text:
    TEXAS & P. RY. CO. v. HANCOCK.
    No. 12779.
    Court of Civil Appeals of Texas. Fort Worth.
    Feb. 18, 1933.
    Rehearing Denied April 1, 1933.

      Cantcy, Hanger & McMahon, of Port Worth, and C. W. Trueheart, of Longview, for appellant.
    Jones & Jones, of Marshall, and R. E. Buck and J. H. Trickey, both of Fort Worth, for appellee.
   DUNKLIN, Justice.

The Texasl & Pacific Railway Company has appealed from a judgment in favor of J. I-I. Hancock for damages for personal injuries sustained by him alleged to have resulted from the negligence of one of defendant’s employees. The jury assessed plaintiff’s damages at the sum of $22,600, for which judgment was rendered, but later the court required a remittitur of $7,600 which was granted by plaintiff and the final judgment was for $15,000, the amount of the verdict less the remittitur.

Plaintiff was employed by the defendant as foreman and lineman in its telegraph and telephone department and was charged with the duty of constructing and maintaining telegraph and telephone lines used between stations in order to enable trainmen to keep in touch with' the train dispatchers who directed the movement of trains. The city of Alexandria, in the state of Louisiana, was plaintiff’s headquarters, from which he worked in different directions in performing the duties of his employment. He was furnished a hand car for that purpo.se, operated by an electric motor, and while returning from an easterly direction traveling in a westerly direction his motor car collided with an automobile driven by R. O. Wyatt who was engaged in the service of defendant as a civil engineer, and as a result of that collision plaintiff was thrown from his motor car and sustained injuries for which the recovery was awarded.

The place of the collision was in defendant’s yards about three miles from the city of Alexandria and at a point where the main line of defendant’s road on which plaintiff was traveling in his motor car was crossed by a highway on which Wyatt was traveling in his automobile at the time of the accident. Plaintiff was traveling in a westerly direction and Wyatt in a northerly direction. There were four railroad tracks at that point running east and west parallel with each other and approximately 13 feet apart; the main line, on which plaintiff was traveling, being the north track, and the highway, on which Wyatt was traveling, ran practically north and south and crossed all ■those tracks. As plaintiff approached the crossing a switch engine attached to two or three cars and engaged in switching operations was on the second switch track south of the main line and was obstructing the highway at its crossing of the switch track. Wyatt, who was south of that crossing, stopped his automobile on account of that obstruction ahead AC him but as soon as the switch engine moved off the crossing he started ahead- north and upon seeing the motor car approaching the highway -crossing of the main line he stopped his machine in order to let it pass, but at the time he made the stop the bumper of his automobile had already protruded over the south rail of the main line and before he could back the machine the collision occurred, resulting in plaintiff’s injury in the manner stated.

In answer to special issues the jury found that as Wyatt approached the place of collision he did not use ordinary care to keep a lookout for vehicles approaching on the track on which plaintiff was approaching and that failure was a proximate cause of the collision; that the rate of speed at which' Wyatt was driving his automobile at the place of the collision was negligence and such negligence was a proximate cause of the collision. Other issues submitted were as follows:

“4-a. Was the plaintiff negligent in attempting to cross the grade crossing at the time and under the circumstances immediately prior to this accident? Answer: No.
“4-e. Was such negligence, if any you have found in 4-a the sole proximate cause of the collision? Answer: No.
“5. Was the plaintiff using ordinary care to keep a lookout for vehicles approaching on the grade crossing from the south as he approached the point of collision? Answer: 3Tes.
“7. Was the rate of speed at which the plaintiff was operating the motor car as he approached the point of the collision, and just prior thereto, negligence? Answer: No.
“8-a. Was such negligence, if any you have found as inquired about in No. 7, the sole proximate cause of the collision? Answer: No.
“9. Was the plaintiff negligent in standing up on the motor car? Answer: No.
“10-a. Was such act as inquired about in No. 9 the sole proximate cause of the collision? Answer: No.
“11. Did the collision occur without any negligence on the part of either Wyatt or Hancock? Answer: No.
“12. What sum, if paid now in cash, do you find should be awarded to the plaintiff, if any at all, which will fairly and reasonably compensate him for the injuries sustained in this collision? Answer: $22,600.-00.
“13. An employee assumes the risk of injury from dangers obviously incident to the discharge of duties of his employment in the way -and manner in which such employee voluntarily performs the work of his employment, or is required by his contract to perform such work of his employment. He is not required to anticipate negligence of other employees unless he knows of the same and the dangers to himself therefrom in time, by the exercise of ordinary care on his part, to have avoided the injury, or should have known thereof by the exercise of ordinary care in time to have avoided being injured. Bearing in mind this instruction, please answer :
“Did Hancock assume the risk of the collision between his motor car and the automobile driven by Wyatt? Answer: No.”

The issues of negligence on the part of Wyatt, determined by the jury, were all presented in the plaintiffs pleadings and the issues of negligence on the part of plaintiff were duly presented in the defendant’s pleadings, both on the theory of contributory negligence and the theory of assumed risk, but with specific allegations of fact as a basis therefor rather than in the general terms in which those issues were submitted, as will appear in subsequent portions of this opinion.

Error has been assigned to the instruction given by the court in paragraph 13, copied above, as a guide to the determination of that issue, to the giving of which the defendant presented the following exceptions and objections before the same was read to the jury:

“Defendant excepts to the instructions of the court in connection with the submission of issue No. 13, because (a) that part of said instruction which reads ‘He is not required to anticipate negligence on the part of his employer’, raises a question not in issue under the evidence; (b) because said feature of the charge is a charge on the weight of the evidence; (c) because same charges a presumption not defined by statute; (d) because said .charge is abstract and misleading.”

Many decisions are cited to the effect that such a charge is not an explanation or definition within the meaning of the provisions of article 2189, Bev. Civ. Statutes, reading as follows: “In submitting special issues the court shall submit such explanations and definitions of legal terms as shall be necessary to enable the jury to properly pass upon and render a verdict on such issues.”

And further holding that a charge of that kind is clearly a general charge upon a special issue and is improper when the case is tried on special issues. Texas & P. Ry. Co. v. Perkins (Tex. Com. App.) 48 S.W.(2d) 249; Owens v. Improvement District, 115 Tex. 263, 280 S. W. 532; Diadone v. Houston Belt & Terminal R. Co. (Tex. Civ. App.) 26 S.W.(2d) 366; Besteiro v. Besteiro (Tex. Civ. App.) 18 S.W.(2d) 829. The giving of that instruction would be reversible error but for the fact that appellant’s right to complain of it was waived by the request made hy its counsel for the submission of the same issue with an instruction of a like general character, as shown by the following:

“Gentlemen of the Jury:
“Assumed risk is a term in a contract of employment expressed by the parties or implied by law from the circumstances of thS employment, by which the servant agrees that dangers of injury obviously incident to the discharge of the duties of the servant’s employment in the way and manner in which such servant voluntarily performs or executes the work of his employment, shall be at the servant’s risk.
“Bearing in mind the foregoing definition of assumed risk, you will please answer the following special issue:
“Did J. H. Hancock assume, under the, circumstances and conditions in evidence before you, the risk of the collision which occurred between the gas motor upon which he was riding, and the automobile which was operated by R. O. Wyatt? Answer 'yes’ or ‘no’.”

Appellant stresses that portion of the court’s instruction to the effect that an employee does not assume the risk of negligence of other employees unless he knows of the same, or could have known of it in time to have avoided the negligence which was not included in the requested instruction of defendant. The instruction so given by the court was a more comprehensive statement of the rule pertaining to assumed risk than that requested by the defendant, but we believe it clear that appellant cannot escape waiver of the right to object to the court’s instruction by reason of that difference. It is sufficient to say that appellant invited the error in the instruction because it was a general charge. S Texas Jurisprudence, pp. 1031-1036, inclusive.

Among other defenses the defendant pleaded specially that prior to the accident and while plaintiff was approaching the crossing in question he knew it was raining and sleeting and that the rails of the track upon which he was operating his motor car were covered with water and ice, and were slick and slippery, and that it would be exceedingly difficult to stop the motor car by the operation and use of the brakes with which it was equipped; that notwithstanding such prior knowledge plaintiff approached the crossing at a rate of speed of approximately 20 miles an hour over- the track in that condition and in so doing he was guilty of negligence, which was the sole proximate cause of his injury. It was further pleaded that by virtue of the same facts plaintiff assumed the risk of his injury.

