author: HALL, C. J.

text:
    ASSOCIATED EMPLOYERS’ RECIPROCAL et al. v. BROWN et al.
    No. 3936.
    Court of Civil Appeals of Texas. Amarillo.
    Dec. 14, 1932.
    Rehearing Denied Jan. 18, 1933.

      Bevy & Evans, of Port Worth, for plaintiffs in error.
    Smith & Smith, of Anson, for defendants in error.
   HALL, C. J.

The defendant in error Brown was an employee of Texas Cement Plaster Company in Fisher county, and while so employed, and in the discharge of his duties, he was injured. It is alleged that on March 6, 1919, he was engaged in soldering a gasoline tank which exploded, resulting in injuries to his left leg, dislocating his left knee joint and the hip joint, and destroying the muscles and nerves of his knee and hip. He further alleged that his injuries were total and permanent. His claim for compensation was filed with the Industrial Accident, Board March 24, 1919, but there was no hearing ana no award until July 24, 1930, when the board awarded him $1,08S.60, based upon a finding of total disability for a period of 20 weeks which was followed by permanent partial incapacity to the extent of 25 per cent, as related to his leg, for which he was allowed compensation for an additional period of 180 weeks. The award included his attorneys, who were made parties to the suit.

Within due time the Associated Employers’ Reciprocal filed this action in Jones county to set aside the award of the board. Thereafter the case was transferred to Fisher county, where Brown and his attorneys filed their answer and cross-action. ,

In the original answer and cross-action it was alleged that Brown’s employer was carrying insurance with the Texas Indemnity Exchange; that the liability claimed against Associated Employers Reciprocal was by reason of the fact that the latter had assumed all the obligation bf the Texas Indemnity Exchange. In the amended answer filed by Brown et al., it was alleged that the Texas Indemnity Exchange was carrying the insurance on the employees of the Texas Cement Plaster Company at the time bf Brown’s injury, and that liability was claimed against the Associated Employers’ Reciprocal because the latter had taken over and assumed the obligations of the original insurer on the identical policy involved in this suit. After announcement of ready for trial, these allegations were changed so as to eliminate all reference to the Texas Indemnity Exchange.

The case was submitted to the jury upon special issues, in response to which the jury found: (1) That the Associated Employers’ Reciprocal was carrying the insurance upon the employees of the Texas Cement Plaster Company at the time Brown was injured; (2) that Brown sustained an injury on the 6th day of March, 1919, which resulted in his total incapacity; (3) that his total incapacity is permanent; (7) that his average weekly wage at the time of the injury was $26:84.

From a judgment entered in accordance with the findings, the Associated Employers’ Reciprocal brings the case to this court for review.

It is first contended that the plaintiff in error was entitled to an instructed verdict because: (a) The claim against it was asserted in this suit as an original proposition without having been asserted before the Industrial Accident Board; and (b) there was no proof of the issuance or existence of a policy of workmen’s compensation insurance issued by the plaintiff in error.

This contention is without merit. The' record shows that plaintiff in error appeared before the Industrial Accident Board and was heard as the real insurance carrier. The award of the board recites that the policy of compensation was carried by the plaster company with the plaintiff in error, and the Texas Indemnity Exchange nowhere appears in the final judgment of the board. The record fails to show any objection made to the amendment at the trial of defendant in error’s pleadings by means of erasures and in-terlineations. There was no verified pleading asserting a defect of parties plaintiff or defendant as required by R. S. art. 2910, and it is too late to raise the issue here. American Employers’ Ins. Co. v. Hookfin (Tex. Civ. App.) 33 S.W.(2d) 801.

The third and fourth propositions challenge the sufficiency of the evidence to justify the court in submitting to the jury special issue No. 1 which called for a finding by the jury as to the existence of a policy issued by plaintiff in error.

This contention is overruled. Brown testified that the plaintiff in error had-made several payments to him, aggregating $135. This evidence is admissible for the purpose of showing the fact that the plaintiff in error was also the insurance carrier. It was not necessary for the policy itself to be introduced in evidence because the law fixes the terms of such a policy and only slight evidence is necessary upon that issue. That plaintiff in error had paid Brown part of the compensation is sufficient to support the finding of the jury in response to special issue No. 1. Georgia Casualty Co. v. Ginn (Tex. Civ. App.) 272 S. TV. 601; Independence Indemnity Co. v. Polk (Tex. Civ. App.) 14 S.W. (2d) 330; Barron v. Texas Employers’ Insurance Association (Tex. Com. App.) 36 S.W.(2d) 464; Zurich General Accident & Liability Ins. Co. v. Thompson (Tex. Civ. App.) 47 S.W.(2d) 663.

Complaint is made of the action of the court in permitting Brown to testify as to conversations with Massingill and to prove by Brown that Massingill represented the plaintiff in error during negotiations for settlement. The' declarations of Massingill were not admissible to prove his agency, and the court erred in admitting this testimony without further proof of that fact; but the error would not work a reversal since it further appears that the plaintiff in error was the real insurance carrier. We think the evidence is sufficient to sustain the finding of the jury as to the incapacity of the claimant and its permanency, and we are not authorized to disturb that finding.

Brown alleged the nature of his injuries to be as follows: “Broke his left leg in several places, bruising and dislocating his left knee joint and left hip joint, injuring and almost destroying the muscles and nerves and fibres in defendant’s left leg, knee and hip, which produced and caused a total injury to this defendant which is a total and permanent injury and has rendered this defendant unable to do and perform manual labor without suffering great pain and anguish and has destroyed this defendant’s ability to perform any kind of manual labor or to earn a support for himself and family without undergoing great pain and suffering.”

While Dr. Pardue, a witness for Brown, wSS" testifying, he was permitted, over the objections of,plaintiff in error, to say that the injuries to Brown had resulted in injury to his veins, circulatory system, and the condition of blood in his left leg, and that as a •result of the imperfect circulatory condition ■there would be stagnant circulation in that area, and the amount of stagnation might ultimately cause a clot on the brain or result in “phlebitis inflammation” ; that it might infect his entire system and he might have gangrene, manifesting itself in other portions of his body than in his leg, requiring amputations ; that gangrene in another part of his body might result in death.

We sustain this proposition. The allegations were not broad and specific enough to admit any such testimony, and the conclusion is unavoidable that it had its effect upon the jury. South Plains Coaches, Inc. v. Behringer (Tex. Civ. App.) 4 S.W.(2d) 1003.. The general rule is that injuries must be specifically alleged and described and that evidence of other injuries is not admissible unless they are the natural and proximate result of the injuries alleged. It will be observed that Dr. Pardue stated that stagnant circulation might ultimately cause a clot on the brain, phlebitis, or gangrene, or require amputations; but he does not say that these results would naturally and proximately follow the injuries. In the absence of specific allegations, it was reversible error to admit this testimony. G., C. & S. F. Ry. v. McMannewitz, 70 Tex. 73, 8 S. W. 66; T. & P. Ry. v. Curry, 64 Tex. 85; Ft. W. & Rio G. Ry. v. White (Tex. Civ. App.) 51 S. W. 855.

The next contention to be considered is that the pleadings and evidence were such as to require the submission to the jury of an issue embodying the theory that any right of recovery was limited by the specific injury schedule in the Compensation Act.

It may be that the allegations of the cross-petition could be construed as setting up a total loss of the use of the left leg, but no such specific allegation is made and the testi-> mony of Brown and his doctor, Pardue, did not authorize the submission of any such issue.

The judgment recites that Brown is entitled to recover 60 per cent, of $26.84 per week for a period of 400 weeks, and fails to credit the amount of his recovery with $135 which he acknowledges he has received. This suit was filed in March, 1919. The maximum rate of compensation fixed by article 5246h et seq., Yemon’s Sayles’ Ann. Civ. St. 1914 was $15 per week. This article was subsequently amended in 1923 (chapter 177), increasing the maximum rate, and the judgment awards Brown a recovery under the 1923 act This is error.

Article 1, § 16, of the Constitution provides that no law shall be passed impairing the obligation of contracts. By virtue of the statutes fixing rights of parties under the Workmen’s Compensation Law, the legal relation of the employer, employee, and insurance carrier is contractual in its nature, and the provisions of the Compensation Act which are not remedial become a part of the contract. Patton v. New Amsterdam Casualty Co. (Tex. Com. App.) 36 S.W.(2d) 1000; Oilmen’s Reciprocal Association v. Franklin, 116 Tex. 59, 286 S. W. 195. By the terms of the statute in force at the time the policy in this case was issued, $15 per week was the maximum amount which could be recovered, and the rights of Brown as to the amount of recovery is governed by that act. The effect of the amendment, if applied, would be to impair the obligations of the original contract, which cannot be done. Dallas County Levee Improvement District v. Rugel (Tex. Com. App.) 36 S.W.(2d) 188; Equitable Surety Co. v. Stemmons (Tex. Civ. App.) 239 S. W. 1037; City of Aransas Pass v. Keeling, 112 Tex. 339, 247 S. W. 818.

It appears that the appellant company has been placed in the hands of a receiver appointed by the federal court since this suit was filed. The receiver filed no answer in this case, and the judgment does not recite that he was served. Without service of process or an appearance, of course, the judgment as to him would be void. It was not necessary for the plaintiff to procure the consent of the federal court to make the receiver Chappel a party to the action. We are of the opinion, however, if he has been properly made a party, that the judgment as entered is correct. On account of the unsatisfactory condition of the record, we are not able to definitely decide that question.

For the reasons above stated, the judgment is reversed, and the cause is remanded.


source: Caselaw Access Project

author: FLY, C. J.

license: Public Domain

text:
    FORD v. GRAYBURG OIL CO.
    No. 8946.
    Court of Civil Appeals of Texas. San Antonio.
    Dec. 7, 1932.
    Rehearing Denied Feb. 1, 1933.
    Griffin, Kimbrough & Cox, of McAllen, for appellant.
    Ingrum & Smith, of San Antonio, and Kennedy Smith, of Edinburg, for appellee.
   FLY, C. J.

Appellant sued appellee on a contract in writing which leased to appellee á certain lot or parcel of- land in the town of Pharr, Hidalgo county, Tex., which contract was alleged to have been breached by appellee. He alleged that he was to erect a filling station on the lot, when appellee furnished him the plans and specifications for such station, which appellant was to operate for appel-lee. After a hearing of the evidence, the co-urt instructed a verdict in favor of appellant for $1.

