text:
    PETERSON & TVRDIK v. MUELLER-HUBER GRAIN CO.
    No. 2345.
    Court of Civil Appeals of Texas. Beaumont.
    March 23, 1933.
    Rehearing Denied March 29, 1933.

      Gaines, Gaines & Roberts, of San Antonio, and S. C. Cappel, of El Campo, for appellants.
    Douglas & Black and E. B. Craig, all of San Antonio, for appellee.
   WALKER, Chief Justice.

This suit was filed in county court at law No. 1 of Bexar county on April 7, 1931, and was an action by appellees, Mueller-Huber Grain Company, a copartnership, against appellants, Peterson & Tvrdik, a copartnership, who, on the allegations of the petition, had their residence and place of business in Wharton county, to recover against them the sum of $915 as damages for breach of contract to deliver a certain shipment of hay. The appearance day for this case was May 4, 1931. No answer was filed by appellants, nor did they in any other way make their appearance herein. On May 6, 1931, appellees recovered judgment by default against appellants for the sum of $915 principal, and $32.-02 interest, which contained the following recitations of fact: “On this, the 6th day of May, 1931, came on to be heard the above-styled and numbered cause, wherein Henry Mueller and F. W. Huber, composing the partnership of Mueller-Huber Grain Company, are plaintiffs, and A. W. Peterson and Prank J. Tvrdik, composing the partnership of Peterson & Tvrdik, are defendants, and came plaintiffs by their attorney and announced ready for trial, and said defendants, though both were duly served with process, appeared not and answered not, but wholly made default.”

On the 30th day of June, A. D. 1931, appellants filed their motion for new trial, alleging that on the 24th day of April, 1931, they employed an attorney to file for them a plea of privilege in this case; that the plea was duly prepared and executed by them, but was not filed “through an oversight” on the part of the attorney. This was the only excuse alleged for the failure of the attorney or appellants to file their plea of privilege. It was further alleged that the “oversight” was not discovered until the 19th of June, 1931; that appellants had a meritorious defense (contract pleaded by appellees was not made by appellants), and the other essential allegations were alleged in the motion. The motion was overruled on the 2d day of July, and that term of court adjourned on the 3d day of July, 1931.

Opinion.

Under article 2278, R. S. 1925, unless the pleadings or the judgment show an appearance of defendant, in person or by attorney, the citation and the return thereon must be copied into the transcript, and these primary essentials cannot be supplied by the fact recital in the judgment that the defendant was duly served with citation. Where tlie record fails affirmatively to show jurisdiction of the person of the defendant, a judgment by default, on direct appeal, is fundamentally erroneous. In this case the transcript does not contain the citation referred to by the court in its judgment, nor the return on the citation; nor is there in the record an agreement by the parties to omit the citation and its return from the transcript; nor does the record otherwise show service of citation upon appellants in time to confer jurisdiction upon the court to render this judgment; nor does the record show their appearance in the trial court nor waiver by them of citation. On this statement of the facts it follows that the judgment of the lower court must be reversed, and the cause remanded for a new trial. Gilles v. Miners’ Bank of Cartersville (Tex. Civ. App.) 184 S. W. 284; McMickle v. Texarkana National Bank, 4 Tex. Civ. App. 210, 23 S. W. 428; Steger v. May (Tex. Civ. App.) 202 S. W. 989; Rhodes v. Coats (Tex. Civ. App.) 215 S. W. 470; DeProy v. Progakis (Tex. Civ. App.) 259 S. W. 620; Bonner Oil Co. v. Gaines (Tex. Civ. App.) 179 S. W. 686; Daugherty v. Powell (Tex. Civ. App.) 139 S. W. 625; Bilby v. Rodgers, 58 Tex. Civ. App. 432, 125 S. W. 616; Mayhew & Co. v. Harrell, 57 Tex. Civ. App. 509, 122 S. W. 957; Shook v. Laufer (Tex. Civ. App.) 84 S. W. 277, 278; Gulf, B. & K. C. Railroad Co. v. Eastham (Tex. Civ. App.) 54 S. W. 648; Broun v. Hayslip (Tex. Civ. App.) 283 S. W. 177, and authorities therein cited.

In what we have said we have not overlooked a statement in appellants’ brief to the effect that they had been served with citation. If this statement by them should be binding upon us on the issue of service, yet they make no statement, nor does it otherwise appear in the record that they were served in time to confer jurisdiction upon the trial court to enter the default judgment against them. In Lester v. First State Bank (Tex. Civ. App.) 139 S. W. 661, it was not only held that a default judgment would be reversed on appeal where the record fails to show service of citation or an appearance by the defendant, but it was also held that the judgment would be reversed where the record, while showing service of citation, fails to show the- date of such service. That appellant filed motion for new trial, excepted to the judgment, and gave notice of appeal, did not constitute an appearance or waiver of service, within the provisions of article 2278. Llano Improvement, etc. v. Watkins, 4 Tex. Civ. App. 428, 23 S. W. 612; Rhodes v. Coats (Tex. Civ. App.) 215 S. W. 470; Hable v. Owens (Tex. Civ. App.) 271 S. W. 131.

The error discussed was neither assigned nor briefed by appellants, but is reviewed by us as a proposition of fundamental error, apparent upon the face of the record, called to our attention by appellees’ following proposition: “Although the citation does not appear in the record herein, the default judgment of the trial court in appellees’ favor recites due service of process upon both appellants, which fact implies service at least ten days, exclusive of the day of service, pri- or to such appearance day, or sometime between April 7, 1931, when suit was filed, and April 23, 1931, which was the last day for service of process for such term, being ten days prior to appearance day. No complaint is made by appellants, however, of improper service.”

Appellees’ proposition is not sound, since the adjudicated cases clearly hold, as we have stated above, that no presumption of service arises from the mere recitation of service in a default judgment.

It follows that the judgment of the lower court should be reversed, and the cause remanded for a new trial, and it is accordingly so ordered.


source: Caselaw Access Project

author: HIGGINS, Justice.

license: Public Domain

text:
    LOCK v. REED et al.
    No. 2806.
    Court of Civil Appeals of Texas. El Paso.
    March 30, 1933.
    W. B. Silliman, of Port Stockton, for appellant.

      Turney, Burges, Oulwell & Pollard, of El Paso, and R. D. Blaydes, of Port Stockton, for appellees.
   HIGGINS, Justice.