' Plaintiff testified, in substance, that when he approached the crossing where the accident occurred he saw a switch engine with some cars attached obstructing the road crossing of switch track No. 2, which was approximately 26 feet south of the crossing where the accident occurred. That when he approached the crossing in question his motor car was running from 20 to 25 miles an hour; that there was sleet and rain on the rails of the track on which he was traveling; that when he approached the crossing he thought the switch engine on the switch track would hold the crossing on that track until he could get by the crossing ahead of him and he speeded up the motor car to get across; that when he was about 50 feet from the crossing it looked like an automobile dropped out of the back end of the locomotive, and when he saw the automobile in which Wyatt was riding he applied the, brakes of his motor car and began hollering, and when he got his motor cut off it seemed as if the wheels went to sliding and it was only a second or two until the collision.

R. O. Wyatt, who was driving the automobile, testified that in his opinion the motor car on which plaintiff was riding was running about 20 miles an hour at the time of the collision. N. H. McRoberts, who was on the back seat of the automobile, testified that he was able to estimate the speed of the motor car and that just prior to the time it struck the automobile it was running 20 or 25 miles an hour; that it was sliding and that it moved at practically the same speed after it began sliding.

Upon cross-examination plaintiff was asked the following question: “If you were traveling at a rate of speed at which you could have stopped your car, why didn’t you stop it and prevent the collision? Answer: On account of wet rails.”

To the giving of issue No. 7, shown above, appellant objected, on the ground that “such issue does not set out affirmatively the specific facts in such manner which would make up negligence, and is too general in its nature to afford a proper guide to the jury.” The court overruled that objection and also refused to submit to the jury defendant’s requested issue No. 4, reading as follows:

“Bearing in mind the definition of negligence given to you in this charge, you will answer the following question:
“ ‘Was the plaintiff guilty of negligence in operating said motor ear upon the wet and slippery rails or tracks at the rate of speed found by you in answer to a preceding question? Answer yes or no; Answer: -.’
“If you have answered the foregoing question ‘no’ then you need not answer the following question, but in the event you have answered the same ‘yes’ you will answer this question:
“ ‘Was such negligence on the part of plaintiff the sole proximate cause of the collision in question? Answer yes or no. Answer:
“In the event you have answered ‘yes’ to the foregoing question then you need not answer the following question, hut in the event you have answered same ‘no’ then you will answer, this question:
“ ‘Was such negligence on the part of the plaintiff a contributing cause to the collision in question? Answer yes or no. Answer

Issue No. 7, submitted by the court, was in general terms and would have authorized the jury to take into consideration all the facts and circumstances in evidence bearing on the question whether or not the rate of speed at which the plaintiff was operating the motor ear as he approached the point of collision and just prior thereto, was negligence; but did not specifically tell the jury that in answer to issue No. 7 they should take into consideration the wet and slippery rails on which the motor car was traveling, which, as noted, was specially pleaded by the defendant.

Under the well-established rule of decisions in many cases, notably Fox v. Dallas Hotel Co., 111 Tex. 461, 240 S. W. 517, each party to the suit has the right to an affirmative presentation of the facts constituting a right of action or defense thereto which have been pleaded and which are supported by proof; and we have reached the conclusion that it was the duty of the court to give the requested instruction or else to so word the language of issue No. 7 as to indicate that the jury in determining that issue should take into consideration the wet and slippery rails over which plaintiff was traveling in his motor car, since they could reasonably conclude that if the rails were wet and slippery then plaintiff in the exercise of ordinary care should have traveled at a slower speed in approaching the crossing in order to avoid collision with vehicles that might be traveling on the highway; and especially so since it was one of the rules promulgated by the railway company and of which plaintiff had knowledge, that he was required to slow down his speed before reaching a highway crossing. The following decisions, and others cited and referred to in the opinions we believe support this conclusion: Northern Texas Traction Co. v. Gilbert (Tex. Civ. App.) 282 S. W. 850; Texas & N. O. R. Co. v. Ewing (Tex. Civ. App.) 46 S.W.(2d) 398; Dallas Ry. & Terminal Co. v. Garrison (Tex. Com. App.) 45 S.W.(2d) 183; and numerous other decisions cited in the opinions in those eases.

The court gave this instruction: “The burden of proof is upon the plaintiff to establish by a preponderance of the evidence the following answers: ‘no’to No. 1; ‘yes’to 2, 3, 4; ‘no’ to No. 11, and the answer, if any, to No. 12. The burden of proof is upon the defendant to establish by a preponderance of the evidence the following answers: ‘yes’ to 4-a, 4-b, 4-o; ‘no’ to No. 5; ‘yes’ to 6, 7, 8, 8-a, 9, 10 and 10-a and b; but in making your answers you may consider all of the evidence allowed by the court for your consideration.”

Complaint is made of that portion of the instruction relating to the burden of proof placed on the defendant.

The objection urged to that instruction was that it virtually advised- the jury as to the legal effect of their answers on such issues. Several decisions are cited holding that when a case is tried on special issues, it is error for the court to give a general charge on the burden of proof on any one of the issues, the reason for such holding being that the jury would necessarily know whether the finding thereon would be favorable to one party or the other. Some of those authorities are Texas Employers’ Insurance Ass’n v. Adcock, 27 S.W.(2d) 363, by the Dallas Court of Civil Appeals, writ dismissed; Texas Indemnity Co. v. Davis, 32 S.W.(2d) 240, by the Amarillo Court of Civil Appeals, writ of error refused; Texas & Pacific R. Co. v. Bufkin, 19 S.W.(2d) 343, by the Eastland Court of Civil Appeals; Sunlite Co. v. Justice, 257 S. W. 579, by the Dallas Court of Civil Appeals, writ dismissed; Ford v. Couch, 16 S.W.(2d) 869, by the El Paso Court of Civil Appeals, writ dismissed; Wootton v. Jones (Tex. Civ. App.) 286 S. W. 680, writ dismissed. Upon those authorities w.e have reached the conclusion that the assignment of error now under discussion should be sustained. And in this connection we deem it proper to add that the question upon whom rests the burden of proof with respect to controverted issues of fact, is one of law to be determined by the court; the sole province of the jury being to determine those issues according to the preponderance of all the evidence bearing thereon. And when they are so instructed,, a further instruction, in general terms, that the burden of proof as to such issues is on the plaintiff or the defendant, as the case may be, besides indicating to the jury in whose favor their findings will result, is not only superfluous, but, as held in Texas & Pacific Ry. Co. v. Reed, 88 Tex. 439, 31 S. W. 1058, such an instruction in the absence of a further instruction — which, however, was given in this case — that all the evidence bearing on the same issue may be considered, is erroneous* since the jury may be impressed that the party on whom the burden is cast cannot be given the benefit of any evidence which he himself did not introduce. And in our opinion it would be better practice to omit any abstract statement of the rules of law with respect to the burden of proof.

Furthermore, in Federal Surety Co. v. Smith, 41 S.W.(2d) 210, 214, by the Commission of Appeals, it was held that the use of this language: “Do you find from the preponderance of the evidence,” in the beginning of a special issue is the proper method for presenting the burden of proof; and it is obvious that that method would avoid the possible objections indicatejd above. See, also, to the same effect, City of Waco v. Diamond (Tex. Civ. App.) 46 S.W.(2d) 1049.

Dr. Alden Coffey, introduced as a witness in behalf of defendant, testified that a few days before the trial he made a thorough examination .of the plaintiff to determine whether or not he had sustained the injury to his head of which he complained, and that there was nothing disclosed by that examination which would indicate that he had any permanent injury to the brain whatever. He further testified at great length .as to his reasons for the conclusions so reached. Thereafter, upon cross-examination by counsel for plaintiff, he was asked whether or not he recognized Dr. William Sharpe as an authority on “The Diagnosis and Treatment of Brain Injuries.” To that question Dr. Coffey stated that he was familiar with that book and recognized it as an authority on that subject. Thereupon counsel read excerpts from the book, over objection by defendant’s counsel, on the ground that it was hearsay, especially since the statements therein contained showed that the conclusions reached by the author were based largely upon the examination of the records of three large hospitals in New York City of patients there treated for acute brain injuries during a period of ten years.

In the case of Gulf, C. & S. F. R. Co. v. Farmer, 102 Tex. 235, 115 S. W. 260, opinion by Chief Justice Gaines, it was held that when a doctor has testified as an expert relative to personal injuries or diseases involved in the trial of a case he may, on cross-examination, be interrogated as to whether or not he recognizes a certain work as a standard authority on the same subject and if he gives an affirmative answer to that question, then excerpts from that work may be read to the jury, not as original evidence but solely for the purpose of discrediting the weight of the testimony of the witness. Upon the authority of that decision we overrule the assignment of error now under discussion. Of course, if defendant had so desired, the court doubtless would have instructed the jury that the excerpts so read from the book would be considered for no other purpose than to discredit the testimony given by Dr. Coffey.

