Grabes v. Reinhard Bohle Mach. Tools, Inc.

• Decision Date: 29 July 1964
• Docket Number: No. 67,67
• Citation: 381 S.W.2d 395
• Parties: Walter GRABES, d/b/a Continental Machinery Co., Appellant, v. REINHARD BOHLE MACHINE TOOLS, INC., Appellee.
• Court: Texas Court of Appeals

Page 395

381 S.W.2d 395

Walter GRABES, d/b/a Continental Machinery Co., Appellant, v. REINHARD BOHLE MACHINE TOOLS, INC., Appellee.

No. 67.

Court of Civil Appeals of Texas, Corpus Christi.

July 29, 1964.

Rehearing Denied Aug. 20, 1964.

Ernest S. Fellbaum of Swift, Fellbaum, Gettle, Matthews & Malant, Houston, for appellant.

E. P. Dee of Dee & Foster, Houston, for appellee.

GREEN, Chief Justice.

Appellee filed suit on a sworn account against V. Worley and Walter Grabes, individually, and doing business as Continental Machinery Company. Defendant V. Worley filed a sworn denial of the account. Defendant Grabes, appellant here, answered by sworn denial (1) of the account, (2) that he was liable in the capacity in which he was sued, and (3) that he ever did business as Continental Machinery Company. Other pleadings, including a third party cross-action, are in the record, but in view of the verdict, the judgment, and the points raised on this appeal, they become unimportant so far as a discussion of them in this opinion is concerned.

Appellee predicated its suit on several alleged sales to Continental Machinery Company as itemized in Exhibit A of its petition. The sale upon which judgment against appellant was based was of one 'Bohle-Model FU-20, Serial No. 20014, Universal Milling Machine'. The purchase price of the machine, after discount, together with extra equipment later furnished, was shown to be $19,244.00. The date of sale was alleged as October 6, 1958.

At the conclusion of the evidence, defendant V. Worley, individually and d/b/a Continental Machinery Company, was, by agreement, dismissed with prejudice, and the third party cross-action was dropped. When the case was submitted to the jury for verdict, the only parties remaining were appellee as plaintiff and Walter Grabes, individually and d/b/a Continental Machinery Company, as defendant. Based on the jury verdict, judgment was rendered for appellee against appellant Walter Grabes, doing business as Continental Machinery Company, for the sum of $10,500.00 debt, plus an attorney's fee of $5,000.00. We affirm the judgment.

Appellant's attorney on this appeal did not participate in the trial of this case.

In his First and Third Points, appellant presents his contention that the answers to Special Issues Nos. I and II are in direct conflict and cannot be reconciled, and that since the judgment is necessarily based on the answer to Issue No. II, the court erred in receiving such verdict, and further erred in rendering judgment based on such conflicting answers. In his Second Point, appellant states that the court erred in overruling his objections to Issues I and II as being duplicitous and as asking for findings on the same ultimate issue of fact in different forms.

We shall first dispose of his Second Point. The transcript contains no objections to the court's charge, and contains no instrument evidencing any ruling by the trial court on any objections.

Rule 272, Texas Rules of Civil Procedure, provides:

'* * * The requirement that the objections to the court's charge shall be in writing will be sufficiently complied with if such objections are dictated to the court reporter in the presence of and with the consent of the court and opposing counsel, before the reading of the court's charge to the jury, and are subsequently transcribed and the court's ruling and official signature endorsed thereon and filed with the clerk in time to be included in the transcript. * * *'

The statement of facts contains some objections to the charge dictated by appellant's attorney to the court reporter in the presence of the trial court after the close of the evidence and prior to the reading of the charge to the jury. Except as contained in the statement of facts, which was not signed by the trial judge, the objections as dictated were not transcribed, the court's ruling and official signature were not endorsed thereon, and they were not filed with the clerk or included in the transcript. The reporter's notes do not show that the trial court ruled on any objections to Issues Nos. I and II. Under these circumstances, the mandatory provisions of Rule 272 permitting counsel to dictate their objections to the charge and to preserve their exceptions by doing the things required by said rule were not complied with, and we shall consider the charge of the court as though no objections were filed. Gale v. Spriggs, Tex.Civ.App., 1961, 346 S.W.2d 620, writ ref. n. r. e.; Cannon v. Canida, Tex.Civ.App., 1959, 321 S.W.2d 631, writ ref. n. r. e.; Texas General Indemnity Co. v. McNeill, 1953, 261 S.W.2d 378, n. w. h.; Ramsey v. Polk County, Tex.Civ.App., 1953, 256 S.W.2d 425, n. w. h.