Appellant Lock brought tkis suit against Ben Reed and Pacific National Agricultural Credit Corporation to recover for pasturage of certain cattle at the rate of 50 cents a month per head from June 12, 1931, and to foreclose an agister’s lien securing the payment of the amount sued for.

The cattle in question were mortgaged by Reed to said corporation on February 5, 1931. The mortgage was duly registered February 24,1931. At the date of the mortgage the cattle were located three miles north of Fort Stockton in Pecos county. On June 12, 1931, Reed moved the same to appellant’s ranch 12 miles west of Fort ¡Stockton in said county for pasturage. There they have remained until the filing of this suit on June 9, 1932, except that on April 23, 1932, about 60 head were seized under a writ of sequestration, issued at the instance of said corporation in foreclosure proceedings, and moved to another pasture.

The cattle were placed upon Lock’s ranch .under a parol pasturage contract between Reed and Lock.

Upon trial appellant recovered judgment against Reed for $1,270, and it was decreed that he take nothing against said corporation.

The decree does not grant foreclosure of the agister’s lien against Reed, and by implication such relief was denied.

The decree in favor of said corporation was based upon an instructed verdict.

Lock appeals asserting that his agister’s lien is entitled to priority over the mortgage of the corporation, and, in any event, he was entitled to foreclosure of his lien subject to the mortgage.

Opinion.

It is settled that the mortgage lien is entitled to priority unless the mortgagee has waived such priority or is estopped to assert the same. American, etc., v. Nichols, 110 Tex. 4, 214 S. W. 301; Masterson v. Pelz (Tex. Civ. App.) 86 S. W. 56.

In so far as concerns the issue of priority, the peremptory charge wasproperly given, unless the evidence raises the issue of waiver or estoppel against the mortgagee.

The evidence raises no such issue.

The mortgage provides that the mortgagor might retain possession of the mortgaged property until and unless default occurs, but this stipulation has no hearing upon the question at issue. Such provision added nothing to the legal right of the mortgagor.

A mortgagor left in possession of property requiring care and sustenance is not the agent of the mortgagee for the purpose of imposing liability upon the part of the mortgagee to others who care for and provide sustenance for such property. Day Ranch Co. v. Hubert & Woodward (Tex. Civ. App.) 32 S.W.(2d) 252; Overland, etc., v. Findley (Tex. Civ. App.) 234 S. W. 106, 109.

In the last-cited case, Justice Levy said: “The mortgagor, though in possession, is not the mortgagee’s agent; and the mortgagor does not, in the absence of some authorization by the mortgagee, sustain to the mortgagee any relation which authorizes him to contract any liability on his behalf or to contract a lien that shall have priority over his registered chattel mortgage.”

Reed testified that a month or so after he placed the cattle on the Lock ranch he advised the agent of the corporation that he had done so, and it was agreeable to the agent; that he did not take up with the corporation’s agent the matter of moving the cattle to the Lock ranch prior to removal.

The fact that such agent, when he was advised of the removal, acquiesced in such action does not raise the issue of estoppel or waiver. American, etc., v. Nichols, 110 Tex. 4, 214 S. W. 301; Commercial Credit Co. v. Brown (Tex. Com. App.) 284 S. W. 911; Blalack & Son v. San Antonio, etc. (Tex. Com. App.) 267 S. W. 474; Masterson v. Pelz (Tex. Civ. App.) 86 S. W. 56; Oak Cliff, etc., v. Travis (Tex. Civ. App.) 219 S. W. 286; Dallas County State Bank v. Crismon (Tex. Civ. App.) 231 S. W. 857; Day Ranch Co. v. Hubert & Woodward (Tex. Civ. App.) 32 S.W.(2d) 252; Overland, etc., v. Findley (Tex. Civ. App.) 234 S. W. 106; Holt v. Schwarz (Tex. Civ. App.) 225 S. W. 856.

There is no occasion to review these cases, for upon examination it will he found they fully sustain our ruling. Nor is it necessary to discuss the cases cited by appellant. Bla-lack' & Son v. San Antonio, etc., supra, and Commercial Credit Company v. Brown¡ supra, expressly overrule a number of the cases relied upon by appellant. Other cases cited by appellant were decided upon different facts, and have no present application.

The court erred in denying appellant foreclosure of the agister’s lien held by him. He was entitled to foreclosure subject to the mortgage. But upon oral argument it was stated by counsel for appellant that it is of no practical importance unless appellant prevails upon the issue of priority. Counsel stated that the error indicated was waived unless the issue) of priority was found in appellant’s favor. Such issue being decided against appellant, the judgment is therefore affirmed.


author: BOND, Justice.

text:
    BRANDON v. TEXAS EMPLOYERS' INS. ASS’N.

    No. 11220.
    Court of Civil Appeals of Texas. Dallas.
    March 11, 1933.
    Rehearing Denied April 1, 1933.
    E. B. Muse, Cavin Muse, and Geo. C. Cochran, all of Dallas, for appellant.
    Lawther, Cox & Cramer, of Dallas, for ap-pellee.

       Writ ot error granted.

   BOND, Justice.

Appellant, Charles Brandon, instituted this suit in a district court of Dallas county against appellee, Texas Employers’ Insurance Association, arising out of a workmen’s compensation proceedings. On a hearing of ap-pellee’s plea in bar in limine, judgment was rendered dismissing appellant’s suit and setting aside the award of the Industrial Accident Board. Appellant appeals.

Appellee contends that the injuries alleged in appellant’s suit were suffered under circumstances creating a legal liability in third parties, viz., J. E. Punchard, Jr., and the estate of J. E. Punchard, Sr., and that appellant, during the pendency of the suit, settled the claim for injuries with said third parties, and did receive in consideration therefor the sum of $1,250 in full and complete satisfaction, compromise, and settlement of any claim which he had, or might have, against said third parties, and did release and discharge any claim appellee had, or coiild have, against said negligent third parties; therefore, said release was a bar to- the rights of appellant to recover against appellee, the compensation carrier.

Appellant alleged that on January 19, 1929, he was totally and permanently injured by the negligent acts of one J. E. Punchard, Jr., and that at the time of said injury he was an employee of the Community National Gas Company, a subscriber of appellee, and was engaged in the course of his employment; in due time, he proceeded under the Workmen’s Compensation Act against said compensation carrier, to recover the compensation due under said law, and from the award of said -board appealed to the court -having jurisdiction.