Misconduct of the bailiff in charge of the jury while deliberating on their verdict was urged as a ground for a new trial; and upon the hearing of the motion several of the jurors and also the bailiff testified. According to the testimony of the jurors, after eleven members of that body had agreed that plaintiff’s damages should be assessed at $22,-600, the remaining juror stubbornly contended that the amount of damages should be fixed at $35,000; arguing in that connection that the jury should take into consideration plaintiff’s earnings. Following persistent efforts to induce him to agree to the sum already fixed by the eleven, the foreman rapped on the door for the bailiff who responded to the summons and at the instance of the foreman, went into the jury room,'leaving the door partly ajar. Thereupon the foreman inquired of the bailiff whether or not the jury was permitted to talk of plaintiff’s earnings; and the bailiff replied, “stick to your charge and stay away from personal affairs,” or words of similar import. The bailiff testified to going into the jury room when called by Mr. Gordon, the foreman, and further as follows: “He wanted to know if it would be permissible, I believe he said, to discuss — as well as I remember it, the earnings of Mr. Hancock (plaintiff)'. I told him that as long as they did not discuss their personal experiences and stayed with the charge, it would be all right; that is all I remember saying.”

Article 2195, Rev. Civ. Statutes, reads as follows: “The oflicer in charge of the jury shall not make nor permit any communication to be made to them, except to inquire if they have agreed upon a verdict, unless by order of the court; and he shall not before their verdict is rendered communicate to any person the state of their deliberations or the verdict agreed upon.”

Article 2197 provides that the jury may communicate with t.he court by making their wish known to the oflicer in charge.

Article 2198 provides: “After having retired, the jury may ask further instructions of the court touching any matter of law. Por this purpose they shall appear before the judge in open court in a body and through their foreman state to the court, either verbally or in writing, the particular question of law upon which they desire further instruction ; and the court shall give such instruction in writing, but no instruction shall be given except in conformity with the preceding rules and only upon the particular question on which it is asked.”

In Gerneth v. Galbraith-Foxworth Lumber Co., 38 S.W.(2d) 775, by the Commission of Appeals, a judgment of the trial court was reversed because the district judge who tried the case upon being told by the bailiff that the jury wished to communicate with him, went into the jury room and there communicated with the jury behind closed doors, remaining therein two or three minutes, all of which occurred in the absence of counsel engaged in the trial of the case. The court held that such action was in violation of the provisions of articles 2194 to 2198, and was therefore reversible error regardless of the question whether or not injury resulted therefrom to the losing party. Of like effect is the decision of the Coutt of Criminal Appeals in John Lee v. State, 56 S.W.(2d) 453, rendered January 4, 1933 and not yet published [in State Report].

We have reached the conclusion that the public policy upon which those decisions were based applies with equal force here and that the communication of the bailiff to the jury, shown above, constitutes reversible error, regardless of whether or not- appellant was prejudiced thereby.

For the errors pointed out, the judgment of the trial court is reversed and the cause is remanded.

LATTIMORE, J., not sitting.


source: Caselaw Access Project

author: O’QUINN, Justice.

license: Public Domain

text:
    KATCSMORAK v. FORREST et al.
    No. 2364.
    Court of Civil Appeals of Texas. Beaumont.
    March 23, 1933.
    Carl Hollingsworth, of Pleasanton, for appellant.
    H. L. Forest, of San Antonio, and R. R. Smith, of Jourdanton, for appellees.
   O’QUINN, Justice.

Appellant filed this suit on March 2, 1931, against John Forrest and his wife, Louella Forrest, H. L. Forrest and Maggie Forrest, his wife, and D. D. Forrest, to recover upon three vendor’s lien notes, praying for judgment against appellee John Forrest for the amount of the notes, and for foreclosure of the vendor’s lien against all of the appellees.

Appellees answered by general demurrer, and by special demurrer that appellant’s petition showed upon its face that the cause of action asserted by him was barred by the four-year statute of limitation. They further answered by general denial, and specially that appellant’s cause of action was barred by the four-year statute of limitation both as to the debt asserted and the lien to secure the payment of same. They further specially answered under oath that the extension of -the dates of payment of notes Nos. 2 and 3, as pleaded by appellant, of date May 19, 1920, purporting to extend the maturity dates of said notes and lien to certain dates in'1921 and 1922; that the last figures “1” and “2” in said dates were forgeries by alteration; that is, that said figures were without the knowledge or consent of appellees placed in said instrument after its execution and after it was placed of record. Other defenses were pleaded which we do not deem necessary to state.

By trial amendment appellant pleaded es-toppel against the defenses urged by appellee H. L. Forrest and his wife, Maggie Forrest, to the effect that they were in privity with their codefendants John and Louella Forrest and had full knowledge of and had been instrumental in the execution of and had agr.eed to the several extensions of said notes.

To this trial amendment appellees replied by sworn denial' of each and every allegation of same.

The case was tried to the court without a jury, and judgment rendered in favor of appellant against appellee John Forrest for the amount due on the notes, but denied a foreclosure of the lien. From this judgment plaintiff brings this appeal.

There is no brief for appellees. Neither is there any findings of fact by the court, or any statement of facts in the record.

We learn from appellant’s brief that in 1906, J. M. Rogers conveyed to John Forrest 100 acres of land in Atascosa county, Tex., and received as part payment therefor the three vendor lien notes in question. In 1911 'Rogers sold and by written transfer assigned said notes and lien to D. G-. Williams. In 1915, while John Forrest was still the owner of the record title to said land, he, joined by his wife, Louella Forrest, executed an extension of the time for payment of the notes, which wa? duly placed of record.

In 1917, John Forrest and wife, Louella Forrest, conveyed the land to their two sons, H. L. Forrest and D. D. Forrest, who assumed payment of the notes. This deed was duly recorded. In 1919, Williams sold and by written transfer assigned the notes and lien to appellant, Tom Katcsmorak.

In 1920, John Forrest and his wife, Lonella Forrest, executed another extension of the time for the payment of said notes, in favor of appellant, Katcsmorak. H. D. Forrest, and his wife and D. D. Forrest and his wife did not join in this extension. The original extension here mentioned showed note No. 1 extended to December 29, 1920, and note No. 2 extended to December 29, 1921, and note No. 8 extended to December 29, 1922. The last figure (1) in 1921, and the last figure (2) m 1922, were written in pencil. The deed record where the extension was recorded showed the extension to be as follows: Note No. 1 extended to December 29, 1920; note No. 2 extended to December 29,192 — ; and note No. 3 extended to December 29, 192 — .

In 1924, D. D. Forrest conveyed his interest in the land to H. L. Forrest.

In 1925 and 1930, John Forrest and his wife, Douella Forrest, executed other extensions of the time for the payment of the notes. Neither I-I. L. Forrest, his wife, nor D. D. Forrest and his wife, joined in any of these extensions.. The maturity date in the last extension for the payment of the amount of the notes and interest was January 1, 1931. At that date the notes were not paid and appellant filed this suit to enforce payment and for foreclosure of the lien.

The trial court held that, when the extension was executed by John Forrest and wife in 1925, the notes were all barred by the four-year statute of limitation (Rev. St. 1925, art. 5527). It appears that he concluded that note No. 1 was more than four years past due, and that limitation against notes Nos. 2 and 3 began to run immediately after the 1920 execution of extension, this because the record of such extension did not show any due date, being 193 — , and, therefore, these notes were more than four years past due. The court further held that the maker of the notes, John Forrest, and his wife, Louella Forrest, could not in 1925 execute a valid extension of the time for payment of the notes and thus keep alive the lien, unless the then owners of the land, H. L. Forrest and his wife, joined in the execution of such extension. It is not contended that they joined in any of the extensions, and so the court held that the lien was lost, and that only a personal judgment against John Forrest should be rendered, and which was rendered.

There is no contention that note No. 1 was not barred, but it is contended that, if the extension of 1920 did extend the- maturity date of note No. 2 to December 29, 1921, and that of note No. 3 to December 29, 1922, then same were not barred when the extension of 1925 was executed.

Appellant’s first assignment asserts that the court erred in holding that the extension of 1920, as recorded, prevailed over the extension as shown by the original, there being a difference therein as to when notes Nos. 2 and 3 should become due.

Appellees by sworn plea challenged the extended maturity dates showing in pencil in the original instrument as not contained in the original when executed, acknowledged, and recorded, but that said maturity dates had been written therein since the instrument was executed and recorded. This was denied by appellant. Whether the dates shown in pencil in the original were in said instrument when it was executed and acknowledged and recorded, or whether said dates were left in blank, as shown by the recorded instrument, was a question of fact, and the court, after hearing the evidence, found that the dates were left blank as shown by the record. We must presume there was sufficient evidence to support the finding. The assignment is overruled.

