author: LANE, Justice. GRAVES, Justice PER CURIAM. GRAVES, Justice

text:
    SCHMIDT et al. v. HARRELL et al.
    No. 9871.
    Court of Civil Appeals of Texas. Galveston.
    Feb. 7, 1934.
    Rehearing Denied March 1, 1934.
    Fouts, Amerman, Patterson & Moore, of Houston (A. E. Amerman, of Houston, of counsel), for appellant Sunylan Co.
    Williams, Lee, Sears & Kennerly, of Houston (Geo. D. Sears, of Houston, of counsel), for appellants H. G. & F. C. Schmidt.
    James B. & Charles J. Stubbs, of Galveston, for appellees.
   LANE, Justice.

In the spring of 1925 the Sisters of Charity of the Incarnate Word, a corporation, W. P. Hammond, F. C. Stewart, E. F. Simms, J. W. Lockett, Union National Bank, W. P. Hamblen, Mary A. Hamblen, W. sH. Chud-leigh, Jas. A. Painter ¡ Wm. H. Olsehewske, Russell F. Harrison, Fannie A. Roose, M. L. Trost, and H. G. and F. C. Schmidt, brothers, owning land fronting on Lawndale avenue in the city of Houston, signed and presented, or caused to be presented, to the city council of the city of Houston, Tex., the following petition:

“To the Honorable City Council of Said City:
“We the undersigned property owners residing or owning property in or along the right-of-way of the hereinafter proposed improvements do hereby respectfully petition your honorable body as follows:
“That the city by and through its engineering department, plan, lay out and prepare specifications for and in due legal form, let the contract for, and supervise, the construction of a sanitary sewer from the present terminus of the city sanitary sewer down Lawndale Avenue and Telephone Cut-off Road to the building or at a point opposite a building on the property of the Sisters of Charity of the Incarnate Word.
“That the cost of said improvements (including the Engineering cost) be assessed and borne by the owners of the property of, on, or adjacent and abutting said improvements in proportion to the amount of front footage owned by them on the following basis: Each property owner on both sides of the street or road, facing said sewer shall pay one dollar and fifty-five cents ($1.55) per front foot on the frontage of said property owned, the total cost of said sewer will not exceed three dollars and ten cents ($3.10) per linear foot. All such amounts to be payable by said property owners either in cash or in five equal, annual installments, one, thirty (30) days after completion of said improvements and acceptance by the City Engineering Department ; one, a year after date of such acceptance ; one, two (2) years from said date; one, three (3) years after said date; one, four (4) years after said date with interest thereon at the rate not to exceed eight per cent. (8%) per annum until paid. Any of said property owners, to have the privilege of paying any of the said installments before maturity hy paying all such principal and accrued interest to that date. Said property owners to give as security for such deferred payments a lien on such property so owned by them in the area of said improvements.
“Each of us, whose name is hereto subscribed, hereby severally agree to pay to the contractor to whom said work may be let, the amount and proportions of the cost hereof, which may have been assessed against us respectively in accordance with the terms hereof, and said contract.”

The signatures to the petition were obtained by Mr. Ed. Harrell, who circulated the same mainly at the solicitation of the Sisters of Charity. Such petition, after having reached the city council, was by it referred to J. H. Painter, assistant city attorney.

On May 25,1925, J. H. Painter returned the petition to the city council, as shown by the following letter introduced in evidence:

• “Houston, Texas, May 25,1925.
“To the Honorable Mayor and City Council:
“Gentlemen: Herewith I hand you petition for construction of a sanitary sewer from the present terminus from the City sewerage down Lawndale Avenue and Telephone Cutoff Road to a point opposite the building on the property of the Sisters of Charity of The Incarnate Word.
“This was taken up by me at the request of the Mayor, and Mr. Ed. Harrell assures me that he has the signature of every property owner on both sides of the proposed extension with the exception of the Houston Belt é Terminal Company, who are willing to sign this, but requests before then a letter from the Mayor for the benefit of the Interstate Commerce Company to the effect that should the City at any time within, the next ten years extend this sewer further that they will reimburse them for their expenditure on the main line portion thereof.
“Yours very truly,
“J. H. Painter, Asst. City Attorney.”
(Italics ours.)

On the 10th day of August, 1925, the city council passed an order authorizing the city engineer to do all engineering and inspection necessary in the construction of the sanitary sewer on Lawndale avenue from Telephone road to Wayside drive; the property owners entering into contracts for the construction of such sewer.

The property frontage, on that part of the avenue on which the sewer was to be constructed, of the several property owners, and the amount to be assessed against each in accordance with the plan submitted by the above mentioned petition, is as follows:

North Side.
H. B. & T. Ry. Co. 356.0 ft. $ 567.41
James A. Fainter, 632.0 ft. 1,007.31
Fannie H. Boose, 245.0 ft. 390.49
Martin L. Trost, 76.0 ft. 121.13
waiter Chudleigh, 201. ft 320.36
F. C. Stewart, 144.0 ft. 229.51
John S. Stewart, 540.5 ft 861.47 J. W. Loolcett
E. F. Simms, 1,757.0 ft. ?2,800.38
South Side.
B. H. Hemphill, 50.0 ft. ⅜ 79.69
Kluever Moreland 50.0 ft. 79.69
R. N. Vickers, 50.0 ft. 79.69
Love joy & McCarty, 50.0 ft 79.70
Kluever Moreland, 60.0 ft. 79.70
Lovejoy & McCarty, 60.0 ft. 79.70
Kluever Moreland, 64.3 ft. 102.48
H. B. & T. Ry. Co., 900.0 ft. 1,434.46
Wm. Olschewske, 237.0 ft 377.74
W. R. & A. R. Hamblen, 359.0 ft 572.19
W. P. Hammond, 669.5 ft. 1,067.08
Henry & A. F. Schmidt, 823.3 ft. 1,312.21
Sisters of Charity of Incarnate word, 1,379.2 ft. 2,198.23
J. B. Scott, 100.0 ft. 159.38
Total Frontage, North Side 3,951.50
Total Frontage, South Side 4,832.30
Total, 8,783.80 ft

Plans and specifications having been theretofore prepared and filed in the engineer’s office, on May 25, 1925, E. K. High submitted a bid in accordance with such plans and specifications, agreeing to construct the sewer for the sum of $12,907 on a unit basis. The contract to construct the sewer was awarded to High on his bid, and on the 25th day of September, 1925, the city council authorized the mayor to execute a contract with High, and recited that the citizens and abutting property owners had agreed to pay all the costs thereof; that the city of Houston “has advertised for bids and under the agreement of such citizens to so pay the cost of laying thereof, has awarded said contract to E. K. High,” and that High had filed a letter with the council agreeing that the city, in signing the contract, should be relieved from the payment of any sums of money whatsoever.

: The petition contract had been signed by H. G. Schmidt acting for himself and his brother. Some time in September, 1925, before the contract was executed and long before the work was completed, High was seeking to have the signers execute notes and deeds of trust. He secured such instruments as called for in the original petition contract from a number of the parties, among them Mr. E. P. Simms and W. H. Olsehewske. ' About this time he called over the telephone Frederick Schmidt, who had not signed the contract and knew nothing of it, having left the matter to his brother, Henry Schmidt. High states that this Schmidt said that they were not at that presént time interested; that they contemplated selling the property, and if they did they would not sign whether the sewer was put in or not.

The undisputed testimony of Frederick Schmidt on the trial of the suits hereinafter mentioned was, that in the phone conversation above mentioned High asked him for the cash for payment on the proposed sewer, and that he told High that his brother, Henry, had signed the contract or petition therefor, and was handling the whole situation, and that he was out of town; that he, Frederick, did not know a thing about it.

Shortly after such conversation High proceeded with the work of constructing the sewer under his contract, and shortly thereafter the Schmidts conveyed their property fronting on said street to the Sunylan Company, a corporation. The Schmidts and the Sun-ylan Company had a dispute about who should pay the taxes due on the property for the year 1926, and the Schmidts, under the advice of their attorney, had refused to pay High their proportionate part of the sewer cost, which they were obligated to pay only under the terms of the petition signed by them asking the city council to have the sewer constructed, and wherein they promised and agreed to pay to the contractor to whom the work might be let the amount and proportion of the cost of such sewer as was under the terms of the petition assessable against them; it being contended by the Schmidts that no part of the assessment, under the terms of the petition, was compulsorily payable until after the sewer was completed and accepted by the city; that as the title to the property had passed to the Sun-ylan Company before the sewer was constructed, said company should' pay the assessment made against the land.

Such dispute and the refusal or failure of both the Sunylan Company and the Schmidts to at that time pay such assessment prevented the Sunyland Company, the vendee of the Schmidts, from getting a sewer connection at the time it applied therefor.

Just before the phone conversation between High and Frederick Schmidt took place, which was in the latter part of the summer of 1925, a little more than a year before the sewer was completed and accepted by the city council, Ed. H. Harrell and E. K. High, the contractor, called on the several owners of properties fronting on the street upon which the sewer was to be constructed, with the request that they make arrangements for payment of the sums assessed against them, respectively.