The trial in the court below was had without reference to the proceedings before the Industrial Accident Board, or the right of appellant to recover compensation on appeal from the award of said board, but the issue upon which the rights of the parties were determined, and which we are called upon to determine on this appeal, is whether the release executed by appellant to the negligent third party, J. El Punchard, Jr., was an election of appellant to “proceed at law against the person other than the subscriber,” and bar him from proceeding to recover compensation. The basis for the issue is the release, executed during the pendency of the suit, as follows:

“Know all men by- these presents: That I, Charles Brandon, in consideration of the sum of Twelve Hundred Fifty ($1250) Dollars, to me paid, the receipt of which is hereby acknowledged, have released and forever discharged John Ed Punchard, Jr., and the estate of John Ed Punchard, Sr., deceased, from any and all liabilities, claims and demands and by -these presents have released and forever discharged the said John Ed Punchard, Jr., and the estate of John Ed Punchard, Sr., deceased, from any and all liabilities, claims and demands to me on account of any and all injuries, losses and damages sustained by me to my person and/or property which have-been caused and which have resulted or which may at any time arise by reason of the injuries sustained by me, the said Charles Brandon, in the collision on January 19, 1929, on the viaduct between Oak Olift and the City of Dallas, across the Trinity River, in the County of Dallas. This release being in full satisfaction and completely, absolutely and finally releasing the said John Ed Punchard, Jr., and the estate of John Ed Punchard, Sr., deceased, from any liabilities, claims or demands arising wholly or partially from the cause aforesaid, known or unknown at this time, real or apparent.
“It being expressly understood that in the payment aforesaid, the said John Ed Punch-ard, Jr., and the estate of John Ed Punchard, Sr., deceased, acknowledge no liabilities whatsoever or liability for/in or connected with the collision aforesaid, but expressly deny the same.”

After said release had been introduced in evidence, appellant sought to show that the attendant execution of the release was the forbearance of appellant to prosecute a criminal charge arising out of the accident, and had nothing to do with the pending litigation, or the rights of the parties therein, and was not intended fey the parties thereto to release any cause of action except the ones referred to in the release, and affected only the claim appellant had or might have against the other contracting parties. It was not intended to release the Texas Employers’ Insurance Association from any claim, demand, or liability created by statute and vested in said compensation carrier. We conclude that the release offered in evidence was subject to attack, as any other kind of evidence, written or oral. The intention of the parties thereto was a proper subject of inquiry, regardless of the contents of the instrument, and the trial court erred in excluding the proffered testimony. However, giving to the instrument the full force and effect which appellee contends should be given it, that it is a complete release of all liabilities, claims ,and demands in praasenti and in futuro, existing and/or contingent against the negligent third parties, for all injuries sustained, it is not a bar to appellant’s suit against appellee.

Article 8307, R. S. § 6a, provides: “Sec. 6a. Where the injury for which compensation is payable under this law was caused under circumstances creating a legal liability in some person other than the subscriber to pay damages in respect thereof, the employee may at his option proceed either at law against that person to recover damages or against the association for compensation under this law, but not against both, and if he elects to proceed at law against the person other than the subscriber, then he shall not be entitled to compensation under this law. If compensation be claimed under this law toy the injured employee or his legal beneficiaries, then the association shall be sub-rogated to the rights of the injured employee in so far as may be necessary and may enforce in the name of the injured employee or of his legal beneficiaries or in its own name and for the joint use and benefit of said employee or beneficiaries and the association the liability of said other person, and in case the association recovers a sum greater than that paid or assumed by the association to the employee or his legal beneficiaries, together with a reasonable cost of enforcing such liability, which shall be determined by the court trying the case, then out of the sum so recovered the association shall reimburse itself and pay said cost and the excess so recovered shall be paid to the injured employee or his beneficiaries. The association shall not have the right to adjust or compromise such liability against such third person without notice to the injured employee or his beneficiaries and the approval of the board, upon a hearing thereof.”

Under this article, appellant was put to an election, at the time he presented his claim to the Industrial Accident Board, as to whether he would proceed against the third party wrongdoer, or against the compensation carrier. In filing his claim with the accident board, and in prosecuting it under the compensation proceedings, appellant exercised his option to proceed against the compensation carrier. No act of his abrogating such election during the pendency of the suit will permit him to pursue the third party wrongdoer. When the option of election has thus been exercised it continues and only a judgment based on the trial of the right of action would be a bar to appellant’s claims. The release not having the effect of an election, it could not prejudice appellee’s right of subrogation against the wrongdoer, and appellant’s rights in this suit.

Under the provisions of the statute quoted, the injured employee had a chose in action against the tort-feasor, and against whom he had a vested right of election to sue for his injuries, and, in addition thereto, he had a chose in action contingent upon the compensation carrier exercising its right of subro-gation against the wrongdoer for any excess over and above the compensation and costs which the carrier might be compelled to pay. These choses of action were vested claims of appellant, and in which appellee was not interested and had no rights. Appellant had the right to do with such actions as the release indicates, and in so doing appellee, not being a party thereto, or any rights therein, is not concerned with its effect. Appellee’s right of subrogation is created by statute, and immediately, upon appellant filing claim for compensation, his vested right to enforce liability against the wrongdoer ceased and vested in appellee, and sucli vested right of action does not depend upon any act of appellant, and no act of his can divest appellee of its right of subrogation thus created. When appellant executed the release, it could have no effect on appellee’s legal rights.

The statute under consideration vests an absolute and unqualified cause of action in the insurance carrier, so far as may be necessary to protect itself, against the third party wrongdoer, contingent, however, upon the happening of the injured employee prosecuting the claim against the carrier to a successful conclusion.' This vested and absolute transfer of such cause of action, by the positive operation of the statute, tafees place immediately upon the filing of the claim for compensation by the injured employee.

The issue here discussed differentiates itself from the issue in the case of Employers Indemnity Corpn. v. Felter et al. (Tex. Com. App.) 277 S. W. 376, relied upon by appellee to show an election and bar of its right of sub-rogation. In that case, the claimants to compensation had proceeded by suit against the wrongdoer and judgment rendered based on a trial terminated the right of action, thus the claimants were precluded from later asking compensation under the Employers’ Liability Act for the same injury. In that casé the suit prosecuted to final judgment was clearly an election; claimants exercised their option to proceed against the tort-feasor in a common-law action for damages, and such election barred the suit later brought by them under the compensation statute.

The judgment of the lower court is reversed and remanded.