We find nothing in the record to support the assignment that the court errdd in not sustaining appellant’s plea of estoppel against appellees H. L. and Maggie Forrest’s plea of limitation. The question of estoppel was one of fact, and it must be presumed that the evidence adduced was sufficient to support the court’s finding against said plea. This assignment is overruled.

The judgment should be affirmed, and it is so ordered.

Affirmed,


author: LEVY, Justice

text:
    TEXAS CERTIFIED COTTONSEED BREEDERS’ ASS’N v. ALDRIDGE.

    No. 4431.
    Court of Civil Appeals of Texas. Texarkana.
    March 8, 1933.
    Rehearing Denied March 16, 1933.

      O. K. Bullard, of Dallas, for appellant.
    Clark, Harrell & Clark, of Greenville, for appellee.

       -For opinion reversing judgment, see 61 S.w.(2d) —~. writ of error granted.

   LEVY, Justice

(after stating the case as above).

The point arising in the facts of the case and presented on the appeal for decision is that of whether or not the appellant asso-eiation can resort to the personal responsibility of the appellee for the $1 per bushel advanced on his cottonseed on January 30, 1931. In order to properly measure the liabilities of the parties, it is necessary, first, to determine their relationship, whether it be that of seller and buyer or of sales agency. The marketing contract in evidence has apt words of sale and of a present transfer of exclusive possession and absolute title of the cottonseed, for the price stated, after the deductions named are made.. It is believed that it is in operation and effect a contract of purchase and sale, and not of agency. Texas Farm Bureau Cotton Ass'n v. Stovall, 113 Tex. 273, 253 S. W. 1101. In this conclusion the 11,916 bushels of certified cottonseed which the appellee constructively delivered by warehouse receipt to the association must be regarded as legally belonging to the association in exclusive ownership.

The marketing contract expressly provides that, after delivery of the cottonseed to the association, the association might pledge the interests of each breeder as security for the money to be borrowed for “advances or partial payments” which might be made by the association upon the cottonseed so delivered. The contract does not specify that the advance when made shall be deducted or repaid from the receipts on resale of the cottonseed by the association. Consequently, if the advance so made should be deemed as intended as an absolute partial payment of that proportion of the price of' the cottonseed, then, as is evident, the association, suing in assumpsit, could not predicate a liability against the breeder for a deficiency if the property proves insufficient to reimburse the association for its advances. And neither could the breeder as a member of the association be held personally liable to make good any deficiency or balance of the debt for money- borrowed and owing the bank at Houston by the association, although the association be a co-operative association of nonprofit and without capital stock. The promise of the association to pay the bank of Houston is the personal covenant of the association only. Article 5750 of the Revised Statutes expressly provides that no member of the association “Shall be liable, for the debts of the association” except in the special instances enumerated. But it is thought properly construing the terms of the contract it may not be reasonably determined that the parties contemplated that the advance so made by the association was to be regarded as an absolute and unconditional partial payment on! the purchase price without expectation of reimbursement for any deficiency or balance if the property proves insufficient. The purchase price payable by the association was not in the nature of a fixed and determined debt at the time of the advance. The contract provision had the sole object in view to allow the breeder to realize in ad-vanee of the resale some portion of the price of his cottonseed. The term “advance” in its ordinary use indicates money paid before or in advance of the proper time of payment. It may be taken therefore as reasonable to suppose that it was in the contemplation of the parties that the association was to be reimbursed out of the resale of the cottonseed upon which the advances were made. The situation is similar to advances made by factors and commission merchants. 19 Tex. Jur. § 14, p. 533.

The advance having been made primarily against the money which will be due to the breeder upon the resale of his cottonseed in pool, the association must first have recourse to the fund derived from the resale. But the association’s claim to reimbursement does not depend entirely upon the proceeds of the resale of the cottonseed, there being no special contract to that effect. So that, if the money from the resale of the cottonseed in pool should prove insufficient to fully reimburse the association for its advances, the law, in the absence of any agreement to the contrary, would imply an undertaking on the part of each breeder, severally but not jointly, to make up the deficiency as to him. “Assumpsit,” 5 Tex. Jur. p. 151; 5 C. J. p. 1380; 2 Elliott on Contracts, § 1374, p. 622.

The particular circumstances appearing in the case have the effect, it is believed, of a complete defense against a deficiency judgment on the advance made -by the association to the appellee. After the delivery of the cottonseed to the association and before the resale in any pool, the appellee’s cottonseed was destroyed by fire. At the time of the fire the cottonseed was in a separate warehouse and had not lost identity by being commingled with the cottonseed of the other breeders. The association carried fire insurance on the cottonseed and collected -the insurance .money on appellee’s cottonseed, “on the basis of $1.75 per bushel, the agreed insurance value.” It clearly appeal’s that the amount realized as indemnity for the loss of the property against which the advancei was made is a sum largely in excess of such advance. It would follow, therefore, that, if the association must first have recourse for reimbursement out of the insurance money, then the evidence furnishes no foundation for the present action of the association. The loss of the cottonseed by fire made it impossible for the association to make resale of it in pools and to pay over to appellee his proportion of the net proceeds. The loss by fire entirely eliminated such cottonseed from the pool. A pooling of the cottonseed of each breeder with those of the other breeders with actual sale was the requirement under the contract in order for each breeder to be beneficially interested in the fund derived through the average price per pound paid for all cottonseed delivered to the association for resale. The breeder whose cottonseed might be destroyed by fire and consequently eliminated from the sale in pool could have no expectancy or interest in the net proceeds of sale in pool. Each breeder was liable for advances severally and not jointly. The loss by fire, though, would not operate to relieve the association of paying the purchase price of the cottonseed, whether measured by the market value at time of loss by fire or at time they might have been sold in pools. It is a settled rule that, in the absence of agreement, the risk of loss as between buyer and seller must be borne by the party who has title to the property at the time the loss occurs. 55 O. J. § 60S, p. 597. The insurance money representing the value of the cottonseed at the time of the fire, as appears in the facts, the appellee would as against the association and as against the other breeders have a beneficial interest therein. While the overhead charges and premium for insurance were proportionally charged against the different breeders, yet the marketing contract does not provide for the pooling of the insurance collected from the loss of any lot of the cottonseed. The insurance was taken out by the association as owner of the cottonseed in protection of its liability to the' particular breeder in case the association has disabled itself through loss by fire from pooling the particular cottonseed and paying over the proceeds of the sale, as contracted to do. It strongly appears that the association must first have recourse for reimbursement) to the insurance fund in its hands before being entitled to a deficiency judgment.

The judgment is affirmed.


text:
    HOLT et al. v. HOLT.
    No. 4311.
    Court of Civil Appeals of Texas. Texarkana.
    March 31, 1933.
    Rehearing Denied April 6, 1933.

      Pollard, Beauchamp, Lawrence & Lux, of Tyler, for plaintiffs in error.
    P. O. Beard, of Marshall, Stone, Strickland & Oaves, of Henderson, and Riley Strickland, of Longview, for defendant in error.
   LEVY, Justice

(after stating the case as above).

The point presented for decision is that of whether or not in the facts shown there was error in giving a peremptory instruction to the jury to return a verdict against the plaintiffs in error. It was conclusively shown that in 1924 there was duly entered a judgment of revivor which restored to its original force by statutory proceeding a judgment rendered in 1914 foreclosing a vendor’s lien and ordering that the land be sold at public auction by judicial sale, and that the proceeds be applied in payment of the amount determined to be due. It was upon the original conveyance of the land in suit and as security for the agreed purchase price thereof left unpaid that the grantee gave the grantor an express lien which was foreclosed in the judgment in 1914. It was expressly agreed by the parties that the judgment of revivor entered in 1924 “is a valid and' subsisting judgment,” and that “there is no attack on said judgment in any particular.” The children of Lillie Holt, deceased, were made parties to the proceedings of revivor, and the decree of foreclosure is binding upon all the .parties thereto. This being so, then on the issue of title the plaintiffs’ title must be deemed imperfect and their right of entry into possession of the land would be, too. In this state, where the purchase money is left unpaid upon the conveyance of the land, the vendor holds and retains the legal title, and the purchaser cannot prejudice that title except the very obligation on his part which the retention of such title was intended to secure, which is by pay-, ing the purchase price according to the terms of the contract. Nass v. Chadwick, 70 Tex. 157, 7 S. W. 828; and other cases. The judgment in 1914 of foreclosure of the vendor’s lien and the judgment of revivor in 1924 in legal effect and operation becomes conclusive as an adjudication that Mrs. Ida Holt still retains and holds the superior legal title and that the purchase price has not been paid by the purchasers, and would be conclusive of the right of possession as between the parties. Article 2219. Neither the original purchaser nor his heirs can dispute the title while the purchase money remains unpaid. Henry v. Thomas (Tex. Civ. App.) 74 S. W. 599.

