Houston & T. C. R. Co. v. Strycharski

• Decision Date: 09 November 1896
• Citation: 37 S.W. 415
• Parties: HOUSTON & T. C. R. CO. et al. v. STRYCHARSKI.
• Court: Texas Supreme Court

37 S.W. 415

HOUSTON & T. C. R. CO. et al. v. STRYCHARSKI.

Supreme Court of Texas.

November 9, 1896.

Error from court of civil appeals of First supreme judicial district.

Action by Martin Strycharski against Charles Dillingham, receiver, and the Houston & Texas Central Railroad Company. Judgment for plaintiff against the defendant railroad company and in favor of the receiver. On appeal the court of civil appeals reversed the judgment in favor of the receiver, and rendered judgment in favor of plaintiff against him, and affirmed the judgment against the railroad company. 35 S. W. 851. Defendants bring error. Affirmed as to the railroad company and reversed as to the judgment rendered against the receiver.

Baker, Botts, Baker & Lovett and Frank Andrews, for plaintiffs in error. Ewing & Ring, for defendant in error.

BROWN, J.

The circuit court of the United States at Galveston, Tex., appointed Charles Dillingham receiver of the property of the Houston & Texas Central Railway Company. The date of the appointment is not material to the question involved. On the 4th day of May, 1888, that court entered a decree ordering that the railroad be sold for the payment of certain bonds, which were foreclosed upon it. The property was sold September 8, 1888, being purchased by F. P. Olcott for himself and associates, and the sale was confirmed December 4, 1888, and the court directed a deed to be made to the purchaser, which was done. The purchaser and his associates incorporated the Houston & Texas Central Railroad Company, plaintiff in error, on August 1, 1889, and soon thereafter organized the company with Charles Dillingham as its president. Olcott conveyed the railroad to the newly-organized company on April 1, 1890. After the sale was made to Olcott, and after he had conveyed the property to the railroad company, Dillingham held possession of the property, and operated the road under orders of the federal court, during which time Martin Strycharski was in the employ of Receiver Dillingham, and engaged in the discharge of certain duties devolving upon him in connection with a tram standing in the railroad yard at the city of Houston. While so engaged, he received injuries for which this suit was brought against Dillingham originally, to which the railroad company was made a party defendant. It is unnecessary to state the facts of the case, but it is sufficient to say that, upon material issues necessary to be established by the plaintiff the testimony was conflicting, and there was proof tending to show contributory negligence on the part of the plaintiff, upon which issue also the testimony was conflicting.

During the pendency of the suit the United States circuit court ordered Dillingham to surrender the property to the railroad company, to which Olcott had conveyed it, which he did, and thereafter entered his plea in this cause, setting up the fact that he had been discharged as receiver, claiming that he was not subject to judgment in favor of the plaintiff in this case. His pleadings set up several defenses to the merits of the plaintiff's case. The railroad company adopted the pleadings of Dillingham. Both defendants were represented by the same attorneys. After the evidence had been introduced, the court charged the jury generally as to the liability of Dillingham as receiver, but made no mention of the railroad company, otherwise than as defendant, and then only by using the plural "defendants." At the request of defendant Dillingham the court instructed the jury, in effect, that the evidence established the fact that Dillingham had been discharged as receiver by the United States circuit court, and that they would find for him. Under the instructions the jury found a verdict in favor of the plaintiff against the Houston & Texas Central Railroad Company for $7,500 and in favor of Charles Dillingham, receiver. Upon this verdict the court entered judgment in favor of the plaintiff against the railroad company and in favor of Dillingham against the plaintiff. The plaintiff in the court below moved the court to enter judgment in his favor against Dillingham non obstante veredicto, which motion was overruled. From the judgment of the court the Houston & Texas Central Railroad Company appealed, and the plaintiff below made cross assignments of error, as hereafter stated.

The court of civil appeals (35 S. W. 851) affirmed the judgment against the railroad company, but reversed the judgment of the district court in favor of Charles Dillingham, and rendered judgment against him for the same amount as the judgment against the railroad company. Both the Houston & Texas Central Railroad Company and Charles Dillingham applied to this court for writs of error. The application of Charles Dillingham, receiver, is based upon the following assignment of errors: "The court of civil appeals erred in sustaining and holding as well taken defendant's cross assignments of error 1 and 2, which are as follows: `(1) There was error in the court's charge directing the jury to find in favor of defendant Charles Dillingham as receiver upon his plea in abatement. (2) The court erred upon the pleadings and uncontroverted evidence in denying the motion of Martin Strycharski for judgment against defendant Charles Dillingham, as receiver, under the verdict returned against his co-defendant.'" Under this assignment of errors the following proposition is submitted: "Where the issues in a case are submitted to the jury, and a verdict is directed by the court, it was the duty of the appellate court, if error was committed in such direction, to reverse and remand the cause; and it cannot, under the rules of practice in this state, reverse said cause, and render a judgment therein." The authority of the courts of civil appeals to render final judgment in causes wherein they have reversed the judgments of the trial courts is found in the following article of the Revised Statutes of 1895: "Art. 1027. When the judgment or decree of the court below shall be reversed, the court shall proceed to render such judgment or decree as the court below should have rendered, except when it is necessary that some matter of fact be ascertained, or the damage to be assessed, or the matter to be decreed is uncertain. In either of which cases the cause shall be remanded for a new trial in the court below." Whenever there is any material fact necessary to support the case of the party in whose favor the court proposes to render judgment, which is disputed in the evidence, or which is not established by agreement or by undisputed evidence conclusive in its nature, then, within the meaning of the law, it is necessary that a matter of fact shall be ascertained, and the case belongs to the class which the statute commands the court to remand upon reversal of the judgment of the lower court. The courts of civil appeals, upon reversing judgments of the trial courts, cannot enter final judgments unless upon the evidence as it appears in the record one party as a matter of law is entitled to judgment. The evidence must be of that conclusive nature that the trial court should have directed a verdict in favor of that party. The exercise of such authority in cases resting upon facts which are controverted, and about which the evidence is conflicting or uncertain, would be to usurp the powers...