Reversed and remanded.


author: JONES, Chief Justice.

text:
    TEXAS & P. RY. CO. et al. v. MERCER.
    No. 11134.
    Court of Civil Appeals of Texas. Dallas.
    March 11, 1933.
    Rehearing Denied April 8, 1933.

      T. D. Gresham, of Dallas, Head, Dillard, Maxey-Freeman & McReynolds and J. F. Holt, all of Sherman, for appellants.
    Webb & Webb, of Sherman, for appellee.
   JONES, Chief Justice.

In a suit by appellee, E. F. Mercer, for damages alleged to have resulted to his business as a dairyman and truck gardener, because of the unlawful blocking of a public highway by appellants, the Texas & Pacific Railway Company and Gifford-Hill & Co., a construction corporation, appellee was awarded the sum of $5,000, and appellants have perfected their appeal to this court. The necessary facts are:

Appellee owns a tract of land located some five or six miles northeast of the city of Sherman, on which for several years he had conducted a dairy and a truck farm. He had operated the dairy for approximately ten years for the purpose of marketing dairy products, especially sweet milk, in the city of Sherman; he had begun with four milk cows and, at the time under inquiry, had increased his business to the extent that he was using the products of twenty-four cows. For several years he had raised and marketed tomatoes, eanteloupes, roasting ears, and other vegetables. The public highway in question crosses the Texas & Pacific Railway near appellee’s farm, and continues in a somewhat southwesterly direction to the city of Sherman, where it connects with a paved street in said city. This highway is a graveled highway, maintained in good condition, and could be used by appellee in all kinds 'of weather, giving to him a smooth highway over which to transport his products to the market in the city of Sherman. Appellee’s dairy and truck farm is some little distance from this highway, but there is a road from appellee’s place entering the highway near the crossing that was maintained by appel-lee in such condition as that it could always be used by him in driving his truck loaded either with his dairy or garden products into the highway. Appellee could always reach the market at Sherman within 15 or 20 minutes from his starting time. The blocking of the highway crossing effectively cut off ap-pellee’s use of the graveled highway.

At the time under inquiry, there were a number of grocery stores in the city of Sherman that regularly purchased from appel-lee the milk used by them to supply their customers, and there were also a number of persons to whom he regularly delivered the milk required for their home consumption. Appellee, at such time, was making two morning deliveries of milk, one very early in the morning and the other later in the day, as his customers required. His garden prod-, uets were delivered to those in the city of Sherman who desired to purchase them, but there does not seem to have been regular daily customers for his vegetables as existed for his dairy products, but he was able to dispose of all his stock of vegetables.

At the place where the highway crosses the railroad track, and in the immediate vicinity of such place, the railroad company directed the lowering of the grade on which its track was laid, and Gifford-Hill & Co. appears to have been the contractor employed to do this work.. The lowering of the grade necessitated the blocking of the crossing, and hence, on August 12, 1929, the day this work was begun, the highway crossing was blocked. This was done without permission or order of the commissioners’ court of Grayson county, and there was no detour crossing of the railroad provided for by appellants. The result was that when the railroad was reached on the highway, there was no way to cross over this railroad in order to get on the other portion of the highway, and there does not appear to have been any other crossing within any reasonable distance from the one in question. The result of the blocking of this highway was to prevent appellee from transporting his products to the Sherman market on any portion of the graveled highway. The only other feasible route that could be used by ap-pellee in reaching the Sherman market was a narrow dirt road some distance from the graveled highway, and a route that could be used only in dry weather, and even at such time was exceedingly rough and unsuited for the purpose of transporting bottled milk over it — this because of the" hard and continual jolting of the vehicle, used to carry the milk, _ over the rough road.

When appellee was thus compelled to attempt to use this dirt road, to reach the market with his products, he was unable to reach such market in time for his early morning deliveries of milk and thereby lost this business ; and frequently, when he made the later deliveries, because of the rough road and the consequent churning of the milk in the bottles, it would become sour and was an entire loss. This road passed over black waxy land and became impassable to automobiles during heavy rains, and at times even impassable to any character of vehicle. A greater portion of the time the graveled highway was blocked, the dirt road was impassable from frequent rains, and appellee could not make any deliveries of his products.

The blocking of the road continued from August 12 to September 28, 1929, at which time a temporary crossing was made by appellants. This crossing, however-, could not be used in wet weather, and the road, because of continued rains, virtually was blocked until the first days of December, when a permanent crossing was made and the divided portions of the highway were again united. It thus appears that for approximately four months the highway crossing over the Texas & Pacific Railway was blocked from use by appellee.

As a result of the unauthorized closing of the highway, for a period of approximately four months, appellee’s business, as a dairyman was destroyed; his customers having turned to other dairymen for their supply of milk, and appellee was unable to secure these customers after he attempted again to enter the Sherman market with his dairy products. As a further result of the blocking of the highway, appellee’s crop of tomatoes and cabbage was entirely destroyed, he was forced to permit his eanteloupes to rot in the field, and his crop of roasting ears was entirely lost, except its value as matured corn.

The amount of damages suffered by appellant was submitted to the jury in the form of special issues, each item being separately submitted. In response to these special issues, the jury found that, as a proximate.result of the unauthorized and wrongful blocking of the graveled highway, appellee sustained the following damages: (1) $400 for the loss of his tomato crop; (2) $75 for the loss of his canteloupe crop; (3) $20 for the loss of his roasting ear crop; (4) $25 for the loss of his cabbage crop; and (5) $125 for the loss of his milk products. These findings of the jury, totaling $645, are sustained by evidence, and are adopted as the findings of this court.

In addition to the above items, the court also submitted issues as to the value of broken milk bottles, occasioned by appellee attempting to use the dirt road to reach the market; also, damage to appellee’s truck, occasioned by appellee attempting to use the dirt road when it was rendered impassable by rains. On these issues, the jury found, as a proximate cause of the blocking of the graveled highway, that appellee suffered the following damages: (6) $25 as the value of the milk bottles broken, and (7) $209 as damages to the truck. These findings, as to the value of the broken milk bottles and the amount of damages to the truck, are sustained by evidence, and are adopted as the findings of this court. The question as to whether the evidence sustains the findings of the jury, that these two items of damages were the proximate result of appellant’s blocking of said highway, is reserved for later discussion.

