse himself by showing that the injury was due solely to the separate and independent fault or act of another person. The applicant, though, it is believed, in attacking the ruling of the court, is con- . fronted with the limitation that the special issues requested and refused are not applicable nor available to defeat liability of the appellant, in view of the special circumstances of the case and the theory upon which the ease was pleaded and tried. The answer of the appellant pleaded, and the defense was offered and presented upon the-theory, first, that at the time Albert Galvan was struck and killed by the automobile driven by Holly Taylor the two motor vehicles, the bus of appellant and the automobile of Holly Taylor, were “approximately one half mile apart on the highway.” Assuming for the moment that theory of the case was the condition existing, then and in that state of fact, the liability of the appellant would not be in anywise legally existing, although Holly Taylor may have been at fault or negligent at the time his automobile struck and killed Albert Galvan, in the several particulars as stated in the requested special charges. The several particulars as stated in the several requested special charges were: (1) The rate of speed; (2) failure to keep a lookout; (3) failure to timely apply brakes; or (4) traveling too far on the right and off the traveled portion of the road. The several particulars, if existing in fact, would be entirely immaterial so far as casting or defeating liability of appellant. And, considering the answer further, the appellant pleaded, in defense of the theory urged by the plaintiff, the death of Albert Galvan was solely caused by the act and fault of Holly Taylor in the following particular: In passing the bus Holly Taylor drove his automobile on the shoulder and too far off the traveled portion of the road when there was no need of “driving his automobile upon anything other than the traveled portion of the said road.” This was the sole particular act charged in the answer to have been done by. Holly Taylor independent of any action or fault on the part of the appellant. The plaintiff pleaded and urged and relied upon the theory, in effect, that the concurrent negligence of nonobservance of the law by each driver of the vehicles combined together directly resulted in the injury and death of Albert Galvan.

The plaintiff’s alleged theory of the case must be considered as the correct one, in view of the judgment and the verdict of the jury. It would thus appear that both motor vehicles met and were actually passing each other on the highway going in opposite directions at the place where Albert Galvan and his companion were standing on the shoulder of the roadway on the south side; that in passing each motor vehicle was being driven at a rate of speed much faster than 15 miles per hour; that before, and while passing each other, the driver of the bus was using a part of the center of the traveled asphalt portion of the road, and Holly Taylor was driving his automobile on the right upon a margin of the traveled portion and mostly upon the shoulder, which at the time was muddy and slippery, and all of which acts, combined together, immediately resulted in the automobile of Holly Taylor striking and killing Albert Galvan; that at the time of the passing of the two vehicles only “about ten feet” of the asphalt or traveled portion of the road “was not covered up with dirt” or mud and was visible. The statute expressly requires the drivers of motor vehicles in passing to slow down the speed to 15 miles or less an hour. Article 794, P. C. In passing in opposite directions, each driver is expressly required by the statute to give to the other vehicle one-half the traveled portion of the road as nearly as possible. Article 801, P. C.

In the state of facts mentioned above little need be said about the question of proximate cause, fhe law is well settled that, when two causes combine to produce an injury to a traveler upon the highway, both of which in their nature are proximate, liability attaches. The generally accepted view in this state is that violation of statutory duty is negligence per se. Hines v. Foreman (Tex. Com. App.) 243 S. W. 479; Orchin v. Fort Worth Poultry & Egg Co. (Tex. Civ. App.) 43 S.W.(2d) 308. And, where concurrent negligence of nonobservance of the law by each operator combined together directly results in an injury, each becomes liable for the whole, even though one may have contributed in a greater degree to the injury, and further inquiry as to proximate cause is not pertinent. Gulf, C. & S. F. Ry. Co. v. McWhirter, 77 Tex. 356, 14 S. W. 26, 19 Am. St. Rep. 755; Boyles v. McClure (Tex. Com. App.) 243 S. W. 1080; Schawe v. Leyendeeker (Tex. Civ. App.) 269 S. W. 864; 45 C. J. § 487, p. 924; 45 C. J. § 476, pp. 895 and 920. It conclusively appears that the conditions that existed at the time of the injury were such that an ordinarily prudent person might have expected an injury at this location. The breadth of the surfaced portion of the roadway, the muddy condition, and the narrow margin left for travel on the right of the roadway made the use in the manner shown dangerous for a traveler on the shoulder. The fact that Holly Taylor in using the margin on the right may have miscalculated the space or margin in which he might move while using mostly “other than the traveled portion of the road” in passing the bus would not free the appellant from a finding of fault in having contributed to the death of Albert Galvan. There was causal connection between the death and the failure to observe the statute, and the court did not err, it is believed, in refusing the special issues. The. proximate cause would not be measured by whether Holly Taylor could have driven by the bus within one foot or two feet proximity to the bus.