A vendor may, in the first instance* by provision of the statute, obtain both a personal judgment against the purchaser and a foreclosure of the lien for the unpaid purchase money. Article 2218. This right to a personal judgment applies only where the defendant is originally or by assumption personally liable for the debt. Spence v. Morris (Tex. Civ. App.) 28 S. W. 405; Rawles v. Perkey, 50 Tex. 311; Houston v. Dickson, 66 Tex. 81, 1 S. W. 375, 376; Kynard v. Tucker (Tex. Civ. App.) 171 S. W. 1086. The two remedies are concurrent and cumulative, the one in personam against the purchaser, the other in rem to subject the land to its payment. As to children of Lillie 1-Iolt, deceased, foreclosure was purely an action in rem; they being not personally liable for the purchase money. The decree of foreclosure was binding upon the children, as they were made parties to the proceedings to revive. Rowland v. Harris (Tex. Civ. App.) 34 S. W. 295. In such situation the plaintiffs, or any one of them, may not in the facts predicate the right of superior interest or claim in the land through void judicial sale under the judgment of revivor. In the facts proven Abe Holt, the defendant in the execution, was given personal notice of the time of the sale, and there was compliance with the statute as to him. He was the only one in the proceeding against whom a personal judgment was rendered for the enforcement of the debt or demand, to which the lien was an incident. And he was the only one the execution was required to show against whom it issued. The sale, therefore, would place the absolute title, legal and equitable, in Mrs. Ida Holt, the purchaser under the sale. But assume the notices of sale were insufficient, yet the fact of failure of such notice of and by itself would not operate to make the sale void and of no legal force or effect. In this state two notices of a sale are réquired to be given, one to the public and the other to the defendant in execution. Article 3S08. The failure to give the defendant the notice does not by the terms of the statute make the sale void. Bean v. City of Brownwood, 91 Tex. 684, 45 S. W. 897. Hence the sheriff’s deed under such sale would be a sufficient deed to support limitation of five years’ adverse possession by Mrs. Ida Holt. As proven, she held the land for full five years before the filing of this suit. As determined in Barrett v. Crump (Tex. Civ. App.) 15 S.W.(2d) 672, article 5518, staying the running of limitation against persons under disability, exempts only married women under twenty-one years of age.

Although on the issue of title the plaintiffs may not predicate absolute title against Mrs. Ida Holt, yet there arises the question to be determined of whether or not revisory proceedings would lie to vacate the •sale under the execution. A party interested in a sale, and conceiving himself to be injured hy some defect or irregularity with which it is connected, may seek to have it vacated. 'The party, though seeking the vacation of the «execution sale, cannot postpone proceeding •beyond the time the statute of limitation interposes a positive bar to the maintenance of a suit to vacate a sale. The law disfavors unnecessary delay in proceeding to avoid judicial sales. The time within which the suit may be brought to vacate has, we think, been •definitely decided. The statute of four years’ limitation, as provided in article 5529, has been held applicable. Chicago, T. & M. C. Ry. Co. v. Titterington, 84 Tex. 218, 19 S. W. 472, 31 Am. St. Rep. 39. As a result, Abe Holt and his two children not married would be barred of remedy; the defendant pleading, as she did, the statute of limitation. This article of limitation, however, does not run against a married woman, as in the status of Tennessee Gilstrap and Ophelia White. Deaton v. Rush, 113 Tex. 176, 252 S. W. 1025. They found their right to set aside the sale upon the ground upon the gross inadequacy of price connected with the additional circumstance of failure to serve them with personal notice.

Courts hesitate to declare that inadequacy of price will of itself justify the vacation of an execution or judicial sale. Authorities of the various states are numerous declaring in general terms that a sale will not be vacated for mere inadequacy of price. Baker v. Clepper, 26 Tex. 629, 84 Am. Dec. 591; Smith v. Perkins, 81 Tex. 152, 16 S. W. 805, 26 Am. St. Rep. 794; Pridgen v. Adkins, 25 Tex. 388, and other cases. It is only where the inadequacy is connected with or the result of misconduct or irregularity that the sale may be vacated. Chamblee v. Tarbox, 27 Tex. 140, 84 Am. Dec. 614; Schmidt v. Burnett (Tex. Civ. App.) 23 S. W. 228; and other cases. It is believed a ground does not appear in the record justifying the court to set aside the sale on the application of these two parties named. There is no statute giving them the right to redeem the property from sale under the foreclosure of the vendor’s, lien. Where there is no statute or contract the court cannot decree it. They were not required to be served with personal notice of the sale, for there was no personal judgment in anywise against them. Sells v. White (Tex. Civ. App.) 175 S. W. 1079. Therefore that fact cannot be relied on as conclusive to inadequate price. And the evidence is affirmative and definite that a fair market value of the land was realized from the sale. While there is some evidence going to show a-higher value of lands, such circumstance alone may not be deemed sufficient to set aside the sale for unfairness in conduct or gross inadequacy of price to raise the presumption of fraud or as bringing about injury to the parties named.

The trial judge has very correctly ruled in the case, and the judgment is affirmed.


author: CONNER, Chief Justice.

text:
    CARSON et ux. v. TEXAS PIPE LINE CO.
    No. 12737.
    Court of Civil Appeals of Texas. Fort Worth.
    Nov. 19, 1932.
    Rehearing Denied March 4, 1933.

      E. W. Napier, of Wichita Falls, for plaintiffs in error.
    Weeks, Morrow & Francis, of Wichita Falls, and Seay, Seay, Malone & Lipscomb, of Dallas, for defendant in error.
   CONNER, Chief Justice.

This suit was instituted by H. E. Carson and wife against the Texas Pipe Line Company for damages resulting from personal injuries sustained by Mrs. Carson by being struck and run down by a truck operated by one of defendant's servants on a public highway in Archer county on the 20th day of October, 1930.

At the time Mr. and Mrs. Carson were traveling in an easterly direction, as was also the truck in, question. Mrs. Carson was riding with her husband, father-in-law, and mother-in-law, the father-in-law driving. He stopped the car on the side of the road, as the testimony of plaintiffs tended to show, with the right wheels of the car on the shoulder next to the paved highway and with the left wheels several feet on the pavement. Mrs. Carson alighted from the car and was in the act of crossing the paved highway in an effort to reach her home, situated on the other side, when the defendant’s truck ran her down, and she was injured in the particulars described in her petition.

The case was submitted to a jury on special issues, in answer to which the jury found that neither the brakes nor the horn on! defendant’s truck was in good working order; that the drived of the truck failed to sound the horn and failed to keep a lookout for persons and vehicles on the highway as he approached. The failures so found were further severally found to constitute negligence on the part of the defendant which proximately resulted in the injuries for which the plaintiffs sued; and their damages were assessed in the sum of $4,500.

The defendant requested the submission of some fifty special issues, of which ten were refused and forty given. Among those given as requested, we find the following:

No. 6. “Was the failure upon the part of Mrs. Carson to look in the direction from which Pasley’s ear was coming at the time she stepped from beyond the Carson car on the paved road negligence?” To which the jury answered “Yes,” and further answered that such negligence was the contributing and concurring proximate cause of the accident. .

Special issue No. 25 was as follows: “Do you find, from a preponderance of the evidence that the plaintiff, Mrs. H. E. Carson, on the occasion in question, permitted her attention to be distracted by responding to a call from some person in the parked automobile at a time when she knew, or by the exercise of ordinary care should have known, that she was exposed to the danger of being struck by other vehicles on said highway?’” To which the jury answered “Yes,” and further that such conduct was a contributing and concurring proximate cause of the accident.

•Special issue No. 32 was as follows: “Do you find from a preponderance of the evidence that the plaintiff, Mrs. H. E. Carson, failed to keep that lookout for her own safety which a person of ordinary prudence would have kept under the same circumstances?” To which the jury answered “Yes,” and further that such conduct was a contributing and’ concurring proximate cause of the! accident.