The evidence showed that a contract was entered into between appellant and ap-pellee whereby appellant leased to appellee a certain lot in Pharr, and bound himself to build a station for the sale of gasoline and oil thereon, not to exceed the sum of $5,000 in value, for and in consideration of which lease appellee agreed to pay appellant a rental of $100 per month; to furnish the necessary plans and specifications for said station; to pay appellant one cent, per gallon on all gasoline sold each month in excess of 10,000 gallons,-and to pay for electric current power and water.

The station was not erected by appellant on the ground, stated by him, that no plans and specifications were ever prepared and given to appellant by appellee. It is not contended by appellee that plans or specifications were furnished by it. It is the contention of appellant, through his pleadings and brief, that the measure of damages for the breach of the contract is the amount of $12,000, which would have been the rental value of the lot, of course with the improvements on it, for the period, being at the rate of $100 a month. Under the terms of the contract appellant was bound to make an expenditure of not more than $5,000 for the drive-in station. The erection of the station was a condition precedent to the payment of any sums., by appellee, but appellant treats the case as though he had erected the improvements at a cost of $5,000 and that appel-lee had refused to pay rents for the use of the station. To sustain the measure of damages presented by appellant would amount to sustaining a measure which would not give compensation alone to appellant, which is the true aim of awarding damages for breaches of contracts, but would give to appellant more money than he could possibly have obtained from a fulfillment of the contract. Fox v. Elston (Tex. Civ. App.) 33 S. W. 749.

While it has been definitely held in Texas that it is not incumbent on the plaintiff to plead a measure, it is further the rule that a statement of facts must be pleaded showing that the plaintiff is entitled to damages, which pleadings must be sustained by the evidence. The measure of damages is to be determined by the court. Volume 13 Tex. Jur. c. 16, § 170.

It is the rule that where the evidence does not show any substantial damages, still, if there was a breach of the contract under the law, appellant was entitled to what is denominated nominal damages; that is, a small sum to evince the determination of the law to punish the infraction of a contract. Tex. Jur. vol. 13, e. 16, § 4. The court did not under the facts err in giving the instruction in favor of appellant for the nominal sum of $1.

The judgment is affirmed.


author: PELPHREY, C. J.

text:
    UNIVERSAL CREDIT CO. v. WYATT.
    No. 2759.
    Court of Civil Appeals of Texas. El Paso.
    Jan. 5, 1933.
    Rehearing Denied Jan. 26, 1933.
    Henry P. Edwards, of Dallas, for appellant.
    J. Ontiveros Jordan, Russell M. Baker, and Caldwell, Gillen, Francis & Gallagher, all of Dallas, for appellee.
   PELPHREY, C. J.

Appellee, on or about the 8th day of April, 1930, bought from the Tri-State Motor Company, of El Paso, Tex., a 1930, Ford sport roadster automobile. In connection with the purchase thereof, he agreed to pay the sum of $544 in sixteen monthly installments of $34 each, due on the 8th day of each succeeding month. Appellant about April 12th, 1930, became the owner and holder of the conditional sales contract executed by appellee, and on or about April 8, 1931, took possession of the automobile in the city of Dallas, Tex., claiming to be justified in so doing because of appellee’s failure and refusal to pay $40 then delinquent.

Thereafter appellee, as plaintiff, brought this suit in the county court of Dallas county at Law, No. 1, to recover damages in the sum of $859, for the alleged wrongful conversion of the automobile valued at $395, certain .personal property valued at $14, and for $450 alleged loss of .commissions as a stock salesman which he claimed he would have earned with the aid of the use of the automobile. In this connection he alleged that appellant had full knowledge of the use to which he put the automobile and that he was unable, to obtain another. Appellant answered by special exception, general demurrer, and general denial, and specially pleaded that on April 8, 1931, it was the holder of a chattel mortgage contract theretofore executed by appellee creating a chattel mortgage lien on the automobile to secure the payment of the balance of $544 on the purchase price, which' expressly provided that, if plaintiff failed to pay the monthly installments due thereon in accordancé with the terms of said contract, the holder of same should have the right to repossess and resell the automobile in satisfaction of the mortgage debt; that on said date appellee had failed by the sum of $40 to make the stipulated payments, and the entire unpaid balance of $200 had become due according to the contract, and that it had not converted appellee’s automobile, but had, in the exercise of its rights as mortgagee, repossessed and resold the mortgaged car in satisfaction of the mortgage debt.

It further pleaded that the payments were payable at its Houston office, and that on February 4, 1931, through its Dallas office, it had collected the sum of $74 on accounts being handled in its Houston office, $34 of which had been paid by appellee and $40 by a third party, one L. D. Turner; that through error appellant’s Houston office applied the full $74 on appellee’s contract; that on February 28, 1981, when in truth and in fact the sum of $68 was due on appellee’s contract, it erroneously advised him that only $28 was due, collected said amount, and gave him a receipt showing his account paid to date; that immediately thereafter, to wit, on March 6, 1931, the error was discovered and appel-lee was ‘ advised thereof both by letter dnd personally; that appellee refused to pay the amount then delinquent, thereby causing the full amount to become due; and that, upon his refusal, appellant repossessed and resold the automobile.

Appellee filed a supplemental petition consisting of a general demurrer, a general denial, and specially denied that he was indebted to appellant in the sum of $40, on April 8, 1931, and further pleaded that appellant had estopped itself from repossessing the car under the mortgage by the issuance of the ■receipt to him on February 2Sth.'

The issues submitted and the jury’s answers thereto are:

“Special Issue No. 1: Do you find and believe from a preponderance of the evidence that at the time the defendant credit company took possession of the automobile involved herein on April 8th, 1931, the plaintiff Wyatt was in default in his payment upon the same ? Answer: No.
“Special Issue No. 2: What do you find from a preponderance of the evidence was the reasonable cash market- value of the automobile involved herein on April 8th, 1931, at Dallas, Texas? Answer: $265.00.
“Special Issue No. 2a: What do you find from a preponderance of the evidence was the balance due and unpaid on said Ford Roadster Automobile at the time same was repossessed by the defendant herein on April 8th, 1931? Answer: $170.00.
“Special Issue No. 3: Do you find and believe from a preponderance of the evidence that the defendant before it took possession of the automobile involved herein, knew the use to which he, plaintiff, was putting said automobile? Answer: Yes.
“Special Issue No. 4: What do you find from a preponderance of the evidence was the loss of plaintiff’s net earnings, if any, resulting solely directly and proximately from defendant’s taking possession of the automobile involved herein on April 8, 1931? Answer: $50.00 per month.
“Special Issue No. 6: Do you find from a preponderance of the evidence that defendant, Universal Credit Company, notified plaintiff, Mack W. Wyatt, that said Ford Automobile was to be repossessed before doing so on or about April 8,1931? Answer: No.”

Froin a judgment in favor of appellee'for the sum of $445, this appeal is prosecuted.

Opinion.

■ Appellant’s contentions are that, the. evidence being undisputed on the question of appellee being in default at the time the automobile was repossessed by it, the court should have instructed a verdict in its favor ; that the loss of the net earnings of ap-pellee was not a proper measure of damage in a ease of this character; that the evidence, failing to show that appellee could have used •the car for the purpose of selling stock during the seven months, was insufficient to support the jury’s finding on issue No. 4; that, the evidence showing that appellee would have incurred expense in the operation of the automobile, and there being no evidence as to the amount of such expense, the evidence was insufficient to support such findings; and that the judgment was erroneous because of a conflict between the findings on issues No. 1 and No. 2a.

That the evidence was not sufficient on the question of the net earnings lost by ap-pellee we think there can be no question.

While there is evidence to show that ap-pellee’s earnings decreased after the automobile was repossessed by appellant, there is no evidence as to the expense of operating it in connection with his work. If his damage is to be based on his lost earnings, then, naturally, the expense he would have incurred in the use of the car should be deducted from the amount his earnings were decreased.

Nor do we think his statement, made at the time the car was purchased, showing his total expenses, would .form any basis upon which the jury could ascertain the amount to deduct from the decreased earnings so as to decide upon the net earnings lost.

Without entering into a discussion of the evidence'as to whether appellee was in default at the time the car was taken by appellant, we think it justified the submission of that issue to the jury. The question as to the measure of damage presents a more difficult problem, but we have concluded that under the circumstances shown'the loss of net earnings could be recovered.

If it be established that appellant had knowledge of the use to which the car was being put by appellee, and that appellee had used reasonable means to secure another car to use in carrying on his sales, and had been unable to do so, then we see no reason why, under the rule that the injured party shall be compensated for the injury done, he should not recover for his lost earnings caused by appellant’s action in taking the car, if taken wrongfully.

The proposition raised as to the conflict between the finding, if in fact there is a conflict, can be eliminated by having the jury find the amount owing by appellee on the purchase price.

The case not 'being fully developed, we have concluded that the judgment should be reversed, and the cause remanded.


text:
    METRO-GOLDWYN-MAYER DISTRIBUTING CORPORATION v. COCKE.
    No. 3943.
    Court of Civil Appeals of Texas. Amarillo.
    Jan. 18, 1933.
    See, also (Tex.- Civ. App.) 41 S.W.(2d) 645.
    E. E. Diggs, of Childress, and J. Robert Rubin, of New York- City, for appellant.
    R. H. Cocke and R. H. Templeton, both of Wellington, for appellee.
   HALL, C. J.

The appellant corporation, engaged in distributing copyrighted photoplays and films, sued the defendant Cocke to recover $1,507.50 and interest, alleging the breach of five different contracts entered into between the parties, which provided for the exhibition, by Cocke in -his theater at Wellington of motion pictures and films to be furnished him by the appellant. The contracts describe the several! films included in each of them-respectively by production number and title and state the-rental value. Appellant alleged compliance-with the contracts on its part, breach by the defendant, and concluded with a prayer'for damages in an amount represented by the contract prices.