The appellant predicates error in the definition of “proximate cause” as submitted to the jury in not including and defining “new and independent cause.” There is not inadequacy of the definition as given by the court, and is similar to the one most often stated. Hulen v. Ives (Tex. Civ. App.) 281 S. W. 350; and other eases; Speer on Special Issues (1932) § 580, p. 741. There was no new and independent cause intervening in the injury not set in motion by the original wrongful act of appellant in occupying too much of the main traveled portion of the road. The injury complained of resulted in the ordinary and natural course of events immediately from the negligent violation of the statute on the part of appellant which caused Holly Taylor to drive too far over to the right of the center of the road. 45 C. J. § 488, p. 925. There is applicability of the court’s definition to the facts of the case.

Error is predicated upon the court’s charge as to the measure of damages. It is urged as an objection that the instruction does not authorize deductions to be made for the upkeep of the deceased during the period of his minority. It is believed the instruction as worded may not be held affirmative, error. St. Louis S. W. Ry. Co. v. Shiflet, 98 Tex. 103, 81 S. W. 524; Southwestern Portland Cement Co. v. Bustillos (Tex. Civ. App.) 216 S. W. 268.

It is concluded that the amount of damages awarded by verdict of the jury may not be said to be excessive, and the assignment of error in that respect is overruled.

We have considered the assignments of errors relating to argument of the case before the jury by the attorneys, and conclude that there was no reversible error.

The judgment is affirmed.


author: HIGGINS, J.

text:
    KITTRELL v. CONANICO.
    No. 2777.
    Court of Civil Appeals of Texas. El Paso.
    Dec. 22, 1932.
    W. Gregory Hatcher and J. Lee Zumwalt, both of Dallas, for appellant.
    John G. Whitaker and Oren Parmeter, both of Dallas, for appellee.
   HIGGINS, J.

This is a suit by Conanico against Kittrell. The plaintiff, in his original petition, alleged he entered into a written contract with defendant whereby plaintiff agreed to make certain improvements on property owned by defendant for which the latter agreed to pay $1,700; that at defendant’s request he made additional improvements for which defendant agreed to pay $06.50; when the work was practically completed defendant ordered plaintiff to cease work find to leave the premises. A credit of $1,000 paid was admitted and judgment prayed for the balance of $766.-50 and attorney’s fee of $153.30, making a total of $919 .SO.

Defendant pleaded to the jurisdiction of the court setting up fraudulent allegations by plaintiff so as to bring the amount in controversy within the jurisdiction of the county court at law. He also moved to consolidate with another cause.

He answered by demurrers, general and special, general denial, special denials of various allegations of the petition, one of such denials controverting plaintiff’s allegation that $1,000 had been paid upon the contract price. Defendant also set up a counterclaim of $1,350.68, averring plaintiff had improperly done his work and he (defendant) had been compelled to expend $S15.68 for labor and material in making good the defective and incomplete work of plaintiff and for such purpose would have to expend the additional sum of $535. Other allegations in the answer need not be stated as they are not pertinent to the questions presented by the appeal.

Defendant attached,' as an exhibit to his answer, an alleged copy of the written contract between the parties. In an amended petition plaintiff alleged the contract so attached was an alteration and not the true contract.

Upon special issue findings judgment was rendered in plaintiff’s favor for $536.50, that being the balance due upon the sum of $1,-766.50, less a credit of $1,030 which the jury-found had been paid and the further sum of $200 which, it was found would be necessary to complete the work.

The record contains neither statement of facts nor bills of exception. No exception was taken in the court below to the court’s charge.

Those propositions relating to the alleged action of the court in overruling the plea to the jurisdiction, motion to consolidate, and the demurrers, are overruled.

In the first place the record fails to show any action thereon by the court and for this reason it is presumed they were waived.

Even if the record did disclose the court’s ruling thereon was invoked, we could not review the correctness of the rulings upon the jurisdictional plea and motion to consolidate without the evidence before us offered in support thereof. The jurisdictional plea would not be well taken unless it was shown the credit of $1,000 admitted by plaintiff had been falsely admitted for the fraudulent purpose of conferring jurisdiction upon the county court at law. Furthermore, the findings of the jury show that such $1,-' 000 credit was properly allowed.

As to the counterclaim of defendant for $1,350.68, that has. no bearing upon the jurisdiction of the court of the plaintiff’s suit.

The counterclaim was for an amount beyond the jurisdiction of the court (Gimbel v. Gomprecht, 89 Tex. 497, 35 S. W. 470), and defendant could not defeat the jurisdiction over the plaintiff’s claim by the filing of such a counterclaim. 11 Tex. Jur. 755.

As to the motion to consolidate, the evidence in support thereof is not before this court, and in this condition of the record it is obvious we could not say the motion should have been sustained.

Propositions 5 and 6 question the sufficiency of the evidence to support certain findings. Without the evidence these propositions present nothing which we can review.

Propositions 7 and 8 are without merit in view of the issue of alleged alteration of the contract, and the further fact that no exception was taken to the submission of the issues referred to in these propositions.