After starting the work of epnstruction of the sewer, High, finding himself financially unable to complete the work unless those petitioning therefor would in advance of such completion of the sewer and acceptance thereof by the city pay the cash and execute the notes called for in the petition asking for the construction of the sewer, and finding that some of the signers of the petition refused to pay any part of their tentative obligations in advance, or to execute the notes therefor, he called on Mr. Ed. H. Harrell and stated to him that he would not further proceed with the construction of the sewer unless Harrell would guarantee certain payments. Whereupon Harrell wrote High a letter of date November 5, 1925, the pertinent parts of which are as follows:

“Dear Sir; I guarantee to you payment on Lawndale Sewer aggregating Eighty four hundred seventy five and 58/100 ($8475.58) Dollars ; said amount to be paid by me to you on partial payment on certificates furnished by the City Engineering Department, and upon completion and acceptance of said Lawn-dale Sewer, I agree to pay you the balance, if any, of the aggregate amount $8475.58.
“The aggregate amount for which I am responsible for, is niade up, to wit:
H. B. & T. Railway Company.$2,001.87
Sisters of Incarnate word. 2,198.23
F. C. Stewart. 229.51
Jno. Stewart and Ii. W. Lockett. 861.47
W. R. & A. R. Hamilton. 572.19
E. F. Simms. 560.07
$S,423.34
Subscription Fund.
Kluver Moreland.$ 261.87
Love joy & McCarthy. 159.40
B. H. Hemphill. 79.69
R. N. Vickers. 79.69
J. E. Scott. 159.38
Henry a A. F. Schmidt. 1,312.21
$8,475.68’’

By reason of the refusal of the Schmidts and others to pay the assessments made against their several properties there would he about the sum of $2,052.24 short of the amount to be paid to the contractor High.

Mr. Ed. H. Harrell, being desirous that the Sisters of Charity should obtain sewer facilities, obtained subscriptions from a number of persons, among such being the H. & B. T. Railway Company.'

On October 1, 1925, a short time after the execution of the contract for the construction of the sewer by High and the city, High, E. E. Clancy, and W. F. Warfield entered into an agreement of partnership, and it was agreed that among the contracts to be performed by the partnership" was the sewer contract let to High. E. E. Clancy was the office man of the copartnership.

With the funds received from subscribers to the sewer petition and others from whom Harrell obtained subscriptions to make up the amount due contractor High, Harrell upon several dates delivered to E. E. Clancy a sum of money for the purpose of paying High the sum due him for constructing the sewer.

On September’ 23, 1927, High filed suit In the district court of Harris county, in cause 138,565, styled E. K. High v. H. G. & F. C. Schmidt and the Sunylan Company, seeking to recover upon the petition and contract signed by the Schmidts; and, pleading the1 agreement to execute a lien to secure the subscription to pay, sought to establish and foreclose a lien against the property of Schmidts, which had then been sold to the Sunylan Company. On the same day High’s attorney filed a notice of lis pendens with the .county clerk of Harris county.

On August 31, 1927, High’s attorneys filed a petition with the city council, setting out the-petition and contract of the landowners, alleging that the Schmidts had not paid their agreed proportion of the costs, and requesting that no connection permit be granted by the city until the Schmidts, or the Sunylan Company, should pay the amount due. This was referred to the assistant city attorney, who, on September 1, advised the council that the Schmidt brothers “signed a contract and petition in which they agreed to pay so much per front foot,” and that neither they nor their assignees should be permitted a sewer connection until that sum was paid. On September 2d, in response to this petition, the city council of the city of Houston ordered that the city engineer be instructed to withhold the permits to H. G. and F. C. Schmidt’ until further notice. Copy of this resolution’ was transmitted to the attorney for High by the city secretary, who advised of the-council’s action and closed: “When Mr. High has satisfactorily adjusted his claim against the property owners, kindly advise us in order that we may issue permits for connection to-the sewer.”

Plaintiff Ed. H. Harrell had actual knowledge of the fact that High was seeking to-enforce this contract against the Schmidts. On October 26, 1927, Mr. W. F. Carothers,, then representing the Sunylan Company, . wrote Mr. Harrell, calling his attention to the pendency of this suit, and advising -that if Harrell would intervene, Sunylan Company would deposit the amount in controversy for. determination by the court. Harrell refused to intervene.

About this time an agreement was reached-between the Schmidts and Sunylan Company in order to compromise their differences. It was agreed that if the Schmidts would pay' their subscription so as to make available the sewer connection, the Sunylan Company on its part would pay the taxes for the disputed year, and all matters of difference would be thus composed.

Under the terms of their contract with E. K. High, in the face of High’s claim actively asserted in court, with the city of Houston by solemn resolution recognizing High-as the proper payee, without whose consent no connection could be secured, the attorney for the Schmidts, on February 13, 1928, paid to E. K. High the sum of $1,200 in full settlement of his interest in the Lawndale sewer as against the Schmidts, and took from him a receipt therefor, and an assignment and transfer of his interest in the sewer line.

On September 2, 1927, the city council entered an order directing the withholding of permit for sewer connection until Mr. High was paid for the construction of such sewer, especially to the Schmidts.

On March 21, 1928, for some cause not shown by the record, the city council rescinded the order of September 2, 1927, and entered an order that sewer connections should only be made under such terms as the city may prescribe.

The Sunylan Company was apprised of the payment made to High and his acknowledgment that such payment was in full of the Schmidts’ assessment, and, being told that sewer connection had been made available, it then made application to the city for sewer connection, which permit was granted upon conditions prescribed by the city council by an ordinance, the pertinent parts of which are as follows:

“Whereas, heretofore, during the year 1925, the following named property owners owning property adjacent to Lawndale Avenue, namely, Sisters of Charity of the Incarnate Word, and H. B. & T. R. R. Co., James A. Painter, Fannie H. Roose, Martin L. Trost, Walter Chudleigh, F. C. Stewart, Union .National Bank and J. W. Lockett, E. F. Sims, Wm. Olschewske, W. R. & A. R. Hamblen, and W. P. Hammond, constructed and paid for the sanitary sewer on Lawndale Avenue from Telephone Road to Wayside Drive in accordance with the provisions of the ordinance of the City of Houston providing for the construction of sewers by persons, or property owners, adjacent to such sewer; and,
“Whereas, at the time of the construction of said sewer Henry A. and A. F. Schmidt owned a tract of land adjacent to said sewer having a frontage of 823.3 feet on Lawndale Avenue and the proportion of the cost of such sewer apportioned to the said land, as shown by the schedule filed with the City of Houston was thirteen Hundred Twelve and 21/100 ($1312.21) Dollars, which was not paid and the said Sunylan Company has since purchased the said land having notice at the time of such purchase that said portion of Thirteen Hundred Twelve and 21/100 ($1312.-21) Dollars had not been paid; and
“Whereas, the said Sunylan Company now desires a permit permitting it to connect a ‘lateral sewer’ described in its application for a permit with said sewer on Lawndale Avenue, and it appearing that it is consistent with the good of the sewer system of the City of Houston to permit such connection therefor;
“Now, therefore, be it ordained by the City Council of the City of Houston:
“Section 1. That the said Sunylan Company be granted a permit to connect said ‘lateral sewer’ with the said sanitary sewer on Lawndale Avenue, upon condition that the said Sunylan Company first deposit with the City Engineer of the City of Houston for the use and benefit of those who originally constructed or paid for the said sanitary sewer on Lawndale Avenue the sum of Fifteen Hundred Sixty Four and 65/100 ($1564.65) Dollars, which the said Council hereby fixes and declares to be a reasonable sum for the making of such connection.”

The Sunyland Company, after some' .delay, under protest deposited the $1,564.65 called for in said ordinance with the city council.

Ed. Harrell brought this suit, alleging himself as trustee for the use and benefit of the Sisters of Charity of the Incarnate Word, a corporation, against the city of Houston. In his original petition he alleges that the $1,-564.65 deposited by the Sunylan Company under protest with the city of Houston was retained in the treasury of the city pending suit; that such sum was so deposited for the benefit of him as trustee for the Sisters of Charity of the Incarnate Word, but that the city had failed and refused to pay said sum to plaintiff, to his damage in said sum, to which he is entitled in its entirety to the exclusion of all other parties; that he originally constructed and paid forNthe sewer. He alleged the passage of the ordinance, the pertinent parts of which have been set out above, and alleged that the Sunylan Company deposited said sum of $1,564.65 under the terms of said ordinance.

He further alleged as follows: “That it was mutually understood and agreed between him and E. K. High that E. K. High should collect direct from James A. Painter, Martin L. Trost, Walter Chudleigh, Wm. Olschewske, Fannie Roose, E. F. Simms, W. P. Hammond (who were abutting property owners), their pro rata'share of the cost of construction and that E. K. High, his partners, agents, employees, representatives and attorneys did collect from the above property owners their pro rata share of the cost, in the aggregate sum of $5674.41, more or less;

“That it was further mutually understood and agreed between plaintiff and E. K. High that plaintiff was to collect pro rata from Houston B. & T. R. R. Co., F. C. Stewart, Union National Bank and J. W. Lockett, E. F. Simms, W. R. and A. R. Hamlin and the Sisters of Charity of the Incarnate Word, and plaintiff did collect same in the aggregate sum of $6423.37, more or less, and did pay said sum over to B. K. High, his partners, agents, employees, representatives and attorneys.

