author: HIGGINS, Justice.

text:
    LLOYDS AMERICA et al. v. POE.
    No. 2902.
    Court of Civil Appeals of Texas. El Paso.
    Feb. 15, 1934.
    Rehearing Denied March 8, 1934.

      Turney, Burges, Culwell & Pollard and J. F. Hulse, all of El Paso, for plaintiffs in error.
    Paul D. Thomas and Wm. Flournoy, both of El Paso, for defendant in error.
   HIGGINS, Justice.

, A. B. Poe is an automobile dealer doing business in El Paso, Tex., under the name of A. B. Poe Motor Company. Lloyds America issued to Poe a policy of insurance protecting him as the holder of mortgage liens upon various automobiles against loss or damage from various perils, including fire, theft, and accidental collision or upset.

Poe brought this suit in the district court against Lloyds America and its attorneys in fact, Elliott Jones and W. M. Ratcliffe, setting up five separate and distinct causes of action.

The first cause of action was to recover $645.45 in unearned premiums upon which refunds were due.

The second was to recover $276.26 damage caused by theft of the Tom Thorp car, referred to as the Thorp claim.

The third, to recover $227.45 collision damage to the Jesus Frias car, referred to as the Frias claim.

The fourth, to recover $236.30 collision damage to the Sidney Knowles car, referred to as the Knowles claim.

The fifth, to recover $94.83 damage arising out of the Manuel Rangel confiscation loss.

By trial amendment a cause of action for $46.50 was set up,- the nature of which will be láter stated.

Upon trial without a jury judgment was rendered in Poe’s favor for the various sums sued for, and from such judgment this writ of error is prosecuted.

Separate findings and conclusions were not filed by the trial court. The plaintiffs in error present no point questioning the correctness of the judgment upon the first and fifth causes of action declared upon in the original petition.

Upon the trial the plaintiffs in error offered no evidence. They here complain of the sufficiency of the evidence to support the recovery upon the various causes of action other than the first and fifth.

We will first consider the questions presented relating to the Thorp theft claim.

It is asserted the evidence is insufficient to show theft of the car.

On January 18, 1932, Poe Motor Company wrote Lloyds America at El Paso a letter which reads: “This is to advise you that Mr. and Mrs. Tom Thorpe reported the theft of Ford Coupe which we sold them November 30th,* 1931. This car was stolen Saturday night. They stated that they reported the theft to the Police Depart, in El Paso & Juarez. We reported it to the Highway Police yesterday morning. The License Number of this car is D2 —2536. Motor No. 2663525.”

It was shown that Mr. Dorbandt, manager of the El Paso office of Lloyds, investigated the claim and on June 29, 1932, Lloyds wrote to Poe Motor Company as follows:

“Attention: Mr. Swanson
“Gentlemen:
“Re: Theft Loss — Mr. and Mrs.
Tom Thorpe — Oert. No. A-397-D
“Referring to our conversation in your office on Monday, the 27th with reference to the above theft loss.
“I have gone into our files in this office and do not find the proper supporting papers, however, by referring to the Certificate of Insurance it is noted that the car in question is a 1929 Ford Ooupe. The National Used Car Market Report appraised value of such automobile over the entire United States is placed at $70.00; however, in some 'instances it is eustomery to add to the United States Appraisal value approximately 60% when a car is in ordinary condition and taking for granted that the car in question was in good condition at the time of the alleged theft, it is my opinion that $125.00 will be a fair value to place on said automobile at 'this time. Therefore, if the car is not recovered and liability persists on our part, I am inclined to recommend to our" San Antonio Oifiee liability to the extent of $125.00.
“If this is agreeable to you please write our San Antonio Office direct for authorization to take proof for the latter amount.
“Tours very truly,
“Lloyds America
“By: [Sgd.] Leonard Hyatt.”

This letter recognizes the validity of the claim and, in effect, is an admission the car had been stolen.

In this connection it is said the letter was an offer of compromise and conditional offer to settle for $125, and therefore has no probative force as an admission.

Offers to compromise cannot be admitted in evidence over objection, but they are not without probative force when admitted.

The authorities cited by plaintiffs in error in this connection do not hold such offers to be without probative effect.

Furthermore, • the letter is not to be considered as an offer to compromise'and therefore inadmissible. This is true because the record shows no dispute or controversy between the parties prior to the time the letter was written. It was a simple recognition of liability because of the theft of the car and submitting an offer of $125 in payment. The letter, if timely objection had been made, would have been admissible. 22 C. J. p. 311 et seq.; 17 Tex. Jur. title Evidence, § 233; Texas & P. Ry. Co. v. Spann (Tex. Civ. App) 173 S. W. 600; Sanford v. John Finnigan Co. (Tex. Civ. App.) 169 S. W. 624.

It is further objected the authority of Leonard Hyatt, who signed the letter in behalf of Lloyds, was not shown, and the statements therein contained for such reason of no probative force against Lloyds.

It was shown that prior to the date of the letter Hyatt had been the defendant's agent in ehar'ge of its El Paso office, but before the date of the letter had been transferred to defendant’s San Antonio office where he then was. While in charge of the El Paso office he evidently was a general agent. We incline to the view that the failure to object to the introduction of the letter operated as a waiver of any failure to lay the proper predicate for its introduction by showing Hyatt’s authority at the time the letter was written. 3 C. J. pp. 703-808; 64 C. J. pp. 168-170; Chicago, R. I. & T. R. Co. v. Douglass, 33 Tex. Civ. App. 262, 76 S. W. 449; Fort Worth & D. C. R. Co. v. Wright, 27 Tex. Civ. App. 198, 64 S. W. 1001.

See, also, 2 C. J. p. 920, § 650, where it is said: “Continuance of Authority of Agent— (a) In Oases of General Agency. If a general agent for any purpose is shown the presumption as to third persons dealing with the agent is that it continues until notice of revocation.”

And at page 925, § 663, it is said: “Termination of Relation. The burden of showing that a general agency, shown to have been established for a given purpose, was terminated before or during the transaction in question is on the party asserting it. To meet the burden of proving the termination of the agency the principal asserting ⅝, must show that, before or during the transaction in question, notice, express or implied, of the revocation of the agency had been conveyed to such person.”

But, aside from these considerations of waiver and presumption of continuing authority, the record discloses that defendant in error in his petition set up the letter in question and declared upon it as a part of his cause of action. The authority of Hyatt not having been denied under oath, his authority to write the letter was not in issue. Missouri, K. & T. R. Co. v. Gober (Tex. Civ. App.) 125 S. W. 383; Missouri Life Insurance Company v. Boles (Tex. Civ. App.) 288 S. W. 271; article 2016, subd. 8, R. S.

The policy sued upon contains stipulations which read:

“Lloyds America shall not be liable until, or unless, said note or notes have become due and remain unpaid after an exhausted attempt on the part of the mortgagee to collect same, * * *
'“Lloyds America shall not be liable until, nor unless the described automobile be abandoned to the mortgagee as the immediate and direct result of one accidental collision with another object, or upset. * * * ”

With respect to the Frias and Knowles claims, it is said the evidence is insufficient to show:

(1) An “exhausted attempt” by defendant in error to collect the notes held by him against Frias and Knowles.

(2) An “accidental” collision.

(3) An “abandonment” by the owners of the cars to defendant in error '“as the immediate and direct result of one accidental collision with another object, or upset.”

In considering the sufficiency of the evidence it must be viewed in the light most favorable to the defendant in error. The trial judge passed upon all issues of fact and found in favor of Poe. Such findings are entitled to the same weight as the verdict of a jury. In considering the sufficiency of the evidence, every legitimate conclusion must be indulged which may be reasonably deduced from the facts directly proven. The evidence so considered, we think, is sufficient to support a finding in favor of Poe upon each of the three issues indicated. It would serve no purpose to detail the evidence or discuss its probative force. It has been fully considered and is regarded as prima facie sufficient.

In the trial amendment Poe sought to recover for minor losses upon three automobiles other than those referred to in the original petition. One of the cars referred to in the amendment is known as the Tom Magges car. The amendment alleged the Tom Magges automobile had been insured by Lloyds America against loss' by fire, another against loss by theft, and a third against loss by theft. That losses had occurred to each of the automobiles on account of the perils insured against, the loss to the Tom Magges automobile being by fire. That one Dorbandt, who had authority to do so, told Poe Motor Company to restore said losses, agreed with A. B. Poe, Jr., on behalf of the Poe Motor Company as to what was necessary to be done in that respect, and as to what the charge for such restoration would be, admitted the liability of the Lloyds America for the cost of restoring such losses, respectively, and ordered defendant in error to restore said losses, and charge the cost thereof to the account of Lloyds America, and promised Lloyds America would pay the cost of restoring said respective losses as set out in said 'amendment. Pursuant to such order, authority, and promise, defendant in error made repairs upon the automobile of Tom Magges to restore the damage done by fire. The work done-on the Tom Magges automobile is then itemized both as to labor and parts. It is then alleged the amounts charged were the usual and reasonable value and the price which Lloyds America, acting through said agent, agreed and promised to pay defendant in error therefor. And the services rendered in connection with each of the cars were the services which the plaintiffs in error, acting through said agent, authorized defendant in error to render, and for which it agreed to pay defendant in error the sum charged, and which it authorized to be charged against plaintiffs in error on open account.

As to the claim in connection with the Mag-ges car, the point is made that there was no proof of fire insurance upon said ear.

A. B. Poe, Jr., testified:

“Q. Mr. Poe, during the time you had insurance with the Uoyds America on various cars, was there a loss occurred, a small loss, on a ear owned by Tom Magges, they had insurance on? A. Yes.”

With respect to a conversation with Mr. Dorbandt, local agent of Lloyds, the witness testified further:

“Q. Did you have any conversation with him about a loss you were claiming on the Tom Magges car? A. Yes, his car caught on fire.
“Q. You were claiming the car caught on fire? A. Yes.
“Q. Did he undertake to adjust the matter? A. Yes.
“Q. What did he tell you to do about it? A. Repair the parts damáged by fire.
“Q. Did you agree with him on the amount before you did the work? A. Yes.
“Q. 1-Iow much did you agree with him? A. $38.50.
“Q. Did he order it charged to Lloyds America? A. Yes.”