The failure to answer question 3 is harmless error. If it had been answered in the negative, as the defendant contended it should have been answered, the plaintiff would nevertheless have been entitled to judgment on the answer returned to question 1 on the issue of alteration of the written contract pleaded by defendant. The failure to answer No. 3 was evidently due to the erroneous condition upon which the jury was instructed to answer the same. The court directed the jury to answer No. 3 in the event No. 1 was answered “No.” The jury, in response to question 1, found that the written contract had been materially changed after being signed and delivered to defendant. Upon this finding the issue presented by question 3 passed out of the case.

There is no inconsistency in the findings upon issues 4, 5, 7, and 8, when considered in connection with the issue of alteration of the written contract and the finding thereon in response to question 1. The apparent inconsistency arises out of the awkward form and manner in which the issues in the case were submitted.

The first judgment entered in the case recites it was rendered upon the verdict and findings of the jury. Upon a later date in the term a corrected judgment was entered showing that it was rendered upon the findings of the jury “and the undisputed facts in this case.” This matter presents no error for the court was not required to submit to the jury issues upon which the evidence was undisputed. Speers’ Law of Special Issues, § 163. A finding by the court upon undisputed issues involves no invasion of the province of the jury.

For the reason just stated the eighteenth proposition presents no error. In the state of the record it must be assumed the undisputed evidence discloses that defendant prevented plaintiff from fully completing his contract.

As to the seventeenth proposition it is well settled that, if plaintiff was prevented from fully completing the improvements by the wrongful act of the defendant, the plaintiff was entitled to recover upon the contract for the work actually done.

10 Tex. Jur. Title Contracts, § 259, and cases there cited.

The jury found it would cost defendant $200 to complete the improvement, and credit for such amount was allowed.

Affirmed.


author: COBBS, J.

text:
    SHAW, Banking Com’r, et al. v. GARNER et al.
    No. 8936.
    Court of Civil Appeals of Texas. San Antonio.
    Dec. 7, 1932.
    Rehearing Denied Jan. 25, 1933.
    John W. Goodwin, of Austin, for appellants.'
    Gaines, Gaines & Roberts, of San Antonio, for appellee.
   COBBS, J.

Appellees brought this suit against appellants to cancel certain deeds of trust purporting to secure certain indebtedness claimed to be due the bank, evidenced by certain promissory notes, and to require James Shaw, the banking commissioner and statutory receiver of the Sinton State Bank and of the Odem State Bank, to divide the proceeds from the sale of the properties described in the deeds of trust ratably between the two banks.

It was alleged that the Odem State Bank and the Sinton State Bank each closed its doors on the 3d of October, 1931, and voluntarily turned said two banks over to the banking commissioner for liquidation. Upon discovering this, they requested James Shaw to bring suit to set aside said deeds of trust and hold the property therein described for the benefit of the creditors of the two named banks, which the banking commissioner refused to do because he was the liquidating agent of the Odem State Bank, and his first duty was to the creditors of the Sinton Bank. It was alleged that the mortgage gave a preference to the Sinton Bank as against the creditors of the- Sinton Bank, against the Odem, Bank and its creditors, and was done with fraudulent intent to create such preference.

No answers were filed by said defendants, but answers were filed by Shaw for them.

Judgment was rendered against H. E. Odem, J. E. Odem, R. B. McGloin, O. C. Smith, and S. J. Fritter, both as directors of said bank and in their individual capacity, by default.

The Sinton Bank and James Shaw, banking commissioner, admitted in writing the allegations in the petition were true, agreeing that the court should render judgment. The court overruled the general demurrer and special exceptions, and rendered judgment in favor of plaintiffs, setting aside the deeds of trust in so far as Odem State Bank and its creditors were concerned, and directing James Shaw, banking commissioner, to hold the properties for the use and benefit of the depositors and creditors of each of said banks in proportion to the indebtedness of the defendants Odem and McGloin and its creditors.

We have considered the petition and read the same. We do not think the court erred in overruling the general demurrer to plaintiffs’ petition. The defendants admitted that the facts alleged in plaintiffs’ original petition are true.

After stating the amount of the notes, it was alleged: “That each of the defendants above named knew at the time these deeds of trust were executed that they were insolvent and that the execution of such deeds of trust would hinder and delay all other creditors and especially Odem State Bank in the collection of its debts and that the defendants, acting in their capacity as directors of Sinton State Bank as well as directors and officers of Odem State Bank and as individuals, knew the condition of their indebtedness and that the execution of said deeds of trust and the attempt to enforce them was to perpetrate a fraud upon the depositors and creditors of Odem State Bank and would deprive it of any means of collecting its indebtedness and necessarily would result in its insolvency. Plaintiffs further alleged that while they, the defendants above named, as officers of each of the banks, knowing the financial condition of such banks and with the intention of attempting to give preference to the creditors of Sinton State Bank, fraudulently executed said several deeds of trust in favor of Sinton State Bank and placed them of record for the sole and only purpose of defrauding the creditors and depositors of Odem State Bank.” Revised Civil Statutes 1925, art. 3996; Tyree v. Road District No. 5 (Tex. Civ. App.) 199 S. W. 644; Warren v. Parlin-Orendorff Implement Co. (Tex. Civ. App.) 207 S. W. 586, 591; Midland Shoe Company et al. v. A. L. & K. Dry Goods Co. et al. (Tex. Civ. App.) 3 S. W.(2d) 475, 478, and authorities there cited; Rutherford v. Carr, 99 Tex. 101, 87 S. W. 815; Eckert v. Wendel, 120 Tex. 618, 40 S.W.(2d) 796, 76 A. L. R. 855.