In passing, we note that special issue No. 6 assumed that Mrs. Carson failed to look in the direction from which the truck was coming, whereas she testified without apparent contradiction that she in fact did look before stepping on the paved street and saw no car coming, and in substance that, when but a few feet on the paved street, she hesitated a moment in answer to a call from the car. However, we make no rulings upon the matters so far suggested, inasmuch as no-assignments of error are presented which attack the form, manner, or number of special: issues submitted to the jury; the only assignment of error presented for oiir consideration being one which complains of the action of the court in overruling the plaintiffs’ motion for new trial, based on the misconduct of the jury. In support of this ground for a new trial, the plaintiff presented 9 of the 11 jurors who tried the case; it being agreed that the two not presented would testify substantially as did the 9. As showing the general trend and effect of the testimony» we quote therefrom as follows:

“Q. Mr. Tabor, after the jury had determined issues 1 to 12 in the court’s main-charge, those issues relating to the neglect of the defendant, and the defendant’s driver and the one that relates to the amount;, after you had determined those did you not. begin discussing the issues relating to the-neglect, or the negligence of Mrs. Carson, and. Mrs. Carson’s father, tell the jury whether there were statements made to the jury, or by the jury in the jury, room that those issues were not material and would not affeefc-the verdict either way? A. Yes, sir.
“Q. Did you believe that? A. Yes, I did'.
“Q. If you had not believed that statement, was true would you have answered those issues as you did against the plaintiff? A» No, sir; I would not.”

Juror Wingo testified as follows:

•‘Q. Wien it was talked in tie jury room tiat it was immaterial about tiose issues, you believed tiat? A. Yes, sir.
“Q. And then it was discussed tiat since you bad put in so mucb time already tiat you would just burry through and answer tiose just in a way to get through with them? A. Yes, sir.
“Q. And you did tiat and believed that they were immaterial? A. Yes, sir.
“Q. If you had known tiat they were material, or would affect your verdict in any manner, would you have answered them against tie plaintiff, as you did? A. Well, really I did not know that it was against her at tie time.
“Q. You did not think tiat it was? A. No, sir.
“Q. But if you had known it. you would not have answered them against the plaintiff, is that your testimony? A. Yes, tiat is my testimony.
“Q. Now, when you got down to these issues of the defendant’s here, affecting the conduct of Mrs. Carson, you did not think that they were material, ánd you just answered those any way to get through? A. Yes, sir. We were tired of waiting and taking up so much time and some of them said it was just immaterial about that — said tiat it would not make any difference and so we agreed and just went ahead and hurried, to kind of get through.
“Q. And you did not consider the evidence then, in answering those issues? A. No sir, we did not think tiat they would amount to so very much.”

The juror Talley testified as follows:

“Q. After you heard that discussion, did you assume that that was true, that it did not make any difference how you answered those issues? A. I believed that it was true.
‘¾. Did you answer those issues according to the evidence or did you answer them just to get through — thinking that they would not be material any way? A. I thought that .the case was decided when we answered those others.
“Q. You did not consider the evidence in answering those issues? A. No, sir.
“Q. Did you answer them just so that you could get through? A. Get through, that was about the last ones I think we answered.”

The juror Powers testified as follows:

“Q. One or more jurors stated in the jury room, during the deliberations there, that it did not make any difference about those issues? A. That we had answered the main charges and found $4,600.00.
■ “Q. Now, when you heard that discussion, did you believe that it would not make any difference how you answered those issues? A. Yes, I did not think that it would make any difference how we answered those issues.
“Q. And you went ahead then and answered the issues without regard to the evidence, and just to get through, is that right? A. Yes sir, to get through with it. We did not think that it would make any difference and we just did not regard the evidence much, and just answered them and signed it up.
“Q. You did not think that it would make any difference and you did not regard the evidence? You just answered them and signed it up in order to get through? A. Yes sir.”

The juror Johnson testified as follows:

“Q. Then it was your idea that Mrs. Oar-son nor her faither-in-láw were not at fault? A. It was our idea—
“Q. Yes, is that .your idea that they were not at fault, and that the fault lay with! the defendant? A. Yes, that is right in this way ; I felt that she was guilty of negligence because she was there, more so than, I was.
“Q. Because she happened to be there on the road? A. That is the way I figured she was contributing because she was there and I was not.
“Q. And then the same thing would apply in all cases, if a person crosses the road, the fact that they were crossing the road) or not in a proper manner, whether in a proper-manner or not, according to the idea you had in the jury room that would be the contributing cause, that was the idea was it, the fact that she crossed the road? A. Yes, if she was not there he could not have hit her.
“Q. If she was not there he could not have hit her? A. Yes, sir.
“Q. It was your idea, in awarding her damages that she said were due her? A. Yes.
“Q. You felt that she was entitled to it? A. Yes.
“Q. That would compensate her for her injuries because you felt the defendant was át fault? A Yes, sir.
“Q. That was your idea? A. Yes, sir.
“Q. And if you had known that the statement with reference to immateriality of the issues affecting her negligence were not correct would you have answered it as you did, would you have found her guilty of contributory negligence if you had known that would have affected her recovery? A. No, sir, I would not.
“Q. Then those statements did influence you to some extent? A. Yes, I would say they did on some questions.
“Q. And on some of the questions you mean by that those that contradict your putting the responsibility on her? A. Yes.
“Q. Because you did not feel like the responsibility was on her? A. No, I did not.
“Q. And you felt like' it was upon the defendant or its employee? A. Yes, sir.”

Defendant seeks to avoid the force of the testimony such as we have quoted by testimony developed on a vigorous cross-examination of the jurors. It would unduly extend this opinion to quote all that seems to be relied upon. It has been examined, however, and in our judgment it fails to relieve the probability of error and prejudice to the cause of plaintiff, resulting from the conduct and attitude of the jury in the consideration of the case. However, as illustrating the force of the testimony on cross-examination developed by appellee, we venture to quote the following from the cross-examination:

“Q. Mr. Milford, as I understand you. it was your desire to find in favor of the plaintiff, Mrs. Carson, is that correct? A. Yes, sir.
“Q. And that when you answered the questions in the court’s main charge, and gave $4500, you figured that you had found for her? A. Yes sir.
“Q. Now then, you heard me argue the case, did you not — you remember me arguing the case? A. Yes sir.
“Q. You remember me taking up each of these issues, a great many of these special issues and reading them to you and discussing them at length? A. Yes sir.
“Q. Now, when you came around to eonsid‘er these special issues, and by special issues I mean those that were not in the court’s main charge, you say that you figured that you had already found for the plaintiff, and that it would really be immaterial how you answered those issues? A. Yes sir.
“Q. But in answering them, some of them you answered, some of them favorable to the plaintiff and some favorable to the defendant —now, you tried to answer them the best that you could from the evidence, didn’t you? A. Well, guess that we did. * * *
“Q. In other words, you knew what answers you were making. All the jurors knew what answers they were making? A. Yes sir.”

On cross-examination of juror A. 0. Harris, he was asked how the jury went about making their verdict, and he answered:

“To tell you the truth, there was so much arguing going on, that I do not know just how it all did come about.
“Q. You figured however it was about 80% Mr. Pasley’s (the driver of the car) fault, and 20% hers. A. That is the way that we figured it; some were 70 — some were as low as 60; we taken another vote and we decided it would be about 80 and 20.
“Q. About 80% Pasley’s fault and about 20% her fault? A. Yes sir.
“Q. And then some said 60% his and 40%' hers? A. Yes; and some said 70 and 30. I think that there was one that had it 90 and 10, something like that.
“Q. And then you discussed it and took another vote? A. We discussed it and took another vote and all voted SO and 20.
“Q. And that is the way that it finally stood? A. Yes sir.
“Q. How long were you engaged in answering those special issues, that you were asked? A. Well, will say that we were about two-thirds of a day.
“Q. You answered the court’s main charge then pretty quick? A. Yes sir. * * *
“Q. At any rate, each one of these special issues of the defendant, you read them over did you not, Mr. Harris? A. I suppose they were read over one thousand times in there, most every one of them.
“Q. And of course now in determining whether it was an avoidable accident or unavoidable accident, or whether that car was parked on the highway or off the highway, you did not have any way to answer that except by what testimony told you, did you? A. No sir.
“Q. In other words, you did not just shut your eyes and answer the question? A. No sir, we tried not to.
“Q. You stated awhile ago, in answer to Judge Napier, that you figured that it was immaterial in a way — what did you mean by ‘in a way’? A. Well, in a way, that we just figured the first twelve for the evidence and we did not know anything about the last ones, so that we would just go ahead and answer them.”