The testimony shows that insurance of some kind was carried by Lloyds on the Mag-ges car, recognition of liability by Dorbandt, and promise to pay the cost of repairing the damage.

We regard the amendment and testimony as sufficient to show liability of Lloyds upon an express promise to pay the cost of the repairs, and that the defect in the proof complained of by plaintiff in error is immaterial.

Affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    CONGER v. DRIESSEL.
    No. 2886.
    Court of Civil Appeals of Texas. El Paso.
    Feb. 15, 1934.
    Rehearing Denied March 8, 1934.
    T. D. Kimbrough, of Midland, for appellant.
    Frank Stubbeman, of Midland, for appellee.
   HIGGINS, Justice.

Appellee, Driessel, was the agent of the Continental Oil Company at Midland, Tex., ' selling the Conoco petroleum products of said company. Driessel succeeded J. H. Haralson as such agent, who, in turn, had succeeded Fred Turner. Appellant, Conger, succeeded Driessel as such agent. Driessel sold and delivered to Conger for the agreed sum of $850 certain chattels used in connection with the agency including a truck, for which $350 of the total purchase price was to be paid’.

Driessel brought this suit against Conger to recover a balance of $500 upon the purchase price, admitting a credit of $350 upon the total price which credit represented $350 paid to Turner by Conger to obtain a bill of sale to the truck; title to the truck never having passed from Turner. Driessel also sued to recover $46.61 rent which he had been forced to pay and which he alleged had been assumed by Conger. Conger defended upon the ground that Driessel did not have good title to the chattels contending the same were encumbered by a verbal lien given by Haralson, the former owner, to secure a note of Haral-son’s in favor of Turner, which note had been indorsed by Turner to a Midland bank, of which lien Conger had been given notice. The only issue submitted was whether Dries* sel tendered Conger a clear title to all of the property involved in the suit except the truck. This was answered in the affirmative and judgment thereupon rendered in Driessel’s favor for $500.

Tho propositions upon which the appeal is based may be briefly stated as follows:

1. The undisputed evidence shows the title to the property was not clear for the reason stated above.

2. The issue submitted was erroneous in that it submitted an issue of law rather than of fact.

3. Error in the refusal of requested issues inquiring whether it was agreed by the parties that the title to the property should be satisfactory to and approved by Conger’s attorney, and, if such attorney advised Conger, the title was not good.

4. The refusal of various requested issues.

The evidence is confusing and uncertain. Upon a careful consideration of the same we are unable to agree with the view that it shows, as a matter of law, the chattels^ other than the truck, were subject to a verbal lien originally given in favor of Turner and now held by the bank. The original defect in the title to the truck is unimportant in view of the fact that Conger, with the consent of Driessel, paid $350 of the agreed price to Turner, which was applied on the note, and obtained from Turner a bill of sale to • the truck. As to the other chattels it seems most of them were acquired from one I. B. Brown by Haralson, the predecessor in title of Dries-sel. As to tliose chattels acquired from Brown, the evidence fails to show, with sufficient certainty, any lien in favor of Turner or the bank.

As to the other property sold by Turner to Haralson, the testimony is insufficient to identify it with any degree of certainty, nor is it definitely shown to have been a part of the property sold to Conger by Driessel.

The objection urged against the court’s charge was not made in the court below as 'required by article 2185, R. S., and was thereby waived.

The refusal to submit the issues relating to the title and its approval by Conger’s attorney presents no error for the reason that no such issues were raised by the pleadings of either of the parties.

The various other requested issues were also properly refused because they were either immaterial or merely evidentiary.

Finding no reversible error the judgment is affirmed.


author: BOND, Justice.

text:
    DODDS & WEDEGARTNER, Inc., v. REED.
    No. 11364.
    Court of Civil Appeals of Texas. Dallas.
    Feb. 10, 1934.
    Rehearing Denied March 10, 1934.
    Bishop & Holland, of Athens, and A. L. Montgomery, of San Benito, for appellant.
    Wynne & Wynne and Jack T. Life, all of Athens, for appellee.
   BOND, Justice.

Appellant, Dodds & Wedegartner, Inc., by verbal contract employed appellee, L.'P. Reed, to supervise the construction of a portion of state highway No. 40, leading from Athens, Henderson county, to Mabank, Kaufman county, on a time salary and a percentage of the net profit realized on the road improvement. Before the road was completed, appel-lee was transferred from the construction by appellant to another project not involved in this suit. A dispute arose as to the terms of the contract of employment; appellant contends that it employed appellee at a monthly salary of $300 and a 15 per cent, bonus based on the net profit only on that portion of the road which appellee superintended, less the profit on cement; appellee contends that he was employed at a weekly salary of $75 and a bonus of 15 per cent, on the net profit on the entire project from Athens to Mabank, less the profit on cement. The salary is not in controversy; the only issue being as to whether the 16 per cent, bonus was to be paid -on the entire project, or only on the portion .supervised by appellee.

The trial court submitted the case to the 'jury on the following pertinent special issues:

“Question No. 1: Do you find from a preponderance of the evidence that L. P. Reed entered into a verbal contract with Dodds & Wedegartner that he was to work for the ■said Dodds & Wedegartner and receive a ■salary of $76 per week and a bonus of 15 per cent of the profits made on the road contract on Highway No. 40 in Henderson and Kaufman Counties? Answer ‘yes’ or ‘no.’
“Question No. 2: Deducting the profits made on account of the drop in the price of cement, what do you find from a preponderance of the evidence was the profit made by Dodds & Wedegartner on the entire work in building the road on Highway No. 40 in Henderson and Kaufman Counties? Answer ,in dollars.
“If you have answered question No. 1 ‘yes,’ then you need not answer questions Nos. 3 and 4; but if you have answered question No. 1 ‘no,’ then answer questions Nos. 3 and 4.
!■ “Question No. 3: Do you find from a preponderance of the evidence that D. P. Reed ¡entered into a verbal contract with Doods Wedegartner whereby he, the said L. P. Reed, was to work for the said Dodds & Wedegartner and receive a salary of $75 per week and a bonus of 15 per cent of the profit :made on that part of the road contract on ■Highway No. 40, which he, the said L. P. .Reed, actually superintended? Answer ‘yes’ ■or ‘no.’
v “‘Question No. 4: Deducting the profits made on account of the drop in the price of cement, what do you find from a preponderance of the evidence was the profit made by the said Dodds & Wedegartner on that part of the road work in Kaufman and Henderson Counties that was actually superintended by the said D. P. Reed? Answer in dollars and cents as you find the facts to be.”

Thus, we have the respective contentions of the parties succinctly submitted, giving to the jury in question form the issues raised ■by the pleadings, which we believe are supported by the testimony. The jury determined- that the evidence preponderated in favor of appellee, showed the contract to be based upon the net profits on the entire project, amounting to $28,823, and on such verdict judgment was rendered in appellee’s favor for the sum of $4,323.45.

Appellant assigns as error the action of the court in placing in its charge the qualification permitting the jury to answer questions Nos. 3 and 4 only on a negative finding to question No. 1, thus depriving appellant of the affirmative presentation of its defensive issues. The rule in this state is settled that a defendant has the right to an affirmative presentation to the jury of any issue relied upon in his pleadings and raised by the evidence which, if true, would establish a defense to plaintiff’s cause of action. Missouri, K. & T. Ry. Co. v. McGlamory, 89 Tex. 635, 35 S. W. 1058; St. Douis S. W. Ry. Co. v. Johnson, 100 Tex. 237, 97 S. W. 1039; Armour & Co. v. Morgan, 108 Tex. 417, 194 S. W. 942; Gammage v. Gamer Co. (Tex. Com. App.) 213 S. W. 930. Yet, we do not believe that the limitation placed upon the jury’s action in this instance offends the rule. The charge did not prevent the jury from answering the questions embodying appellant’s defense;" under such charge, the jury had the right to reject or accept the contention of either party. The situation confronting the jury presented the two conflicting contentions as to the terms of the contract. The charge clearly brought the adverse contentions before the jury, in effect'instructing it to effectually determine the rights of the parties. The charge placed no greater or lesser limitation upon appellánt’s defense than was placed on appellee’s cause of action. It would have been useless to require a subsequent answer to an issue which, in effect, had previously been answered negatively by an affirmative finding on a sharp divergent issue. We therefore see no error in the trial court’s instructing the jury that, if it answered question No. 1 “yes,” it need not answer question No. 3, because an affirmative answer to question No. 1 is equivalent to a negative answer to appellant’s contention, as submitted in question No. 3, and, to the same effect, a negative answer to question No. 1 is tantamount to a finding that the contract was not as contended by appellee. A negative answer to question No. 1 necessarily would call for a finding by the jury to questions Nos. 3 and 4, as appellee had a right of recovery on appellant’s contention to a lesser amount than that of his own; so, in our opinion, the court correctly charged the jury to answer the questions embodying the contention of appellant in the event it answered question No. 1 “no.”

Appellant further contends that ap-pellee is not entitled to recover on the contract, but is necessarily relegated to an action on quantum meruit, or for damages for the breach, and that the court erred in rendering judgment against it on the finding of the jury. Appellant bases the contention on the contract sued on which, as alleged, required his personal management, control, and supervision of the entire road project, while the uncontroverted testimony shows that ap-pellee, before the improvement was completed, was transferred from the project to another construction, thus did not fulfill the alleged covenant to supervise and manage. We do not agree with appellant’s contention. The rule is generally stated that: “A party cannot recover on an entire contract without showing full performance of its provisions on his part, and hence cannot recover on proof of part performance only. Any right of recovery he may have as a result of part performance is on a quantum meruit. But he may recover on the contract, although he has only partially performed, where the contract itself fixes the right of the parties in such circumstances, and if performance is wrongfully prevented by the other party, he may recover, either on the contract or on a quantum meruit at his election." 10 Tex. Jur. p. 410, § 235. However, the record reveals that appellant was the moving cause of the transfer of appellee’s services. The transfer was made without reference to the contract of employment, merely shifting ap-pellee’s services from one project to another, for the mutual good of the contracting parties. It is evident the parties did not contemplate that such transfer would operate as a hindrance to or avoidance of their obligations under the contract. Appellee acquiesced in the transfer and for the employment of another in his stead to supervise and manage the construction during his temporary absence from his duties; thus any failure of performance by appellee enured to the benefit of appellant. The contract required payment of a bonus on the net profits, which could be ascertained only on the completion of the improvement. Therefore, all incidental expenses, including that of a substitute supervisor and manager, were deducible in ascertaining thé net profit. Under the circumstances, appellee did not breach the contract; the performance was prevented by appellant, thus- excusing appellee’s participation therein. We believe the rule is that, where a party in whose favor something is to be done prevents that performance and the other party is not in default, a recovery may be had as if the act had been performed.

