Jackman v. Gay, (No. 6244.)<SMALL><SUP>*</SUP></SMALL>

• Citation: 237 S.W. 315
• Decision Date: 09 November 1921
• Docket Number: (No. 6244.)&lt;SMALL&gt;&lt;SUP&gt;*&lt;/SUP&gt;&lt;/SMALL&gt
• Parties: JACKMAN et al. v. GAY.
• Court: Court of Appeals of Texas

237 S.W. 315

JACKMAN et al. v. GAY.

(No. 6244.)^*

Court of Civil Appeals of Texas. Austin.

November 9, 1921.

Rehearing Denied February 1, 1922.

Appeal from District Court, Hays County; M. C. Jeffrey, Judge.

Action by Mrs. Eliza Gay against W. T. Jackman and others. Judgment for plaintiff, and defendants appeal. Reversed and remanded.

B. G. Neighbors, R. E. McKie, and L. D. Hill, all of San Marcos, for appellants.

E. M. Cape and Will G. Barber, both of San Marcos, for appellee.

KEY, C. J.

At the time of the transactions involved in this case, Mrs. Eliza Gay owned and resided upon a home near Wimberly, in Hays county, which included a 1,500-acre pasture. In 1897, her son Gib Gay, and another man by the name of Chas. Lindeman came from the state of Arizona to Hays county, and stayed at Mrs. Gay's place until Lindeman disappeared several months thereafter. Soon after his disappearance, Gib Gay was charged with murdering him, and was arrested, put in jail, and remained there for about four years.

While they were staying at Mrs. Gay's, Lindeman and Gib Gay purchased from different parties between 90 and 100 head of cattle, and put them in Mrs. Gay's pasture. After the disappearance of Lindeman, and the arrest of Gib Gay, W. T. Jackman, who was at that time sheriff of Hays county, was duly appointed temporary administrator of the estate of Lindeman, and the order of appointment conferred upon him full power to take charge of, care for, collect, and protect Lindeman's estate. Thereafter Jackman went to Mrs. Eliza Gay's place, took possession of and removed from her pasture 93 head of cattle which had been placed there by her son, Gib Gay, and Chas. Lindeman; in doing which, he acted as temporary administrator of Lindeman's estate, and took possession of the cattle as the property of such estate. Thereafter, and in pursuance of an order of the probate judge, Jackman sold the cattle, and W. J. Cowan became the purchaser of 82 head, and the remainder were sold to other persons. Jackman deposited the proceeds of the sales in a bank in Hays county. Thereafter, and before this suit was brought, Gib Gay assigned and transferred to his mother, Mrs. Eliza Gay, whatever cause of action he had against W. T. Jackman and those who assisted him, arising out of the fact that the cattle referred to were taken and disposed of by Jackman.

In August, 1902, Mrs. Eliza Gay commenced this suit against W. T. Jackman, Andrew Cowan, J. M. Hons, and L. H. Klingerman, and based her cause of action upon the claim for damages which had been assigned to her by Gib Gay. The averments in her petition and the prayer showed that the plaintiff was suing for damages alleged to have accrued to Gib Gay on account of the alleged conversion of the cattle, which claim the plaintiff alleged had been transferred to her.

The answer of the defendants included a plea of privilege, general demurrer, general denial, and special plea, alleging that the cattle referred to were the property of Chas. Lindeman, and not of Gib Gay; that Gib Gay had murdered Chas. Lindeman, and that the defendant, W. T. Jackman, had been duly appointed temporary administrator of his estate, and rightfully took possession of the property as such. Some other matters are alleged in the answer, which are not necessary to be stated here.

The plaintiff filed a supplemental petition, containing certain exceptions to the answer of defendants, and a denial of the facts therein alleged. She also filed an amended original petition substantially the same as her original petition, except that it did not include J. M. Hons and L. H. Klingerman as defendants, the plaintiff having dismissed as to both of them.