Erom the testimony of juror Tabor on cross-examination we quote the following:

“ * * ⅜ Q. You read them (requested issues) over, did not you? A. Yes.
“Q. And discussed them after they were read over? A. Yes.
“Q. And then you discussed the evidence as applied to them, didn’t you? A. Yes, we read them over.
“Q. You made the best answers you could from the evidence before you, isn’t that correct? A. Some of them we did not understand, and we did not think it made any difference.
“Q. Which ones was it you did not understand? A. Two or three of them.
“Q. At any rate in trying to answer then) you did not just pitch heads and tails and say we will answer this one yes, and this one no —you did not just shut your eyes and answer them like that — you considered the evidence the best you could, you tried to answer them for the benefit of the Judge? A. Yes, the best we could, I guess.
“Q. You did not have anything to answer them from except the evidence, did you? A. We did not understand some of them. * * ⅞
“Q. Now, who was it that made the statement that it would not make any difference anyway? A. I don’t know; possibly all of us; I heard it two or three times.
“Q. Did you make that statement? A. I don’t know, I might have. * * *
“Q. You just got to discussing it and you concluded that it would not make any 'difference? A. Would not make any difference, did .not think?
“Q. Sir? A. Would not make any difference.”

Defendant also offered the following from the testimony of juror Johnson on cross-examination:

“Q. Do you mean to tell the court that you would have answered these questions differently from the way you did answer them if you thought it was necessary to find for the ■lady? A. Yes, I would have.
“Q. Notwithstanding the evidence showed that you would have answered differently in ■order to have found for her? A. Yes.
“Q. But in answering them you did not realize the effect it would have upon her? A. No.
“Q. You did undertake to give the answers in that two hours time the best you could under the evidence? A. Yes.”

As heretofore stated, we do not think the ■evidence on cross-examination relieves the probability of error prejudicial to appellants, as shown by the testimony of the jurors on examination in chief.

In the case of Moore v. Ivey, 277 S. W. 106, by Section A of our Commission of Appeals, in an opinion especially approved by our Supreme Court, it was held that if, upon a consideration of the whole of the pertinent record, it is reasonably doubtful whether improper conduct of the jury affected the .amount of the verdict or decision of any other material issue, the verdict should be set aside hy the trial judge; and, if a new trial is not .granted, there is an abuse of discretion by .the trial judge, and a reversal becomes the duty of the appellate court; and further, when misconduct of the jury is once shown, and there is a reasonable doubt as to its effect, that doubt must be resolved against the verdict. The verdict must be set aside if, upon a material issue, a juror be influenced at all by misconduct, and the extent is immaterial.

It must certainly be held, we think, that the misconduct of the jury as shown by the substantially uniform testimony of its members constitutes misconduct as defined by our cases. There is no contention that the evidence shows without dispute that Mrs. Oar-son was guilty of contributory negligence in any of the particulars alleged or shown in the verdict of the jury, or even that the evidence is sufficient to support the findings in such particulars, yet the findings are used to defeat the right of a recovery which the unquestioned findings in her favor entitled her. Hence it is all-important to her that the defensive issues of contributory negligence bo carefully considered and determined in her favor unless established to the contrary by a preponderance of the evidence, uninfluenced by impatience, hurry, or supposed want of materiality or injury to rights to which the jury believed she was entitled.

The case of Mann v. Cook (Tex. Civ. App.) 11 S.W.(2d) 572, is one similar to this, in which the subject of misconduct of the jury was considered carefully in an opinion by Mr. Justice Dunklin. In that opinion numerous authorities relating to the subject are cited and discussed and it was held, quoting from the headnotes, that: “In action for injuries in automobile collision, misconduct of jury in not thoroughly considering issue of contributory negligence, because of belief in statement, made in jury room, that finding of such negligence would not preclude recovery, held to require reversal of judgment for defendants, and new trial, under Rev. St. 1925, arts. 2232 and 2234, notwithstanding implied finding that such misconduct did not operate to prejudice of plaintiffs.” See, also, the cases of Southern Traction Co. v. Wilson (Tex. Com. App.) 254 S. W. 1104, 1105; Taylor v. Alexander (Tex. Civ. App.) 34 S.W.(2d) 903.

We conclude that the court erred in refusing to grant appellant’s motion for rehearing, and that the judgment should be re-, versed and the cause remanded.

On another trial we suggest that, as now presented, the evidence shows that the father-in-law of Mrs. Carson was driving the automobile from which she departed, and defendant’s special issue No. 3 authorized a finding on contributory negligence on the part of Mrs. Carson if the “Carsons” parked their automobile on the paved dr improved portion of the highway. This was erroneous in the absence of testimony showing that the negligence, if any, of the father-in-law in so doing was imputable to Mrs. Carson. Also, as before stated, the requested special issue No. 6 assumes that Mrs. Carson failed to look in the direction of the approaching truck, whereas she testified that she in fact did look after alighting from the car, though perhaps she did not so look after having stepped on the highway and answered to a call from the occupants of her car. We think the question was for the jury without an assumption, and that the errors indicated in these special charges at least should be corrected on another trial..

We wish to further say that it seems inferable that there cannot be as many as fifty or even forty ultimate issues of fact in a simple case of a collision on a highway. A request for that number takes unnecessary time and increases the probability of confusion of mind and mistake on tbe part of tbe judge in tbe burry óf tbe trial, and of hurry, impatience, and want of careful consideration on tbe part of tbe jury, thus causing a departure from a straight line to a just conclusion and a consequent necessity for another trial. We wish to discourage such practice, which all too frequently appears, and to that end all costs in this case since tbe institution of tbe suit, both in this court and in the court below, are taxed against appellee.


author: HALL, Chief Justice.

text:
    HOUCK et al. v. McDONALD.
    No. 4000.
    Court of Civil Appeals of Texas. Amarillo.
    April 5, 1933.
    Rehearing Denied April 26, 1933.
    James O. Cade, of Amarillo, for appellants.
    W. S. Birge, of Amarillo, for appellee.
   HALL, Chief Justice.

McDonald sued J. W. and W. H. Houck to recover the value of an automobile which plaintiff alleges was destroyed by the act of defendants’ driver in running into plaintiff’s car on the public highway at 6:30 o’clock in the morning. McDonald alleges that he had stopped his car on the edge of the highway for the purpose of assisting a third party in getting the latter’s car out of the ditch, that he left the lights burning on his car, and that the defendants’ chauffeur driving their truck negligently ran into plaintiff’s car and utterly demolished it.

The defendants answered, alleging that their “truck was driving in a we«jcerly direction on the highway * * * that as defendants’ driver drove defendants’ car past the lights of said parked car, said driver of defendants’ car discovered that the Hudson car belonging to plaintiff was located on said highway,” etc. It is further alleged “the defendants further show to the Court that their driver was driving at a reasonable rate of speed,” etc. By cross-action they sought to recover of McDonald damages to their truck in the sum of $586.33.

The case was submitted to a jury, and resulted in a judgment in favor of plaintiff and against both of the Houcks, jointly and severally, in the sum of $260. From this judgment the Houcks have appealed.

They insist that the court erred in not directing a verdict in their favor and in rendering a judgment against them, for the reason that there was no evidence offered showing any liability whatsoever against them.

It must be admitted that the evidence is insufficient to entitle McDonald to recover. He seeks to hold the defendants liable for the negligence of the driver of their truck. The rule is well settled, as stated by Jackson, Justice, of this court, in McCoy v. Beach-Wittman Co., 22 S.W.(2d) 714, 716, as follows: “The liability of the master in cases of this kind is to be determined by the application of the general principles of the law of master and servant. In such cases the burden is upon the plaintiff seeking to hold the master for an injury inflicted by the servant to ‘show that the servant did the wrong while acting within the scope of his employment,’ and the act (of driving the automobile in this instance) ‘must be done in furtherance of the master’s business and for the accomplishment of the object for which the servant is employed.’ ”

While it is true that one party need not prove facts admitted in pleading by the opposite party [7 Tex. Jur. 576; Southland Lumber Co. v. Boyd (Tex. Com. App.) 244 S. W. 119; Fidelity Casualty Co. v. Koonce (Tex. Civ. App.) 51 S.W.(2d) 777], the pleadings, of the defendants in this case nowhere admit that the driver of their truck wrecked McDonald’s car while in the.'performance of his duties to them as a servant. So far as the evidence shows, Otis Gilbert, the driver of defendants' truck at the time of the accident, may have been going to Hereford on a mission of his own.

In his brief appellee states that the suit was brought against the Houcks “alleging them to be doing business as partners under the firm or trade name of Amarillo Baking Company.” This is doubtless the allegation in the original petition, which is not in the transcript. The case was tried upon McDonald’s first amended original petition, in which there is no such allegation. The filing of the amendment without the fact of partnership being alleged and the further allegation that the defendants were doing business under the firm name of Amarillo Baking Company constitutes an abandonment of such allegations. Rockhold v. Lucky Tiger Oil Co. (Tex. Civ. App.) 4 S.W.(2d) 1046. In the absence of such allegations, it was not necessary for the defendants, under R. S. art. 2010, subd. 6, to deny the fact of partnership.

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


author: SELLERS, Justice.

text:
    TEXAS LIFE INS. CO. v. CORK.