His duty as statutory receiver, agent, and trustee for Odem State Bank and agent and trustee for its creditors, required him as a matter of law to do everything legally possible to collect the debts due to Odem State Bank for the use and benefit of its depositors and creditors. When he refused to take any action whatever looking to the discharge of his duty, whatever his reason might be for so doing, the creditors themselves had the right as a matter of law to institute such proceedings as necessary to enforce the collection of these debts. Or, as was said by the court in the case of Warren v. Parlin-Orendorff Imp. Co., supra: “Where the trustee of* bailee seeks to repudiate the trust, the beneficiaries may sue to enforce the trust.” Or, as said in the Midland Shoe Co. et al. v. A. L. & K. Dry Goods Co. et al., supra: “Where the trustees neglect to defend their legal title to the trust property, the cestui que trust may do so.” They had the right to maintain this suit. Eckert v. Wendel, 120 Tex. 618, 40 S.W.(2d) 796, 76 A. L. R. 855.

We have given this case much thought, and have reached the conclusion that the judgment should be affirmed, and it is accordingly done.


text:
    DAVEY v. W. G. HECHT, Inc.
    No. 8964.
    Court of Civil Appeals of Texas. San Antonio.
    Jan. 11, 1933.
    S.L. Gill, of Raymondville, for appellant.
    A. B. Crane and J. G. Poster, both of Ray-mondville, for appellee.
   SMITH, J.

This action was brought by W. G. Hecht, Inc., a Minnesota corporation, against Bess Davey, to recover the amount of a note executed by the latter and payable to the former. The corporation recovered as prayed for against Bess Davey and the sureties upon her replevy bond in an ancillary attachment proceeding. Bess Davey has appealed.

Appellant does not deny the execution of the note, or claim any lack or failure of-consideration therefor, or question the amount claimed to be due and recovered thereon. She simply defended, upon the ground that appellee was a foreign corporation engaged in business in Texas without a permit therefor from the state, as provided by familiar statutes.

We conclude that the asserted defense was not available to appellant, for the reason, .if no other, that the evidence shows, and the trial judge found the fact to be, that the transaction was one clearly within interstate commerce, entitling appellee to maintain its. suit' thereon in the courts of this state.

The ease has some queer angles to it, both in the facts of the transactions involved as-well as in the proceedings to recover thereon. But this court will not concern itself with those immaterial incongruities, since they cannot control over the material facts-that appellant concededly executed the note in favor of appellee for a valuable consideration fully performed.

The note was given as consideration for an automobile. The evidence seems to point almost conclusively to the fact that W. G. Hecht individually was the owner of the car and personally sold it to appellant, taking in payment therefor appellant’s note payable to “W. G. Hecht, Inc.” During the progress of the suit, Hecht, the individual, sought to intervene and substitute himself as plaintiff and recover upon the note. The court refused to allow the intervention, but Hecht does not complain thereat, and is not before this court, and appellee is not in a position to complain; and as Hecht chose that method of securing himself in the transaction, he should be bound by it.

Appellant complains that judgment was rendered against the sureties on her replevy bond, although they were not made formal parties to the suit. Such formality was not necessary under the statute. Article 302, R. S. 1025.

Regardless of the grotesque features of the proceedings, substantial justice has been administered, and the judgment is affirmed.


text:
    MURRAY v. JONES.
    No. 9109.
    Court of Civil Appeals of Texas. San Antonio.
    Dec. 8, 1932.
    Rehearing Denied Jan. 18, 1933.
    T. M. West and Nat Hardy, both of San Antonio, for appellant.
    Guy Cater and Dan Doherty, .both of San Antonio, for appellee.
   SMITH, J.

As a military traffic policeman, appellee, Jones, riding his motorcycle, was following the automobile of appellant, Murray, which was driven by the latter’s chauffeur. It was alleged that the Murray car stopped suddenly in the center of a narrow street within the territorial limits of Ft. Sam Houston, adjacent to the city of San Antonio, and that appellee’s motorcycle skidded into the rear of Murray’s car, and appellee was seriously injured as a result of the collision.