In addition to the above items of damages submitted to the jury, the court submitted the following issues:

“Did the plaintiff sustain any. loss of good will, as hereinbefore defined to you, to his dairy business by reason of the obstruction of the graveled road in question? Answer: Yes.
“Was the act and conduct of the defendants, in closing the road in question, the proximate cause of the damage, if any, to plaintiff’s good will? Answer: Yes.
“What amount of damage did the plaintiff sustain, if any, to his good will in the dairy business by reason of the obstruction of the road in question? Answer: $4,130.00.”

The court defined “good will” as follows: “You are instructed that ‘good will’ is the favor which the management of a business witness from the public and the probability that old customers will continue their patronage; the advantage or benefit which is acquired by business upon the mere value of the funds or property employed therein, in consequence of the general public patronage and encouragement which it receives from constant and habitual customers, on account of its local position, or common celebrity, or reputation, skill, affluence, punctuality, or from other accidental circumstances.”

Appellants specially excepted to the allegations to each item of damage, requested peremptory instruction in their favor, objected to the admission of any evidence as to any of the alleged items of damage, and timely objected to the submission to the jury of any of the items of damage, and have properly assigned errors on the adverse rulings of the court. As we construe appellants’ various assignments of error, they are based on the theory: (1) That the damages pleaded and attempted to be proven by appellee are in the nature of special damages, of which no notice was given by appellee to either of the appellants; and (2) that the damages claimed are speculative, could not have been foreseen, and hence, as a matter of law, could not have been contemplated by appellants when the highway was blocked. It is claimed that the evidence does not sustain the finding of the jury on any of the items that the damages were caused by the blocking of said highway, and especially is this true in reference to items Nos. 6 and 7, and in reference to the damages for loss of good will. It is specially contended by appellants that the value of good will is never recoverable in this character of suit. Appellants also contend that the court committed reversible error in the admission of evidence over their timely objections. The nature of these assignments will appear from the discussion of these assignments.

It is true that the damages claimed' by appellee, as the result of the unauthorized blocking of the graveled highway, are denominated ‘‘special damages,” which are such damages that result naturally, but not necessarily, from acts complained of. Cisco & N. E. R. Co. v. Ricks (Tex. Civ. App.) 33 S.W.(2d) 878, 880. As a general rule, special damages are not recoverable, unless the defendant be visited with notice that plaintiff will suffer such damages. Appellants contend that there was no such notice given in the- instant case, hut we are of opinion that this contention is not borne out by the record. The undisputed evidence shows-that appellee, on the first day the road was blocked, went to the person clearly appearing to he in charge of the work appellants were doing at this crossing, informed him of the fact that he would suffer damages unless he was permitted to use the highway in hauling both his dairy and garden products to the markets, and ex plained the reason why such damages would result from the blocking of the highway. It is true that the evidence does not disclose that this person was an official of either of the appellant corporations, or that he held a position of superintendent of the work being done, but it does disclose that he was directing and supervising the construction work, and that such person was placed there by appellants for such purpose. Having been placed in such position by appellants, and clothed at least with such apparent authority, they are in no position to claim that notice to him of the special damages that would result to appellee was not notice to them. All assignments of error in reference to this issue are overruled, as well as all assignments of error with reference to the admission of the evidence reciting appellee’s conversation with such person. • Similar conversations occurred frequently between appellee and persons in charge of this work, in which appel-lee gave notice from time to time of the harmful results to him because of the action of appellants in blocking the highway and providing no detour crossing. We therefore hold that appellants had notice of the special damages resulting to appellee by reason of the unauthorized blocking of the public highway.

The first five items of damages found by the jury amount to $645; each loss there enumerated was suffered by appellee, proximately caused by the unauthorized blocking of the highway, and appellants had due notice that appellee was being so damaged. Ap-pellee had matured the crop of vegetables lost ,and because of the uncertainty as to the time when he could use the highway, he was compelled to maintain his overhead expense in order to be ready to reach his customers with such vegetables as soon as he could do so. It is manifest, therefore, that his loss was the retail price he could receive for the garden products in the Sherman market, the only market available to him. Appellee had been deprived of this retail price, by reason of appellants’ wrongful act, and such price should be the measure of his damages. The court did not err in entering judgment for the said $645.

Should appellee be allowed to recover the item of $24 found by the jury to be the value of milk bottles broken in his attempt to reach the Sherman market over the rough and narrow dirt road? When the graveled highway was closed to appellee, the demands of his business, as well as his duty to lessen the damages to appellants, required him to pursue any other reasonably safe route to reach the market. No duty rested upon him to attempt to use a route that would increase, rather'than diminish, his damages. Apparently the only other route open to him was the narrow and winding dirt road, rough in good weather and impassable in bad weather. As to whether he should use this road to reach the market when it was in a rough or impassable condition, appellee was required to exercise his own judgment. If in the exercise of his judgment in this respect he made a mistake, and by reason of such mistake suffered damages in the matter of breakages of his milk bottles, his bad judgment, and not appellant’s blocking of the highway, would be the proximate cause of the resultant injury. The blocking of the graveled highway did not compel him .to use the dirt road when it was dangerous to the safety of his property. Appellee was experienced in the work of transporting his products in his truck to Sherman, and the condition of the dirt road was open and obvious to him. We are therefore of the opinion that there is no evidence to sustain the finding of the jury that the blocking of the highway crossing was the proximate cause of the breakage of the milk bottles. The same rule of law just announced, as to the breakage of the milk bottles, will apply to the damage to appellee’s truck. This damage resulted solely from appellee’s attempt to use the dirt road when it was impássable, and hence we are of the opinion that no recovery can be ■allowed for items Nos. 6 and 7.

Appellee was awarded judgment in the scon of $4,130 for loss of “good will.” Such term, used in connection with a business, indicates that value which inheres in fixed and favorable consideration of customers arising from established and well-conduc-ted business. Such value is . based necessarily upon prospective profits to result from voluntarily continued patronage of the public. Colton v. Duvall, 254 Mich. 346, 237 N. W. 48, 49. “As a general rule, the expected profits of a commercial business are too uncertain, speculative and remote to permit a recovery for their loss. However, the loss of profits from destruction or interruption of an established business may be recovered for if the amount of an actual loss is rendered reasonably certain by competent proof.” 17 C. J. p. 795, § 117, and authorities cited in note. It is under the principle of law announced in the last sentence Of the above quotation that appellee is permitted to recover on the first five items of damages.