“That E. K. High informed plaintiff that certain of the abutting property owners, among others Henry and F. C. Schmidt, absolutely refused to contribute to the construction of the proposed sewer, or to have anything to do therewith, or to he parties to the enterprise; and plaintiff shows that Henry and F. C. Schmidt did absolutely refuse to contribute to the construction of the proposed sewer, or to .have anything. to do therewith or to be parties to the enterprise; whereupon plaintiff guaranteed and undertook and promised to pay the said E. K. High the amounts for which Henry and F. C. Schmidt and others had failed and refused to obligate themselves for, in the sum of $2052.24, and plaintiff further guaranteed and undertook and promised to pay to the said E. K. High in cash the amounts assessed against the Sisters of Charity of the Incarnate Word, H. B. & T. R. R. Co., and others (who had not refused to pay) in the sum of $6423.34, making a total of $8475.58, which plaintiff guaranteed and undertook and promised to pay the said E. K. High.”

Other allegations were made in the petition which, with the exhibits made a part thereof, covered twenty-five pages of the record, but in view of the preliminary statement made herein we deem it unnecessary to set them out here.

On the 27th day of August, 1927, the Sun-ylan Company and W. R. Archer filed suit against Frederick C. and Henry Schmidt. They alleged that Archer purchased the Schmidt property as trustee of the Sunylan Company. Recovery was prayed for against the Schmidts for the sum of $1,709.01 which was for unpaid taxes owing’by the Schmidts on the property sold to Sunylan Company.

On December 31, 1931, the two suits were consolidated for trial, and after such consolidation the Sunylan Company became cross-plaintiff as against E. H. Harrell, the city of Houston, and H. G. and F. C. Schmidt. It denied generally allegations of all adverse parties and specially alleged that after the contractor, High, had begun construction of the sewer he demanded of the Schmidts and other petitioners that they pay the several assessments made against their several properties, contrary to the written agreement contained in their petition filed with the city praying for the construction of the sewer; that several of the petitioning property owners, including, the Schmidts, refused to change said agreed terms and refused to pay the total amount due by them; that the Schmidts sold their property to the Sunylan Company; that after such sale High continued to demand payment from the Schmidts and the Schmidts continued to refuse to pay the assessment made against said property; that High, on the 23d day of September, 1927, filed suit against the Schmidts, the Sunylan Company, and W. R. Archer to recover the sum of $1,700; that the Sunylan Company were demanding of the Schmidts that they pay the assessment made against the property sold by them to it so as to secure for it the right of access to the sewer, which it alleged had passed as an appurtenance to said property.

Cross-plaintiff alleged further that after it had entered suit against the Schmidts to recover for the taxes due on the property, it was agreed by and between the Schmidts and the Sunylan Company that if the Schmidts would acquire for it connection with- the sewer and the removal of all obstacles thereto, it would waive its claim against them for the payment of the taxes sued for; that after such agreement was so entered into, the Schmidts paid to High, the contractor, the sum of $1,200 in satisfaction of the sum sued for by High in the suit of High v. the Schmidts; that thereafter the Sunylan Company applied to the city for connection with the sewer, which application was refused, and that as a result of such refusal it has continued to demand of the Schmidts that they secure such connection, which the Schmidts failed or were unable to do; that because of such failure the Sunylan Company was required to deposit with the city the sum of $1,564.65, which was wrongfully fixed by the city as a prerequisite to the connection asked for; that to secure such connection to which it was entitled it did, under protest, make the deposit demanded on the 24th of April, 1928. It prayed for a recovery of the $1,564.65 so deposited with the city, and that in the event, and only in such event, that it is denied such recovery it have judgment against the Schmidts for the sum evidenced by the taxes levied against its property, which was a liability of the Schmidts.

The Sunylan Company further pleading said: “That it never at any time authorized the said Ed. H. Harrell for himself or as Trustee, or any one else, to do the things alleged in his petition, and it denies that he had the legál right to do same, and it denies that he ever acquired any rights in and to paid sewer as against the said Schmidts or this cross-defendant hy anything he did, and that all of his acts and the acts of the City of Houston looking to the exclusion of this cross-defendant from said sewer were void, and that the said Harrell was a mere volunteer and intermeddler, and that this cross-defendant is ready and willing to have carried' out the terms of its compromise settlement with H. G. and F. 0. Schmidt, and that if it recovers the money deposited under protest with the City that it is willing and here now offers to dismiss its claim for taxes against the said H. G. and' P. C.- Schmidt, and it prays that the prayer of the said Ed. H. Harrell, Trustee, asking for said fund deposited in the City, he in all things denied and it have judgment for said fund so deposited, and in the event it so recovers said fund that the court will enter such proper judgment in connection with the other matters in this cause as may be proper, and that in the event they do not recover said sum then that it recover of the-said H. G. and P. 0. Schmidt the sum of $1564.65 with interest from the date of its payment, or, in the alternative, that it recover of and- from the said H. G. and P. C. Schmidt the sum of $1709.01 paid as taxes, with interest from July 27, 1927.”

H. G. Schmidt and P. O. Schmidt, appearing as cross-defendants, denied generally the allegations contained in the pleadings of all adverse parties. They specially alleged that they, acting for themselves, signed the petition for the construction of the sewer by which they agreed and bound themselves to pay to E. K. High for constructing the sewer $1.55 per front foot; that by their executing the petition with others for the construction of .the sewer they agreed and bound themselves to he governed by the terms set forth in said petition; that thereafter a contract was duly let to E. K. High and he sought to have them pay in full and to sign additional obligations waiving their right to make the deferred payments called for in the petition; that in the fall of 1925 they sold their property involved in this suit to Sun-ylan Company; that prior to and after such sale, High continued to make demand to them for payment of his obligations created by reason of executing said petition; that as Sun-ylan Company was wrongfully asserting they were liable for the payment of taxes due on said property in the sum of $1,700, for which it sued, they declined to pay High; that it was thereafter agreed between Sunylan Company and them that if they would satisfy the claim of High against them, that Sunylan Company would dismiss its suit for taxes; that in pursuance of such agreement they did pay High the sum of $1,200 in full and final settlement of his claim against them on their subscription and took an assignment of all his rights in said sewer line which fronted on the property belonging to Sunylan Company, and thus made available to said company the result of such assignment.

Further pleading, they alleged: “That they did not know the plaintiff Ed. H. Harrell in the transaction and had no notice or knowledge that he had acquired hy assignment-, sub-rogation or otherwise, the claim and chose of action which E. K. High was asserting in his said suit in the district court of Harris County ; that they never at any time authorized, empowered or requested the said Ed. H. Harrell to pay their proportionate part of said sewer costs to the contractor E. K. High, and had no notice or knowledge that he had done so, which is not admitted, but here expressly denied; that by reason of which things these defendants say that if the said E. K. High was paid in full the contract price for said sewer, and if in fact the said Ed. H. Harrell paid the debt of these defendants as Trustee hy subscription, or otherwise — which things are not admitted but expressly denied — then the said Ed. H. Harrell was a mere volunteer and intermeddler; that he took no steps and gave no notice that he had acquired or'attempted to acquire the rights being asserted hy E. K. High in his suit and his action in this regard and any action on the part of the City of Houston seeking to change, amend or alter the contract rights existing between E. K. High and these defendants, without the notice, knowledge or consent of these defendants and without affording to these defendants any defense against the claims still being asserted by the said E. K. High, were and are nullities and of no force and effect.”

They plead that hy reason of the things alleged they are not liable to the Sunylan Company in any sum whatever.

The city of Houston answered and tendered the money deposited with it by Sunylan Company into court, saying that it had been so deposited under protest, and that notice had been served on the city at the time of such deposit not to pay it to any one, hut to hold the same subject to the determination of the rights of certain claimants thereto. It prayed that the Sunylan Company he made a party to the suit in order that the respective rights of the parties might he determined. The city took no further part in the litigation.

On the 26th day of April,. 1932, the day on which the judgment was finally rendered, the Sisters of Charity of the Incarnate Word, for some reason, intervened in the suit and disclaimed in favor of the original plaintiff, Ed. H. Harrell, to the deposit made by Sunylan Company with the city, and on the same day Harrell filed what he designated as “plaintiff’s trial amendment.”

Upon the facts shown by the undisputed evidence, which we have substantially stated in our preliminary statement, and upon the pleadings, the court, trying the ease without a jury, rendered judgment for Ed. H. Harrell, decreeing that he should recover from the city of Houston the $1,564.65 deposited with the city by the Sunylan Company, as prayed for by Harrell as against all parties, and that Sunylan Company recover of H. G. Schmidt and P. C. Schmidt the sum of $1,564.65, together with interest from the 11th day of April, 1928, to date of judgment, a total sum, principal and interest, of $1,940.13.

Prom such judgment the Sunylan Company and H. G. and P. C. Schmidt have appealed.

Appellant Sunylan Company insists on appeal:

(1) That the undisputed evidence entitled it to a reversal of so much of the judgment as was in favor of Harrell for the deposit it made with the city under protest, and the rendition here of a judgment in its favor for such deposit.

(2) That if it is held that it is not entitled to the rendition of judgment in its favor for the deposit, then, and in that event only, it says that the judgment as a whole should be reversed and the cause remanded, in that as shown by the ordinance requiring the deposit with the city by the Sunylan Company it was deposited for the use and benefit of those named in said ordinance, to wit: “Sisters of Charity of the Incarnate Word, and H/B & T. R. R. Co., James A. Painter, Pannie H. Roose, Martin L. Trost, Walter Ohudleigh, P. C. Stewart, Union National Bank, and J. W. Lockett, B. P. Simms, Wm. Olschewske, W. R. and A. R. Hamblen, and W. P ."Hammond.”