Defendant answered by numerous exceptions, a general denial, and specially alleged-that the contracts sued upon were nuli, void, and unenforceable by reason of their being in violation of the anti-trust laws of the national and state governments, in that they were made to control and' were in restraint of trade and commodities and attempted to create a monopoly of the moving picture business. That the contracts were not voluntarily entered into by the defendant; that he was compelled to sign them with the terms and provisions therein printed in order to exhibit any motion picture films in his theater at Wellington, because plaintiff and other distributors refused to furnish him any films until he executed and signed said contracts with all of the unilateral, arbitrary, illegal, and unreasonable terms thereof. He denied that plaintiff was damaged in the sums or amounts alleged and that such damages, if any, were sums which plaintiff may have expended in procuring the execution of the contracts and expenses to date of the alleged breach. He further pleaded that the contracts were illegal because of the provisions for arbitration contained therein; that such provisions violated the Sherman Anti-Trust Law (15 USOA §§ 1-7, 15 note) and the state statutes against trusts (Vernon’s Ann. Oiv. St. art. 7426 et sea.). That the contracts were unenforceable 'because they provided, as is printed in 'red ink therein, that plaintiff had the right to adopt the provisions of a new standard exhibitors contract to be made by the Motion Pictures Producers & Distributers of America, Inc., which contract, when so promulgated, would change the terms, position, and prices contained in the contracts sued upon. That such provision is unreasonable, unjust, unilateral, and arbitrary. That plaintiff did not comply with provision D in said contracts which required it to deliver the films to the common carrier or tender any of the photoplays named in each of the said contracts, and had failed to comply with stipulation G which obligated plaintiff to give defendant, as exhibitor, four weeks’ notice in writing of the date on which each photoplay would be released and made available for use.

Defendant further alleged that he sold and assigned his interest in the Rialto Theater in February, 1928, to Nelson & Simpson, who offered and agreed to exhibit in said theater the said photoplays named in the contracts, and said purchasers requested plaintiff, in writing, to furnish' said photoplays, which plaintiff refused to do, in violation of the terms of said contracts.

Plaintiff filed a supplemental petition containing numerous exceptions, denied that Nelson & Simpson, the assignees of defendant, had agreed to exhibit the photoplays contracted by defendant, but on the contrary refused to accept or pay for them. That after plaintiff had filed its complaint with the Arbitration Board, defendant wrote to the secretary thereof that he had sold his business to Nelson & Simpson but they were closing the business and could not use the films. •

In response to special issues the jury found, in substance, as follows: (1) The contracts sued upon were not voluntarily entered into by the defendant H. F. Gocke; (2) that the appellant, before making complaint against defendant for his failure to receive films, did not give defendant fifteen days’ notice that the films or any of them were ready to be delivered to him; (3) that if the films had been tendered to Nelson & Simpson before the complaint was filed with the Arbitration Board against defendant, said films would have been accepted by Nelson & Simpson at less than the contract price; (4) that Nelson & Simpson would have paid for said films 10 per cent, less than the contract price.

Judgment was entered in accordance with the findings of the jury.

To the defendant Cocke’s allegation that the contracts sued on were not voluntarily entered into by him, and that he was compelled to sign said contracts with the terms and provisions therein printed in order to produce any motion picture films for use in his theater, because plaintiff, as well as other distributors, refused to furnish any motion picture films until the defendant would execute and sign said contracts with all of the unilateral; arbitrary, illegal, and unreasonable terms thereof, the plaintiff urged an exception, which was properly sustained by the court; but we find that evidence was admitted upon such ground of cross-action, and the first issue submitted to the jury was whether the contracts were voluntarily entered into by Cocke. There was error in submitting the issue to the jury, especially after the court had sustained objections to this ground of cross-action.

An effort to recover damages against the appellant company, because it would not enter into such a contract as Cocke desired, is without merit. •

As said in 2 Cooley on Torts (3d Ed.) 587: “It is a part of every man’s civil rights that he be left at liberty to refuse business relations with any person whomsoever whether the refusal rests upon reason or is the result of whim, caprice, prejudice or malice.” Brewster v. Miller’s Sons, 101 Ky. 368, 41 S. W. 301, 38 L. R. A. 505; Master Builders’ Association v. Domascio, 16 Colo. App. 25, 63 P. 782; Hundley v. Louisville, etc., R. R. Co., 105 Ky. 162, 48 S. W. 429, 63 L. R. A. 289, 88 Am. St. Rep. 298; N. Y., etc., R. R. Co. v. Schaffer, 65 Ohio St. 414, 62 N. E. 1036, 87 Am. St. Rep. 628; Hey wood v. Tillson, 75 Me. 225, 46 Am. Rep. 373; McCormick v. Dalton, 53 Kan. 146, 35 P. 1113.

The appellee cites in support of his contention that the contracts were void. Paramount Famous Lasky Corp. v. United States, 282 U. S. 30, 51 S. Ct. 42, 75 L. Ed. 145. That case has no application whatever to the issues in the instant case. In that' case the government was attacking a trust entered into by several film companies, in an effort to dissolve the trust under the Sherman Anti-Trust Law. The case before us is purely one of contract •between individuals. The appellee cites 10 Texas Jur. S3, § 48, in support of his contention that the contracts upon which this suit is based were signed under duress. The ap-pellee really did not plead duress, but the record shows that because he owned a building adapted to the exhibition of moving pictures and unless he signed the contracts in question it might have injured his business. This is not duress, nor is it coercion. Prior to the execution of the contracts the parties thereto were dealing at arm’s length. Cocke was not indebted to the appellant and no threats were made by appellant or its agents to injure appellee in his business in the event he refused to enter into the contracts, and the record shows that there are numerous other film-producing companies with which Cocke might have contracted. It cannot be contended that there was any duress of person and duress of property exists where a party is required, against his will, to do that which the other party has no right to exact of him in order to receive or enjoy the benefits and privileges resulting from a right of use in his property. 10 Tex. Jur. 83. The same authority says: “To constitute it, [duress] the will must be constrained by the unlawful presentation of a choice between comparative evils, as inconvenience and loss by the detention of property, loss of property altogether, or compliance with an unconscionable demand. There must be a threat to do some act which the threatening party has no legal right to do, or to make some illegal exaction; and there must be imposition or oppression, or such extreme necessity imposed upon the party as will overcome his free agency.” Cocke may have signed the contracts against his will, but the record does not show that he entered any protest at the time they were executed. The company had no right to exact of him the making of such contracts and he could have refused to sign them with the stipulations contained therein to which he objects. The films were the absolute property of the appellant company. They had the unquestionable right to fix their own price upon their products and to refuse to take less, and they had the further right to refuse to enter into, the contract relations with Cocke except upon their own terms. Cocke does not deny that he agreed to pay the prices set out in the several contracts. In signing them he may have made a bad bargain, but he does not allege fraud or any other equitable ground for relieving him of the obligations which the contracts imposed upon him.

It is said in Booth & Bro. v. Burgess, 72 N. J. Eq. 181, 65 A. 226, 232: “Coercion which results, however directly and intentionally, from the exercise of the absolute right to refrain from contracting, cannot possibly be a tort, because it violates no legal right; it is a mere incidental result of the assertion and enjoyment of a right.” Coercion exists where a party, by the unlawful conduct of another, is induced to enter into a contract which deprives him of the exercise of his free will.

As said in 11 C. J. 946: “It may be either actual (direct or positive) where physical force is put on a man to compel him to do the act against his will, or implied (legal or constructive) where the relation of the parties is such that one is under subjugation to the other and is thereby constrained to do what his free will would refuse.”

The record fails to show that the appellant sustained any relation whatever to Cocke prior to the execution of the contracts which in any degree subjected Cocke to its power or authority. Appellant is not responsible for the fact that Cocke had invested considerable money in erecting a building and equipping it for a moving picture show. So the response made by the jury to the first issue submitted is immaterial and the court erred in submitting it for the reason that an exception had been previously sustained to that ground of recovery and the finding can form no basis for a judgment.

The record shows that the films or photoplays designated in the contract had been copyrighted. The appellee, by exceptions, insisted that the contracts sued upon were void because, by their terms, they violated. both the national and state anti-trust laws. The court correctly overruled these exceptions because the anti-trust laws do not apply to copyrights and for the further reason that a violation of the anti-trust laws by a corporation is not available as a defense to a person-dealing with such corporation to release him from liability for debts incurred or contracts creating debts separable from the trust combination. Coca-Cola Co. v. State of Texas (Tex. Civ. App.) 225 S. W. 791; Clark v. Cyclone Woven Wire Fence Co., 22 Tex. Civ. App. 41, 54 S. W. 392; Bauer & Cie v. O’Donnell, 229 U. S. 1, 33 S. Ct. 616, 57 L. Ed. 1041, 50 L. R. A. (N. S.) 1185, Ann. Cas. 1915A, 150; Columbia Pictures Corp. v. BiMetallic Inv.,Co. (D. C.) 42 F.(2d) 873.

The arbitration agreement in the contracts provides that before either party thereto shall resort to any court to determine, enforce, or protect the legal rights of either thereunder, each will submit to the Board of Arbitration all claims and controversies arising thereunder for determination pursuant to the rules of procedure and practice from time to time adopted by such Board of Arbitration. This does not attempt to prevent either party from resorting to the courts where the conditions entitle it or him to sue, nor can the legal effect thereof bo held to oust the courts of jurisdiction. Appellant did not plead the arbitration stipulation as a defense to tbe eyoss-action. If it be admitted that the stipulation is void, it would not have the effect of avoiding the entire contract or canceling appellee’s indebtedness. Dozier v. City of Gatesville (Tex. Civ. App.) 4 S.W.(2d) 131; Queiroli v. Whitesides (Tex. Civ. App.) 206 S. W. 122. Moreover, the record shows that the reason Cocke did not submit to arbitration was because he had sold his business to Nelson & Simpson before the matter of arbitration came up for consideration.

The third issue inquiring whether, if the films had been tendered to Nelson •& Simpson, to whom defendant had sold his picture show, before the complaint was filed, would said films have been accepted by Nelson & Simpson, was a matter foreign to the rights of either party, and that issue, together with issue No. 4, are immaterial.

■ The other contentions urged in the briefs of both appellant and appellee have been disposed of by the opinion rendered in this case on the former appeal and reported in (Tex. Civ. App.) 41 S.W.(2d) 645.