We have been cited to no adjudicated case in which damages resulting from loss of “good will” has been allowed, either because of a breach of contract or for the wrongful act of another, and we must therefore look to the adjudicated cases on related subjects. It must be borne in mind that neither by allegations nor proof does appellee present a case that would permit a recovery of exemplary damages. In the case of Radford Gro. Co. v. Hothan (Tex. Civ. App.) 42 S.W.(2d) 119, the sheriff levied an execution upon a stock of groceries, owned by Mrs. A. D. Hothan, to satisfy a judgment against F. R. Hothan, and sold the stock under such levy as the property of F. R. Hothan. The owner of the stock brought suit against the judgment creditor and the sheriff for damages, and as an item of damages recovered $1,600 as the value of the good will of her business. It was held that there was no basis for the item in the judgment representing the loss of good will.

A similar holding is made in Miller et al. v. Jannett et al., 63 Tex. 82. Loss of prospective profits is held to be too remote and speculative to permit their recovery in a suit of this character. Galveston, H. & S. A. Ry. Co. v. Baudat, 21 Tex. Civ. App. 236, 51 S. W. 541; Kirbs v. Provine, 78 Tex. 353, 14 S. W. 849; Kaufman v. Armstrong, 74 Tex. 65, 11 S. W. 1048. As damages for loss of good will is based entirely upon the loss of prospective profits, we feel impelled to hold, under the authorities, that appellee cannot recover such damages.

It is urgently insisted that there was reversible error committed by the trial court in its failure to define the expression “new and independent cause,” used by the court in the definition of “proximate cause.” Appellants objected to the charge defining “proximate cause,” because of this failure, and under the holding of the Supreme Court the failure to define such term is error. Robertson & Mueller v. Holden (Tex. Com. App.) 1 S.W.(2d) 570; Thomas v. Goulette (Tex. Civ. App.) 12 S.W.(2d) 829; Greer v. Thaman et al. (Tex. Com. App.) 55 S.W.(2d) 519. However, in the view we take of this case, such error is harmless. Recovery is allowed only on the first five items of damages, and the evidence does not suggest that there could have been any cause other than the wrongful act of appellant in closing the highway. Vilbig & Co. v. Lucas (Tex. Civ. App.) 23 S.W.(2d) 516.

Error is also assigned on the admission of testimony of appellee to the effect that in a conversation with the person in charge of the work, in which appellee had undertaken to point out the damages he was suffering by reason of the closing of the highway at the railway crossing, this person told appellee, in effect, that the railway company would pay him damages. The admission of this evidence was error, because it was not shown that the person with whom ap-pellee had the conversation had the power to bind the railroad company in respect to paying damages. Appellee’s suit is, in no sense, based on this promise, and the items of damage which this court has allowed were established by uncontradicted evidence without regard to this evidence. It is undisputed that appellants wrongfully blocked the crossing ; and it is likewise undisputed that ap-pellee suffered the damages for which recovery is allowed by this court. We therefore hold that this error is harmless.,

There was also error committed by the trial court in the admission in evidence of a conversation a witness for appellee overheard between the county judge and a county commissioner with the engineer in charge of this work. This conversation tended only to establish the fact that the commissioners’ court of Grayson county had not given permission for the blocking of the highway. This fact is established by competent and undisputed evidence in the record, and the error therefore is harmless.

It follows that, in the opinion of this court, the judgment of the lower court should be reformed, so as to strike therefrom the item of $25 for the breakage of the milk bottles; the item of $200 for damage to appellee’s truck; the item of $4,130 for the loss of good will; leaving the sum of $645 as the proper judgment to be rendered in favor of appellee, with interest at the rate of 6 per cent, per an-num from date of the trial in the lower court.

Judgment reformed as aboye indicated, and as reformed affirmed.

Reformed and affirmed.


author: GALLAGHER, Chief Justice.

text:
    BUTLER BROS. et al. v. PARK.
    No. 1339.
    Court of Civil Appeals of Texas. Waco.
    March 9, 1933.
    Rehearing Denied April 13, 1933.
    Ered J. Dudley & Associates, of Dallas, for plaintiffs in error.
    John McNamara, of Waco, for defendant in error.
   GALLAGHER, Chief Justice.

This suit was instituted on November 2, 1931, by M. C. H. Park, as trustee of the bankrupt estate of A. E. Kiersky & Son, a firm composed of I. W. Kiersky and Ziror Kiersky, against Butler Bros., a corporation, and Leslie Stegall, sheriff of McLennan county, to enjoin the sale of certain personal property and to require the defendants to surrender the same to plaintiff. Plaintiff alleged that Butler Bros., on July 6, 1931, recovered a judgment against said firm in a justice court of Dallas county for the sum of $151.25; that it procured an execution thereon to McLen-nan county, placed the same in the hands of said sheriff, and had him levy same on certain property belonging to said firm; that said sheriff had advertised the same for sale on November 4, 1931, to satisfy said execution. Plaintiff further alleged that said firm was thereafter adjudged bankrupt and that he was duly appointed as trustee of its estate; that said levy was made within four months prior to the filing of the petition on which' such adjudication was made, and that said firm and both the members thereof individually were insolvent at the time such levy was made; that under the express provisions of the bankruptcy laws of the United States, said levy was void and the property so levied upon passed to him as trustee, discharged and released therefrom. Plaintiff prayed for a writ of injunction restraining the defendants, and each of them, from selling said property under said execution, and that the sherr iff be directed and required to surrender possession thereof to him as such trustee. Temporary writs of injunction restraining such sale were duly issued.

The ease was tried to the court and judgment rendered perpetuating said injunction and directing said sheriff to surrender possession of the property so levied upon to said trustee. Defendants present said judgment to this court for review by writ of error.

The only brief filed by defendants herein purports to be merely supplemental. It contains nothing that can be properly construed as a formal assignment or a distinci specification of any error alleged to have been committed in the trial of the cause, as required by the provisions of article 1844 of our Revised Statutes, as amended by the Acts 42d Legislature (1931) c. 75, § 1 (Vernon’s Anni Civ. St. art. 1844). Reference is made in said supplemental brief to a so-called brief incorporated in the transcript. Examination of the transcript discloses that defendants, on the 8th day of December, 1931, filed in said cause an instrument addressed to the judge of the court in which the suit was pending. They presented therein certain propositions of law in which they invoked the judgment of the court with reference to the plaintiff’s right to maintain said action in McLennan county. They followed said propositions with argument and the citation of authorities. No ruling of the court had then been made. The court thereafter, on March 30,1932, overruled their motion to dissolve the injunction and dismiss the cause, and at the same time rendered the judgment here presented for review. There is nothing in said so-called brief filed in the trial court as aforesaid that could possibly constitute an assignment or specification of error for consideration by this court. Since defendants have presented no assignment or specification of error for our consideration, we are without .authority to review the action of the trial court unless fundamental error appears on the face of the record. Natkin Engineering Co. v. Ætna Casualty & Surety Co. (Tex. Com. App.) 37 S.W.(2d) 740, and authorities there cited. We have found no such error. The judgment of the trial court is affirmed.


author: LOONEV, Justice.

text:
    RANKIN et al. v. NASH-TEXAS CO. et al.
    No. 11455.
    Court of Civil Appeals of Texas. Dallas.
    March 25, 1933.
    Callaway & Reed, of Dallas, for appellants.
    McCormick, Bromberg, Leftwich & Car-rington and Leachman & Gardere, all of Dallas, for appellees.
   LOONEV, Justice.