Wherefore, such parties were necessary and indispensable parties to the suit of Harrell, and they were not made parties thereto.

The majority of the court sustains both of such contentions, but as we hold that the first should be sustained and a judgment should here be rendered in favor of Sunylan Company for the deposit sued for by its cross-action, the reversal of the judgment for the purpose of making new parties becomes unnecessary.

As shown by the petition above set out, several parties, among them H. G. and P. C. Schmidt, signed and presented to the city council of the city of Houston a petition requesting the council to have plans and specifications prepared for the construction of a sanitary sewer along Lawndale avenue in said city, and to let a contract for the construction of the sewer. By such petition they stipulated that the cost of such construction should be $1.55 per front foot, not to exceed $3.50 per linear foot. They by the petition obligated and bound themselves that in the event the sewer was constructed and accepted by the city to pay to the party constructing the -same the amount stipulated in the petition, that is, $1.55 per foot frontage on their respective properties as follows: -“AH such amounts to be payable by said property owners either in cash or in five equal, annual installments, one, thirty (30) days after completion of said improvements and acceptance by the City Engineering Department; one, a year after date of such acceptance; one, two (2) years from said date; one, three (3) years after said date; one, four (4) years after said date with interest thereon at the rate not to exceed eight per cent (8%) per annum until paid. Any of said property owners to have the privilege of paying any of the said installments before maturity by paying all such principal and accrued interest to that date. Said property owners to give as security for such deferred payments a lien on such property so owned by them in the area of said improvements.”

After the receipt of the petition mentioned, the city council had the plans and specifications called for in the petition made, and upon said petition, plans, and specifications let the contract for the construction of the sewer to E. K. High; it being agreed between the city and High that he should look to the subscribers to the petition for payment in accordance with the terms stipulated in the petition, and that the city would pay no part of same.

After entering into such contract, High began the work of construction of the sewer and soon found himself unable financially to complete the sewer, unless the subscribers to the petition for the sewer would at that time pay their several subscriptions. Some of the subscribers met High’s demand for payment in advance of the completion and acceptance of the sewer. At the time High called for payment in advance of the time fixed by the contract made with the city council, H. G. Schmidt and F. O. Schmidt were negotiating a sale of their property, which was assessable under the contract made with the city council, to the Sunylan Company. While such negotiations were pending, High spoke to F. C. Schmidt over the phone and asked that he and his brother, H. G. Schmidt, pay or secure payment of the amount assessed against their property. In answer to such request, F. C. Schmidt replied over the phone that they at that time were not interested as they expected to sell their property to the Sunylan Company. A short time after such phone conversation the Schmidts sold their property to the Suny-lan Company and conveyed the title thereto by warranty deed. After such sale was made, the Schmidts were contending that the Suny-lan Company should pay the assessment made for the sewer construction against the property conveyed. On the other hand, the Sunylan Company contended that under their warranty the Schmidts were obligated to pay such assessment. Because of such controversy, neither the Schmidts nor Sunylan Company would assume payment of said assessment.

By reason of the failure and refusal of the Schmidts and some other subscribers to the sewer petition to pay, a deficiency of $2,052.24, in the amount which High was to be paid under his contract with the city, existed. Whereupon, High informed Ed. H. Harrell, who had with High got the signatures of the several property owners to the sewer petition, of such deficiency, and stated to him that unless such deficiency was paid to him he would not complete the sewer.' Upon receiving such information Ed. H. Harrell, because of his friendship to the Sisters of Charity of the Incarnate Word, who were anxious to have the sewer constructed, solicited and obtained from certain persons, friends of his and of the Sisters, funds to make up súeh deficiency, which he says he held as trustee for those who had paid the assessment made against their several properties. Such sum so obtained was paid by Harrell to High in satisfaction of the sum due him for constructing the sewer.

After the sewer was completed and accepted by the city, and as the assessment made against the property of the Schmidts was unpaid, High brought suit against the Schmidts to recover the sum assessed against the property owned by them. Pending such suit the Sunylan Company, desiring to connect with the sewer, entered into an agreement with the Schmidts that if they would satisfy the demand made by High against them, the Suny-lan Company would remit its claim against the Schmidts for the taxes due on the property. Upon such agreement, the Schmidts paid High $1,200 in satisfaction of his demand, and High’s suit was dismissed. After such payment to High was made, the Sunylan Company demanded of the city that it be permitted to connect with the sewer. Such connection was thereafter granted upon conditions only as shown by the ordinance passed by the city council which we have hereinbefore set out, which said ordinance, as prerequisite to the right of the Sunylan Company to have such connection, required a deposit with the city of $1,964.65. Such sum, as already stated, was deposited with the city under protest.

The trial court as a basis for its judgment held, in effect, that the Schmidts had withdrawn and annulled their part of the contract made with the city for the construction of the sewer by the phone conversation mentioned above. Notwithstanding such holding, however, and notwithstanding the fact that the Schmidts had paid High $1,200 in satisfaction of the amount due by them to High for the construction of the sewer, the court held that Harrell was subrogated to the rights of High to recover the $1,564.65 deposited with the city by the Sunylan Company to repay him for the sum he had voluntarily paid to High to get him to complete the construction of the sewer.

The majority of this court concludes that the contract entered into with the city by the Schmidts by the petition asking for the construction of the sewer, wherein and whereby they promised to pay to the contractor the sum to be assessed against their property upon the completion of the sewer and its acceptance by the city, became and is a binding contract on the part of the Schmidts from which they could not withdraw, and therefore the trial court erred in holding to the contrary. Indeed, both High, the contractor, and the Schmidts recognized the Schmidts’ primary liability to pay their part of the cost of constructing the sewer, as evidenced by High’s suit against the Schmidts and the Schmidts’ satisfaction thereof by the payment of $1,200 to High.

Upon the satisfaction of High’s suit by the Schmidts, the Sunylan Company, the vendee of the Schmidts, had the right to a connection with the sewer without making the deposit demanded by and deposited with the city. Such being its right, it is now entitled to a recovery of the sum of $1,564.65 deposited with the city and by the city deposited in the registry of the trial court. High’s claim against the Schmidts was never transferred hy High to Harrell, nor did the Schmidts ever at any time promise to pay the same to Harrell. Harrell was not the assignee of.High. He was a mere volunteer in his attempt to pay the debt of the Schmidts to High.

Under such circumstances, neither the Sisters of Charity of the Incarnate Word nor Harrell is entitled to a judgment for the sum deposited by the Sunylan Company with the city.

For the reasons pointed out, so much of the judgment as awarded to Ed. H. Harrell the sum deposited in court by the city of Houston is by a majority of this court reversed, and judgment is here rendered awarding to the Sunylan Company a recovery of said sum, and since the Sunylan Company is asking for an affirmance of the judgment rendered in its favor against H. G. and F. C. Schmidt only in event it was denied a recovery of its deposit with the city, such judgment against the Schmidts is reversed, and it is hereby decreed that they go hence without day.

Justice GRAVES dissents from so much of the conclusions of the majority that the judgment should be reversed and here rendered for appellants.

The majority of this court has found from the facts shown that the Sunylan Company was the exclusive owner of the deposit made with the city, and that neither Harrell nor any of the parties named in the ordinance requiring such deposit to be made owned any interest therein, and therefore none of them was a necessary party to the suit.

We therefore hold that the judgment should not be reversed and remanded for the purpose of making any of such parties party to this suit.

The judgment is reversed, and judgment is here rendered for the Sunylan Company and H. G. Schmidt and F. C. Schmidt, as above stated.

Reversed and rendered.

GRAVES, Justice

(dissenting).

Not being in accord with the holdings of the majority affecting rendition, I dissent therefrom under the individual conclusion that the signers of the original petition to the city council for the sewer, or at the least such of them as paid the assessments subsequently made against them pursuant thereto, were necessary parties to the suit, and that in consequence of their not having been brought in the cause should have been remanded for a trial de novo as to who owned the fund involved with them also before the court.

On Motion for Rehearing.

PER CURIAM.

Refiearing denied.

GRAVES, Justice

(dissenting).

In the original dissenting opinion the term “assessments” was inadvertently used as if there had been assessments made by the city against the property owners for the sewer involved, pursuant to the original petition to the city signed by such owners; that was an error of expression, since the record shows the city never made any such assessments, the idea in mind at the time evidently having been that the joinder of the owners in the petition for the improvements, by force of that request itself, amounted to an apportionment of the cost between them according to the frontage owned by each.


source: Caselaw Access Project

author: JOHNSON, Chief Justice.

license: Public Domain

text:
    DIXIE MOTOR COACH CORPORATION v. BALL.
    No. 4597.
    Court of Civil Appeals of Texas. Texarkana.
    March 23, 1934.
    Rehearing Denied March 29, 1934.

      Cunningham & Lipscomb, of Bonham,- for appellant.
    IF. A. Dale and Allen Reed, both of Bonham, rfor appellee.
   JOHNSON, Chief Justice.