Appellee’s cause of action is based upon a-completed undertaking, and the fact that he-was prevented by appellant from supervising, the contraction does not militate against his-recovery on the contract. We conclude that appellee may recover, either on the contract, or on a quantum meruit.

We have reviewed all of appellant’s assignments, and, finding no error, they are expressly overruled. A careful examination of the record discloses no reason for disturbing the judgment of the lower court, and the judgment is therefore affirmed.

Affirmed.


author: JACKSON, Justice.

text:
    SO RELLE v. MAYFIELD.
    No. 4171.
    Court of Civil Appeals of Texas. Amarillo.
    Feb. 26, 1934.
    E. O. Northcutt', of Amarillo, and Cole & Porter, of Clarendon, for appellant.
    Jas. O. Cade and Darrell L. Jackson, both of Amarillo, for appellee.
   JACKSON, Justice.

This suit was instituted in the district court of Potter county by appellee to recover the sum of $1,500, interest and attorney’s fees, evidenced by a promissory note given to him by appellant, and to foreclose a deed of trust lien on certain real estate.

The appellant answered by general denial, but admitted the execution of the note and deed of trust. He alleged as a defense that the consideration for the note was part of the price of 55 paid-up shares of the capital stock of the North Texas Machinery Company, a corporation, which he purchased from appellee for the 'sum of $3,850, $2,350 of which was paid and the balance evidenced by said note. That for the purpose of inducing him to purchase the capital stock in the North Texas Machinery Company and execute the note and deed of trust the appellee falsely and fraudulently represented to him that certain parties were indebted to the North Texas Machinery Company in the sum of $1,650, which constituted part of the assets of said corporation. On account of this alleged fraud he sought a cancellation of the note.

Appellant also pleaded failure of consideration, and in a cross-action sought to recover in addition to the cancellation of the note, certain damages for appellant’s acts in incumbering the title to his real estate by filing a lis pendens notice.

No complaint is made here of the sufficiency of the allegation of fraud and misrepresentation.

To entitle him to the right to open and close the case, appellant withdrew his general denial and plea of failure of consideration.

In response to special issues submitted by the court, the jury found, in effect, that appellant was not entitled to recover any damages by reason of his cross-action; that during the negotiations leading up to the execution of the contract for the purchase of the capital stock, appellee represented to appellant that the AUis-Chalmers Company was indebted to the North Texas Machinery Company for the sum of $1,000, and that the $650 indebtedness of Corbett Keller to said company was collectible; that such representations were untrue and made to induce appellant to purchase the stock; that appellant did not know such representations were false and would not have purchased the stock had he so known; that at the time he executed the note and deed of trust he had the same opportunity of knowing that said representations were untrue as did appellee.

On these findings judgment was rendered that appellant take nothing by virtue of his cross-action and that appellee recover from him the sum of $1,938.75, principal, interest, and attomey!s fees and the foreclosure of the lien on the real estate involved.

There is no appeal from the judgment denying appellant a recovery on his cross-action, but he attacks as erroneous the judgment rendered against him on the note and for a foreclosure of the lien, because every material issue on the question of fraud was found by the jury in his favor.

The record discloses that appellee was a stockholder and director of the North Texas Machinery Company and that appellant was a stockholder, director, and general manager thereof, and the court doubtless based the judgment in favor of appellee on the finding of the jury that appellant had the same opportunity of knowing the falsity of the representations on which he relied to defeat payment of the note as the appellee had.

The testimony indicates that while the appellant had been elected general manager of the North Texas Machinery Company, such position was held by him nominally only, and that he was not active in the management of the affairs of the corporation, which were conducted largely by appellee.

The law imputes to a director notice of the condition, business, receipts, and expenditures of the corporation, but this rule is for the benefit of third parties transacting business with the corporation and the protection of the stockholders in the management of the business. Merchants’ & Manufacturers’ Securities Co. v. Wright et al. (Tex. Civ. App.) 59 S.W.(2d) 1097. This implied knowledge, under the facts and circumstances indicated by this record, does not protect a director from perpetrating an actual fraud on his codirector. Robinson v. Aldredge (Tex. Civ. App.) 198 S. W. 413.

As quoted by the Supreme Court of Oklahoma in E. L. Halsell v. First National Bank of Muskogee, 48 Okl. 535, 150 P. 489, 492, L, R. A. 1916B, 697, Bigelow on Frauds, 523, says: “The proposition has now become widely accepted, at law as well as in equity, at least as general doctrine, that a man may act upon a positive representation of fact, notwithstanding the fact that the means of knowledge was specially open to him, although he had legal notice of the real state of things. It may be improbable that a man reservation made in regard to it, but the improbability can be no more than a matter of fact.”

See the Annotations following Halsell v. First National Bank, supra, page 703 of L. R. A. 1916B. See, also, Staker v. Reese, 82 W. Va. 764, 97 S. E. 641.

The testimony in support of the findings of the jury on the elements of fraud is very meager, but we do not feel warranted in saying that it was insufficient to warrant the verdict

The judgment is reversed, and the cause remanded.


author: MARTIN, Justice.

text:
    FORT WORTH &. D. C. RY. CO. v. ROWE et al.
    No. 4167.
    Court of Civil Appeals of Texas. Amarillo.
    March 14, 1934.
    Morgan, Culton, Morgan & Britain, of Amarillo, and Thompson & Barwise, of Fort AYorth, for appellant.
    Clayton & Bralley and Works & Bassett, ¿11
   MARTIN, Justice.

James Rowe was a switchman in the employment of appellant. About 8 o’clock p. m., •on February 17, 1932, while on duty as such ■switchman, he received injuries from which he later died. At the time of such injuries he was standing on the back end'of a tender attached to a switch engine, and as same was ¡backing across Buchanan street he was struck ¡by an automobile driven by one Willis 1-Iill, ■breaking both of his legs. After his death his wife, Gertrude Rowe and appellee herein, brought suit against appellant individually and as necxt friend for her two minor daughters and as administratrix of the estate of said Rowe, alleging in substance the existence of the facts already mentioned, and further alleging:

“That said automobile was being driven by one Willis Hill along the west side and portion of said street in its proper position and at a reasonably safe rate of speed, said Hill having said car under his control and, as plaintiff understands and alleges the facts to be, said Hill approached said railroad crossing with due caution, both looking and listening for the approach of engines, cars or trains * * *_
“That said collision and the damages hereinafter shown proximatoly resulted from defendant’s negligence through its said flagman, Williamson, in that he did not give warning to said Hill of the approach of said engine to said crossing and did not signal said Hill with his said lantern, or otherwise, to stop said automobile without attempting to cross said track while said engine was so approaching with deceased thereon as was his duty under the circumstances, until it was too late for said collision to be avoided, both to said Hill and deceased, and defendant’s failure to discharge said duty was negligence and a proximate or a proximately contributing cause of all of the damages herein shown, it being further shown in this connection that deceased and said Hill had the right to expect and rely rnpon said Williamson to give warning of the approach of an engine or train to said crossing by Signaling with said lantern and the light thereof, or by some other signal of warning that could be seen by said Hill, all of which said Williamson failed to do and which was negligence on the part of defendant under the circumstances.”

The remainder of her petition contains the usual averments in cases of this character, not necessary here to mention.

To this petition the appellant filed a general denial and alleged specially that at the time the deceased Rowe received his injuries, appellant and said Rowe were engaged in interstate commerce and that this case is one covered by the Fqderal Employers’ Liability Act and the amendments thereto (45 USOA §§ 51-59) and specially pleaded facts claimed to show the defense of contributory negligence and assumed risk, and further specially alleged:

“That in truth and in fact the injuries received by the deceased were occasioned by the conduct and actions of a party in no way connected with this defendant, and for whose conduct this defendant is not responsible, as will be fully developed on the trial of this case; * * ⅜
“That the accident in this ease was occasioned solely and only by the wild and reckless conduct of the driver of an automobile on the crossing in question, as will be fully and completely developed on the trial hereof.”

As a background for the legal issues discussed, we here state so much of the evidence as illustrates the immediate facts surrounding the accident, and particularly some of the facts which it is claimed raise the issue that the act of Willis Hill was the sole cause of the accident. Since we regard the testimony as ample, if believed, to show negligence on the part of the appellant, we will not consume space in its detailed reproduction.

•Shortly prior to the accident, the regular passenger train from Fort Worth to Denver had just come into the station. A switch engine had just coupled with the pullman on said train and was slowly backing with same easterly towai'd Buchanan street. This street runs north and south just east of appellant’s depot and is paved to a width of 49 feet. Street lights were at the intersection of this street on both the north and south sides of appellant’s right of way and said lights were burning at the time. Deceased Rowe was on the footboard of the tender attached to said switch engine. Willis Hill was coming south on Buchanan street in an automobile. Some of the witnesses place his speed at 25 or 30 miles an hour as he crossed the Bock Island tracks located about 260 feet north of the place of the accident. The engineer on the switch engine placed his speed at 25 to 40 miles an hour just before the collision. Williamson, flagman for appellant, whose duties were to watch the crossing and give signals of any danger, testified, in part, that he was on duty; that he saw Hill approaching; that he waved his lantern at him; that Hill came right on and that he had to dodge out of his way to keep from being struck and that Hill swerved to his right and struck the tender near the point where Rowe was located and which at the time appears to have been just at the western edge of Buchanan street. That he holloed at Hill. Other witnesses saw Rowe swinging his lantern just before the accident,' and one witness testified that Hill’s car, after the accident, was standing at an angle of about 45° with the rear wheels about 4 feet west off the west edge of the paving on Buchanan street. The deceased Rowe made this statement, after the accident: “It is pretty-tough luck to have both of my legs broke, but if he had not, this party driving the automobile, drove around off the pavement and struck me, he would have killed old Jessie, that is, the crossing flagman.” His statement to the flagman was: “He told me that I was not responsible for it. I was at my place of duty and he did not hold me responsible for nothing.” It further appears that the automatic bell was ringing at the time and that the whistle had blown for the crossing and that the lights of the engine were on and that it was going very slowly, perhaps some 4 or 5 miles an hour.