Jones brought this action for personal injuries against Murray in a district court of Bexar county, whereas Murray is a resident of Wilson county. Jones also impleaded the Great American Indemnity Company as a defendant, alleging that Murray’s ear was covered by insurance under a policy issued by that company. Murray filed a plea of privilege to be sued in the county of his residence, and Jones controverted the plea, which the court overruled, and Murray has appealed.

Appellee claims that venue lies in Bexar county by virtue of the ninth exception to the venue statute (article 1995, R. S. 1925), as follows:

“Grime or trespass_A suit based upon a crime, offense, or trespass may be brought in the county where such crime, offense, or trespass was committed, or in the county where the defendant has his domicile.”

Appellee contends that his suit is based upon trespasses, crimes, and offenses committed by appellant, as contemplated in said exception, in that the acts charged against appellant were “active and positive acts of negligence.” .

When analyzed, the allegations in appel-lee’s controverting affidavit charge that appellant’s agent negligently operated appellant’s car in the nighttime at an unlawfully excessive rate of speed of forty-five miles per hour, reduced it to thirty-five miles per hour, and then suddenly stopped it in the center of a narrow street, without previously signaling his intention to stop; that thereupon ap-pellee, pursuing appellant’s car at like rate of speed, .ran his own car against the appellant’s after the latter had been brought to a full stop; in short, that appellee was injured as an immediate result of his own act, involuntary though it may have been, in running his own car against that .of appellant, whatever else, if anything, may have been a remote, or antecedent, or intervening, or even proximate, cause of the accident.

All the allegations and proof show that appellant’s car was operated, not by appellant himself, but by his chauffeur and agent,, with , nothing alleged or proven to show that appellant instigated, participated in, or ratified •the acts and conduct of his agent; wherefore the acts complained of as being in violation of law and set up as the basis of the charge of crime, offense, and trespass were committed, not by appellant, but wholly and solely by his agent. It has been definitely .settled, and rightfully so, that an action for injury or' death caused by negligence, passive or active, cannot be sustained as an action upon an offense, crime, or trespass under the venue statute, unless it affirmatively appears that the defendant acted in person and not by agents. Austin v. Cameron, 83 Tex. 351, 18 S. W. 437; Wettermark v. Campbell, 93 Tex. 517, 56 S. W. 331; Brown v. Calhoun (Tex. Civ. App.) 22 S.W.(2d) 757.

Moreover, we are of the opinion that under the facts alleged, even if the acts complained of were chargeable to appellant instead of his agent, the action does not rest upon a crime, offense, or trespass within the meaning of the ninth exception to the venue statute. The accident was not immediately caused by any active negligence of appellant’s agent, but rather by appellee’s own act in running his motorcycle against appellant’s parked car. If the latter had been previously operated at an unlawful rate of speed, or brought to an unlawfully sudden stop, in the absence of a lawful signal, at an unlawful place—those unlawful acts had been fully completed, whereupon appellee himself precipitated the accident by rushing his motorcycle against appellant’s parked car. . It was .as in the case of a motorist who unlawfully parks his car in the roadway in the nighttime and leaves it there, unlighted, where other motorists run into it and are thereby injured. In such cases the offending motorist who leaves his car so parked is not guilty of such trespass, crime, or offense as' brings him under the ninth exception to the venue statute. Connor v. Saunders, 81 Tex. 633, 637, 17 S. W. 236, 238; Ricker v. Shoemaker, 81 Tex. 22, 25, 16 S. W. 645; Jacobson v. Berwick (Tex. Civ. App.) 289 S. W. 1035; Amberson v. Anderson (Tex. Civ. App.) 43 S.W.(2d) 120; Phillips v. Terrell (Tex. Civ. App.) 52 S.W.(2d) 376; Brown v. Calhoun (Tex. Civ. App.) 22 S.W.(2d) 757; Sproles v. Schepps (Tex. Civ. App.) 26 S.W.(2d) 922; Rigby v. Gaines (Tex. Civ. App.) 6 S.W.(2d) 422.

No point seems to have been made by appellee of the fact that he had impleaded the insurance company as a party defendant in the ease, but that fact can have no influence upon the question of venue, since the insurance company is neither a necessary nor prop-ter party defendant, and was improperly joined in the suit. Ramon Cuellar v. Mrs. J. V. Moore, decided by this court on November 30, 1932, 55 S.W.(2d) 244; Phillips v. Terrell (Tex. Civ. App.) 52 S.W.(2d) 376.

The judgment is reversed, and judgment is here rendered that the venue of this cause be changed to the district court of Wilson county, as provided in article 2020, Revised Statutes 1925."


author: WILLSON, C. J.

text:
    GRAND LODGE, COLORED KNIGHTS OF PYTHIAS OF TEXAS v. BROWN.
    No. 4203.
    Court of Civil Appeals of Texas. Texarkana.
    Sept. 21, 1932.
    Rehearing Denied Oct. 20, 1932.