The plaintiff, Mrs. Bertha Ball, appellee .here, sued the appellant, Dixie Motor Coach Corporation, in the district court of Fannin ■ county for damages on account of alleged per- ■ sonal injuries and injuries to her automobile, . alleged to have been sustained June 2, 1931, . as the result of a collision between her automobile and defendant’s motorbus at a bridge on Highway No. 5, about two miles west of Bells, Tex. Plaintiff was traveling west and ■ the motorbus east. Plaintiff alleged that the ■ collision was caused by the negligence of defendant's driver, particularly in operating the motorbus on the north side of the road at the time. Defendant answered by denial, and specially pleaded contributory negligence on the part of plaintiff in certain particulars stated in defendant’s answer. The trial was to a jury. The facts as found by the jury in answer to all special' issues submitted aro in favor of the plaintiff. After remittitur of certain amounts was filed by plaintiff, the court entered judgment in her favor for the sum of $2,110.95. From an order of the court overruling its motion for new trial, the defendant has perfected its appeal, and has assigned as error the rulings of the court with respect to excluding certain testimony and admitting certain testimony over the objection of the defendant on the trial of the case.

There was an issue between plaintiff and defendant as to the particular point where the cars came together on the road. Plaintiff claimed they collided on the bridge, and the defendant claimed it was off -and east of the bridge. Mrs. R. F. Bentle was an occu>-l>ant of plaintiff’s Ford car at the time of the accident, and on direct .examination for plaintiff she testified:

“When the bus struck us we were about three or four feet on the bridge, just as close to the north banister as we could get. * * *
“Q. Well, what happened, just tell the jury in your own words. A. Well, I don’t know, when it struck us, why, it just tore the car up, you kno.w, almost, and pulled, dragged us back off from the bridge, poured out the oil and water on the bridge and then dragged us hack.”
And on cross-examination by defendant she testified:
“Q. According to your version, if it hit where you say it hit, it would, necessarily have to drag that car back across the bridge, would it not? A. Yes, sir.
■ “Q. All right, now you examined the ground, there was not a scratch or a scar on that ground anywhere? A. No, sir, I didn’t examine nothing.
“Q. You did not see any dragging across there at any place, did you? ,A. No, sir, I never noticed.
“Q. You didn’t see any drag where the rear wheel of that bus got over the south side of that bridge either, did you? A. No, sir, but of course there was where'the car was dragged back.
“Q. Did you see any signs, that is what I want to get at — did you see any signs on that dirt or on that bridge, where that Ford had been dragged across?”
The plaintiff objected to the last above question on the ground that it called for a conclusion of the witness. The objection was by the court sustained. The defendant duly excepted, and by appellant’s first assignment of error presents the ruling of the court in this respect for review. To further illustrate the point under consideration, we quote the defendant’s question propounded to the witness and tlie witness’ answer to the question, next following the question objected to:
“Q. I will ask you, then, did you notice any marks on the road or bridge at all anywhere near the rear end of the bus? A. No, sir.”

We are not of the opinion that the honorable judge was in error in sustaining the objection complained of. The testimony of the witness shows that she had not examined the ground for signs at the point in question, and had not “seen or noticed any signs on the ground of dragging across there at any place” ; hence the question necessarily called for an answer involving the conclusion of the witness to be drawn from the facts which she did not know existed, that is, as to whether or not the dragging of the Ford car had caused the signs, if any, on the ground, which signs the’witness had not seen or noticed.

By its second assignment of error appellant complains of the ruling of the court made under similar circumstances in sustaining plaintiff's objections to a like question propounded on cross-examination to plaintiff’s witness Miss Frankie Roach, also an occupant of plaintiff’s car at the time of the collisiorfe and who had on her direct examination testified in substance as did Mrs. R. F. Bentle with respect to the cars having collided on the bridge, but who, also, did not notice any signs on the ground other than the water and oil that ran out of the Ford at the tíme of the collision. For the reasons above stated this assignment is also overruled.

Appellant’s third assignment complains of the ruling of the court in permitting G. W. Nunnellee, witness for plaintiff, to testify, over objection of defendant, that “he saw the Ford car the day before the wreck at Hal-sell Motor Company, and that plaintiff had it in there for us to cheek it up, check the brakes and adjust it all over, fixing to make a trip, she said.” This testimony was offered by plaintiff, presumably, in denial of defendant’s allegations that plaintiff’s brakes were in .bad condition contributing to the accident. The court withdrew all this testimony of the witness from the jury and instructed them not to consider any part of his answer except the fact that witness saw the Ford car at the time stated. The assignment is not well taken and is overruled.

By. its fourth and fifth assignments of errors appellant complains of the ruling of the court in permitting Clyde Winkler and L. B. Birchfield, the mechanics who went out to drag in the Ford car, to testify for plaintiff, over the objections of defendant, in substance, that they saw a wet spot on the bridge, about one-third the way across the bridge from the east side, about three and a half or four feet from the north side of the bridge. . It appears ■ that it was dry, hot weather and the general condition of the road was dry, and it was the contention of the plaintiff that this wet spot was made by the water and oil which ran from her Ford car at the time and place of the collision, and indicated the point where the automobiles came together. It is testified that the wreck occurred about 2 p. m. and that these mechanics did not arrive on the scene until about 3 or 3:30 p. m., being an hour or an hour and a half after the collision. Appellant made objection to their testimony on the ground that the conditions of the scene were not shown to have been the same when the withesses viewed it, as it was at the time of the collision. We are of the opinion that in the circumstances the testimony was admis-. sible.

Appellant’s sixth assignment of error complains of the action of the court in permitting W. O. Long, a witness in rebuttal for plaintiff, to testify over objection of the defendant as to the location of certain trees on the north side of the road near the scene of the accident and their effect upon one’s view,, with respect to a bend in the road. This witness was testifying to what he saw concerning the road and the position of the trees as he viewed them shortly before the trial, which was approximately two years after the collision, and the defendant objected to the testimony for this reason. The testimony was properly offered and admitted in rebuttal of the defendant’s witness B. L. Adams, who had previously testified with regard to the same matter from an observation ho had made shortly before the trial. It is also pointed out by the appellee that there was evidence in the record that the trees and the road are in their respective positions on the ground as of the day of the collision.

The seventh and eighth assignments of error concern the omission from the record of certain special issues, which omission has been cured by supplemental transcript.

Having examined carefully all appellant’s assignments and finding no error presented, the judgment of the trial court is affirmed.


author: LESLIE, Justice.

text:
    REPUBLIC UNDERWRITERS v. HOWARD.
    No. 1203.
    Court of Civil Appeals of Texas. Eastland.
    Feb. 16, 1934.
    Rehearing Denied March 23, 1934.
    Mays & Perkins, of Sweetwater, and Ellis K. Douthit, of Abilene, for appellant.
    Beall, Beall & Beall, of Sweetwater, for ap-pellee.
   LESLIE, Justice.

This was a suit by Cecil O. Howard for compensation for damages by reason of an industrial accident sustained while employed by the L. S. Howard Gin, which carried compensation insurance with the Republic Underwriters, the appellant herein. The Industrial Accident Board awarded damages, and the Underwriters appealed therefrom by timely notice and filing of suit in the district court. Trial in court resulted in judgment for claimant, and the carrier prosecutes this appeal. Facts material to the points presented will he stated in the body of the opinion.

The board’s award was made June 28,1932. The claimant’s notice of appeal was given the board and carrier July 11, 1932. His time for filing independent suit based on his notice expired July 31, 1932. The Underwriters’ notice, etc., of appeal was given July 15, 1932, and seventeen days thereafter (August 1st) it filed its suit in the district court of Nolan county to set aside the award. The next day,’ August 2d, the claimant filed what is designated as his answer and cross-action to the Underwriters’ suit. Citation issued on it August 9, 1932. September 30, T932, the employee filed his first amended original answer and cross-action. Following this, the Underwriters filed, on February 9, .1933, a motion to discontinue or dismiss its original, suit filed August 1, 1932. The court overruled this motion the same day and exception was taken thereto. On that day, February 9, 1933, the Underwriters had filed what is designated “Plaintiff’s First Amended Original Petition,” containing a general demurrer to the claimant’s cross-action, and also a general denial of the same. This general demurrer, though present in the pleading, was never urged before the trial court until after he acted upon the motion to dismiss. General and special exceptions, however, were urged after the claimant filed his “Second Amended Original Answer and Gross-action,” upon which the trial was in fact had. Said demurrer, as it related to the original or first amended' answer and cross-action, was specifically called to the court’s attention first in the motion for a new trial.

To the action of the trial court in overruling the motion to dismiss or nonsuit, the appellant contends that “the court in failing and refusing to sustain its motion to dismiss or discontinue its appeal from the award of the Industrial Accident Board was in error.”

Obviously, this assignment is predicated upon the ground that the appellee’s cross-action was subject to a general demurrer in that it did not allege the jurisdictional facts prerequisite to a valid appeal, or, in other words, that no valid' cross-action or plea for affirmative relief had been filed by claimant at the time the motion for nonsuit or discontinuance was interposed. This proposition rests upon the further contention that the claimant’s first amended answer and cross-action omitted any allegation (1) that within thirty days after the receipt of the injury he notified either his employer, or the association of the same; or (2) that he properly filed within six months after injury any claim with the Industrial Accident Board.