The case has been tried twice upon the •same pleadings and to remand it for another trial would seem to be a useless and expensive proceeding, since it is clear that under ■the evidence introduced in both trials appellant was clearly entitled to a judgment for the full amount sued for and that the appellee has no valid defense to the action and no right to recover upon any ground asserted in his cross-action. We therefore reverse the judgment, and it is here rendered that the appellant recover the full amount prayed for and that appellee take nothing by reason of his cross-action.

Reversed and rendered. .


author: PEDPHREY, C. J.

text:
    POPE et al. v. STATE et al.
    No. 2717.
    Court of Civil Appeals of Texas. El Paso.
    Sept. 29, 1932.
    Opinion Granting Issuance of Mandate Feb. 2, 1933.
    H. S. Bonham, of Corpus Christi, for plaintiffs in error.
    A. M. Turney, Co. Atty., of Alpine, for defendants in error.
   PEDPHREY, C. J.

This cause was appealed from the district court of Brewster county, Tex. The judgment appealed from was in favor of the state of Texas, for §1,725.91, taxes, penalties, and interest due the state of Texas, and the county of Brewster, on certain lands in Brewster county, for the years 1921, 1923, and 1925.

The judgment of the trial court was reversed by this court and the cause remanded to the trial court. 53 S.W.(2d) 332. Under the general rule, the costs were adjudged against defendant in error.

• Thereafter the county attorney of Brewster county requested the clerk to issue the mandate, which he declined to do under article 1865, Revised Statutes.

Defendant in error has now filed its motion for an order requiring the clerk to issue the mandate.

The basis of the motion is that the state is not liable for costs. The motion is contested by plaintiffs in error.

We find the rule, as laid down in Corpus Juris, as to the liability of the state for costs, to be: “While the state may be excused from the payment of costs because of express statutory exemption, it is a general and well established rule, apart from statute, that costs are not recoverable from a state, in her own courts, whether she has brought suit as plaintiff or has properly been sued as defendant; or whether she is successful or defeated.” 59 C. J. § 503, p. 332. We find the same rule announced in 25 R. C. L. § 55, p. 418.

After a diligent search, we have found no statute in our state whereby the state is made liable for costs, and therefore we conclude that the defendant in error was not liable for the costs in the case at bar and that such costs were improperly taxed against it.

This being true, it follows that the mandate should issue without the payment of costs and that article 1865 will not apply in this case.

It is therefore ordered that the clerk issue the mandate as prayed for by defendant in error. ,


author: JONES, C. J. BOND, J. LOONEY, J.

text:
    ENGLAND v. PITTS.
    No. 11080.
    Court of Civil Appeals of Texas. Dallas.
    Dec. 17, 1932.
    Rehearing Denied Jan. 28, 1933.

      D. A. Prank and Edward Gregg Wallace, both of Dallas, for appellant.
    W. R. Herring, of Dallas, for appellee.
   JONES, C. J.

In a suit in a district court of Dallas county, appellee, Laura Pitts, recovered judgment in the sum of $1,284 against appellant, W. H. England, trading as Bonded Transfer Company, for personal injuries alleged to have been received through the negligence of an employee of appellant while operating one of appellant’s trucks. An appeal has been duly prosecuted to this court, and the following are the necessary facts:

On January 29, 1929, at about 8 p. m. ap-pellee, a colored woman, walked north on the east side .of Carroll avenue in the city of Dallas, to the intersection of such street with Worth street, where she undertook to cross Worth street, and just as she reached the opposite side, but before she had stepped upon the sidewalk, a truck owned by appellant and operated by his employee, Bill Arnold, attempted to turn this corner and collided with appellee, knocking her down, rendering her npeojiscious, and inflicting various injuries upon her person. Appellee at such time was approximately 67 years of age. She was regularly employed, and did certain kinds of housework, such as washing, ironing, cooking, and taking care of the small .children of her employer. The amount of money she earned, prior to her injury, was small, being about $20 per month and her board.

A-few months thereafter, this suit was instituted, against appellant to recover damag-és for the personal injuries appellee received on the date in question, on several alleged grounds of negligence. The suit came to trial in the latter part of January, 1931, and on January 30, 1931, was submitted to the jury on special issues, a verdict was rendered favorable to appellee, and judgment entered in -her behalf in the above designated amount. The findings of the jury are that: (1) Appellee sustained injuries on January 29, 1929, the occasion in question; (2) Bill Arnold, at the time and on the occasion in question, 'was the agerit and employee of appellant; (3) Arnold failed to use ordinary care on the occasion in question to sound a warning; (4) such failure was a proximate cause of appellee’s injuries; (5) Bill Arnold, on the occasion in question, was not driving the truck that struck appellee at a rate of speed in - excess of twenty miles per hour; (6) appellee, on the occasion in question, did not fail to use ordinary care for her own safety to keep a lookout before stepping into the street; (7) appellee, on the occasion in question, did not run into the side of the truck in question; (8) the injuries received by appellee on the occasion in question did not result from an unavoidable accident; and (9) the damages were assessed at $1,284. These findings are all supported by substantial evidence, and we adopt them as the findings of this court.

Appellant answered by a general demurrer, special exceptions, a general denial, and a special plea that appellee was guilty of negligence proximately causing, and contributing to cause, her injury, such negligence consisting: “(1) In failing to keep a lookout before stepping into the street, in order to take care of her own safety, (2) in running into the side of an automobile and being thereby thrown to the ground, (3) in stepping into the street without looking where she was going, and without exercising due care for her own safety, and (4) in negligently and recklessly walking into traffic, while dressed' in dark clothes, without giving any warning, or sign of approach, and at a time when she could not be seen by the drivers of automobiles.” Appellant also specially pleaded that the injuries complained of “were due directly and proximately to an unavoidable accident, for which this defendant is in no way liable.”

All of the special exceptions were overruled, and, while error is assigned on the action of the court, in overruling such exceptions, we do not find that any of such assignments presents reversible error.

On the occasion of appellee’s injuries, appellant was the sole owner of the business, trading under the name of Bonded Transfer Company, and owned six trucks which bore the sign “A. O.' T. Bonded Transfer Company,” and operated such trucks in carrying on his business. At the same time, appellant was vice president and manager of the Dallas Baggage & Cab Company, a corporation, which owned various trucks bearing the sign “Dallas Baggage & Cab Company.” The business of each concern appears to have been operated from the same place. It was appellant’s claim at the trial that the Bonded Transfer Company, his individual business, neither owned nor operated the truck in question on the occasion under review, nor was the driver of such truck his employee. He also claimed that the evidence failed to raise a disputed issue in respect to the ownership of such truck, or that the driver, Arnold, was in his employ, and requested peremptory instruction in this respect in his favor, and has assigned error on the action of the court in overruling such request. He further claimed that, independent of the issue as to his ownership of the truck, the evidence failed to raise an issue as to the negligence of the truck driver on the occasion in question, requested peremptory instruction in this respect, and has assigned error on the refusal of the trial court to give such instruction.

Appellant has also assigned error on the manner in which the special issues, in respect to appellee’s ground of recovery, was submitted to the jury; also on the refusal of the court to give requested special issues submitting issues of appellee’s contributory negligence; also on the ruling of the court in respect to the admission of evidence, and in respect to certain arguments to the jury made by counsel for appellee in his closing speech.

During the jury’s consideration of the case, an oral request was made of the court by the jury, through the bailiff in charge, that the deposition of appellant be sent to the jury room. This request was complied with by the court and the deposition sent to the jury. Appellant’s attorney, though in the courtroom at the time, did not know of this request, or that the deposition was sent to the jury, until the jury returned its verdict and he discovered that the deposition had been returned to the clerk with the other papers the jury had taken with them when they were sent to their room to consider their verdict. Appellant at once took a bill of exception to this action of the court, presented it as one of the grounds in his motion for a new trial, and has duly assigned error on the court’s action in sending the deposition to the jury room, and 4n overruling his motion for a new trial on such ground.

The court did not err in overruling the motion for an instructed verdict, not in overruling appellant’s objection to the submission of the issues of negligence in behalf of ap-pellee, on the ground that there was no evidence to warrant such action. The evidence as to the ownership of the truck in question and the employer of the operator, Arnold, is in sharp conflict. As stated above, appellant’s deposition .was taken, presumably by appellee, and in such deposition appellant testified: “Bill Arnold was employed by me two and one-half years. He was in my employ when the above accident happened. He was driving one of my trucks. His duty was that of truck driving, delivering baggage. He was engaged in that work at' that time. * * * This Bill Arnold is still working for me. I first heard of this accident the next day. I got a report from Mr. Taylor. He heard of it through Bill Arnold. The truck was a one-ton truck. I don’t know which one he was driving. I could find out I do not know the make of the truck, only a one-ton, light baggage truck. * * * I think the Bonded Transfer Company was organized, in 1914, I don’t remember. I was not the owner of the company when it was organized. I became the owner in 1923. I bought out the company. It was not incorporated. W. H. Fritz owned it prior to my buying it. We have six trucks now.”

This deposition was introduced in evidence hy appellee. In addition to this testimony, on the issue of ownership of the truck and the employer of its driver, appellee’s witness, John L. Reese, testified as to his proximity to the accident at the corner of Worth and Carroll streets, that there was a street light at that time on this corner,. and that the “truck had A. O. T. Bonded Transfer Company * * * i know for a fact that the truck had A. O. T. on it, Bonded Transfer Company. I do not know what the name of the company is that owned the truck, but I do know those letters and those words were on the truck.”

Bill Arnold testified positively that he was not in the employ of the Bonded Transfer Company on the occasion in question, but was in the employ of the Dallas Baggage & Cab Company, and that he was driving one of their trucks at such time, and that such truck did not have on it the lettering “A. O.' T. Bonded Transfer Company,” but, on the contrary, had on it the lettering “Dallas Baggage & Cab Company,” and was owned .and operated by the latter'company on the occasion in question. Canceled checks made payable to Bill Arnold by the Dallas Baggage & Cab Company, as compensation for his services, were introduced in evidence. These checks covered the weeks from January 7, 1929, to February 24, 1929, one check being issued each week, varying in amounts from $10.30 to $21; the majority of such checks being in the neighborhood of $20.