The case was submitted upon special issues, and all of these being answered favorably to the appellee, judgment was rendered by the trial court against appellant for the gross sum of $17,000.

It is obvious from the above that the major controversy between the parties in the lower court centered around the issue of who proximately caused the injury to deceased Rowe. Here we have the same controversy, arising out of the alleged failure of the trial court to properly submit this important issue to the jury. This was the most vital fact issue in the trial court, and out of it arises the major legal issue for our determination,

In disposing of it, no useful purpose can be served by quoting and replying seriatim to the respective contentions of the parties to this appeal, contained in lengthy original and reply briefs. Rather we think a general statement of the law of this case will sufficiently answer these, without their tedious repetition.

Nor do we think it profitable to enter into any extended discussion of the legal meaning and precise application of the term “proximate cause,” . a phrase already clouded by evanescent reasoning and subtle distinctions. As has been said, and correctly we think: “Theorize as we may on the subject of proximate cause, it is in its last analysis a question of good common sense, to be solved by a practical consideration of the evidence in each particular case.” Childs v. Standard Oil Co., 149 Minn. 166, 182 N. W. 1000, 1001. And as said in another case, it has always been found difficult when sought to be applied “bo a state of facts presenting more than- One contributing cause oar act that resulted to the wrong or injury complained of.” City of Louisville v. Hart’s Adm’r, 143 Ky. 171, 136 S. W. 212, 215, 35 L. R. A. (N. S.) 207.

All judicial minds will agree, we think, on the simple statement that one person may not be held liable for damages caused solely by the act of another over whom he has-no control. This is only the statement of a self-evident truth, but to be judicially orthodox, we quote: “A master is not as a rule liable for injuries to his servant caused by the act or omissions of third persons over whom he has no control.” 39 C. J. 291; Texarkana, etc., R. Co. v. La Yelle (Tex. Civ. App.) 260 S. W. 248; Thompson v. Galveston, etc., R. Co., 48 Tex. Civ. App. 284, 106 S. W. 910. In the present case this vital issue was submitted only in the following language:

“Special Issue No. 5.
“(a) Was the failure of Willis Hill to avoid! the collision between his automobile and the-engine upon which James C. A. Rowe was-■riding on the occasion in question, negligence-upon the part of said Hill? Answer Yes- on' No. .
“(b) If so, was such negligence, if any, upjon the part of said Hill the sole proximate-cause of the injuries received by said Rowe-on the occasion to question? Answer- Yes or No.”

The first subdivision was- answered, “No,” and the second, by the court’s instruction presumably, was not answered by the jury. The language into which said issue- No. 5 was cast, amounted, in practical effect, to a denial, in our opinion, of any submission of the real defense made by the pleading and proof in behalf of appellant to the effect that Willis Hill’s act was the sole cause of the injury to Rowe. This we shall now attempt to demonstrate. It will be observed that only the issue of Hill’s negligence was submitted! and answered, and the controlling one of whether or not Hill’s act was the sole-cause of the injuries to deceased was only, conditionally submitted and remained unanswered! under the court’s instruction. If Hillls act was wholly independent, that is, not set in-motion by the alleged wrongful act of. appellant, what difference could it make- whether it was negligent, accidental, malicious,.or even, meritorious? Hill might have been negligent, but if' his negligence merely concurred, with; that of appellant to produce the inj.Ory,. the company is still liable. However, it has been aptly stated: “The concurring negligence of another can not transform the remote into the proximate cause of injury, or create or increase liability therefor.” 45 C. J. 923; Thubron v. Dravo Contracting Co., 238 Pa. 443, 86 A. 292, 44 L. R. A. (N. S.) 699, Ann. Cas. 1914C, 252. Obviously, an independent act of a third party may, but does not necessarily have to, be negligent, in order to be the sole cause of an injury and constitute a defense in cases of this character. It follows, therefore, that a charge which limits such a defense solely to negligent acts is ordinarily too restrictive, even if it submitted the further controlling issue of sole cause, which this one did not do. If a negligent act of the third party was the only one proven, the error would be harmless; but such is not the state of the present record, there being evidence raising the issue of accident. Hill was not a party to this suit. No recovery was sought against him, and it was not necessary to show a tenable cause of action against him, when his acts are relied on only as a defense. We quote: “It has been reasoned that the defense that an injury alleged to have been caused by the defendant’s negligence was in fact caused by the interposition of an independent act of another, can not be interposed when that other acted neither maliciously nor negligently. But this is plainly .an aberration. It is not at all necessary for the defendant, in the case where he is sued for an injury caused by the act of a third person, to give the plaintiff a tenable action against such third person. If the third person acted independently of the defendant, and if the action of the defendant did not induce his action, then it can make no difference with the rights of the defendant whether the action of the third person was wrongful or- meritorious. It may have been such an act as would be ascribed to unavoidable accident, or misfortune, and yet, if it was an act independent of the act of the defendant, directly producing the harm which the plaintiff suffered, that necessarily ends the action of the plaintiff against the defendant.” 1 Thompson on Negligence, 58, § 54. See, also, Cavanaugh v. Centerville Block Coal Co., 131 Iowa, 700, 109 N. W. 303, 7 L. R. A. (N. S.) 907; Paul v. Atlantic Coast Line R. Co., 170 N. C. 230, 87 S. E. 66, L. R. A. 1916B, 1079; Georgia Southern, etc., R. Co. v. Cartledge, 116 Ga. 164, 42 S. E. 405, 59 L. R. A. 118. There are a few authorities to the contrary, but their reasoning has been so universally rejected that we do not pause here to discuss or cite them. The quoted special issue predicated appellant’s entire defense dpon the presence or absence of negligence, when a finding upon this naked question could not be used as the basis of a judgment one way or the other.

We turn now to a consideration in a general way of what should have been submitted on this particular phase of the case as a defense under the issue made by the pleading and proof.

In order to recover the appellee had the burden not only of proving negligence, but that such negligence was the proximate cause of the injury. If the flow of events set in motion by the alleged negligent act of appellant was broken by “any new or independent cause,” there could be no recovery, because then proof of “proximate cause” fails. The failure of appellant’s flagman to signal Hill is the act which is alleged to have started a sequence of events which'eventuated in the injury of Rowe. By such failure appellant impliedly invited Hill upon the crossing, and is legally responsible for the consequences, though Hill’s act caused the injury to deceased Rowe. But on the other hand, suppose Hill failed to look and listen, or having done so, failed to heed a warning given (assuming such was given), or knowing of the presence of the engine, but believing he could beat it across, and in attempting to do so, swerved into it in trying to miss the flagman, and thus injured Rowe, what causal connection is there under any of these circumstances between the negligent act alleged against appellant and the act-of Hill? How could it be said that the alleged negligent act of the flagman influenced Hill’s conduct under any of the above recited facts ? The existence of some, if not all these, was raised as an issue, and an affirmative finding upon any would break the causal connection between the negligent act pleaded and that of Hill, and would sufficiently establish a “new and independent cause,” thus destroying “proximate cause” essential to a recovery by appellee. The appellant filed exceptions to special issue No. 5 calling attention in a most general way to some of its vices. We are impressed with the view that but for the special issues requested, appellant would not be in position to complain of the submission of the particular defensive matter under discussion. It properly requested the following special issues:

“Defendant’s Requested Issue No. 3.
“1. Do you find from a preponderance of the evidence that Willis Hill listened for the approaching engine and ears as he approached the crossing? Answer yes or no.
“If you answer the above question ‘no’ then answer:
“2. Do you find from a preponderance of the evidence that the failure on the part of the said Willis Hill to listen, if he did so fail, was not the sole direct cause of the accident involved? Answer yes or no.”
“Defendant’s Requested Issue No. 4.
“1. Do you find from a preponderance of the evidence in this case that the deceased Rowe warned Hill, the driver of the automobile, of the approaching locomotive and ears? Answer yes or no.
• “If you have answered the above and foregoing question ‘yes’ then answer:
“2. Do you find from a preponderance of the evidence that the fact that the said Willis Hill swerved his car to the right was the sole cause of the injuries sustained by the deceased? Answer yes or no.”

Any trial court with the present question before him is faced with the difficult task of submitting defensive issues in such way as that an answer may he made the basis of a judgment, and must distinguish between those which amount only to a finding of concurrent negligence, and those which establish an. independent act; that is, one which is unrelated to the alleged negligence of defendant. The former is no defense, while the latter' is completely so. In all fairness we are compelled to say that the trial court in the present case did not have pointed out to him by specific exceptions the real trouble with his charge, but taking the record as a whole, we think it sufficiently appears that appellant apprised him of a failure to submit its real defense, and requested the submission of special issues which, if given and answered, could have been made the basis of a judgment. We find nothing to justify any claim that he was lead into such error by appellant. As pointed out above, the burden was upon appellee to prove (1) negligence on the part of appellant and (2) that such negligence proximately caused Rowe’s injury. Proof of a “new and independent cause” of such injury destroyed the second of these indispensable requisites of recovery, and was admissible under a general denial. This, we think, is too obvious to require citation of authority.