E. G. Rankin and Mrs. E. G. (Ann Elizabeth Walsh) Rankin appealed, in forma pauperis, from a judgment rendered in the 101st district court of Dallas county that they take nothing by their suit against Nash-Texas Company and/or Automotive General Corporation and E. S. Euless, defendants. The motion of appellants (plaintiffs below) for a new trial was overruled December 2, 1932. On December 15th they filed an affidavit stating their inability, singly or jointly, to pay the costs of appeal, any part thereof, or to give security therefor; within ten days (December 23d) Nash-Texas Company, appellee, contested said affidavit before the court while in session; the hearing was set for January 4, 1933, and on that day after hearing evidence the court determined the matter in favor of the right of appellants to prosecute the appeal.

Appellee Nash-Texas Company moves to dismiss the appeal on the following grounds: (1) Because, as the action of the court allowing the appeal was had more than-thirty days after the order overruling appellants’ motion for a new trial, the appeal was not perfected; the contention being that, under the statute, when the affidavit is contested the appeal is perfected, not by filing the affidavit, but by the order of court allowing same.

We cannot assent to this contention. Tbe affidavit was filed in time, bearing of tbe contest was set for January 4, 1933, and on that day was beard and tbe appeal allowed. Tbe statute, article 2266 (as amended by tbe 42d Legislature 1931, p. 226, c. 134, § 1 [Vernon’s Ann. Oiv. St. art. 2266]), provides, “ ⅜ * * It will be presumed, prima facie, that tbe affidavit of appellant speaks tbe truth and unless contested within ten (10) days after being filed tbe presumption shall be deemed conclusive. * * ⅜ ” Tbe filing of a proper affidavit in time, prima facie, perfects appeal, subject, however, to be defeated by a successful contest, which must be begun within ten days. We find nothing in the 'statute warranting the contention that the order of court on the contest, determining the right to prosecute the appeal, must be entered within any particular time; the hearing is under the control of court, or the judge before whom the contest is pending, and when the right to appeal is determined favorably, the order relates back to the date the affidavit was filed.

It is also contended that the findings on-the contest and the evidence heard thereon should have been certified to, or filed as a part of the record, and as this was not done the appeal should be dismissed.

The statute (article 2266) directs that, “ ⅜ * * Any officer of Court or party to the suit, interested, may contest the affidavit, whereupon the Court trying the case, if in session, shall hear the contest; but if in vacation, the same shall be heard by either the Judge of the Court or the County Judge of the County where the suit is pending and on such hearing evidence may be introduced, the right of the party to appeal shall be determined, the finding certified to, and filed as a part of the record of the case. * ⅞ * ”

In the instant case, the contest was before the court trying the ease while in session, and a full and complete minute of the proceedings is found in the record.. It is only where the contest is before the judge, after adjournment, or the county judge of the county where the suit is pending, that the finding, determining the right of appeal, is required to be certified to and filed as a part of the record.

Appellee contends further that the trial court erred in allowing the appeal, because no attempt was made to secure sureties on the cost bond; in other words, an attack is made upon the fact finding of the trial court in determining the right to appeal.

The order entered upon the hearing contains the following: “ * * * And all parties announced ready on the hearing of said contest; and, while the Honorable Claude M. McCallum, Judge who tried this ease, was presiding in open court, there was presented and heard evidence in support of said affidavit filed herein by plaintiffs, and evidence in support of the contest of said affidavit filed herein by Nash-Texas Company, and/or Automotive General Corporation * * *, and the court being of the opinion that the plaintiffs, Mrs. E. G. (Ann Elizabeth Walsh) Rankin and E. G. Rankin,-singly and/or jointly, are unable to pay the costs of appeal, or any part thereof, or to give security therefor ; now therefore, etc., * * * ” determining the right of plaintiffs to appeal in forma pauperis.

The decision of the trial court, on the issue of fact involved in determining the right of appeal, as recited in the order, was based upon evidence, is not shown to be erroneous, or that the court abused its discretion.'

The motion of appellees, to dismiss the .appeal, is overruled.

Appellee also moves to strike from the record the statement of facts, (a) because the same is not signed by the judge who tried the ease, (b) because it does not contain the evidence heard on the contest of the affidavit for appeal in forma pauperis, (c) because the court acted improperly in extending the time for the filing of the statement of facts, as no j?ood cause therefor was shown, and (d) that the statement was not filed in due time.

The case was tried before Honorable Claude M. McCallum, judge of the 101st district, and the statement of facts was approved by Honorable W. M. Taylor, judge of the 14th district, while sitting for Judge McCallum. In a dissenting opinion, in Pratley v. Sherwin-Williams Co. (Tex. Civ. App.) 21 S.W.(2d) 323, 325, approved by the Supreme Court, 36 S.W.(2d) 195, 198, the doctrine was announced that a trial, within the meaning of statutes regulating judicial procedure, is not concluded as long as any phase of the case is open for consideration, and that a judge, legally presiding under chapter 156, Acts Regular Session 40th Legislature, known as the administrative judicial districts act, or under the provisions of chapter 6, art. 2092, R. S., regulating practice and procedure in certain district courts (including the civil district courts of Dallas county), may hear and determine any part of any case or proceeding pending in any of said courts, and that any other judge (legally presiding) may complete the hearing and render judgment in the case, etc. This rule was followed by the Galveston Court in Guess v. Phelps, 41 S.W.(2d) 75. In Schulz v. Boyd, 32 S.W.(2d) 483, 484, this court held that Judge Bush, of the county court of Dallas county at law, No. 1, presiding for Judge Rawlins, of the county court of Dallas county at law, No. 2 (absent- on vacation), was authorized to approve and sign the statement of facts in a ease tried before .Judge Rawlins, and in this connection the following language in point was used: “Judge Bush’s authority to hold court for Judge Rawlins was not restricted to the performance of particular acts, but comprehended all acts pertaining to the business of said court, which included, not only the trial of causes, but the transaction of all incidental judicial business, just as the regular judge could'have transacted had he been presiding. To hold otherwise would, in effect, write into the statute limitations the Legislature did not see fit to write. The phrase, ‘the judge,’ authorized by article 2243, R. S. 1925, to approve and sign statements of facts, means, not only the regular judge who presides at the trial of a cause, hut also any judge who may be legally authorized to hold said court. The approval of a statement of facts by the judge is one of the most important items of business incident to the trial of a cause that the judge is called upon to perform, for, if the litigant should be deprived of the statement, his appeal may prove of no value.” We overrule the contention that the statement of facts should be stricken because not signed by the judge trying the case.