Appellant, in his own behalf, testified at the trial of the case that: “The truck that was being driven by Bill Arnold at the time of the accident involved in this suit belonged to the Dallas Baggage & Cab Company at that time. At the time my deposition wás taken in this, case, I did not know exactly which truck was inquired about, but I know now whose truck it was, and I testified that it belonged to the Dallas Baggage & Cab Company, and that Mr. Arnold was working for the Dallas Baggage & Cab Company at the time of the accident; he was not working for me at the time. * * * When this deposition was taken in the office of Mr. Herring, attorney for plaintiff, I testified that W. F. Arnold was working for me, and in a way he does work for me, he works for the company that I have an interest in. * * * In my deposition I testified that Bill Arnold was on a delivery for me, and was working for me, and in a way he was; he was working for the Dallas Baggage & Cab Company, and I am a part of that company. I did not know when my deposition was being taken that I was being asked about the Bonded Transfer Company, or what company was being asked about; I knew Bill Arnold at that time.”

When appellee introduced evidence from appellant’s deposition that he was the owner of the truck in question, and that Arnold, the driver, was an employee of his, and also introduced the evidence of Reese, to the effect that the truck in question had painted on it the lettering “Bonded Transfer Company,” she made a prima facie case of ownership of the truck in question in appellant. This prima facie case, however, is rebutted by the direct evidence of the driver, Arnold, that the truck was owned by the Dallas Baggage & Cab Company, and on the occasion in question was being operated by him as an employee of such company. It is further rebutted by the evidence of appellant, given on the witness stand, to the same effect; therefore appellant is met with the fact that the evidence as to the ownership of the truck in question and as to the employer of the driver, Arnold, is in sharp conflict, and is not undisputed evidence, as is necessary to form a basis for the first peremptory instruction requested by appellant. The assignment of error in this respect is overruled.

Did appellee’s evidence raise the issue of negligence in respect to the failure of Arnold to sound some kind of alarm when he turned the corner at the intersection of Carroll and Worth streets, and struck appellee? If so, then the trial court did not err in refusing appellant’s second requested peremptory instruction. The effect of appellee’s testimony is that no sort of alarm was sounded by Arnold on such occasion. Arnold was placed on the witness stand by appellant, but did not testify as to whether an alarm was sounded or not, for counsel for appellant did not question him in this respect, although appellee had theretofore testified to the effect that no alarm had been sounded. Under the circumstances, the court could treat the testimony of appellee in this respect as undisputed and unchallenged, because it was permitted hy appellant so to go to the jury. The undisputed evidence showing that.no signal or warning was sounded, there is presented the question as to whether the truck driver, turning a street corner at night, without sounding any signal, exercised ordinary care for the safety of users of the streets? This was peculiarly a'question for determination by-the'jury, and not for the court. The assignment of error in this respect is overruled.

Error is assigned because of the failure of the court to define the terms “negligence” and “contributory negligence.” If the court had used these terms in the submission of the issues to the jury, then this assignment would be well taken. The court defined the term “ordinary care,” and an approved definition of “negligence” is “a failure to exercise ordinary care.” Instead of using the term “negligence,” the court used the phrase “failure to exercise ordinary care.” If, as submitted by the court, appellant, acting through his employee Arnold, failed to exercise ordinary care to sound a warning, then he was guilty of negligence. In other words, there is no legal difference in the manner in which the court submitted the issue of negligence in each special issue and the manner in which appellant claims such issue should have been submitted. The assignment of error in this respect is overruled.

Appellant timely objected to the manner in which special issue No. 3 was submitted. The language of this issue is: “Do you find from a preponderance of the evidence that the defendant, W. H. England, trading under the name of Bonded Transfer Company, acting through his agent and employee at the time and on the occasion in question, failed to use ordinary care to sound a warning?”

Appellant’s objection is: (a) That the issue as submitted is duplicitous, ip that it submits two issues, one as to whether there was a warning sounded, and the other as to the negligence of the employee in not sounding a warning; or (b) if not duplicitous, then it is on the weight of the evidence, because it assumes that no warning was sounded. As wé have seen, the undisputed evidence shows that no warning was sounded; under such state of the evidence, the only issue for the jury to pass upon was whether such failure on the part of the employee was, negligence, and this was clearly submitted to the jury by the court. The assignment of error in this respect is overruled.

A witness for appellee testified that she had known appellee since the witness was a child, and that appellee had been employed for a long time in the witness’ home. After thus qualifying, she was asked the question as to whether, from her observations of appellee before and after her injury, ap-pellee appeared to be as able to work after the accident as she had been before the accident. To this the Witness responded that appellee was not able to work after her injury. Error was assigned by appellant on the refusal of the court to strike out this answer. The answer is not responsive to the question, but appellant’s motion to strike out did not contain such ground. The witness’ long acquaintance with appellee and her observation of her, both before and after the injury, perhaps qualified her to express the opinion contained in her answer. Under the following authorities, we do not believe that this assignment presents reversible error: C., R. I. & T. Ry. Co. v. Jones, 39 Tex. Civ. App. 480, 88 S. W. 445; M., K. & T. Ry. Co. v. Farris (Tex. Civ. App.) 124 S. W. 497. Likewise we are of the opinion that reversible error is not shown in reference to the evidence given by George Pitts, appellee’s brother, with whom she lived," in response to the following question: “Well now, that next day (the day following the injury), just tell the jury whether or not she appeared to he suffering physical pain,” to which the witness answered, “Yes sir, she was suffering great pain the next day.” The question was not objectionable, and the answer must be construed as responding to the question, that is, that appellee appeared’to be suffering great pain. No motion was made to strike out the answer because it was not responsive to the question. Under the following authorities, we hold that this does not present reversible error: St. Louis & S. W. Ry. Co. v. Schuler, 46 Tex. Civ. App. 356, 102 S. W. 7S3; G., C. & S. F. Ry. Co. v. Water, 62 Tex. Civ. App. 74, 130 S. W. 712; San Angelo Water, Light & Power Co. v. Baugh (Tex. Civ. App.) 270 S. W. 1101; I. & G. N. Ry. Co. v. Sandlin, 57 Tex. Civ. App. 151, 122 S. W. 60; Henson v. Warren (Tex. Civ. App.) 274 S. W. 185.

Error is assigned on the argument of appellee’s attorney, in which, as shown bj? the bill of exception, he stated that the jury contained two truck drivers, and two former truck drivers; that appellee’s attorney had also been a truck driver, and knew something about truck driving, because, before and during the war, he had learned a lot about driving a bwo and one-half ton truck, and that he had driven a truck after he had come back from the Army; and then appealed to those of the jury who had had experience as a truck driver to agree with his experience that it was mighty hard to drive trucks in high gear at three miles per hour. This was not legitimate argument, for the reason that it is a plea to certain members of the jury to substitute their own experience in driving trucks for the testimony given by witnesses, and also because it is outside of .tlie record, in that appellee’s attorney testified as to his own experience as a truck driver. However,' as this argument is obviously in reference to the issue, which submitted the rate of speed the truck was being driven on the occasion in question, and as the jury returned a verdict against appellee’s contention and in favor of appellant, it does not constitute reversible error, there being nothing in the argument of a prejudicial nature against appellant as to the other issues submitted.

The assignments of error in reference to other argument indulged in by the attorney we do not believe present reversible error, in that, in each instance, it appears that the attorney was drawing his own inference from testimony in evidence before the jury.

We do not believe the court erred in refusing either of the two requested special instructions on the issue of contributory negligence of appellee.- The two special issues submitted by the court in the main charge, we think, fully covered the issues of contributory negligence raised by the evidence. The assignments -of error in this respect are overruled.

Does the fact that the deposition of appellant was sent to the jury room, at the request of the jury, constitute reversible error? Article 2193, R. S. 1925 reads: “The jury may take with them in their retirement the charges and-instructions, general or special, which were given and read to them, and any written evidence, except the depositions of witnesses, but shall not take with them any special charges which have been refused.”

The mandate of this statute is to forbid depositions to he taken by the jury in their retirement to consider their verdict. A deposition is received in evidence by " being read to the jury from the witness stand, and this statute places such evidence, in the manner of its reception by the jury, precisely on the same footing that is necessarily given the oral evidence of a witness, while a violation of this statute, in respect to the matter under inquiry, would thwart this purpose and place the deposition of a witness on a different footing to -that of oral testimony, in that the jury would have the evidence given by the deposition continually before them, to be reread and considered by them in the absence of oral testimony that is contrary to the. evidence in the deposition. That the provisions of this statute are mandatory appears to be settled law in this state. Snow v. Starr, 75 Tex. 411, 417, 12 S. W. 673; Putnam Supply Co. et al. v. Chapin (Tex. Civ. App.) 45 S.W.(2d) 283; Stolz v. Wells (Tex. Civ. App.) 43 S.W.(2d) 163, and the authorities cited in these cases. However, the violation of a provision of a mandatory statute, prescribing procedure in the trial of cases does not necessarily present reversible error. The rule appears to be that, when a mandatory provision of such, a statute is violated, such violation constitutes reversible error, unless it affirmatively appears from the .record that the violation of such statute visited no injury upon the losing party. Bell v. Blackwell (Tex. Com. App.) 283 S. W. 765; Miks v. Leath (Tex. Civ. App.) 26 S.W.(2d) 726, and authorities therein cited and reviewed; Putnam Supply Co. et al. v. Chapin, supra; Stolz v. Wells, supra. The question under consideration, therefore, resolves itself to this: Does the record in this case affirmatively disclose the fact that no injury to appellant resulted from the sending of the deposition to the jury?