Having made proof of facts which, if believed, destroyed plaintiff’s case, appellant was entitled to have the existence of same pertinently and affirmatively submitted to the jury, though same were not specifically mentioned in its pleading. In addition to a general denial, it will be noted that appellant did plead generally that another’s act caused the alleged injury. There apparently was no exception to this pleading because of its general character. That such is the right of a defendant under such pleading is, we think, well settled. Colorado & S. Ry. Co. v. Rowe (Tex. Com. App.) 238 S. W. 908; Gulf, C. & S. F. Ry. Co. v. Maugham, 95 Tex. 413, 67 S. W. 765; American Employers’ Ins. Co. v. Singleton (Tex. Com. App.) 24 S.W.(2d) 26; Spears Dairy v. Bohrer (Tex. Civ. App.) 54 S. W(2d) 872.

Since this case must be reversed and remanded, we now advert to certain other contentions of appellant in view of another trial.

After giving a definition of “assumed risk,” the correctness of which is under vigorous attack here, the trial court then submitted the following special issues:

“Special Issue No. 4.
“(a) Did the injuries sustained by James O. A. Rowe on the occasion in question, arise from risks of danger ordinarily incident to the employment in which he was engaged?
' “(b) Did James C. A. Rowe assume .the risk, if any, growing out of the negligence, if any, of. the flagman, inquired about in Issue No. 1 (b)?”

Said subdivision (b) is particularly attacked in appellant’s brief, and we think correctly so, because it fails to submit affirmatively the existence of any fact or group of facts which if found favorably to appellant would establish the defense of assumed risk. In other words, the same error already discussed is found in the submission of the defense of assumed risk. A charge in much the same language was condemned by Judge Boyce in the case of Ft. Worth & D. C. Ry. Co. v. Morrow (Tex. Civ. App.) 235 S. W. 664 (writ refused). Other cases whose reasoning illustrates the error in this charge are the following: Texas & P. Ry. Co. v. Perkins (Tex. Com. App.) 48 S.W.(2d) 249; Dallas Hotel Co. v. Fox (Tex. Civ. App.) 196 S. W. 647; Ft. Worth & D. C. Ry. Co. v. Hawley (Tex. Civ. App.) 235 S. W. 659.

We see no necessity for the use of the phrase “assumed risk,” and unless it is used, there is obviously no necessity for its definition. In 'submitting the defense of contributory negligence, the court neither used nor defined such term. By submitting a charge on another trial in accordance with the above holding, practically all the specific objections made to this charge will he eliminated. Some of appellant’s objections were sufficiently specific. All errors therein pointed out pass out of the case by a compliance of the trial court with the above suggestion. We are more than doubtful whether or not the error first above discussed was properly pointed out to the trial court by appellant. It is objected that the entire issue submitting assumed risk was too general and in the abstract. We think the same objection applies to appellant’s exception.

The defense of assumed risk and that of contributory negligence are so nearly alike that tney have furnished the subject-matter of much debate among eminent judges. No special charge was asked by appellant to cure the error, nor do we think by any exception it properly apprised the court of the existence of any fact or group of facts claimed by it to raise such issue. The court therefore was forced without any help in either the pleading or exceptions of appellant, after hearing a great mass of evidence only one time, to go through and sift out and winnow' the group of facts which raise contributory negligence and the group which raise the issue of assumed risk and properly state and submit same without having pointed out to him, except in the most general way, the precise defense desired. He did attempt to submit the issue, and having done.so, ¡he was entitled to have pointed out to him in a clear and specific manner the error in his charge. The statute requiring exceptions to the court’s charge would become a meaningless thing unless the courts so interpret it as to compel a litigant to fully a.nd intelligently point out any alleged error therein. We have been moved to consume space in the discussion of this particular matter because of the increasing frequency of records in this court in which errors in the court’s charge are very plainly pointed out in the briefs, but vaguely and insufficiently so in the trial court. , The purpose of the statute requiring exceptions was to assist, and not. to snare, the court.

In the submission of special issues, the court followed all these by.the following instruction:

“The burden is on the plaintiff to prove, by a preponderance of the evidence, that is, the greater degree and weight of credible testimony before you, the affirmative of Issue No. 1 (a), (b), (c), and (d), the amounts inquired about in Issues Nos. 2, 3 (a), (b), and (c), and the negative of Issues Nos. 5 (a) and (b), 7 and 8.

“The burden is on the defendant-to prove, by a preponderance of the evidence, the affirmative of Issues Nos. 4 (a) and (b), 5 (c), 6 (a), (b) and (c) and the percentage, inquired about in Issue 6 (d).”

The appellant excepted to this in substance because it was a clear intimation from the court to the jury as to the effect of their findings, it being claimed that the jury could infer from such instruction for whom their verdict would be. ' Such a charge has been recently condemned by the Eort Worth Court of Civil Appeals in Texas & P. Ry.. Co. v. Hancock, 59 S.W.(2d) 313. We are not prepared to agree that such a charge in all cases would present reversible error. Obviously if the court intimated or told the jury a fact already evident to them, its action would not be error. It seems to us that any juror with average intelligence would know that an affirmative answer to special issues Nos. 1, 2, and 3, and the subdivisions thereof, would be for the plaintiff; but this probably is not true as to the remainder of these. We are not willing to commit this court to the declaration that such a charge is in all cases and under all circumstances reversible error. We think plainly it may or may not be error according to the particular facts and circumstances of each case.

In the court’s definition of “proximate cause,” he used the expression “natural and continuous sequence.” It is insisted that this last phrase should have been defined. We are not in agreement with the contention that having defined a legal term, the court should then in turn define his definition. It is insisted that some of the jurors might not understand the meaning of “sequence.” This may be true, and the same might also apply to a great number of words used in the court’s charge. The authorities are in hopeless conflict. However, we do not believe that such a phrase is a legal term, and it seems plain to us that there must be an end somewhere to defining words unless the Special issue statute is to become a mockery. •

For the error discussed, the judgment of the trial court is reversed and the cause remanded.


text:
    MCDONALD et al. v. CITY OF DALLAS et al.
    No. 11656.
    Court of Civil Appeals of Texas. Dallas.
    Jan. 27, 1934.
    Rehearing Denied March 17, 1934.
    Claud C. Westerfeld and Harold H. Young, both of Dallas, for appellants.
    Hugh S. Grady, City Atty;, W. Hughes Knight, A. J. Thuss, and H. P. Kucera, all of Dallas, for appellees.
   BOND, Justice.

This suit .was instituted by appellants (six in number) against the governing authorities of the city of Dallas, to compel them to reinstate appellants as policemen and, in alternative pleas, to recover from the city of Dallas their salaries for the unexpired terms of their respective offices. As their respective claims involved the same question, and to avoid a multiplicity of suits, appellants each joined in the one suit. Appellees raise no issue as to the misjoinder of causes and parties.

For cause of action, appellants allege, in substance, that, prior to the adoption of the present charter of the city of Dallas (1931), each was duly appointed and qualified as a regular policeman of the city, and had been actively and continuously engaged as such officer from nine to fourteen years, under the existing provisions of said charter (article 14, § 34), authorizing their tenure in office, during good behavior, and removal for cause; that on May 1, 1931, the city charter was amended, creating a civil service board of three members, to promulgate rules and regulations governing the conduct and efficiency of civil service employees, providing additional grounds for removal, and creating a special tribunal to discharge them; that the governing authorities, without fault on appellants’ part and without assigning any reason therefor, illegally discharged them, have persistently refused to allow them to perform any duties as such officers, and the city of Dallas has declined to pay their salaries.for the unexpired terms of their offices. Appellants further alleged that they secured their positions by appointment from the city manager, acting under the provisions of the present charter, and can only be removed from office by charges duly presented and a trial before the tribunal provided by said charter amend-mejits; that no such charges have been preferred, no such trial had, no-r have they been guilty of any misconduct which would justify their removal.

To this petition, appellees interposed a general demurrer, plea to the jurisdiction, numerous special exceptions, pleaded general issues, and specially alleged that the discharge of appellants was, in all things, done under the existing provisions of the city charter and its amendments. The pleadings are extremely lengthy, and we do not deem it essential to set them out, other than in a most general way. The conclusion we have reached is based upon our construction of the city charter and its amendments, as affecting the rights of the parties. The issues under consideration are whether appellants’ positions come within the purview of the civil service amendments to the city charter, and, if so, whether their discharge by the chief of police, based on a deficiency rating of the civil service board, is effective, when a trial on the charges was demanded before an independently created tribunal.

The agreed statement of facts reveals . that appellants were peace officers in the police department of the city, at the time of the civil service amendments to the city charter; that on October 1, 1932, they were reappointed, by the governing authorities of the cityi for the fiscal year beginning October 1, 1932, and ending September 30, 1933; that the city manager issued to them warrants of appointment, evidencing their tenure, power, and duties, and providing that such appointments are subject to the civil service and other provisions of the city charter, to the ordinances of the city of Dallas, and the laws of the state of Texais, and were their commissions for the periods cited in the warrants. The civil service amendments were adopted by said city, a civil service board appointed, and the board adopted rules and regulations for the government of the civil service employees; that each of the appellants failed below the grades of efficiency rating required by the rules and regulations, and, after a hearing, the civil service board notified the city manager of such failures, whereupon, the chief of police, on May 13, 1933, addressed a communication to each of the appellants, as follows: “I am advised by the Civil Service Board, in a communication addressed to City Manager John N. Edy and referred to me, that they have carefully examined your efficiency reports and find that you have fallen below the standard for service in this Department; that they have spent many hours in investigation of information from various sources relative to the several reasons given for your failure and find nothing to indicate other than a fair and impartial estimate of your services. Therefore, under Section No. 124 of the City Charter, in view of the premises, your separation from the service becomes effective immediately.”

Immediately upon receipt of this communication, appellants addressed written motions to the civil service board, city council, and chief of police; demanding a written statement of the reasons for their discharge, and demanded a public hearing before the trial board, which demands the governing authorities of the city of Dallas — the civil service board, city manager, and chief of police-refused ; and on account of such refusal, since May 13, 1933, appellants have been separated from the service of the city as policemen, and at the time of the attempted discharge appellants were receiving the following monthly salaries: J. W. Hitt, $132.50; J. D. Dyer, $132.50; C. M. McDonald, $127.50; B. E. Nelson, $127.50; J. W. Crowley, $127.50; A. E. Harrell, $127.50.