An examination of the record discloses that at the time the appellant was seeking to non-suit or discontinue its suit, the only pleading then on file by the claimant — the first amended' answer and cross-action — in fact did not contain any allegation as to said notice and claim before the-board. In this situation the appellant invokes article 2182, R. S. 1925, and authorities thereunder. Hoodless v. Winter, 80 Tex. 638, 16 S. W. 427; Frois v. Mayfield, 31 Tex. 366; Egery v. Power, 5 Tex. 501; Apache Cotton Oil Co. v. Watkins (Tex. Civ. App.) 189 S. W. 1083; Peters v. Chandler (Tex. Civ.. App.) 51 S. W. 281; White v. Williams, 13 Tex. 258; Ramsey v. District Court, 33 Idaho, 296, 193 P. 733; Odum v. Peeler (Tex. Civ. App.) 278 S. W. 884; Dannelly v. Jeffrey (Tex. Civ. App.) 283 S. W. 351; W. B. Walker & Sons v. Hernandez, 42 Tex. Civ. App. 543, 92 S. W. 1067.

Based upon this statute and such authorities, the appellant concludes as follows: ■

“In our opinion the above authorities are conclusive of this appellant’s right to take a non-suit, if, at the time of filing of its motion, there was no cross-action for affirmative relief or for that matter, even if there was a purported one but such being subject to a general demurrer, then nevertheless such motion for discontinuance should prevail.”

The appellant then proceeds upon the authority of Mingus v. Wadley, 115 Tex. 551, 285 8. W. 10S4, Globe Indemnity Co. v. McClurg (Tex. Civ. App.) 38 S.W.(2d) 125, Texas Employers’ Ins. Ass’n v. Wright (Tex. Com. App.) 4 S.W.(2d) 31, and other authorities of like import discussing jurisdictional questions under the Workmen’s Compensation Law to demonstrate that the claimant's answer and cross-action was subject to a general demurrer, and that its nonsuit should have been granted, carrying with it claim-' ant’s interest, if any, in the litigation.

It will be remembered that the claimant’s .notice of dissatisfaction, etc., of the award .and intention to appeal was mailed to the board July 8, 1932, and received by it July 11, 1932. From this it is seen that August .1st, the day suit was filed by the Underwriters, the claimant’s twenty days for independent suit had expired. His cross-action was filed, however, August 2, 1932, twenty-one days after his notice, etc. If the claimant had given no notice of dissatisfaction and intention to appeal from the award at all, he certainly had the right under the statute to appear and present his claim for compensation for the injury under the terms of the statute. Having given notice, and failing to file suit, or present a cross-action within the twenty days, would certainly not put him in a worse position than if he had given no notice at all.

No doubt the cross-action was timely •filed. In the recent case of Maryland Casualty Co. v. Reel et al.(Tex. Civ. App.) 64 S.W.(2d) 1047, 1048, the Industrial Accident Board made an award to Reel, the employee, against the- company. Reel appealed to the district court, and likewise, and in due course, the insurance company also appealed by separate proceeding. The second case, that of the casualty company, .was first taken up for trial, and Reel presented a plea in abatement to the suit upon the ground of the pendency of the former suit by him involving the identical cause of action. The trial court sus-' tained the plea in abatement, and dismissed the second suit and refused the company’s motion to consolidate the two causes. The appeal followed, and it was held that “the trial court did not err in that disposition of the suit. When Reel filed his appeal in the district court, such action had the effect of bringing all the parties and the entire controversy before that court for a trial de no- , vo. If the insurer [Insurance Company] desired to contest the previous award to Reel, '.it was Us duty and privilege to do so in that ,;proceeding, by way of cross-action.” (Italics ■ours.) Citing many authorities. This holding, ■we think, is sound and supported by the au-ithorities. The logic of it is that when one of the interested parties has perfected an appeal from the award of the board, and thereby carried all the issues and interested parties into the trial court, it is a useless and futile thing for another of the interested parties to proceed to file an independent suit or appeal. After the suit is filed by one of the parties, the litigation rests in the trial court for the benefit of all of the interested parties, and in a case like this the claimant has his right ⅜0 a final hearing upon the merits of his claim under the pleadings deemed sufficient as an original proposition, or made so by amendment under the rules of procedure in our courts. The claimant is vitally interested in the substance of the litigation the appealing party timely puts in the court.

Stated differently, if the litigation was carried to the trial court by the carrier’s suit, the claimant’s right under the appellant’s pleadings remained intact (notwithstanding the nonsuit may have been granted) to be urged and claimed under proper pleadings at any time prior to a dismissal of a claimant’s cause for want of prosecution. We find no statute or authority which in any wise limits or circumscribes such right- to affirmative relief that inheres in the very nature of the action under the Workmen’s Compensation Law (Vernon’s Ann. Civ. St. art. 8306 et seq.), which should always be liberally construed to effect its beneficent purpose.

Subdivision 8, art. 10, R. S. 1925, under the subject of the “Construction of Laws of Texas,” reads:

“The rule of the common law that statutes in derogation thereof shall be strictly construed shall have no application to the Revised Statutes; but the said statutes shall constitute the law of this State respecting the subjects to which they relate; and the provisions thereof shall be liberally construed with a view to effect their objects and to promote justice.”

Further, we think that article 2182, R. S. 1925, properly construed affords no basis for the appellant’s contention in so far as it is claimed that plaintiff’s nonsuit would in any way affect the cross-action. That article reads as follows:

“At any time before the jury has retired, the plaintiff may take a non-suit, but he shall not thereby prejudice the right of an adverse party to be heard on his claim for affirmative relief.”

This article places no limitation whatever on the plaintiff’s right to take a nonsuit, provided he does so “before the jury has retired.” The statute then declares the effect of a non-suit by saying it “shall not thereby prejudice the right of an adverse party to be heard on his claim for affirmative relief.” That is a succinct statement of the effect of the non-suit.

In the instant case, the association, after having filed its suit to set aside the award, filed its motion to dismiss “its suit,” and included therein as well a tender of the amount of the board’s award. The trial court, in refusing to permit the association to nonsuit as to “its suit,” committed technical error, but it was harmless. There was no error in the court’s action in so far as he refused to permit that ruling to have any effect on the claimant’s cross-action. Bailey v. Federal Supply Co. (Tex. Com. App.) 287 S. W. 1090. This pleading, by its title and contents, discloses that the claimant was seeking affirmative relief, usual in such cases. Let it be granted that the pleading by way of cross-action was deficient in the two respects contended, it was nevertheless amendable, and, indeed was fully amended later in matters of substance as evidenced by the second amended answer and cross-action, upon which the trial was had.

When the association perfected its appeal from the award of the Industrial Accident Board, that appeal carried all the issues and interested parties before the district court for a trial de novo of the controversy. Article 8807, § 5, R. S. 1925, as amended by Acts 1931, c. 224, § 1 (Vernon’s Ann. Civ. St. art. 8307, § 5); Vestal v. Texas Employers’ Ins. Ass’n (Tex. Com. App.) 285 S. W. 1041; Southern Casualty Co. v. Fulkerson (Tex. Com. App.) 45 S.W.(2d) 152; Ocean Accident & Guarantee Corp. v. McCall (Tex. Com. App.) 45 S.W.(2d) 178. No one contends that the Underwriters did not perfect the appeal. Hence, the jurisdiction of the district court was invoked to adjudicate the entire controversy, and the Industrial Accident Board lost jurisdiction of same. The situation in such a case becomes analogous in principle to that of the judgment in the justice’s court where appeal has properly been taken to the county court. It is well settled that when an appeal is properly prosecuted from a judgment of the justice’s court in a case that it has'jurisdiction to try, the perfecting of an appeal therein avoids the judgment of the justice’s court, and the trial in the county court is one de novo. A dismissal of the case in the county court does not revitalize the judgment of the justice’s court. Campbell v. Knox (Tex. Civ. App.) 52 S.W.(2d) 803. Hence, to sustain appellant’s contention, the result would be to destroy by appeal claimant’s right under the award, and the nonsuit (if given the effect contended for by appellant) would prevent a hearing on his cross-action.

Further, as to the alleged deficiencies in the answer and cross-action pertaining to “jurisdictional allegations of the notice of injury and claim before the Industrial Accident Board,” we believe the allegations of such cross-action derive support in the respects mentioned from the facts alleged in the Underwriters’ (appellant’s) petition wherein it alleges, with reference to the. award of the board, “that said ruling and decision is numbered R-8964- and is styled Cecil C. Howard, employee, v. L. S. Howard, employer, Republic Underwriters, insurer, and a certified, copy of said final ruling and decision-will be filed among the papers of this case for jurisdictional purposes.” (Italics ours.) By referring to, the certified copy of the- ruling, it is found to contain the following, statement:

“On this the 28th day of June, 1932, after-due notice to all parties, came on to be considered by the Industrial Accident Board-claim for* compensation by Cecil 0. Howard against the Republic Underwriters, and the Board finds and orders: On January 9, 1932, L. S. Howard a subscriber to the Employers’ Liability Law with insurance carried by Republic Underwriters had in his employ Cecil ■ C. Howard whose average weekly wage was * * ⅜ and. that said Cecil 0. Howard suffered injury in course of his employment,”' etc. (Italics ours.) ■

In addition to the above there is another pleading upon the part of the association, allot which taken in connection with the claimant’s first amended answer and cross-action, ■ supplies, we think, by clear inference at least, - all the alleged missing jurisdictional elements contended for by the appellant. The-pleading we now refer to is the plaintiff’s.' (appellant’s) motion to discontinue its suitt It is there alleged:

“Comes Republic Underwriters, plaintiff ⅛ the above styled and numbered cause, and respectfully requests the court to enter • am order discontinuing or dismissing its suit filed-herein on the 2nd day of August, 1932/ same-being a suit instituted for the purpose of setting aside an award of the Industrial Accident Board granted to defendant herein- on the 28th day of June, 1932, and* in this-connection would show:
“I. That it tendered the amount" of' said award to the defendant Cecil Howard .which by said Howard was refused.
“II. That this plaintiff has at all times heretofore been ready, willing and able, and is still ready, willing and able to pay to said defendant the amount of said! award, to-wit, $539.76, together with interest at’ the - legal rate.
“III. That plaintiff stands ready to tender-over into the registry of this court said award ¡ as stipulated.
“Wherefore, plaintiff prays that its said; suit be discontinued.’.’