      Lane & Lane, of Marshall, for appellant.
    . Ben A. Harper, of Atlanta, for appellee.
   WILLSON, C. J.

(after stating the case as above).

By the terms of the statute in force in 1911, when, it was claimed, appellee’s name was substituted for that of her husband as the beneficiary in the policy, if the insured became dependent upon the charity of an individual, he had a right, with the consent of the insurer, to make such individual the beneficiary in the policy. • Article 4832, R. S.' 1911.

Such being the law at the time (as alleged) appellee was named beneficiary in the policy, and it appearing in the evidence (appellee asserts) that the insured was dependent upon her charity, appellee insists in support of the judgment that, when the insured died, appellant became bound to pay her the amount of the policy.

It may be conceded the contention should be sustained if it appeared the law remained unchanged at the time of the death of the insured (Jones v. Holmes [Tex. Civ. App.] 195 S. W. 306) but the contrary appeared, instead. The insured died in 1930. The statute in force in 1911 was so amended in 1913 (Gen. Laws, c. 113, p. 220, as amended by Acts 1923, c. 62, art., 4831, R. S. 1925 [again amended by Acts 1929, 2nd Called Sess., c. 16, § 5]) as to take away the right of the insured who was dependent upon the charity of another person to have such person named as beneficiary in the policy issued to him. So, by the law in force at the time the insured died and at the time the trial was had, appellee was not eligible merely because she had bestowed charity on the insured, to take as beneficiary in the policy.

Appellee’s further insistence in support of the judgment that, having been named beneficiary at a time when it was lawful, because of the insured’s dependency on her, to so name her, she could not be deprived of rights so conferred upon her by a change as stated above in the law, must be overruled. Hatch v. Hatch, 35 Tex. Civ. App. 373, 80 S. W. 411; Northwestern Mut. Life Ins. Co. v. Whiteselle (Tex. Civ. App.) 188 S. W. 22; Whiteselle v. Northwestern Mut. Life Ins. Co. (Tex. Com. App.) 221 S. W. 575; Kansas City Life Ins. Co. v. Adamson (D. C.) 24 F.(2d) 712. In some jurisdictions the rule is as claimed by appellant [Wellhouse v. United Paper Co. (C. C. A.) 29 F.(2d) 886; Reilly v. Penn Mut. Life Ins. Co., 201 Iowa, 555, 207 N. W. 583], but, as we understand the holdings in the Texas cases cited above, and others, the rule is to the contrary in this state. Nor can the contention that the judgment is supportable on the doctrine of waiver and estoppel be sustained. It is held that doctrine “is not applicable to a case where the defense is based on the claimant’s want of insurable interest.” Barton v. Mercantile Ins. Co., 127 Kan. 271, 273 P. 408, 409, and authorities there cited.

As shown in the statement above, ap-pellee alleged in a supplemental petition that she was named beneficiary in the policy for tlie purpose of paying indebtedness the assured owed her, and at the trial as a witness in her own behalf testified that the insured was dependent upon her for support, that she took care of him, and that she paid the premiums chargeable against the policy duriiig twenty or more years immediately preceding the time when, the insured died. Meager as the testimony specified was, we are not prepared to say it did not authorize a finding that the insured was indebted to appellee in some amount. It has been held that a creditor has an insurable interest in the life of his debtor to the extent of the indebtedness. American Citizens’ Labor & Protective Institution v. Wesley (Tex. Civ. App.) 9 S.W.(2d) 498. However, there was no evidence from which the amount of the indebtedness could be determined. Therefore the judgment in appellee’s favor cannot be upheld in the view that she was entitled as a creditor to recover as she did.

Contentions presented in appellant’s brief and likely to arise on another trial, not disposed of by what has been said, are overruled.

The judgment will be reversed, and the cause will be remanded to the court below for a new trial.

On Motion of Appellee for a Rehearing.

We think the action of this court in overruling the contention that appellee, having been named such at a time when it was lawful for her to be the beneficiary in the policy, could not by a change in the law be deprived of rights she had acquired, has sufficient support in the cases cited in the opinion heretofore filed and in other cases as follows: Cheeves v. Anders, 87 Tex. 287, 28 S. W. 274, 47 Am. St. Rep. 107; Finn v. Met. Life Ins. Co. (Tex. Civ. App.) 16 S.W.(2d) 922; Goldbaum v. Blum, 79 Tex. 638, 15 S. W. 564; Schonfield v. Turner, 75 Tex. 324, 12 S. W. 626, 7 L. R. A. 189; Shoemaker v. American Nat. Ins. Co. (Tex. Com. App.) 48 S.W.(2d) 612.