Under the charter provisions involved (section 66), the police department is composed of the chief of police and such other officers, patrolmen, and employees as the city manager may determine, and (section 67) the members of the department, in office at the time of the civil service amendments, were not required to submit to examinations, but “shall continue in service, subject to the provisions of the charter, ordinances of the city and rules and regulations of the Civil Service Department.” The amendments adopted to the charter provide that the governing body (section 114) of the city shall appoint a civil service board to draft, amend, and enforce a code of rules and regulations (section 117) governing the appointment and employment of officers and employees holding positions in the “classified service,” based upon “merit, efficiency, character and industry,” and said board “shall make investigations” and regulate the “reduction of force of employees and in what order they shall be dismissed” concerning the enforcement and effect of the civil service section of the charter and of the rules adopted under the powers granted. The amendments provide, in effect, that the position of policeman comes under the term “classified service” (section 116) and is subject to the civil service examination, excepting thosd civil service employees (section 125) who have held their positions for a consecutive period of three months or more, prior to the time of the inauguration of the civil service; and, fux*ther, that those holding such positions shall be retained until discharged in ae-cordance with the charter amendments.- The charter amendments (section 121) provide that such officer or employee in the “classified service” may be removed by the city manager, or head of the department in which he is employed, after the three months probation period has expired, specifically limiting such discharge to the right of such officer or employee to demand a written statement of the reasons for the discharge, a public hearing, and trial before a board (section 122), composed of two members of the governing body of the city and the chairman or vice chairman of the civil service board, designated as a trial board, and created for the sole purpose of determining the truthfulness of the charges made against such officer or employee. . The amendments further provide that said trial board shall have final jurisdiction on all appeals, and that the decision of the majority of said board shall be final.

Thus, it is seen that the city charter and its civil service amendments make provision for the proper discharge of civil service1 officers and employees, who were in the service of the. city at the time of the adoption of the amendment, authorizing their removal under the rules and regulations promulgated by the civil service board, and limiting- their right of appeal by the provisions of the charter amendments. Where the civil service board finds such officer deficient, it becomes the duty of said board, under the specific mandate of the charter, to report such deficiency to the city manager or to the chief of the department, in which such discharged officer or employee is in service, and then it becomes the duty of said manager or chief to discharge such officer or employee, allowing him a review on appeal and hearing before an independent trial board.

The civil service board, in dealing with such officers or employees, acts in the capacity of an inquisitorial body, to hear and determine their standard of conduct and efficiency, basing their action upon the code of rules and regulations promulgated by such board, and, if the officers or employees are found deficient, it becomes the board’s duty to prefer deficiency charges, to the city manager or head of the department, as grounds for removal,- suspension, or reduction in grade, as it may determine.

We are of the opinion that the purpose of the civil service provisions of the charter is to fix a grade below the minimum standard of conduct and efficiency as a ground for the discharge of officers or employees holding positions under the “classified service.” In the light of such amendments, policemen come under this class, and are amenable to the code provisions and the protection afforded them by the charter. The charter provides distinct grounds and methods for their discharge ; the chief of police (section 71) is empowered to suspend any officer or employee in the police department for “incompetence, neglect of duty, immorality, drunkenness, or failure to obey orders given by the proper authority,” and the chief of police is required to certify the fact, together with the cause for the suspension, to the city manager, who hears the complaint and determines the discharge; and under section 123 provision is made for three or more citizens to prefer written charges of “misconduct” before the civil service board; such charges shall be heard by said board, and, if found meritorious, said board shall file charges with a trial board. The trial board only determines the discharge. Thus, we have the charter providing the specific grounds for the discharge of officers: (1) Incompetence, neglect of duty, immorality, drunkenness, or failure to obey orders; (2) misconduct; and (3) failure in grade below the minimum standard of conduct and efficiency. In each instance, before such ground is enforceable, discharging such officer or employee, if demand is made, a public hearing is provided and a final determination of ■the issue, or issues', required by an independent tribunal. In the first instance, the chief of police prefers the charge, and the city manager effects the discharge; in- the second instance, three or more citizens - make the complaint, the civil service board prefers the charge, and a trial board determines the issue ; and in the third instance, the one under consideration, the deficiency grade furnishes the ground, the civil service board prefers the charge-, the -city manager or chief of police affect® the discharge, subject to the action of a trial board on appeal. The efficiency of the public service is thereby maintained, and the rights of the officers are free from the capricious discharge by the city governmental body and escapes the bias or prejudices of a superior officer.

■ Appellees contend that section 124 of the ■city charter, providing that “it shall be the duty of the Board to fix a minimum standard of conduct and efficiency for each grade in the service, and whenever it shall appear from the reports of efficiency made to the said Board, for a period of three months, that the conduct and efficiency of any employee has failed below this minimum, that employee shall be called before the Board to show cause why he should not be removed and if, upon hearing, no reason is shown sat-isfaetory to the Board, he shall be removed, suspended or reduced in grade, as the Board shall determine,” clothes the civil service board with plenary power to discharge a policeman without a public hearing and trial. We do not so construe the quoted section. The board has the power to determine whether such employee shall be “removed, suspended or reduced,” for his failure below the minimum standard of conduct and efficiency, fixed by the board, but such removal, suspension, or reduction is effective only by a trial board, when an appeal is demanded. The plain provisions of the charter specifically guarantee to such officer or employee the right to an appeal, and the civil service commission, or the city manager, or the head of the department cannot, by a summary order, abridge, abrogate, or take away such appeal and the incidental rights of the discharged officer or employee for a hearing on charges preferred; his rights are fixed by the organic law of the city.

Civil service rules and regulations must be liberally construed in favor of the public, good, to give effect to efficiency of public service, not inimical to the rights and privileges of the holders of public offices.

A policeman of an incorporated town or city is an 'officer (C. C. P. art. 36), and as such his term of office cannot continue longer than two years, under limitation of the general provisions of the State Constitution (Const. art. 16, § 30). Kimbrough v. Barnett, 93 Tex. 301, 55 S. W. 120; State v. Catlin, 84 Tex. 48, 19 S. W. 302. The city charter, however (section 66) empowers the city manage: to determine rules and regulations for the government of the positions, and, under such delegated authority, he may appoint such officers for a limited period of time and issue to them (section 67) warrants of appointment. The city manager thus having issued to each of the appellants a commission, designating the tenure of their respective offices for one year, it must be conceded that the duration of each office extended for the time specified in the commission. Appellants were discharged through an unauthorized agency, and the effort of the civil service board and chief of police to oust them before the expiration of their terms of office, and the city authorities’ refusal to grant their appeals for trial before the special tribunal provided by the city charter, are in direct contradiction of an expressed charter provision. The effect of the officers’ demand for charges preferred and an appeal and hearing before the trial board was to stay the action of the civil service board and the chief of police, and to retain the officers in their positions until a decision could be pronounced by said board. The decision not having been reached by said trial board, because of the action of the governing authorities of the city, the attempted discharge was not effective. Therefore, we are of the opinion that appellants were entitled to serve the city of Dallas as policemen, and receive the salaries incident to their offices for the time designated in their warrants of appointment.

Plaintiffs were appointed, qualified, and served until May 13,1933, when they were illegally discharged. The trial court refused to award the writ of mandamus against the governing authorities of the city, and, the tenure of their positions having expired before their appeal reached this court, the mandatory feature of this appeal has become moot. Appellants had four months and seventeen days to serve the city under their respective commissions as policemen, at a salary of $127.50 each per month, excepting those of appellants Dyer and Hitt, whose salaries were $132.50 each per month.

We conclude that appellants are entitled to recover of appellee the city of Dallás the amount of 'their salaries for the unexpired term of their respective offices; therefore the judgment of the lower court is reversed, and judgment here rendered against the city of Dallas in favor of J. D. Dyer for the sum of $602.65, J. W. Hitt for the sum of $602.65, O. M. McDonald for the sum of $579.90, B. E. Nelson for the sum of $579.90, J. W. Orowley for the sum of $579.90, and A. E. Harrell for the sum of $579.90, with 6 per cent, interest on the several sums awarded each appellant, and all costs of suit, both in the court below and in this court.

Reversed and rendered.

On Motion for Rehearing.

Appellee city of Dallas challenges our conclusions that appellants were illegally discharged and entitled to a hearing before a trial board; and further insists, for the first time, in its motion for rehearing, that appellants did not meet the charter requirements, by filing notice of appeal within the time prescribed, and asks for a further finding of facts on questions raised in its motion.

Further reviewing the record, we find that appellants were discharged by the chief of police, and the city council, on advice of its legal department, refused to accord them an appeal to the trial board. The action of the chief of police is based on the deficiency rating found by the civil service board, and that of the city council on the assumption that the officers were discharged by said board, in pursuance of section 124 of the charter; and that the charter vests the final authority in such cases in the board, without an appeal.

On April 27, 1933, appellants were accorded a hearing before the civil service board, on efficiency reports, under the provisions of section 124 of the charter. However, the board’s action on such hearing is not disclosed in the record. Under that section, the board is delegated the authority to determine the removal, suspension, or reduction in grade of officers and employees included in the classified civil service, subject, as we conceive their rights to be from other provisions of the charter, to an appeal to a trial board. Thus, in the absence of proof, we are of the opinion that it cannot be assumed that the board’s action was adverse to appellants.

On May 4, 1933, the secretary of the civil service board, in a letter addressed to the city manager, stated that the board had found appellants’ efficiency grades below the standard, and that it had determined their removal from the service; however, the secretary’s letter, as we view the record, finds no support in the minutes of the board, and is not required by the charter. If the board did so’ find and decree (which we are unable to conclude as a fact), then appellants were not advised of its conclusion, and we fail to see how the secretary’s letter could be deemed to reflect the action of the civil service board, or to be the basis of either actual or constructive notice to appellants. We believe that it was the intention of the framers of the charter, founded upon principle of right and justice, to accord discharged officers and employees with notice of the action of such board, and the grounds on which the judgment is based in discharging them.

On May 13, 1933, in the letter addressed to appellants, copied in heec verba in our original opinion, the chief of police gave appellants notice of their discharge, stating that their “separation from the service becomes effective immediately,” basing his action on recited deficiency reports made to the civil service board. This is the only evidence as to the source of, and ground for, the discharge of appellants, and evidently is the basis for the city council’s refusal to pay their salaries for the unexpired terms of their offices.