The case remained on the docket until the September term, 1919, of the district court of Hays county, when it went to trial before a jury, and, after the evidence was closed, the court instructed the jury to return a verdict for the plaintiff against the defendants, Jackman and Cowan, jointly and severally, for the sum of $1,990, with interest at the rate of 6 per cent. per annum from November 1, 1897, and against defendant, W. T. Jackman, alone, for the further sum of $150, with interest at the same rate and from the same date, and to find against Jackman both individually and as administrator of the estate of Chas. Lindeman, deceased. The jury returned a verdict as instructed, and judgment was rendered accordingly. However, in disposing of the defendants' motion for a new trial, the court held that the motion would be granted unless the plaintiff would enter a remittitur of one-half of the amount recovered, whereupon, the plaintiff consented to such remittitur, and the judgment was reformed, allowing plaintiff to recover only one-half of the amount specified in the original judgment, and in other respects the motion for new trial was overruled. The defendants have appealed.

The questions hereafter discussed are presented by proper assignments.

It is strenuously insisted on behalf of appellants that the trial court committed error in denying to them the right of trial by jury and directing the jury to return a particular verdict for the plaintiff. On the other hand, it is zealously insisted that the undisputed testimony shows that the plaintiff was entitled to recover the amount awarded her by the judgment, and therefore the trial court properly directed a verdict for her. If Gib Gay owned any interest in the cattle that were seized by the defendant Jackman, and thereafter sold by him, such seizure and disposal operated as a conversion to the extent of Gib Gay's interest in the property. It may be conceded that there was uncontradicted testimony sufficient to show that two or three small amounts were paid by Gib Gay in the purchase of the cattle referred to, but there was no direct proof that he made any other payments. Counsel for appellee make the contention that it was shown that Gib Gay and Chas. Lindeman were buying cattle together, and that the former was in possession of the cattle when they were taken by the defendant Jackman, and that those facts constitute prima facie evidence that he owned, at least, a half interest in them. But there was some circumstantial evidence tending, perhaps remotely, to show that Lindeman had furnished most of the money that was used in paying for the cattle. Besides, the defendant Jackman testified:

"After getting the cattle gathered and in the pen I went to the house and talked to Mrs. Gay, and I told her I wanted her to go to the lot with me and point out such cattle as she might claim herself. She pointed out the cattle branded in a certain brand, and said they were Lindeman's cattle, and all others she pointed out as belonging to her and her different children. I cut out her cattle and turned them out in the pasture. There was no animal that I drove away that there was any contention about the ownership. I drove away just the cattle that she pointed out to me as Charley Lindeman's cattle."

That evidence tended to show that as a matter of fact all of the cattle referred to belonged to Charley Lindeman, and Gib Gay owned no interest whatever in them; and if such were the facts the plaintiff was not entitled to recover anything. She claimed no right derived from Lindeman, but only such cause of action as was assigned to her by Gib Gay, and if he owned no interest in the cattle taken by the defendant Jackman, he had no cause of action resulting from such taking, and therefore conveyed none to the plaintiff.

Appellee objected to the testimony of appellant Jackman, as set out above, upon the ground that it was hearsay and incompetent to affect the title that Gib Gay may have had to the cattle at that time, and the fact that thereafter the plaintiff acquired his cause of action did not render her statement then made to Jackman admissible against her; she not having any interest in the cattle at the time such statement was made. The trial court overruled that objection, and permitted Jackman to testify as above shown. Appellee reserved a bill of exception to that ruling, which bill was presented to the judge, after the court adjourned, but within due time, and the judge approved it, with the explanation that, while he admitted the testimony over the plaintiff's objection, upon further reflection he concluded it was inadmissible, and that while he did not formally exclude it from the jury, he considered that his action, instructing a verdict for the plaintiff and overruling the defendants' motion for a new trial, had that effect. Counsel for appellee do not controvert the proposition that, if the testimony referred to was admissible, the court erred in directing a verdict against appellants, but insists that the case should not be reversed upon that ground, because that evidence was not admissible, and should not have been considered by the jury. Counsel for appellants controvert that contention, and claim that Jackman's testimony was admissible, and entitled them to have the case passed upon by the jury.

The argument presented in favor of appellee is that, inasmuch as she had no interest in the cattle at the time they were taken by appellant Jackman, and acquired from Gib Gay the cause of action sued on long after such taking, therefore, if she made the statements testified to by Jackman, they cannot be considered as admissions against her interest, and therefore are not admissible. Some authorities are cited which tend...