But, as wás stated in said opinion, we thought it sufficiently appeared that appellee, as a creditor of the insured, had an insurable interest in his life entitling her to claim as the beneficiary named in the policy, and reversed the judgment in her favor only because the amount of the insured’s indebtedness to her did not appear in the evidence heard by the trial court. After further consideration of the matter, we have concluded it should be held that the evidence warranted a finding that the agreement between the insured and appellee was that the value of the service rendered and to be rendered by the latter to the former was a sum equal to the amount to become payable to appellee by the terms of the policy at the death of the in-surecl. In that view, the action of this court in reversing the judgment of the trial court for the reason stated was erroneous. As, in the view of this court, the judgment was not invalid on any other ground urged by appellant, it should have been affirmed. Therefore the judgment heretofore rendered here will be set aside, and the judgment of the trial court will be affirmed.


author: WAEKER, C. J.

text:
    ASKINS, Inc., v. SPARKS.
    No. 2321.
    Court of Civil Appeals of Texas. Beaumont.
    Jan. 19, 1933.
    Rehearing Denied Jan. 25, 1933.

      Alfred DuPerier, of Beaumont, for plaintiff in error.
    Kitching & Kenna, of Beaumont, for defendant in error.
   WAEKER, C. J.

This appeal is by writ of error, but the parties will be referred to as appellant and appellee.

Appellee, H. B. Sparks, was employed by the A. A. Thompson Furniture Company of Beaumont, on the 3d day of August, 1930, and continued regularly in this employment until the night of October 24, 1931, when he was discharged. He began work at $150 per month, was raised to $200 per month, reduced to $175 per month, and on the day of his discharge was receiving $42.50 per week, The Thompson Furniture Company had a rule for its employees to the effect that they would be discharged if they gave assignments of their wages to their creditors. On the 24th day of October, 1931, appellant, Askins, Inc., through one'of its servants, presented to ap-pellee’s employer a written assignment bearing the signature of appellee, whereby he purported to assign to appellant his wages “up to the amount of $27.75.” When this assignment was presented to appellee’s employer, appellant represented that it had been duly executed by appellee and that his signature thereto was genuine. On this evidence that appellee had broken the rule of his employment, he was immediately discharged, though he denied, both to his employer and to appellant’s agent, that he had executed the written assignment. This suit was filed on the 6th of January, 1932, by appellee against appellant for actual and exemplary damages, for wrongfully causing his discharge. For cause of action appellee alleged that he was not indebted to appellant and had not executed the assignment exhibited by it to his employer, and that its claim to hold the assignment “was false and untrue and such claim was made falsely, wickedly, maliciously and unlawfully, and for the purpose of injuring, harassing and annoying this plaintiff and with the intent and .purpose of causing plaintiff’s employer to wilfully discharge the plaintiff from his employment.” Appellant’s answer controverted the material allegations of appellee’s petition. Answering special issues, the jury found: (a) That ap-pellee did not sign the wage assignment exhibited by appellant to appellee’s employer; (b) that appellant was actuated with malice in notifying appellee’s employer that it held appellee’s wage assignment; (c> that appel-lee was discharged by his employer “as a direct result” of the action of the defendant in notifying the plaintiff’s employer that it held such assignment; and (d) that appellee suffered $500 actual damages “as a direct result” of this act of appellant, and that appellant should pay appellee an additional sum of $500 as exemplary damages. Judgment was accordingly entered in appellee’s favor, from which this appeal was duly prosecuted.

Opinion.

The court did not err in overruling appellant’s special exceptions to the allegations of appellee’s petition on the. issue that, before appellant gave appellee’s employer notice of the' wage assignment, it had notice of the rule promulgated by the employer forbidding its employees to assign their wages; nor did the court err in refusing to instruct a verdict in appellant’s favor on the ground that the evidence did not raise the issue presented by the special demurrer; nor did the court err in refusing to submit this issue to the jury. The jury found that the wage assignment in issue was not executed by ai> pellee. Therefore, as this instrument was a forgery, and as appellant, as found by the jury, acted with malice towards appellee in exhibiting it to appellee’s employer, the want of knowledge of the rule in question was immaterial. On the findings of the jury appellant was liable to appellee for all damages proximately resulting to him from the malicious conduct of appellant in exhibiting the forged assignment.

The court did not err in refusing to instruct a verdict in appellant’s favor, on the ground that he failed to show diligence in ’seeking employment after his discharge. Appellant did not except to the charge on the ground that the court failed to submit this issue, but his point is simply that the court erred in refusing to instruct a verdict in its behalf on the whole cáse, on the ground that appellee failed to establish “diligence,” as a matter of law. A sufficient answer to this proposition is to say that appellee’s evidence clearly raised this issue and, where an issue is raised by the evidence, the court cannot instruct a verdict against it. Besides, this issue would go only to the mitigation of damages, and not operate as a complete defense.

Appellant is in error in saying that the evi-dencie clearly established the issue that the execution of the wage assignment by appellee, and not the fact that appellant gave the employer notice of the assignment, was the direct and proximate cause of appellee’s discharge. There can be no merit in this contention because the jury found, and the evidence abundantly supports the finding, that appel-lee did not execute the wage assignment in issue.