The record discloses these facts: Appellant did not know, until the verdict was returned, that the deposition had been called for by the jury and sent t-o them by the court. The deposition in question contained evidence given by -appellee prior to the trial of the case and read in evidence by appellee. It bore on only one material -fact in the case; that is, the ownership of the truck in question and the employer of the driver of such truck. In such deposition, appellant testified that he was the owner of the truck and the employer of its driver. On the witness stand, at the time of the trial, he testified, in effect, that at the time his deposition was taken he did not understand what truck was under consideration, and explained the use of his language, as to being the owner of such truck, in that he was vice president and manager of the Dallas Baggage & Oab Company, and had its trucks under his control, as well as being the owner of the Bonded Transfer Company. He testified further that the truck was not owned' by the Bonded Transfer Company, but was owned and operated exclusively by the Dallas Baggage & Cab Company, and that Arnold was not in the employ of the Bonded Transfer Company, but was-exclusively employed by the Dallas Baggage & Cab Company. The issue as to who was the employer of the- driver of the truck- was submitted to the jury as a disputed issue, and, as we have before seen, the evidence as to such employment was in sharp conflict. There is no direct evidence as to what issue the jury was considering when • they sent for appellant’s deposition, but, as the issue of the employer of the truck driver was the only issue submitted to the jury, in which appellant’s deposition had any bearing, the conclusion is inevitable that the jury had under consideration such issue when the request was sent for such deposition. There is no evidence that the jury read the deposition when it was received, but again we think the conclusion inevitable that the jury did read the deposition and considered its contents upon the issue of the employer of the truck driver, which is special issue No. 2. It cannot be conceived that the jury had any other purpose in sending for the deposition than to read and consider its contents on this disputed issue. The verdict returned, in answer to the issue upon which the deposition bore, is against appellant. Unexplained by appellant’s testimony given on the witness stand, his testimony in the deposition was conclusive against any contention as to the truck driver not being appellant’s agent and employee on the occasion in question. Under these facts shown by the record, we do not think it is made to appear that no injury resulted to appellant by the violation of this statute, in sending the deposition to the jury. On the contrary, we think the presumption from the facts above stated is that injury did result therefrom.

In justice to the trial court, it should he stated that, when the deputy sheriff made to the court the eral request of the jury for the deposition, the court, seeing attorneys for both sides in the courtroom, assumed - that they heard the request and did not object to the sending of the deposition to the jury. The bill of exception, however, amounts to a certificate that counsel for appellant did not know of the request of the jury and the sending of the deposition until after the verdict was returned. Putnam Supply Co. et al. v. Chapin, supra. We are of the opinion that the assignment of error on this issue must be sustained. '

It necessarily follows that, because of the error above pointed out, this case must be reversed and remanded for another trial, and it is so ordered.

Reversed and remanded.

On Motion for Rehearing.

BOND, J.

On the original submission of this case, the writer was not a member of this court, and therefore did not participate in the preparation of the conclusion reached by this court In the original opinion; however, on appellee’s motion for rehearing, each of appellant’s assignments were carefully reviewed by this .court, and we have reached the same conclusion , in reference thereto as stated in the former opinion.

Appellant’s assignment “that the court erred in sending out into the jury room the deposition of W. H. England while the jury was considering the special issues submitted by the court to the jury” is one which has given this court most concern, and in regard to which the members of this court are not in strict accord. The deposition of W. H. England bore directly on the issues of ownership of the truck involved and on the contract of employment of the truck driver at the time of ap-pellee’s injury. These issues were controverted issues, and, in fact, the record, without the deposition, would hardly have warranted a verdict in favor of such issues. The importance, materiality, and probative force of the evidence disclosed in depositions are important factors in determining whether the violation of a provision of a mandatory statute visited injury upon the aggrieved party. In the absence of proof of injury, unimportant, immaterial, uncontroverted, or cumulative disclosures by depositions, or the disclosures by the whole record, might affirmatively determine that no injury resulted to the losing party by the introduction of depositions into the jury’s deliberation. Where the - evi-dentiary fact disclosed by the deposition is on a vital controverted issue, as in this case, and without which the record would hardly sustain a verdict, the court should not speculate on the rights of the parties and assume that no'injury resulted from the violation of this mandatory statute.

The form and manner of taking depositions, usually under the guiding hand of an interested and biased partisan, the questions propounded to and the answers thereto of witnesses, unexplained, often give rise to doubtful construction, and the evidentiary facts, material and vital to the suit, being constantly before the jury in written form while they are considering their verdict, carrying great weight and probative force, are reasons within the contemplation of the statute why depositions should not be sent to the jury room during their deliberation. The depositions of witnesses are offered in evidence on the trial of a case on the same footing as oral testimony; the weight and probative force given such being for the determination of the jury. In the ease of Snow v. Starr, 75 Tex. 411, 417, 12 S. W. 673, 676, cited in the original opinion, Justice Gaines said: “The letter of the statute, and its obvious policy, both demanded that it should not be placed in possession of the jury while they were considering their verdict.”

Appellee introduced in evidence, by' oral testimony, that the truck in question had in large letters painted on its side “A. O. T. Bonded Transfer Company.” That, standing alone, evidently would not establish ownership of the truck. The deposition of W. H. England was introduced in evidence by ap-pellee for the purpose of showing that appellant was the owner of the truck involved in this suit, and the driver was in appellant’s employ at the time. Appellant introduced oral testimony that the truck involved did not belong to him, and that the driver of the truck, at the time, was not in his employ, and testified contradictory to his depositions. Thus we have the issues clearly drawn, contradicting and impeaching. The jury being the exclusive judges of the credibility of the witnesses and the weight and probative force to be given their testimony, appellant had a right to have his testimony considered and weighed in the manner contemplated by law. The jury had the deposition constantly before them while they were considering their verdict, to read, refer to, and consider, and refresh their memory during their deliberation. It gives to such testimony a pronouncement which the aggrieved party should not be required to suffer, and injury must necessarily follow.

In the ease of Franklin v. I. & G. N. Ry. Co. (Tex. Civ. App.) 174 S. W. 333, cited in the dissenting opinion by Associate Justice LOONEY, the court held that the matter there, complained of was not sufficiently material to require a reversal of the ease. The court permitted the jury, at their request, to have sent to their room a statement signed by Mrs. M. A. Hendricks and her daughter, Mrs. P. L. Hendricks, as to what they saw with reference to the injury. The statement had been proven up, and the jury had its contents, and no objection was made to such testimony. Evidently, the contents of the statement were not material, only cumulative upon other testimony. In the instant case, the facts disclosed by the depositions were material, controverting and impeaching oral testimony vital to appellee’s suit, and germane to the issues submitted to the jury.

In the case of Gonzales v. Flores (Tex. Civ. App.) 200 S. W. 851, 853, also cited in the dissenting opinion, the statement inadvertently sent into the jury room was written in Spanish. The record does not show the jury noticed or considered it, or that the jury understood the Spanish language. The facts disclosed in the instant case were testified to by other witnesses. The court said: “The only issue was that of value, and the only witness who testified as to value was plaintiff, and, his testimony corresponded to the values stated in the replevin bond and the verdict of the jury. Under the facts of this case we hold that the action of the jury in taking with them the lists of property testified from by plaintiff does not constitute such error as requires a reversal of the judgment.” The effect of the Spanish statement being inadvertently sent to the jury, in the absence of proof that they could and did read it, and considered it in their deliberation, clearly would show no injury. In the instant case, they evidently considered the depositions on an issue raised by the pleading and by the evidence.

From the record of this case, the importance of the testimony disclosed by the deposition on a material controverted issue, the weight and force the jury must have considered it, we are unable to conclude that appellant suffered no injury by permitting the deposition to go into the jury room while they were considering their verdict.

Appellee’s motion for rehearing is overruled.

LOONEY, J.

(dissenting).

When the case was decided, I had an impression that the court was in error in reversing and remanding the cause; the doubt then expressed is now a conviction that the holding of the majority, on the last question discussed in the opinion by Chief Justice JONES, is error.

The origin of the question is fully stated in the majority opinion; in short, it is this: One of the material issues involved was whether or not appellant owned the truck and had in his employ Mr. Arnold, who was' its driver at the time of the collisicm with and injury to appellee. On this issue appellant testified by deposition that he’ owned the truck and that Arnold (the driver) was employed by him at the time. This testimony was introduced in evidence by appellee; however, appellant, testifying in his own behalf at the trial, said in effect, that he did not own the truck, and that Arnold was not in his service at the time in question, thus producing a sharp conflict between his deposition testimony and that given at the trial.

During their deliberations, the jury made an oral request, communicated to the court by the bailiff, that appellant’s deposition be sent to the jury room; this request was complied with. The majority states the question presented thus: “Does the fact that the deposition of appellant was sent to the jury room, at the request of the jury, constitute reversible error?”

I think the provisions of both articles 2193 and 2199 are more or less involved, and that the action of the court in sending the deposition to the jury room, under the circumstances, was in disregard of provisions of both statutes. Article 2199 provides the procedure, where a disagreement arises as to evidence; it reads: “If the jury disagree as to the statement of any witness, they may, upon applying to the court, have such witness again brought upon the stand; and the judge shall direct him to repeat his testimony to the point in dispute,' and no other, and as nearly as he can in the language used on the trial; and on their notifying the court that they disagree as to any portion of a deposition or other paper not carried with them in their retirement, the court may, in like manner, permit such portion of said deposition or paper to be again read to the jury.”

The evident purpose, in authorizing the reproduction of testimony, is to aid the memory of jurors and compose disagreements that may arise as to either oral or deposition testimony. It is obvious that a disagreement arose in regard' to the deposition testimony of appellant, else the request communicated to the court through the bailiff would not have been made. The statute contemplates that, when this occurs, on proper request, the court may in open court permit such portion of the deposition involved in the disagreement to be again read to the jury; however, this procedure was not pursued in the instant case; instead, the deposition was sent to the jury room.

However, as the result of these irregular proceedings, the jury simply received and considered the previously read deposition testimony of appellant, the re-reading of which they had the legal right to request; in fact, it was their duty to request in the event of a disagreement, such as evidently existed at the time the request was made. It nowhere appears that ,any new, extraneous, or prejudicial fact reached the jury, in connection with the deposition, and nothing to justify a presumption, other than that the jury simply re-read appellant’s deposition testimony. Thus the question, denuded of every confusing fact or circumstance, is presented, whether these irregular proceedings, in the absence of a showing or suggestion of resultant injury, required reversal. I do not think so.