The objection that the statement of facts does not contain all of the evidence cannot be raised except by an assignment of error based upon a proper bill of exception. See 3 Tex. Jur. p. 641; Comer v. Farrell (Tex. Civ. App.) 45 S.W.(2d) 432.

The further contention is made that the statement should be stricken, (1) because the court acted improperly in extending the time for filing the statement, no good cause therefor being shown, and (2) because the same was not filed in due time.

Appellants’ motion for a new trial being overruled, and notice of appeal given on December 2, 1932, the court granted 50 days within which to file the statement of facts, and on January 19, 1933, time was further extended to January 30, 1933, and on that date the statement of facts was filed.

The statute, section 2 of article 2246 (as amended, Acts 1931, 42nd Legislature p. 100, c. 67 [Vernon’s Ann. Civ. St. art. 2246, § 2]) reads: “Sec. 2. Upon application of the party appealing, the Judge of the Court may, in term time or vacation, for good cause shown, extend the time for filing such Statement of Facts and Bills of Exception; but the time shall not be extended in any case so as to delay the filing thereof beyond the time for filing the transcript in the Court of Civil Appeals.”

The matter of extending the time for filing a statement of facts (except as limited by the language of the statute) is within the sound discretion of the trial judge, and will not be reviewed, except for a prejudicial abuse of discretion, which must be complained of in a proper assignment, based upon a bill of exception taken to the action of the trial court.

In the instant case, the question is presented by motion to strike, without bill or assignment, hence is not properly presented for consideration.

The motions of appellee, to dismiss the appeal and to strike from the record the statement of facts, are overruled.


author: HAWKINS, Judge.

text:
    JACKSON v. STATE.
    No. 15790.
    Court of Criminal Appeals of Texas.
    April 5, 1933.
    McGaw, Mitchell & Erisman, of Longview (Fred Erisman, of Longview, of counsel), for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   HAWKINS, Judge.

Conviction is for conspiring to commit the crime of theft; punishment being assessed at four years in the penitentiary.

It is not necessary to set out the testimony. It was substantially alleged in the indictment that appellant, Ben Ray, R. C. Still, C. A. Parker, Marvin Anderson, and H. H. McCown entered into a conspiracy with one another to steal 200 barrels of crude petroleum.

When the case was called for trial, appellant requested a severance, asserting that he desired the testimony of Iiis coin-dictees, whose evidence was material for his defense, and that he verily believed there was not sufficient evidence against any of said parties to convict them, and asked that they be first tried. This request was refused. The bill shows that none of the defendants from whom appellant was seeking to sever had filed motions for severance.

Articles 650 and 651, C. C. P. are as follows:

“Two ór more defendants jointly prosecut-' ed may sever in the trial upon the request of either.
“Where two or more defendants are prosecuted for an ojíense growing cut of the same transaction, by separate indictments, either defendant may file his affidavit so stating, and that the evidence of such other party or parties is material for the defense of the affi-ant, and that affiant believes that there is not sufficient evidence against said party or parties to secure his or their conviction; and such party whose evidence is so sought shall be tried first. Such affidavit shall not, without other sufficient cause, operate as a continuance to either party.”

So far as we discern, the motion for severance filed by appellant is in strict compliance with the articles quoted. It is not claimed that the severance would have operated as a continuance, nor does the trial court explain upon what ground the severance was denied. The error regarding this matter would alone demand a reversal. The accused is entitled to a severance as an absolute right when the terms of the statute are complied with. See collated cases under section 734, Branch’s Ann. Tex. P. C., and in note 2 under article 650, Vernon’s Ann. Tex. C. C. P. vol. 2; McBride v. State (Tex. Cr. App.) 51 S.W.(2d) 337; Vargas v. State, 104 Tex. Cr. R. 283, 284 S. W. 564.

The state introduced appellant’s confession. An issue was raised that it had been secured by threats, inducements, and promises which rendered it other than voluntary. This issue was submitted to the jury. Appellant sought and was refused a continuance for a deputy sheriff who had been served under process issued by the state, but who was absent. His expected testimony as stated in the application for continuance was most material to appellant regarding the circumstances under which the confession was made.

Bill of exception No. 5 reflects the following: Appellant and Ray, a codefendaiit, were in jail. Officers were trying to get appellant to make a statement. Pie refused, and Officer Gant asked him if he knew the oil was “hot,” to which appellant replied that he did not. Ray was then brought in, and in his presence Gant asked appellant if he still stuck by his story. When appellant replied that he did, Ray pointed his finger at appellant and said, “Jackson, you know damn well you knew that oil was stolen just like all the rest of us did.” Testimony to the foregoing facts was given by M. H. Gibson over appellant’s objections, one of which was that the acts and conduct of the alleged coconspirator Ray were not admissible against appellant; that they occurred after the consummation of the alleged conspiracy, and wére ex parte statements highly prejudicial to the rights of appellant. It is not shown that appellant made any reply to the accusation. If he had done so, proof of it would have been inadmissible. The objection should have been sustained. Both appellant and Ray were in jail. Appellant was in no way responsible for Ray’s statement, which was made long after the conspiracy had terminated. It is true the statement was made in the presence of appellant and was a direct charge against him, but it demanded no reply, as appellant was under arrest. Simmons v. State, 50 Tex. Cr. R. 527, 97 S. W. 1052. For collated authorities, see section 64, Branch’s Ann. Tex. P. 0. That the statement was hurtful to appellant does not admit of debate.

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