Special Issues Nos. I and II of the court's charge, together with the jury's answers thereto, read as follows:

'SPECIAL ISSUE NO. I.

Do you find from a preponderance of the evidence that plaintiff, Reinhard Bohle Machine Tools, Inc., on the date in question, sold to Walter Grabes, individually, the FU 20 Serial No. 20014 Machine in question?

'Answer: 'We do not'.'

'SPECIAL ISSUE NO. II.

'Do you find from a preponderance of the evidence that Plaintiff, Reinhard Bohle Machine Tools, Inc., on the date in question, sold to Walter Grabes, doing business as Continental Machinery Company, the FU 20 Serial No. 20014 Machine in question?

'You are instructed that 'doing business' requires more than merely working as an employee or salesman for another party, but requires some business dealing for yourself or on one's own behalf in the conducting or transacting for your own behalf, and not merely an employee or on behalf of another.

'Answer: 'We do'.'

It is appellant's contention, in Points 1 and 3 that the judgment should be reversed because the answers of the jury to Issues Nos. I and II are in such conflict as to be fatal to the verdict. In support of his argument, appellant relies upon the test as to conflicting answers as stated by our Supreme Court in Pearson v. Doherty, 1944, 143 Tex. 54, 183 S.W.2d 453, and later restated in Little Rock Furniture Mfg. Co. v. Dunn, 1949, 148 Tex. 197, 222 S.W.2d 985. We quote from the latter opinion as follows:

"The test in such [a] case is, whether taking the finding alone in the one instance, a judgment should be entered in favor of the plaintiff; and taking it alone in the other, judgment should be entered in favor of the defendant.' * * *

'To apply this test, the court must consider each of the answers claimed to be in conflict, disregarding the alleged conflicting answer but taking into consideration all of the rest of the verdict, and if, so considered, one of the answers would require a judgment in favor of the plaintiff and the other would require a judgment in favor of the defendant, then the answers are fatally in conflict. It is essential that the party seeking to set aside a verdict on the ground of conflict must be able to point out that one of the conflicting answers of the jury, in connection with the rest of the verdict except the issue with which it conflicts, necessarily requires the entry of a judgment different from that which the court has entered. * * *'

In the present case, appellant was sued in two capacities, i. e. Walter Grabes, individually, and Walter Grabes, doing business as Continental Machinery Company. The trial court must have decided that there was testimony to support a finding either way; otherwise, he should not have submitted both issues. If these issues were subject to objection as to form or otherwise, such objection was waived by the failure of appellant to properly carry forward any objection which he might have made. Rule 272, T.R.C.P.; Texas Employers Insurance Ass'n v. Neuman, Sup.Ct., 1964, 379 S.W.2d 295.

After the jury answered the first issue 'No', meaning that they did not find from a preponderance of the evidence that appellee sold the machine to Walter Grabes, individually, such answer together with the answers given to the remaining issues, excluding the answer to Issue No. II, did not require judgment for appellant. The trial court had submitted an alternate ground of recovery--to-wit, Issue No. II, which inquired what was to the jurors, who were properly not concerned with the legal aspects of the issues, a different question entirely, viz, did they find from a preponderance of the evidence that appellee sold the machine to Walter Grabes doing business as Continental Machinery Company. Surely, considering the definition of the term 'doing business as' in Issue No. II, and the fact that the jury was not passing upon issues of law, or of liability as a legal proposition, but were deciding fact issues as plead in the pleadings and raised in the testimony, the answers to these two issues can be reconciled.

'[C]ourts properly refuse to strike down answers on the ground of conflict, if there is any reasonable basis upon which they may be reconciled.' Little Rock Furniture Mfg. Co. v. Dunn, 148 Tex. 197, 222 S.W.2d 985, citing Casualty Underwriters v. Rhone, 134 Tex. 50, 132 S.W.2d 97; Texas Indemnity Co. v. Staggs, 134 Tex. 318, 134 S.W.2d 1026, and other authorities.

'It is the duty of the trial court to reconcile apparent conflicts in the jury's findings if this can be reasonably done in the light of the pleadings and the evidence, the manner in which the issues were submitted, and in view of the other findings when considered as a whole.' Ford v. Carpenter, 1949, 147 Tex. 447, 216 S.W.2d 558, 562.

Appellant's Points 1, 2 and 3 are overruled.

In his Fourth, Fifth and Sixth Points, appellant submits that the trial court erred in rendering the judgment against him because (4) there is no evidence of probative value to support the affirmative answer to Issue No. II; (5) the evidence is so overwhelmingly against such answer as to shock the conscience, and demonstrates that such conclusion of the jury was wrong, and reached only as a result of passion, prejudice, or improper motive; and (6) the great...