Pan Am. College v. Rojas

• Decision Date: 29 June 1965
• Docket Number: No. 111,111
• Citation: 392 S.W.2d 707
• Parties: PAN AMERICAN COLLEGE, Appellant, v. Dr. Hector R. ROJAS, Appellee.
• Court: Texas Court of Appeals

Page 707

392 S.W.2d 707

PAN AMERICAN COLLEGE, Appellant, v. Dr. Hector R. ROJAS, Appellee.

No. 111.

Court of Civil Appeals of Texas, Corpus Christi.

June 29, 1965.

Rehearing Denied July 29, 1965.

Henrichson & Bates, by E. G. Henrichson, Edinburg, for appellant.

L. Aron Pena, Edinburg, for appellee.

GREEN, Chief Justice.

Appellee Dr. Hector R. Rojas, plaintiff below, secured judgment after jury verdict against appellant, Pan American College, defendant in the trial court, for damages for breach of employment contract. Motion for new trial was overruled, and defendant has perfected this appeal.

Appellee, a Doctor of Astonomy whose residence is in France, was employed by appellant in September, 1962, by contract to expire May 31, 1963, as Research Associate under Professor Paul Engle in a program of astronomical and astrophysical research. This program, which was conducted by appellant college in Edinburg, Texas, and at its high altitude observatory on Mount Infiernillo, State of Nuevo Leon, Mexico, was sponsored and financed by a grant from the National Science Foundation. Professor Engle was Director of the grant, and controlled the expenditure of the funds.

In June, 1963, appellee's contract with appellant was renewed by the parties for one year, to be in effect until May 31, 1964. Although appellant questions the existence of sufficient, pleadings and evidence of a contract, this matter was definitely settled by a stipulation, hereinafter copied in this opinion, entered into by the parties after the evidence was in and before the preparation of the charge to the jury, and we shall not deem it necessary to discuss at any length any issue as to the existence of such contract.

During the early months of their association, the relationship between Professor Engle and appellee seems to have been satisfactory. In a report by Engle to the National Science Foundation in March, 1963, he spoke most highly of Rojas, saying: 'Dr. Hector R. Rojas is deeply involved in this work here and has proved to be a most highly satisfactory research associate.' However, it appears from the testimony that after the renewal of appellee's contract, strong personal animosity developed between the two men. There is much conflicting testimony of the quality and value to appellant of appellee's services, as well as on the subject of whether appellee acted insubordinately toward his superior, Engle, and refused to accept instructions from him. The evidence conflicts sharply as to Engle being in fact an astronomer qualified to give directions concerning the technical details of the observation project, and it is clear that appellee did not consider him to be such. On September 21, 1963, in reply to a letter from Engle, appellee wrote him stating that he agreed that they should work together to insure the success of the research project, but that 'Because you are not astronomer at all and anymore, I will not accept from you any instruction regarding what to do or what not to do in the research project.' Appellee on the stand explained that he did not write that he would not recognize Engle as his superior, or as the director of his department, but that since Engle was not an astronomer, he could not permit him to interfere with appellee's work as an astronomer. After receipt of this letter, the college authorities not only continued to allow him to go on with his work, but furnished him with a new and better office.

The event that evidently brought on the appellee's dismissal from employment happened on October 25, 1963. A fight occurred just outside of appellee's office between Rojas and Engle, in which blows were struck by both parties and both were knocked to the ground. There were no known eye witnesses to the fight other than the participants, and each gave an entirely different version as to the details of the beginning of the struggle, and as to which was the aggressor and which was merely acting in self-defense. The statement of facts contains testimony from an adult student that Engle's reputation for truth and veracity was bad.

Shortly after the fight, Engle insisted to the college president that appellee be dismissed, and this was done. The dismissal was confirmed by the Board of Regents. The law suit followed.

At the conclusion of the evidence, the parties to the case entered into a stipulation of facts as follows:

'1. That Plaintiff and Defendant did enter into an employment contract for one year, beginning June 1, 1963, and ending May 31, 1964, and for which Plaintiff was to receive a salary of $8,000.00, for his professional services.

'2. That a term of said contract was that Plaintiff receive from Defendant travelling expenses for himself in returning to France in the sum of $434.00.

'3. That Plaintiff was dismissed from employment on October 31, 1963, and a balance of $4,666.64 would still be owing on Plaintiff's annual salary, unless Defendant had just cause to dismiss Plaintiff on said date.'

The case was submitted to the jury on a single issue, as follows:

'Do you find from a preponderance of the evidence that Pan American College had just cause for the dismissal of Dr. Hector R. Rojas on or about the 1st day of November, 1963?'

To which the jury answered: 'IT DID NOT HAVE JUST CAUSE.'

By agreement of counsel for both parties, and under the provisions of Rule 269, Texas Rules of Civil Procedure, since the burden of proving the affirmative of the special issue was assumed, without objection, by appellant, its counsel were given the right to open and close the jury argument.

Judgment was rendered favorable to appellee for $5,100.64, being the total of the unpaid salary and travelling expenses set forth in the agreed facts. Appellants' motion for new trial was overruled, and it has appealed. We affirm the judgment.

Appellant presents this appeal on seven points. The first six are based on error alleged to have been committed by the trial court in overruling appellant's motion for instructed verdict. The record, even when we include the supplemental transcript filed by appellant with leave of the court and agreement of attorney for appellee containing an affidavit of appellant's attorney and a statement of the trial judge, reflects that the instrument designated 'Defendant's Motion for Instructed Verdict' was not dictated or prepared in court prior to the submission of the charge, but was for the first time prepared and filed with the district clerk four days after the judgment was signed by the judge. Counsel's affidavit and the judge's statement, taken together, do reflect that after the court and the attorneys for both parties had agreed on the issue to be submitted to the jury, defense attorney stated in open court that he would like to file a motion for instructed verdict, to which the judge replied that he would consider it filed and overruled. It is not shown that any specific grounds for such motion were stated on the occasion, as is required of a motion for instructed verdict by Rule 268, T.R.C.P. No efforts were made to prepare or dictate, in the presence of court and adverse attorney, any motion, nor was any bill of exception taken to the words or the action of the trial judge. There is nothing in the record to indicate that the motion containing the specific grounds was ever presented to the trial judge, or ruled on by him. Under such circumstances we are without authority to consider the instrument as a motion for instructed verdict presented to and overruled by the trial judge before verdict. Rule 268; Home Insurance Co. of New York v. Dacus, Tex.Civ.App., 239 S.W.2d 182; Dyer v. Hardin, Tex.Civ.App., 323 S.W.2d 119, writ ref. n. r. e.; Green v. Evans, Tex.Civ.App., 362 S.W.2d 377. In addition, since it is not indicated that any notice of the filing of this instrument was given adverse counsel, and because it was not presented to or ruled upon by the court after being filed, it cannot be treated as a motion for judgment notwithstanding the verdict. Rule 301, T.R.C.P.; Wilton v. Johnson, Tex.Civ.App., 278 S.W.2d 488; Timmons v. Fogle, Tex.Civ.App., 278 S.W.2d 549; Brown v. Halfin,...