    No. 4297.
    Court of Civil Appeals of Texas. Texarkana.
    March 2, 1933.
    Rehearing Denied March 23, 1933.
    Ivyle Vick, of Waco, for appellant.
    J. W. Chandler, Jr., of Rusk, for appellee.

      Writ of error granted.

   SELLERS, Justice.

Frances Cork as plaintiff brought this suit in the trial court against defendant, Texas Life Insurance Company, to recover upon a certain policy of insurance issued upon the life of William Cork. The policy was issued on November 17, 1927, for the sum of $1,000, and provided for an annual premium of $75.01 to be paid in advance. The plaintiff in this action was made beneficiary in the policy. William Cork, the insured, died May 21, 1931. The case was tried before the court without the aid of a jury, and the court entered judgment for the plaintiff for the full amount of the policy less two annual premiums and interest on each for a period of one year at 6 per cent., which premiums had not been paid by the insured at the time of his death; the amount due plaintiff on the policy being $840.86. The court also allowed the plaintiff the statutory penalty and interest, and entered judgment in the plaintiff’s favor for the total.sum of $957.93. To this judgment the defendant excepted and has duly prosecutéd this appeal.

The question presented on this appeal is to determine whether this policy was in force on the date of the death' of the insured. Bearing upon this question are certain provisions of the policy and also a provision of a premium note which was given for the third annual premium, the first and second premiums having been paid. The provisions in the policy deemed material are as follows:

“Conditions Regarding Payment of Premiums.' All premiums are payable in advance at the Home Office of the Company in Waco, Texas, or to an authorized agent of the Company upon delivery of a receipt signed by the President or Secretary and countersigned by the authorized agent. If any premium is not paid on the date when due this policy shall he null and void, except as hereinafter provided. Notice of any and all premiums due are given and accepted by the delivery and acceptance of this policy and no notice of the due date of a premium shall be considered a precedence or waiver of any provision of this policy, no matter how often repeated. A grace period of one month is allowed for the payment of any premium! after the first, but if death occurs during the period of grace the unpaid premium shall be deducted from the amount payable.
“Cash Loans. At any time after the second policy year and while this policy is in full force, the insured can borrow from the Company on the sole security of this policy, properly assigned to and endorsed by the Company, any sum within the loan value specified in the table below, from which loan value any indebtedness on the policy and any unpaid premiums for the current policy year will first be deducted. The Company shall furnish the form for the assignment required hereunder and upon completion of the loan will return the policy to the insured. Interest, at a rate of six per cent per annum, will be collected out of the amount of the loan to the end of the current policy year and is thereafter payable annually in advance. Failure to repay any such loan, or to pay interest thereon, shall not avoid this policy unless the total indebtedness thereon to the Company shall equal or exceed its loan value.
“Automatic Premium-Loan, Non-Forfeiture. If at any time after the expiration of the second policy year, if all premiums have then been duly paid, any premium or installment thereof is not paid within the time allowed for its payment the Company unless otherwise instructed by the insured in writing, will forthwith advance the amount of such premium, or installment thereof, with interest thereon at the rate of six per cent per annum payable in advance out of the loan value then available under the policy, provided the total indebtedness to the- Company on account of this policy, if any, at the'time and any interest that might be due thereon, together -with such advance shall not exceed the total loan value then available. While the policy is thus continued in force the insured shall retain all rights and privileges granted by its terms as if the amounts so advanced were paid by the insured in cash and may resume payment of premiums at any time without compliance with the conditions pertaining to reinstatement. The insured may, at any time, repay such advance or any other indebtedness on the policy but failure to do so shall not avoid the policy until the total indebtedness thereon shall equal or exceed the loan value, in which case this policy shall automatically cease and determine.

The note involved was a straight promissory note, and was given November 17, 1929, for the third annual premium, and was due October 17, 1930. This note contained the following provision:

“That although the annual premium due on the 17th day of Nov. 1929, on Policy No. 49950 has not been paid, the insurance thereunder shall be continued in force until midnight of the due date of this note; that if this note is paid on or before that date it becomes due, and there is no other indebtedness on account of the premium, such payment will then be accepted by the. Company as payment of said premium, and all rights under said policy shall thereupon be the same as if said premium had been paid when duo: that if this note is not paid on or before the day it becomes due, said policy shall be deemed to have ceased and determined on the date when said premium was due and all rights to extended or paid-up insurance shall be for the term and amount secured by said policy on and from the day when said premium became due; but, nevertheless, the maker of this note shall be personally liable to the Company for a sum equal to one-half- of the principal of this note. Said' sum to be duo and immediately collectible as compensation for the rights and privileges hereby granted and as the earned premium for the insurance granted from maturity of said premium to the maturity of this note (or at the pleasure of the Company said sum, with interest at 6 per cent, may be treated as indebtedness on account of the policy to reduce any of its benefits in accordance with the terms of the policy); and the' payment to or collection by said Company of said sum shall not revive said policy or any of its provisions.”

The appellant insists that the $7S loan value provided in the policy for the second year was not available to the insured under the automatic premium loan provision of the policy for the payment of the third annual premium for the reason that under the provision of the policy the premiums were payable in advance, and, since the automatic loan provision did not ap-piy until the second policy year had expired, the amount of the loan for the second year could not be applied to the payment of the third annual premium. We do not entertain this view. It is true that the premiums were payable in advance, but the policy also provided for a thirty-day grace period in which the premium might be paid, and, in our opinion, the automatic premium loan provision could not apply until the grace period had expired, and then, had the premium not been otherwise arranged for, it would have become the duty of appellant to advance the loan value to the payment of the third annual premium or as much thereof as the loan value would pay for, because at the end of the grace period the second policy year certainly had ended and under no circumstances could this policy be forfeited until all the loan value provided for in the policy had been applied to the payment of future premiums. The clause contained in the automatic premium loan provision, “If at any time after the expiration of the second policy year, if all premiums have been duly paid,” means the premiums due for the first and second years, and does not include the third annual premium which is due in advance.

However, the third annual premium was taken care of, at least temporarily, by the note given by the insured, which was due, as before stated, on October 17,1930. If this note had been paid there would have, of course, been no contention about the third annual premium not having been paid, but the note was not paid at maturity, and we are therefore called upon to determine what effect this note had upon the payment of the third annual premium. The note provides that, if it is not paid by maturity the policy “will be deemed to have ceased and determined on the date when said premium was. due and all rights to extended or paid-up insurance shall be for- the term and amount secured by said policy on and from the day when said premium becomes due.” Of course, this provision in the note could not forfeit the policy until the $78 loan value had been applied to the payment of future premiums. The question then is, How long will this loan value continue the policy in force? It will be noted from the quoted provision of the note that the company retained the note as a valid obligation against the insured to the amount of one-half its face value, or $37.50½. “Said sum to be due. and immediately collectible as compensation for the rights and privileges hereby granted and as the earned premium for the insurance granted from the maturity of said premium to the maturity of this note.” The appellant by accepting this note thereby agreed that if the note was not paid by maturity to retain it for one-half the third annual premium and it would then only be necessary for the appellant to use from the loan value of the policy $37.50½ with interest at 6 per cent, on this amount for one year to finish paying the third annual premium. It will readily be seen that the automatic loan value for the second policy year is considerably in excess of the amount .necessary to pay the balance of the third annual premium. If we are correct in our interpretation of the provisions of the policy and note, the third annual premium due on the policy was fully paid, and we are brought to the beginning of the fourth policy year with a new automatic loan value year for the third policy year of $119 available for the payment of the fourth annual premium. Of course there must first be deducted from this loan value the amount which was applied to the payment of the third annual premium with interest at the rate of 6 per cent, per annum for another policy year. When this is done, it will be found that there remains in the automatic loan value almost enough to pay the fourth annual premium and interest; at least it is a great deal more than necessary to pay the premium to May 21, 1931, which is the date the insured died.

We would not be correct in our foregoing conclusions if the company had a right to charge the note involved against the loan value provided for in the policy, but this court has held that, under contracts of insurance with like provisions, this could not be done, notwithstanding the note so provided. Amicable Life Ins. Co. v. White (Tex. Civ. App.) 38 S.W.(2d) 860; Pacific Mutual Life Ins. Co. of Calif, v. Merritt B. Thurman, Jr. (Tex. Civ. App.) 55 S.W.(2d) 1079. But even if it should be held that the company had a right to charge the note against the loan value so provided ,for in the policy, the evidence shows clearly in this case that the note involved was never so charged by the appellant, and therefore this question is immaterial on this appeal.

We are of the opinion that the policy of iri-surance sued upon was in force on the date of the insured’s death, and that the court did not err in entering judgment for the ap-pellee.

The- judgment of the trial court is affirmed.