On the contention that appellants have not perfected an appeal, within the terms of the charter, in that they did not file notice of appeal with the trial board, within ten days after being notified of their discharge, it must be observed from the statement of facts that appellees agreed that appellants did file the notice, the date of such filing not being disclosed; and that, on May 27,1933, the city attorney addressed a letter to members of the city council, in which he recited the filing of such notice. Thus, we.conclude that the governing authorities received the notice, reverted same to its legal department, that an investigation was made and concluded on May 27, 1933. These evidentiary circumstances lead, we think, to the conclusion that the notice was filed within the time provided by the charter; or, at least, in the absence of proof to the contrary, the presumption may be indulged in favor of the timely filing of such notice. This presumption is accentuated by appellants’ petition reciting May 17, 1933, as the filing date, and appellees’ failure to raise the issue, by pleadings or evidence.

We further find that the charter makes no specific provisions as to whom the notice of hearing and appeal shall be made. The trial board is -not a standing functionary; its creation is affected by the city council, appointed from its membership, and the chairman, or vice chairman, of the civil service board (section 122) only, as a contingency arises; thus, in. our opinion, the filing of the petition and the demands for tidal called for the action of the city council to appoint the trial court. Thus, we think the filing, of the petition with the city council perfected the appeal.

The right of the chief of police to suspend or discharge a subordinate is predicated only oh charges of “incompetency, neglect of duty, immorality, drunkenness, or failure' to obey orders given by the proper authority.” Section 71. It must be observed that none of these charges are assigned as grounds for appellants’ discharge. The chief of police effected their discharge, as we conceive, on the ground that appellants had fallen below the standard of service, fixed by the rules and regulations of the civil service board. In our opinion, the city charter provisions do not delegate such authority to the chief of police ; such is only cognizable by the civil service board. Thus, we have here the chief of police, in discharging appellants for deficiency ratings, assuming the provisional authority delegated only to the civil service board.

In recognition of their charter rights, appellants protested such discharge, demanded specification of charges and a public bearing before a trial board. A written demand that these rights be accorded them was presented to the city council, city manager, and chief of police, the only authorities delegated by charter provisions to deal with their situation. These rights were denied to appellants, thus depriving them of a fixed tenure and emoluments of office, without the purview of the charter provisions.

The importance of the litigation as to the rights of the city to give effect to efficiency of public service and the responding duties of city policemen and their rights to hold office and receive the emoluments agreeably to the organic law of the city has led us to again review the record and the able briefs of the parties. However, we fail to see any reason for reversing our conclusions heretofore reached, feeling that appellants have not been accorded rights guaranteed to them, and that they have been illegally deprived of their offices, to their hurt and damage.

• Appellees’ motion is overruled.


text:
    HAYES et al. v. BONE.
    No. 2967.
    Court of Civil Appeals of Texas. El Paso.
    March 8, 1934.
    Rehearing Denied March 22, 1934.
    T. M. Milam, of Fort Stockton, for appellants.
    Millard Parkhurst, of McCamey, for ap-pellee.
   HIGGINS, Justice.

Bone brought this suit in the district court of Pecos county against Arthur Hayes, a justice of the peace, and Edna Winston, and another not necessary to mention, to set aside a judgment for $16 theretofore rendered by said justice of the peace in favor of Edna Winston against Bone, and to enjoin the issuance of execution upon such judgment, and for damages in the sum of $620. A temporary injunction was ordered issued as prayed for, from which order this appeal is prosecuted.

Appellee moves to dismiss the appeal because of appellant’s failure to file briefs." In appeals from orders of the present nature it is not necessary to file briefs, for which reason the motion is overruled. Article 4662, R. S.; Moore v. Norton (Tex. Civ. App.) 215 S. W. 373.

The appellee has not briefed the case, and, in the absence of assignments of error and briefs by either side, we feel it is not incumbent upon this court to do more than briefly announce its conclusion.

It is variously averred the judgment in favor of Edna Winston is void, but such averments are legal conclusions and not such averments of fact as will warrant enjoining the execution of the judgment upon the ground that it is void. Pye v. Wyatt (Tex. Civ. App.) 151 S. W. 1086. The facts specifically averred are insufficient to show the judgment to be void. The facts so alleged show the judgment complained of is erroneous, but district courts will not grant injunctions to correct errors of inferior courts in eases where no appeal is allowed. Galveston, H. & S. A. Ry. Co. v. Dowe, 70 Tex. 1, 6 S. W. 790; Mann v. Brown (Tex. Civ. App.) 201 S. W. 438; Pye v. Wyatt, supra.

We regard the petition as subject to general demurrer for the reason indicated.

Reversed, and judgment here rendered dissolving the temporary injunction.

On Rehearing.

The petition discloses the following facts:

The suit in the justice court by Edna Winston against Bone was to recover less than $20. Bone filed plea of privilege in due form. Edna Winston filed a controverting affidavit seeking to sustain the venue as laid. The justice set the plea foy 'hearing. Upon the date set counsel for Bone appeared. The plea of privilege was overruled, and judgment upon the merits rendered against Bone- for $16 and costs. A copy of the controverting affidavit is attached to and made a part of the petition.

Appellee’s theory, as we understand it, is that the controverting affidavit stated no facts which would sustain the venue as laid in the suit in the justice court, for which reason it cannot be considered a controverting affidavit; wherefore the justice had no jurisdiction over Bone, and for want of such jurisdiction the judgment against him is void.

Attention is called to the rule announced in many cases to the effect that, upon the filing of a plea of privilege by a nonresident defendant, the court, in the absence of a controverting affidavit and notice thereof to the defendant, has jurisdiction only to transfer the case to-the venue claimed by the defendant. Craig v. Pittman & Harrison Co. (Tex. Com. App.) 250 S. W. 667, 671; John E. Quarles Co. v. Lee (Tex. Com. App.) 58 S.W.(2d) 77.

Such rule has been followed by this and other Courts of Civil Appeals in many cases unnecessary to mention. The rule is well settled. But where a controverting affidavit has been filed, a date set for the hearing of same, and notice thereof duly given the defendant, the issues of law and fact presented by the plea of privilege and controverting affidavit are properly joined, and the issues so joined are properly before the dourt for decision. See Craig v. Pittman & Harrison Co., supra, where it was said by Justice Powell that, “when the controverting affidavit is filed, a real issue is joined.”

We agree with appellee that the controverting affidavit stated no facts sufficient to sustain the venue as laid, but its legal sufficiency for such purpose was properly before the justice for decision. However erroneous his ruling upon the plea may have been, he had jurisdiction to decide all issues of law and fact arising upon the plea and controverting affidavit, and his ruling is final; the amount in controversy being less than $20. Having final jurisdiction to try and determine the issues presented, the appellee was without a remedy and is not entitled to redress by injunction. Hudson v. Smith, 63 Tex. Civ. App. 412, 133 S. W. 486 (writ refused); St. Louis, I. M. & S. Railway Co. v. Coca Cola Co., 32 Tex. Civ. App. 611, 75 S. W. 563; Pye v. Wyatt (Tex. Civ. App.) 151 S. W. 1086; Houston & T. C. Ry. Co. v. Young (Tex. Civ. App.) 137 S. W. 380.

Attention is called to Jennings v. Shiner (Tex. Civ. App.) 43 S. W. 276, which contains expressions from which it might seem that a mere erroneous ruling by a justice of the peace upon a plea of privilege in a cause over which his jurisdiction is final affords grounds for enjoining the execution of1 the judgment upon the merits rendered after the plea of privilege had been overruled. These expressions were not necessary to the decision. We regard same as dicta 'and unsound. Houston & T. C. Ry. Co. v. Young (Tex. Civ. App.) 137 S. W. 380.

We have carefully considered the motion for rehearing, and see no occasion to change our ruling in the case.

The motion is overruled.


author: LANE, Justice.

text:
    WHITTLE & KAVANAUGH’S THIRD COMPANY, Inc., v. REYNOLDS.
    No. 9934.
    Court of Civil Appeals of Texas. Galveston.
    Feb. 14, 1934.

      P. J. Winter, of Houston, for appellant.
    Barkley & Webb, of Houston, for appellee.
   LANE, Justice.

J. A. Reynolds and Pred Bowen, who held a contract to purchase a certain oil and gas lease, sold the same to Claude Kavanaugh. In part payment for such sale, Claude Kav-anaugh executed two notes, one for $3,000, payable to J. A. Reynolds on or before the 16th day of June, 1931, and the other for $500, payable to Pred Bowen on or before the same date, and to secure payment of said notes Kavanaugh gave a lien upon the oil and gas lease assigned to him. The obligation to pay and to secure such payment was without interest.

The oil and gas lease mentioned was assigned by Claude Kavanaugh to Whittle & Kavanaugh’s Third Company, Inc., which assumed payment of the above-mentioned notes.

Por reasons satisfactory to J. A. Reynolds and Fred Bowen, J. A. Reynolds carried his interest in the two notes in the name of E. L. Arnold, and Pred Bowen carried his interest therein in the name of his brother, Dallas Bowen.

On or about August 25, 1931, Whittle & Kavanaugh’s Third Company, Inc., executed and delivered to J. A. Reynolds, as attorney for E. L. Arnold and Pred Bowen, two notes, one for $337.50, payable to J. A. Reynolds as attorney for E. L. Arnold, and the other for $112.50, payable to said Reynolds as attorney for Pred Bowen. The two notes were payable on or before the 15th day of September, 1931. On August 25, 1931, Whittle & Kavanaugh’s Third Company, Inc., received the following instrument:

“Houston, Tex/is, August 25, 1931.
“Whittle & Kavanaugh’s Third Company, Houston, Texas.
“Gentlemen: Thi^ is to advise that we, as the owners of a lien on your Willis Smith 6.881 acres of land, in the James S. Caruthers-survey in Gregg County, Texas, as per description in the lien given by Claude Kav-anaugh on the 16th day of May, A. D. 1931, have for a valuable consideration this day agreed with you and your assigns, that the. balance due of $1,480!00 payable to E. L. Arnold 'by assignment from J. A. Reynolds, and approximately $500.00 due Dallas Bowen by assignment from Pred Bowen, has been extended for payment by you on the 15th day of September, A. D. 1931, at which time it is-agreed that you will pay in full the.balance-as due each of the above parties.
“Witness our hands, the 25th day of August, A. D. 1931.
“Interlineation of date above is understood to be September 15, 1931.
“E. L. Arnold
“By J. A. Reynolds, Attorney-
“Witness: J. A. Reynolds
“Dallas Bowen
“By Pred Bowen
“Pred Bowen.”