Appellant’s proposition that the giving of the notice of the wage assignment did not render it liable for damages, because at the time the notice was given appellee was indebted to it in the amount covered by the assignment, presents an abstract question of law. Under the verdict of the jury appellant had no assignment from appellee, but wrongfully gave notice to the employer of a forged assignment. The jury convicted appellant, not of wrongfully giving notice of a duly executed assignment, but of willfully giving, notice of a forged assignment. The propositions of law invoked by appellant, which it takes from Cotton v. Cooper (Tex. Com. App.) 209 S. W. 135, have no application to the facts of this case, as found by the jury.

Appellant complains that the court ■erred: la) In receiving in evidence “as standards of comparison with the signature to the wage assignment in issue, certain carbon eopies with incomplete signatures of defendant in error affixed thereto”; and (b) that the court erred in permitting appellee’s employer, A. A. Thompson, to testify that, in his judgment, thé signature to the wage assignment in issue was not the genuine signature of appellee, the ground of this objection being that Mr. Thompson was not shown to be an expert. The receipt books complained of under point (a) were the original carbon copies of appellee’s genuine signatures. On this issue appellee testified:

“Q. Do you have any specimen of your handwriting here that was made prior to this date of October 23? A. I do.
“Q. Let’s see, do you have them handy? A. Tes sir, those receipt books that I wrote up to that alleged signature.
“Q. Are these your signatures in here? A. Tes sir. •
“Q. Made in your own handwriting? A. Tes sir. ..
“Q. And these signatures were made prior to the date that you were discharged by the Thompson Fur. Co.? A. Tes sir.”

The objections urged against this testimony were to the effect that it was self-serving, the carbon copies were not shown to be appel-lee’s genuine signature, it was incompetent, irrelevant, and immaterial and not the identical signature in issue, and the carbon copies were of the initials of appellee and not his full signature. These objections were properly overruled. The rule now seems to be that signatures on papers not connected with the case may be received for the purpose of comparison with the signature in issue when the proffered signatures are shown to be genuine. No issue was raised against the genuineness of the signatures offered in evidence as a basis of comparison. Appellee testified that they were his genuine signatures, and hi's testimony on this issue was corroborated, if corroboration was necessary, relieving the question of all doubt. 10 R. C. L., Evidence, pars. 182, 183; Latham v. Jordon (Tex. Com. App.) 17 S.W.(2d) 805; Cowboy State Bank & Trust Co. v. Roy (Tex. Civ. App.) 174 S. W. 647; Kveton v. Keding (Tex. Civ. App.) 286 S. W. 673; Kennedy v. Upshaw, 64 Tex. 411; Commercial Standard Ins. Co. v. McGee (Tex. Civ. App.) 40 S.W.(2d) 1105. That the purported signatures were carbon copies of appellee’s signature did not render them inadmissible. On this issue it was held in Wade v. G., H. & S. A. Railway Co. (Tex. Civ. App.) 110 S. W. 84, 85, quoting the seventh syllabus: “A carbon copy of a writing, made by the pressure of a pencil on the original,- and the original, are each the writings of the party, and the carbon copy is not a copy of the original writing ; and hence the carbon copy is admissible for the purpose of comparison of handwriting.” That the carbon copies were signatures of appellee’s initials, and not of his full name, did not render them inadmissible. The testimony of the witness Thompson, complained of under point (b), supra, was properly received. He testified that he was acquainted with appellee’s signature. Appellee had been Mr. Thompson’s collector for nearly two years, and the extraneous signatures offered in evidence, as shown above, were the signatures to Mr. Thompson’s receipts. He testified further, with reference to appellee’s signature, that he knew “what it looks like,” and further:

“Q. All right; can you state whether or not the signature attached to this instrument (referring to assignment of wages) was the genuine signature of H. B. Sparks? A. I don’t think it was, no sir.
“Q. What’s that? A. I don’t think it was; it didn’t look like his signature.”

When one is acquainted with the handwriting of another, he may testify to such writing, whether he is an expert or not. Williams v. Deen, 5 Tex. Civ. App. 575, 24 S. W. 536. The rule is stated, as follows by 17 Texas Jurisprudence, 694: “A witness who knows a person’s handwriting may testify that an instrument or signature is in the handwriting of such person, though he has never seen him write, and has never corresponded with him.” In discussing the rules governing the testimony of nonexpert witnesses, 6 Ency. Ev. 371, on authority of Stone v. Moore (Tex. Civ. App.) 48 S. W. 1097, announces the following rule: “In showing familiarity with handwriting, the witness is not restricted to the single means of having seen the person write. It is sufficient that the witness may have acquired knowledge of the handwriting by having seen writings admitted by the purported author to be his, or with his knowledge acted upon as his, or so adopted in the ordinary business of life as to create a reasonable presumption of genuineness.”

For the reasons stated the judgment of the court below is in all things affirmed.

Affirmed.