This is a plain recognition by the appellant of the fact that the Industrial Accident Board had in due course considered and passed upon the appellee’s claim for industrial injury. Its tender of the amount awarded, and its effort to have the claimant accept the same, would seem to go even further and recognize that the claim was not only properly presented and claimed, but that there was some merit in it as well as the award. In view of the contents of the award and the allegations of this motion taken in connection with those of the cross-action, it would be unreasonable to hold that said jurisdictional facts were not sufficiently presented to warrant a proper amendment at least of claimant’s pleadings. Clearly, they give rise to the inference that notice of injury was given as a 'basis for the claim, and that in due course the board acquired jurisdiction of the claim, acted upon it, and made a valid award. Such conclusion, we think, is warranted by the following authorities: Davies v. Texas Employers’, etc. (Tex. Com. App.) 16 S.W.(2d) 524; Indemnity Ins. Co. v. Sparra (Tex. Civ. App.) 57 S.W.(2d) 892; Texas Employers’, etc., v. Lovett (Tex. Civ. App.) 19 S.W.(2d) 397; Texas Employers’, etc., v. Arnold (Tex. Civ. App.) 57 S.W.(2d) 954; Globe Ind. Co. v. McClurg (Tex. Civ. App.) 38 S.W.(2d) 125; Texas Employers’, etc., v. Schoeppel (Tex. Civ. App.) 10 S.W.(2d) 405; American Employers’ Ins. Co. v. Scott (Tex. Civ. App.) 33 S.W.(2d) 845.

In 49 O. J. p. 864, § 1274, it is said; “A plea, answer, or other pleading of defendant may aid the petition, declaration, or complaint, and supply, cure or remedy an omission, defect or infirmity therein, as by affirmatively alleging or admitting a material fact not alleged, or defectively alleged, by plaintiff.” The principle is applicable here as discussed by this court in the Sparra Case, supra, to which, and the authorities there cited, reference is here made.

The trial court committed no error in proceeding to try the ease upon the merits of the cross-action.

The second, third, fourth, and fifth assignments of error are briefed together and will be so considered here. They in substance contend that the answers of physicians that dizziness, headache, loss of memory, etc., which the injured employee complained of could have resulted from a lick sustained by him on his head when hit by a heavy weight, etc. It is complained that those questions were improper and called for answers involving matters conjectural, speculative, and remote. The appellee was asserting pfermanent disability or incapacity to perform the usual duties of the workman, etc., as a result of the accident. There was much testimony of the injury and that he had suffered in the respects reflected by the questions. In this state of the record there was no error in permitting the physicians to testify that definite results, symptoms, or ailments were traceable to the injury, or caused thereby. The questions did not call for speculation or conjecture upon the part of the witnesses as to what might possibly grow out of the injury at some remote or indefinite time in the future. The testimony complained of is not of the character condemned in such authorities as Galveston, H. & S. A. Ry. Co. v. Powers, 101 Tex. 161, 105 S. W. 491; St. Louis Southwestern Ry. Co. v. Moore (Tex. Civ. App.) 161 S. W. 378; Houston & T. C. Ry. Co. v. Fox, 106 Tex. 317, 166 S. W. 698 ; Pecos & N. T. Ry. Co. v. Collins (Tex. Civ. App.) 173 S. W. 250. If it had gone to the extent of showing with reasonable probability that the injury would produce a given effect, it would not have been objectionable under the above authorities. Certainly a witness should not be permitted to testify to the results of speculative and conjectural nature that may occur in the remote future. However, in the instant case the appellee had offered pertinent testimony that his condition, was the result of the injury received, or followed close thereafter, and there was no error in the admission of testimony simply to the effect; that the condition could be the result of the injury. These assignments are overruled.

Assignments six, seven, eight, nine, and ten are briefed together and will be so considered. They involve the admission of alleged erroneous testimony, some of it charged to be hearsay and some of it self-serving. The brief of appellant quotes extensively and consecutively from the Q. and A. record of the evidence as taken, and then presents ordinary bills of exception, embracing parts of the same testimony and omitting some of the same as found in the statement in the brief. Some portions 'of the testimony were admissible without doubt, and parts of the same witness’ testimony were questioned, but since the judge’s approval of the bills certifies that “in each instance counsel pointed out the specific portion of the answer to which he was lodging his objections,” we have concluded t'o pass over the sufficiency of appel-lee’s objections to a consideration of the bills and consider the merits of the objections raised.

At the risk, perhaps, of extending the opinion to an undue length, we deem it necessary to set forth in substance the nature of the testimony challenged, and give it its true setting in relation to the testimony generally. Respective witnesses testified as follows:

The appellee’s brother, Leland, or L. S. Howard, for whom the employee was working when injured, and for whom he attempted to work soon thereafter, testified that he “observed” the appellee before and after the accident; that he was in good condition in matters of health and body before that event and not so thereafter; that he was nervous; that he was put back to the same kind of work when he returned after the injury that he did prior thereto and he could not do it; that he observed a paralytic condition about the face of the appellee after the injury; that his Condition was getting worse about September 10, 1932; that his memory was bad during this period of time; that he complained of having headaches. This witness was in close touch with the injured employee during his illness and he went with him on his trips to undergo examinations, by physicians and to obtain treatments.

W. B. Howard, the father of the injured party, and with whom he was living at the time of the accident and thereafter, testified to the appellee’s condition of health and body before the accident and after the same, noting the specific change and difference. He testified that appellee could not do the work he did before; that after the injury he was nervous, had bad spells with his head, and would send for the doctor; that from his observation of him after the injury he suffered pain, had twitching of the mouth that bothered him a great deal, and “a paining of the head”; that he complained of his head and would have to send for the doctor; that he complained of pain in his head; that, during such spells he complained of his eyesight; that he would pick up a paper and say that he could not read it; that witness noticed defect in one eye; that he could hardly see with it; that after the hurt, the appellee had paralytic trouble, his mouth drew up, and he was affected with facial paralysis; that as to his resting or suffering at night, he would get up and sit up, stating he felt better sitting up.

Dr. G. W. Young, a physician of long and successful experience, who was called to attend the appellee in his injured condition, qualified and testified that during the injury and the condition following the same, the ap-pellee complained to him of not being able to sleep; that he was given to sweating, etc.; that shortly after the accident he complained of not being able to see out of his right eye. Such was the general nature of the physician’s testimony wherein he detailed the manner in which the injured party described his ailment or affection at times he attended upon him.

Barney Haynie, a druggist and witness for the appellee, testified to a long acquaintance of the physical condition, health, etc., of the appellee, both before and after the injury; that certain noticeable changes in him followed the injury; that one side of his face was higher than the other and that for a while there was a twitching about it; that he was nervous; that he complained of not being able to sleep; that at the time of such complaint he noticed something unusual about him in that he seemed to be “pale” and “didn’t have enough circulation,” etc.; that he, witness, Sold him “rest medicine for pains, something on the order of sedatives.”

Mrs. Cecil C. Howard, wife of the claimant who attended him in his injuries, testified, in substance, as did the foregoing witnesses. First, to his condition prior to the accident and thereafter. That he became nervous, had a “dropping” of the face, had a paralytic affection on one side of his face; that he was not able to do heavy work since the accident; that he complained of not being able to see so well since the injury; that he would come home with a headache; that when he tried to work, he would come home and suffer; that he had to take medicine at those times; that he appeared to be in pain; that he brooded over the condition he was in.

With the exception of the testimony of the witness W. D. Handy, which is treated separately, the above is set’ out as a reflection in substance of the state of the testimony as it relates to appellant’s assignments of error predicated on the admission of hearsay testimony and self-serving declarations in matters 'of complaining and other alleged objectionable statements on the part of the ap-pellee during his injury. The chief vice is asserted to be the hearsay nature of the complaints.

We now return to a specific discussion of the testimony of the witness W. D. Handy. This is made necessary by the peculiar nature of the question raised and the confused state of the record relating thereto. While on the witness stand, Handy testified at length concerning the health, physical and mental Condition of the appellee before and after the accident. After the injury, he stated that he noticed certain things “wrong” with the appellee, relating incidents leading to the statement. On cross-examination, attorney for appellant asked this witness if he had told the brother of appellee such things, and further asked the witness what the brother said. The witness answered that he had so informed the brother and that he, the brother, said he had noticed no change. Immediately thereafter on redirect examination, the witness was asked by appellee’s attorney if after the ab'ove conversation he did not again call the brother’s attention to such things. To this the witness answered yes, and was asked what the brother said on this occasion. To this the witness answered that the brother said that there was something “wrong” with him.