It is apparent that at the time of the extension of the $3,000 note it had been reduced by payments to $1,480.

The note for $337.50 was transferred to, and became the property of, B. Frank Reynolds.

On the 18th day of September, 1931, B. Prank Reynolds brought this suit against. Whittle & Kavanaugh’s Third Company, Inc., a corporation, and against E. L. Arnold and Lynn Arnold.

The plaintiff alleged the execution and delivery of the $337.50 note by Whittle Kavanaugh’s Third Company, Inc., as here-inbefore stated, and specially alleged that the note for $112.50 is not involved in the suit, as the same was the personal property of Pred Bowen. He alleged that in due course of business and for a valuable consideration he became the owner of the $337.50 note. He prayed for a recovery of the sum due on said note, together with an attorney’s fee of $33.75 provided for in said note, against the Whittle & Kavanaugh’s Third Company, Inc.

Neither of the other parties defendant have appealed from the judgment rendered against them; therefore it becomes unnecessary to further mention them at this point.

Whittle & Kavanaugh’s Third Company, Inc., after pleading a general demurrer and general denial to plaintiff’s cause of action, alleged and set up as a defense to plaintiff’s cause of action on said note that the note represented an usurious interest charge made by plaintiff against defendant growing out of the transaction alleged and set forth in defendant’s second amended original answer, as follows:

That on or about May 15, 1931, Claude Kavanaugh executed and delivered unto J. A. Reynolds and Fred Bowen an instrument in writing wherein he agreed to pay unto J. A. Reynolds and Fred Bowen the sum of $3,500 on June 15, 1931, of which said sum $3,000 was to be paid to J. A. Reynolds and the sum of $500 to be paid to Fred Bowen, and in said instrument a lien was retained upon what is known as the Willis Smith 0.881 acres of land in the Jas. S. Caruthers survey in Gregg county, Tex.; that thereafter the property securing said indebtedness was transferred and assigned unto defendant, who assumed and agreed to pay said indebtedness of $3,500 to the said J. A. Reynolds and Fred Bowen, and thereby became primarily bound and obligated to pay the same.

That thereafter, on to wit: August 25,1931, the maturity date of the balance then due on said obligation last above mentioned was extended, to the 15th day of September, 1931, by a written instrument.

On the 2d day of September, 1932, the cause was tried before the court without a jury, and upon the pleadings and evidence the court rendered judgment in favor of plaintiff, B. Frank Reynolds, against Whittle & Kav-anaugh’s Third Company, Inc., for the sum of $337.50, with interest thereon at the rate of 8 per cent, per annum from the 15th day of September, 1931, to date of judgment, and for 10 per cent, on such judgment as attorney’s fee, and it was also decreed that defendants E. L. Arnold and Lynn Arnold take nothing by their claim, and that plaintiff recover against them such costs as he incurred by reason of their asserted claim.

Whittle & Kavanaugh’s Third Company, Inc., only has appealed.

Appellant contends that the court erred in rendering judgment against it upon the note sued upon, and in not rendering judgment for it, in that the undisputed evidence shows that the note for $337.50 was given as a consideration for a fixed extension of time, to wit, from August 25, 1931, to September 15, 1931, which consideration was for the use of $1,480 for the time mentioned; and that the amount contracted to be paid for such extension and use exceeds 10 per cent, of the amount of said $1,480 debt per annum, and clearly shows that the note represents a usurious interest charge, and therefore the contract evidenced by the note is wholly void.

We overrule appellant’s contention. In the fifth paragraph of the court’s finding of facts filed in the trial court the court recites as follows: “That said note in so far as it covered the $337.50 payable to the said J. A. Reynolds as attorney for E. L. Arnold, and which was given as a part of the consideration for the extension of said indebtedness by the agreement hereinbefore set out. * * * >t

And that as a conclusion of law the court stated substantially that, notwithstanding the above recitation, the execution of the $337.50 note was not the consideration for the use or retention of the money due to the plaintiff, but only a consideration for the extension agreement, and therefore the note was not tainted with usury.

We confess that we have been unable to harmonize the recitation quoted with the conclusion of law stated by the trial court. However, since there is on file in this court a full and complete .statement of the facts proven upon the trial of the case, this court is not bound by the findings of the trial court, which are unsupported by the facts disclosed by the statement of facts. We think the judgment rendered is supported by the evidence shown by the statement of facts.

After a careful examination of the statement of facts, we have reached the conclusion that the evidence wholly fails to show that the note sued on, in so far as it covered the $337.50 payable to J. A. Reynolds as attorney for E. L. Arnold, was given exclusively for an' extension of the indebtedness of $1,480 due by Whittle & Kavanaugh’s Third Company, Inc., but, on the other hand, there is abundant evidence to the effect that a large part of the consideration for the execution of the note, if not all of it, was made up of expenses incurred by the holders of the debt extended, in an effort to collect such debt without suit, in conformity to the wishes of appellant, who was seeking to avoid suit.

The undisputed evidence shows that J. A. Reynolds and Fred Bowen and those acting for them had from the time the $1,480 in question became due on the 15th day of June, 1931, to August 25th of the same year, a period of about three months, devoted much of their time and incurred much expense, a sum of between $200 and $300, in an effort to collect the debt thereafter extended.

The uncontroverted testimony of J. A. Reynolds was that Whittle & Kavanaugh’s Third 'Company, Inc., did not want a suit brought to collect the $1,480, because it was in the midst of financing a company, and the filing of such suit might injure the company and stop its financing and finally wind up in a receivership for the company.

For the reasons pointed out, the judgment is affirmed.

Affirmed.


author: SMITH, Justice.

text:
    ROBINSON v. RANDALL.
    No. 9222.
    Court of Civil Appeals of Texas. San Antonio.
    Feb. 7, 1934.
    Rehearing Denied March 14, 1934.
    Leo Brewer, of San Antonio, R. E. Kirkpatrick, of Mercedes, and Strickland, Ewers & Wilkins, of Mission, for appellant.
    Kelley, Looney & Norvell, of Edinburg, for appellee.
   SMITH, Justice.

A. L. Robinson, F. B. Chadick, and Paul Chadick jointly purchased from W. S. Randall a “Yxeth undivided working interest” in an oil and gas lease upon a tract of land in Gregg county, for which each of them paid Randall $2,000, aggregating $6,000.

At the conclusion of the transaction Randall gave Robinson $1,500, which the former claims was intended and understood as a loan, arid the latter claims was his commission from Randall upon the deal in question.

Randall sued Robinson and recovered said sum of $1,500, upon a jury finding that the payment was intended as a loan. Robinson has appealed.

Upon the trial appellee introduced proven carbon copies of three letters he claimed to have written and mailed to appellant. .In one of these letters appellee wrote appellant that: “Mr. Delaney is insisting that I pay up all the bills on the Free Lease and I need some money to do this. Can you not send the $1500.00 or part of it?” In another: “I wish you would send me the $1500.00 on the Free Lease deal as I need it to pay expenses. How is everything at Mercedes? Will look for you up.” And the third: “The Chadicks paid their share of the expense' for the months of July, Aug. and Sept, and your share for those months is $37.17. Then also as I have called your attention to several times is the matter of $1500.00 which I let you have on May 22 to help pay for your share of the lease. I think it is time that all these matters be taken care of and I would be pleased to have you meet me in Tyler on or after the 28th of this month. My address there is 504 Bryan St. and Tel. 2399.”

Appellant denied having ever received the first two letters, but admitted receipt of .the third, and complains here of the admission of the copies of the first two letters over his several objections, which need not be set out here.

We have concluded that if the two instruments were erroneously admitted, such error, if any, was certainly waived and rendered harmless by the admission of the third letter without objection. 17 Tex. Jur. pp. 351, 370, •§§ 116, 126, and authorities there cited.

In his second proposition appellant questions the sufficiency of the evidence to support the jury finding that the $1,500 involved was advanced to appellant as a loan. We have carefully considered the evidence, and while a view of the bald record thereof leaves reason for doubt concerning its probity and sufficiency, there was nevertheless some material testimony to support the jury’s finding, which is therefore conclusive upon this court.

It appears from the record that in the course of the proceedings appellee procured a writ of attachment against so much of appellant’s property as would satisfy the judgment rendered against him herein, and the sheriff executed the writ by “levying the same upon 2%60 interest in and to the following described property levied upon as being the interest of A. L. Robinson in said property, to-wit,” the tract of land covered by the said leasehold interest purchased by appellant and his associates from appellee. It further appears that the judgment here appealed from embraced a decree foreclosing the attachment lien upon the property levied upon.

Now, appellant, in his third proposition of law, complains, by way of claimed fundamental error, that the property attached, and upon which the attachment lien was ordered foreclosed, was not the property of appellant ; that the property so attached consisted of a 2⅜60 interest in the fee of the land involved, rather than in the leasehold estate in said land. We are of the opinion that the proposition presents no error of which appellant may complain in this appeal.

In the first place, the true ownership of the fee in the land is not apparent upon the face of the record, and is not ascertainable unless it may be so by a search of the statement of facts, which a reviewing court is not required or authorized to prosecute except in response to duly assigned error; that is to say, the error, if any, is not fundamental and, not being specifically assigned, cannot be considered here.

Moreover, if the property attached was not in fact appellant’s he could not be injured by its seizure and sale, and in any 'event, if he was aggrieved, his recourse lay in handier remedies than that of fundamental error propounded in this Court.

Appellee’s motion for rehearing will be granted and the judgment affirmed.

This opinion will be substituted for the original opinion, which will be withdrawn.