It has been repeatedly held that similar procedural errors were harmless. In Franklin v. I. & G. N. Ry. Co. (Tex. Civ. App.) 174 S. W. 333, the Austin court held that any error in permitting the jury to have a written statement made by a witness and her daughter, to a claim agent, as to what they saw when the injury under investigation was received, the witness on cross-examination having admitted its correctness, was harmless. In Gonzales v. Flores (Tex. Civ. App.) 200 S. W. 851, 853, the jury took out two original memoranda in Spanish, not in evidence, but from which plaintiff testified. The record failed to show that the jury understood the Spanish language, or considered the memoranda; the court held that harmful error was not shown. In Dunman v. South Texas Lbr. Co. (Tex. Civ. App.) 252 S. W. 274, 276, the jury were permitted to take out the verified account sued upon, after having been denied under oath by defendant. The Austin court said that this was error, but, in the absence of a showing of injury, did not justify reversal. Washington, etc., Co. v. Williams (Tex. Civ. App.) 33 S.W.(2d) 796, was an action on an accident policy. The Fort Worth court held that, no injury being shown, it was not reversible error to submit to the jury the pleadings of the parties. Writ was granted, and the case was reversed, but on other grounds. See (Tex. Com. App.) 49 S.W.(2d) 1093. In St. L., B. & M. Ry. Co. v. Lane (Tex. Civ. App.) 248 S. W. 59, 62, on request of the jury, the testimony of a witness on a certain point was read to them by the court reporter in the presence of the court and the parties; held not prejudicial. To the same effect, see, American Nat’l Bank v. Haggerton (Tex. Civ. App.) 250 S. W. 279.

In the absence of a showing or suggestion of injury, or of any fact or circumstance upon which a reasonable doubt as to injury could be predicated, I do not think the bare disregard of the statutes in question presents harmful error, therefore am of opinion that appellee’s motion for rehearing should have been granted, the former judgment of this court-set aside, and the judgment below affirmed.


author: JAOICSON, J.

text:
    FARMERS’ & MECHANICS’ TRUST CO. et al. v. PERRY et ux.
    No. 3940.
    Court of Civil Appeals of Texas. Amarillo.
    Jan. 11, 1933.
    Rehearing Denied Feb. 1, 1933.
    E. E. Diggs, of Childress, for appellants.
    Marshall & Perkins, of Quanah, for appel-lees.
   JAOICSON, J.

On October 17, 1930, the Farmers’ & Mechanics’ Trust Company, a corporation, obtained a valid judgment in the district court of Hardeman county against Elvin Perry for the sum of $1,140 with interest and costs, and on the same day had the judgment properly abstracted, indexed, and recorded in the office of the county clerk of said county.

Execution was issued on this judgment November 10, 1930, and returned nulla bona. An alias execution was issued on March 31, 1932, and placed in the hands of G. T. Hawkins, the sheriff of Hardeman county, who levied upon and advertised for sale the real estate involved in this controversy.'

April 26th thereafter, on the application of Elvin Perry and his wife, who alleged that the property levied on constituted a part of their homestead, Hon. W. N. Stokes, district judge, granted a temporary injunction restraining the Farmers’ & Mechanics’ Trust Company and G. T. Hawkins, the sheriff, from selling said property until, further order of the court. On May 14, 1932, the Farmers’ & Mechanics’ Trust Company and the sheriff answered, alleging the validity of the judgment, that it was unsatisfied, the issuance of the execution, its levy upon, and the advertisement of the property for sale, denied its homestead character, and asked that the temporary injunction be dissolved and the judgment lien foreclosed.

The court, without the intervention of a jury, rendered judgment perpetuating the injunction and denying a foreclosure of the judgment lien, from which action this appeal is prosecuted.

The appellants assail the judgment of the trial court because the evidence shows that appellees owned and occupied a homestead situated in the city of Quanah at the time appellee Elvin Perry inherited the land involved. Tliat the land so inherited was situated outside of the city and the judgment lien attached thereto and was superior to the homestead claim asserted by appellees.

The record discloses that the home of ap-pellees for fifteen years prior to May 5, 1931, was located within the corporate limits of the city of Quanah on block 131. On that date they conveyed their said homestead to O. W. Phillips in exchange for lots 6, 7, and S in block No. 289, which their deed described as located “in the town of Quanah.” They immediately moved to the premises so acquired, where they are still living.

The south boundary of the city of Quanah and the south boundary of section 50 is a common line with the north line of section 51, and lots 6, 7, and 8 in said block 289 are situated in section 51 just outside of the city limits and immediately north of the Paducah highway. The. part of said section 51 north of said highway and the land in controversy which is south of said highway were platted into lots and blocks in 1890. It is conceded that the territory south of the highway is all devoted to farming. The testimony shows that the land north of said highway and immediately east of lots 6, 7, and 8 is vacant' and used for pasturage purposes. That north of said highway and immediately west of said lots is a forty-acre farm and the nearest house on the west is a distance of a quarter of a mile. That the territory north of said lots for a distance of about a quarter of a mile is vacant, without either business or residence buildings.

Whether a homestead situated on or near the boundary of a town, is a rural or an urban homestead is generally a question of fact and only becomes a question of law when the facts and circumstances make its character so apparent that only one conclusion could be reached. Jones et ux. v. First National Bank of McAllen (Tex. Com. App.) 259 S. W. 157; Commerce Farm Credit Co. et al. v. Sayles et ux. (Tex. Civ. App.) 279 & W. 567, and authorities cited.

The facts above noted, together with the evidence tending to show that appellees used the residence on lots 6, 7, and 8 in connection with their farming operations on the land in controversy, authorized the court to determine that the character of such residence was rural rather than urban.

Appellants contend that because the record shows conclusively that Elvin Perry inherited the land from his mother, the judgment lien theretofore recorded attached and was superior to any homestead rights that appellees could acquire.

The recoi’d reveals that the land involved is a part of a tract acquired and used as a homestead by M. B. Perry in 1606. That M. B. Perry was the father of Elvin,. and conveyed the land to Ellen E. Perry, the mother of Elvin, in 1915. M. B. Perry died February 10, 1930, and Ellen E. died November 6, 1931. Elvin Perry was the only child of M. B. and Ellen, and the title to the property vested in him under the law of descent and distribution at the date of his mother’s death. That the residence occupied by ap-pellees on lots 6, 7, and 8 was about 100 feet north from the old farm dwelling which was destroyed by fire January 7, 1931. That Elvin had managed the farm since his father’s death; his mother was an invalid for some time prior to her death and resided with him at his residence on said lots. That he had cultivated all of the farm in 1930, rented out a portion of it in 1931 and 1932, and cultivated the balance thereof himself.

In Freiberg et al. v. Walzem, 85 Tex. 264, 20 S. W. 60, 61, 34 Am. St. Rep. 808, the Supreme Court says: “In view of the principles announced in those decisions, as well as the terms of the statute above cited, the counsel for the appellants contend that the lien of the appellants’ judgment attached to the land in dispute at the very moment it .was acquired, and before it became a homestead, and therefore it may be sold in satisfaction of the debt and lien. We do not concur in this view of the case. We are of the opinion that, under the disputed facts in evidence, as soon as appellee obtained the title to the property in question, it became immediately impressed with the homestead character, and therefore the judgment lien could not'and did not attach to it.”

In Young v. Hollingsworth (Tex. Civ. App.) 16 S.W.(2d) 844, 846, writ of error denied, Chief Justice Gallagher says:

“Intervener was the expectant heir to an ■ undivided one-ninth interest in her said land. Such expectancy was a present existing right and a proper subject of sale and conveyance prior to her death. Barre v. Daggett, 105 Tex. 572, 575, 153 S. W. 120; Hale v. Hollon, 90 Tex. 427, 429, 39 S. W. 287, 288, 36 L. R. A. 75, 59 Am. St. Rep. 819. He was also at the time of her death in actual possession of 50 acres of said land as a tenant of his mother or her- guardian and cultivating the same in .connection with his homestead. A party may claim as exempt premises occupied or used as a homestead, whether such occupancy is by virtue of ownership of the fee or a less estate, or as lessee or renter for a fixed term, or at will of the owners. American National Bank v. Cruger, 31 Tex. Civ. App. 17, 71 S. W. 784, 789 (writ refused); Birdwell v. Burleson, 31 Tex. Civ. App. 31, 72 S. W. 446, 448-450 (writ refused) and authorities there cited; Wheatley v. Griffin, 60 Tex. 209, 211, 212; Hutchenrider v. Smith (Tex. Com. App.) 242 S. W. 204, 206, 207; Grimes v. Cline (Tex. Civ. App.) 300 S. W. 235, 236, par. 1, and authorities there cited ; First National Bank v. Dismukes (Tex. Civ. App.) 241 S. W. 199, 200, par. 3; Standard Lumber & Mfg. Co. v. Looper (Tex. Civ. App.) 4 S.W.(2d) 180, 182, par. 1; Moore v. Graham, 29 Tex. Civ. App. 235, 69 S. W. 200, 201; Phillips v. Warner (Tex. App.) 16 S. W. 423, 424; Anheuser-Busch Brewing Ass’n v. Smith (Tex. Civ. App.) 26 S. W. 94.

“The homestead exemption may be claimed in property in which the party claiming the same has only an undivided interest. Such exemption will be continued and applied to the land ultimately set aside to such party in partition, whether any part of the land so set aside to him was actually used by him for homestead purposes prior to such partition. Luhn v. Stone, 65 Tex. 439, 441, 442; Clements v. Lacy, 51 Tex. 150, 161, 162; Brown v. McLennan, 60 Tex. 43, 44; Jenkins v. Volz, 54 Tex. 636, 639. Our courts have held consistently from an early day that property purchased for use as a homestead is exempt to such purchasei, notwithstanding there be judgment liens recorded against him at the time. The homestead character and attending right of exemption attaches in such cases simultaneously with the acquisition of the property, in preference to the judgment lien. Macmanus v. Campbell, 37 Tex. 267, 268; Freiberg, Klein & Co. v. Walzem, 85 Tex. 264, 265-267, 20 S. W. 60, 34 Am. St. Rep. 808; Gardner v. Douglass, 64 Tex. 76, 78-80; Jones v. Banning (Tex. Civ. App.) 201 S. W. 443, 444, par. 3 (writ refused) ; Ellis v. Light (Tex. Civ. App.) 73 S. W. 551, 553, 554 (writ refused); Wallis v. Wendler, 27 Tex. Civ. App. 235, 65 S. W. 43, 44, 45.”

These authorities, we think, under this record are conclusive against appellants, and the judgment is affirmed.


author: SMITH, J.

text:
    DEANE et al. v. DRISCOLL et al.
    No. 8950.
    Court of Civil Appeals of Texas. San Antonio.
    Jan. 4, 1933.
    Rehearing Denied Feb. 1, 1933.
    E. B. & Howell Ward, of Corpus Christi, for appellants.
    Russell Savage and Gordon Boone, both of Corpus Christi, for appellees.
   SMITH, J.