If there is any error in the foregoing, it is difficult, if not impossible, to appraise it in view of the confused state 'of this record in that matter. When the witness Handy first called the attention of the brother of appel-lee to the latter’s condition, he (Handy) said he was speaking at the time to Will Howard. The statement of facts shows that only two Howards, besides the appellee and his wife, Lillian, testified on the trial of this case; one of them was W. B. Howard, the seventy-eight year old father of the appellee, and the other E. S. Howard, or Leland Howard, the brother of appellee and employer of him at the time of the injury. If Handy’s statements were made to Will Howard, who clearly did not testify at all in this trial, a different question is presented to that had Handy made the statement to L. S. or Leland Howard, the oply brother that testified in the case. This 'record does not show that Will Howanl and L. S. Howard are one and the same persons, and indicates quite clearly that they are different persons. Therefore, we are not warranted in proceeding upon the theory that the testimony of Handy, brought out 'on his cross-examination, was by way of impeachment of L. S. Howard and that the testimony on redirect examination was by way of rehabilitating the testimony of L. S. Howard.

So, we have here a bit of hearsay testimony in the record relating to a person who did not testify and whose testimony, therefore, could not be impeached. This element, foreign to the merits of the case, was first brought into it by the appellant’s attorney. The sum and substance of it is that one who did not testify said there was something “wrong” with the appellee: If error at all, we think it should be held harmless in view of the testimony, generally. If another stated that there was something “wrong” with the appellee after the accident, he said no more that was conclusively shown by the testimony generally and particularly that given by the appellant through the witness A. B. Shumaker who organized the Underwriters company, was its attorney in fact for the general transaction of its business, and participated in the handling of injuries. When the injury of appellee was reported to that company, this witness went to Roscoe, Tex., the place of injury, looked into the situation, authorized the appellee to incur certain doctors’ hills for medical attention, and on cross-examination at the trial, testified concerning his company’s relation to the injured employee by reason of the accident as follows:

“Q. You admit that you owe Cecil Howard something? A. Tes, sir.
“Q. It is just a question of how much you owe him? A. Yes, sir.
“Q. You deny owing him anything? A. No, sir. I never have denied I owed him something.
“Q. You have changed your mind since this case came up? A. No, sir, I never denied I owed'him.”

Therefore, the condition of the appellees after the accident and during his recovery or that there was something “wrong” with him during such time, was so definitely fixed in the case by legitimate testimony and positive admission of appellant, that it would be unreasonable to view the point otherwise than as a harmless error, if error at all. For the reasons stated, we have thus segregated this bit of testimony and dealt with it independently.

We, therefore, return to a consideration of the alleged objectionable testimony given by different witnesses and first set out above. We have carefully considered this testimony in the light of the statement of facts generally in order that its true nature and effect might be better appreciated. After so doing, we have concluded that this testimony was admissible as against the objections urged. Much of it was admissible as statement of facts within the knowledge of the witnesses, and the other portions of the same were admissible as res gestee, either of the injury or the suffering and conditions resulting therefrom at the time of such complaints. As authority for this conclusion, we cite Roth v. Travelers’ Protective Ass’n of America, 102 Tex. 241, 115 S. W. 31, 32, 132 Am. St. Rep. 871, 20 Ann. Cas. 97, an opinion by our Supreme Court through Judge Brown. That was a case in which recovery was sought on a policy by reason of accidental death. The holder of the policy fell on ice and some time thereafter fell ill and died as a result thereof. In the statement of the case, Judge Brown says: “A short time after this occurred Roth became unwell, and made various complaints.” The opinion first disposed of contentions not relevant here, then considered the assignments predicated upon the admission of testimony of complaints, etc. Some portion of the testimony was condemned as being the opinion of witnesses and the Supreme Court then segregated a portion of the testimony from the mass of testimony offered and specifically approved it, setting it out thus:

“The following portion of the answer was admissible: ‘He was not so talkative as he had been. Mr, Roth complained each day while he was with me, and said he was feeling badly, and told me that his head hurt him.’ ”

This testimony, upon which that court put its stamp of approval, was given by the boarding house lady with whom the deceased Roth was staying while in his injured and suffering condition. This authority, standing alone, perhaps, warrants the admission of the testimony complained of, but the Supreme Court has further spoken upon the admissibility of such testimony in the ease of St. Louis S. W. Ry. Co. of Texas v. Brown, 30 Tex. Civ. App. 57, 69 S. W. 1010, 1011, in which a writ of error was refused. The holding there approved is found in the following excerpt from that opinion:

“By the tenth assignment appellant predicates error on the refusal of the trial court to strike out the portion of the testimony of the witness W. A. Abney to the effect that appellee told him he (appellee) could not work any more. The proof seems undisputed that, after an effort to drive the wagon for a few days after the accident, he ceased to try to work, and has done no work since. His master induced him to drive for two or three days; but he quit work, assigning as a reason that he could not. The objection urged against it was that it was hearsay and self-serving. The declaration was made a little while after the accident; and another witness testified he limped, and appeared to be crippled. The declaration was made before the suit was brought, and in direct connection with his ceasing his usual work. It was a reason given at the time for quitting. Another witness stated that he saw him try to work, and he could tell from his motions and efforts that he was unable to do his accustomed tasks. The declaration amounted to no more than a statement of the present effect of his infirmities at that time. In this view it was in the nature of res gestre, and we think the court committed no error in admitting it. This sáme witness testified, over objection, in this connection, that appellee limped, appeared to be crippled, and was unable to work, and said he based his statement on the fact that he walked crippled, worked slowly, walked with a stick, etc. These were facts which he might or might not know, and which any witness, expert or otherwise, might detail to the jury. Pringle v. Railroad Co., 64 Iowa, 613, 21 N. W. 108.”

If these authorities are correct statements of the law, and such holdings'do not appear to have been modified, they coven each phase of the testimony here challenged by the appellants and conclusively: determine its admissibility. For other authorities see 17 Tex. Jur., p. 648, § 272 et seq.

The spontaneous representations and complaints of a sick person of the nature, symptoms, and effect of a malady or injury under which he is suffering at the time are competent testimony. Texas & P. Ry. Co. v. Barron, 78 Tex. 421, 14 S. W. 698; Roth v. Travelers’ Protective Ass’n of America, supra. For the foregoing reasons, these assignments are overruled.

The eleventh assignment of error complains of a portion of the argument of ap-pellee’s attorney wherein he stated: “Those men setting there, they think that every man who makes a claim, that same is an unjust and fraudulent claim.” It was objected to as being without the record, inflammatory, and prejudicial. The ■ bill merely presents this fragmentary part of the argument, and standing alone, it is not made 'to appear that, the same was inflammatory and prejudicial. Further, the representative, who was also a chief official in the company, testified in substance that the appellant had had 3,107 claims for compensation and had also had 3,107 cases. Therefore, the remark of the attorney would seem to have some basis in the testimony and permissible as legitimate inference or deduction therefrom. The quoted portion of the argument certainly does not fall within the rule requiring reversal of the judgment of a trial court on account, of inflammatory and prejudicial argument as that rule was applied in Nicholson v. Nicholson (Tex. Civ. App.) 22 S.W.(2d) 514; Panhandle & S. F. Ry. Co. v. Sedberry (Tex. Civ. App.) 46 S.W.(2d) 719; Coleman v. Miller (Tex. Civ. App.) 19 S.W.(2d) 829; Id. (Tex. Com. App.) 29 S.W.(2d) 991. Tbe assignment is overruled. Davis v. Hill (Tex. Com. App.) 298 S. W. 526 sustains our ruling.

Assignment twelve predicates error on tbe ruling of tbe trial court in excluding from tbe jury testimony by a witness that be bad seen 'tbe claimant “take a drink ofi whiskey.” The bill recites that earlier in tbe trial a physician who was a witness for tbe claimant bad testified that “poisons like alcohol. would impair tbe eye sight.” Tbe claimant was seeking compensation for impairment of eyesight along with other injuries resulting from the accident Tbe appellant bad filed a general denial and when tbe witness Hudson was on tbe stand, be was asked tbe question whether or not be bad ever noticed tbe appellee Howard take a drink of whisky. Tbe answer was in the affirmative and the court excluded tbe same. In presenting the matter in its bill of exception, it is stated- that the appellant “expected to show by said witness and would have shown if permitted by tbe court that Cecil C. I-Ibward frequently used alcohol.” This bill is qualified by the court wherein be states that “the court did not refuse counsel permission to introduce testimony concerning claimant having drunk alcohol.” Further, the qualification states that no predicate had been laid for the introduction of the testimony, and by that we understand the court to mean that in offering the testimony, it should have disclosed that the use of the liquor was at such time and under such circumstances as to probably have a bearing on the alleged impairment of appellee’s eyesight. In this connection the witness testified that he had no occasion to observe Cecil Howard since ‘January 9, 1932, the date of the accident. Where an assignment is urged to the exclusion of certain testimony, the burden is on the one seeking to introduce the testimony to show that it was admissible. Texas Emp. Ins. Ass’n v. Davidson (Tex. Civ. App.) 288 S. W. 471, 475. In the above state of this record, we do not believe that the bill shows error. The' effect of the acceptance of a qualified bill is stated in 3 Tex. Jur., p. 657, § 464. It is there said that the qualification is controlling as to the facts therein stated; that it must be accepted as true; and that the qualification may not be contradicted nor the facts therein stated varied. The assignment is overruled.

For the reasons assigned, the judgment ofi the trial court is affirmed.