Miss Mildred Seaton owed Robert Driscoll and Clara Driscoll Sevier a debt of $74,840, evidenced by her promissory note and secured by her deed of trust upon real property in Nueces county, including certain lots numbered 5 and 6 in the city of Corpus Christi. The note and deed of trust were executed on January 2, 1920, to mature in five years.

Thereafter, on June 7, 1923, the said Mildred Seaton made her will in which she designated the said Robert Driscoll as independent executor of her estate (which she bequeathed in toto to her sister, Margaret Seaton), and upon her death testate on August 23, 1925, Driscoll qualified as such executor and assumed the administration of the estate.

It appears that prior to her death Mildred Seaton made a payment of $3,000 on said note, and that during his administration Driscoll credited on said note out of the proceeds of the estate the sums of $15,000 and $10,000. These several credits amounted to $28,000 and reduced the principal of the note to the sum of $46,840.

At this juncture, on December 26, 1928, the payees, Driscoll and Mrs. Sevier, the latter joined pro forma by her husband, brought this action against Driscoll, executor, and Margaret Seaton, sole devisee in the will, to recover upon the note in question, and to foreclose the deed of trust lien to secure same. Margaret Seaton married John N. L. Deane, who was joined in the suit, pro forma.

Pending trial of the suit Driscoll died, and the’ representatives of his estate were substituted as parties plaintiff,. and E. B„ Ward, having been appointed in the probate court as administrator de bonis non with will annexed of the estate of Mildred Seaton, was substituted as defendant in place of Driscoll, deceased.

In pursuance of a directed verdict, the trial court rendered judgment in favor of the plaintiffs against the defendants below for $70,716.70, with interest from date of the judgment, and for foreclosure of the deed of trust lien. E. B. Ward, administrator de bonis non, and Mrs. Margaret Seaton Deane and her husband have appealed.

It is conceded by appellees that the judgment is excessive in the amount of $5,250.56, for which they have filed remittitur in this court. It seems also to be certain, if not admitted by appellees, that the personal judgment against appellants was erroneous, and should be set aside. So is it conceded by ap-pellees that the judgment should have been rendered, not to operate directly upon appellants, but to certify the decree for observance and execution in the probate court in which the Seaton estate is being administered. In these respects, then, if in no other, the judgment appealed from must be revised.

The first major contention made by appellants in the appeal is that the dual position of Robert Driscoll, first as a lien holding creditor of the Seaton estate, and, second, as the executor of said estate, was so inconsistent as to put him to an election between the two positions, and that by qualifying as executor, and proceeding thereunder with the administration of the estate, he waived his lien and was thereby relegated to the rights of an unsecured creditor. Under this contention appellants present a somewhat intriguing argument; but we have concluded that the proposition should not be sustained. In this connection it appears that in her will the decedent, Mildred Seaton, empowered Dris-coll, as independent executor, to sell all the estate except certain lots 5 and 6, whereas, in the deed of trust given hy Miss Seaton to Driscoll and Mrs. Sevier to secure the note in controversy the trustee was expressly empowered to sell said lots 5 and 6, as well as certain other properties, to satisfy the debt thereby secured and evidenced by said note.

It is obvious that the testatrix did not regard the positions of Robert Driscoll as inconsistent, for she, herself, placed him in those positions, first, hy designating him, in her will, as independent executor of her estate, and, second, by giving him, in her deed of trust, the power of sale of her estate. By making him the independent executor of her estate free from the control of the probate court, she gave him the power to sell such of her estate as was necessary to pay her debts, notwithstanding the exclusion of lots 5 and- 0 from that power; and in the deed of trust she gave him the power to sell those parts of her estate covered by that instrument, including lots 5 and 6. It seems to us, without going into an extensive discussion of the question, that his duties in the two positions were concurrent rather than inconsistent, and that they could be co-ordinated into the general purpose of the testatrix to subject her estate to the payment of her just debts.

If it be true, as contended by appellants, that the restriction in the will against the power of sale of lots. 5 and 6 was or is effectual, then such restriction removes the one. point of conflict urged by appellants as affecting Driscoll’s position. By that restriction the testatrix intrusted to Driscoll the disposal of the whole of the estate, except lots 5 and 6, which she had previously set apart as security for the note involved. In thus disposing of her estate in her will she thereby reaffirmed her prior act, evidenced in her deed of trust, in setting apart and appropriating lots 5 and 6 to the satisfaction of her note, and thereby relieved her executor of the embarrassment of an election between the two positions in which she had placed him.

If it be so that the exclusion of lots 5 and 6 from the power of sale granted in the will ¡was effectual as contended by appellants, then such withholding of power relieved the executor of any embarrassment or inconsistency of duty, so that he could freely proceed as a creditor to subject those lots to the payment of his debt, without effecting even the semblance of a preference.

It appears that Robert Driscoll did not file his claim, herein asserted, with the probate court within six months, or at any time, after letters were issued therefrom to him as independent executor. Appellants contend that it was Driscoll’s duty to so file his claim, and that by reason of this failure the claim was barred, under the provisions of article 3526, R. S. 1925, as follows: “The provisions of this chapter respecting the presentations of claims against an estate shall not he construed to apply to any claim of the executor or administrator against his testator or intestate; but an executor or administrator holding such claim shall file the same in the court granting his letters, verified by affidavit as required in other cases, within six months after he has qualified, or such claim shall be barred.”

Appellees’ answer to this contention is that said provisions of article 3526 have no application to independent executors such as Dris-coll, who by the terms of his appointment was freed of the direction of the probate court, as provided in articles 33S9 and 3436, R. S. 1925. We are of the opinion that appellees’ position is well taken, for, since such executors alone have the power to allow or disallow claims, and the probate court has no authority to approve or disapprove them and any action it might take upon them would be futile and of no effect upon their validity, no purpose could- be served by requiring that such claims be filed in the probate court. If this view has not been expressly promu1gated by the authorities, it may well be implied from analogous holdings of our courts. Certainly there is no contrary decision. Simpkins, Adm. Est. pp. 111, 229; Pleasants v. Davidson, 34 Tex. 459; Roy v. Whitaker. 92 Tex. 346, 48 S. W. 892, 49 S. W. 367; Evans v. Taylor, 60 Tex. 422, 425; Smyth v. Caswell, 65 Tex. 379; Wilhelm's Est. v. Matthews (Tex. Civ. App.) 274 S. W. 251 (Writ Refused); Ewing v. Schultz (Tex. Civ. App.) 220 S. W. 625; Roberts v. Carlisle (Tex. Civ. App.) 4 S.W.(2d) 144; Moore v. Kirkman, 19 Wash. 605, 54 P. 24, 26. In support of their contention appellants cite Jackson v. Fielder (Tex. Civ. App.) 7 S.W.(2d) 170: Id. (Tex. Com. App.) 15 S.W.(2d) 557, as being the only case in which article 3526 is construed. That case is without value, however, since it concerns an administrator under bond, who was acting under the direction of a probate court, and not an independent executor without bond, and free from the direction of a probate court, as in this case. We overrule appellants’ contention discussed above, embraced in their fifth proposition of law. And these conclu- • sions have the effect of deciding the questions raised in appellants’ fourth and seventh propositions, which are overruled.

The note involved carried a provision that the amount thereof should bear annual interest, until paid, in the sum of $2,500, payable in quarterly installments of $625 each. Appellants defaulted in the interest payments so that the sum of the payments due at the time of judgment amounted to $17.500, and judgment was rendered that the amount of principal and interest should bear interest at the rate of 6 per cent., as provided by statute (Rev. St. 1925, art. 5072), from the date of thef judgment. Appellants contend that the provision for a flat rate of interest of $2,500 per annum should be resolved into a percentage, which would be 3.4 per cent., in order to avoid an usurious rate of interest when the principal should be reduced until the annual interest of $2,500 would exceed the maximum rate of 10 per cent. Appellants contend that this construction is authorized and demanded by the rule that such contracts should be construed so as to render them valid, if possible, rather than invalid. We conclude, however, that if appellants’ construction is correct, and the interest provision should be construed to pass at any juncture from a flat to a percentage basis in order to save the contract, it should so pass at the point at which the interest chargeable would become usurious if computed at the flat rate. Applying such construction, which, after all, is indeed a hazardous one in this case, and resolving this whole contention in favor of the validity of the contract and in support of the judgment, we overrule appellants’ propositions in which this question is raised.

Appellants assert that appellees’ claim was barred by limitation, upon several grounds, none of which are deemed tenable. We have already shown that the filing of the claim in the probate court was unnecessary, under article 3526, which did not apply for limitation purposes. The suit was filed against the independent executor within less than four years from the maturity of the note, which interrupted limitation, and limitation was not set in operation by the death of Driscoll, the independent executor, so as to require a refiling of the suit after the accession of Ward, the administrator de bonis non. The action against the independent executor did not abate at his death, but operated upon the administrator de bonis non without any other action except to substitute the latter as a party. Simpkins,' Adm. Est. p. 130; Parks v. Lubbock (Tex. Civ. App.) 50 S. W. 466.

In their twelfth proposition appellants contend that there was evidence to show that Driscoll improvidently administered the estate, entitling appellants to damages with which the balance due on the note may be set off. We overrule this contention. There is nothing in the pleadings or evidence tending to show that Driscoll acted in bad faith in any of the transactions involved. It may be that' a jury could have found that he used bad judgment, in view of the financial debacle into which the world has been thrust. But, who among all of us has not likewise erred? Such finding would not have released appellants from the debt sued on. The ques-. tion is raised in appellants’ ninth proposition, which is overruled. The eighth proposition, if not in substance the. same as the ninth, is not sufficiently briefed to invoke a ruling.

Appellants insist that attorney’s fees were not properly incurred in the case, but we overrule that contention. - Nor do we think this was a ease requiring Driscoll, as independent executor, to marshal the assets of the estate, and we overrule appellants’ propositions embracing that contention.

We have endeavored to give the appeal full consideration. We think that justice will be best served by revising the judgment to conform it to the remittitur filed by appellees, relieve appellants of the personal judgments against them, and affirm and certify the judgment so formed to the probate court for observance. It is so ordered.

Reformed and affirmed.