Randle v. Barden

• Court: Texas Court of Appeals
• Writing for the Court: Rasbury
• Citation: Randle v. Barden, 164 S.W. 1063 (Tex. App. 1914)
• Decision Date: 07 March 1914
• Parties: RANDLE v. BARDEN.

164 S.W. 1063

RANDLE v. BARDEN.

Court of Civil Appeals of Texas. Dallas.

March 7, 1914.

Appeal from Dallas County Court; W. F. Whitehurst, Judge.

Action by E. T. Barden against E. T. Randle. From a judgment for plaintiff, defendant appeals. Reversed and remanded for a new trial.

Allen & Flanary, of Dallas, for appellant. Hiram F. Lively and Jeff D. Stinson, both of Dallas, for appellee.

RASBURY, J.

Appellee sued appellant in the court below on an account or claim for $445.39, alleging that the Olds-Oakland Auto Company, a private corporation, had, at appellant's instance, furnished the supplies for appellant's automobile and made the repairs thereon, enumerated in said account, which appellant refused to pay, and which said account appellee alleged he had acquired, together with the business of the Olds-Oakland Auto Company, for value, and hence entitled to sue thereon.

Appellant contested the suit on the ground that the charges for the work done on the car were excessive and the work inefficient and the car in a worse condition when delivered back to appellant than when received by appellee's assignor, and for that reason no liability existed at law. Appellant further alleged in effect, by plea in reconvention for damages, that appellee's assignor had unreasonably detained his car and thereby deprived appellant of its use, for which he sought damages. Appellee, in response to that portion of appellant's answer seeking to recover damages, alleged by supplemental petition that said claim had been previously adjudicated by suit in one of the district courts of Dallas county between the same parties, and for that reason could not be urged in the pending suit.

There was a trial by jury. To the jury the court submitted for their determination upon the evidence adduced all defenses urged by appellant, save the claim for damages for the unreasonable detention of his car, on which issue the court instructed a verdict for appellee. Under the recited instructions, the jury returned a verdict for appellee for $251.29, with interest followed by like judgment, from which this appeal is taken.

The first assignment of error complains of the refusal of the court to permit appellant to prove the unreasonable detention of his car by appellee's assignor and the resultant damages; the action of the court being based upon the plea of res adjudicata. At the same time, or prior to the time appellant offered the proof recited, it was shown that appellant, in a suit in the district court against appellee and Olds-Oakland Auto Company and one H. C. Gydeson, had sought to recover damages for such detention and for possession of his car. The judgment in that case, as it affects the issue here tendered, recites that appellant "was entitled to the relief prayed for," and then awards judgment for appellant for possession of his car. It does not appear from the judgment whether the claim for damages for detaining the car was urged or proof offered, or whether same was specifically withdrawn or abandoned by appellant. The judgment is altogether silent on that question. In reference to such matters, it is now well settled that where it appears from the pleading and judgment in a former suit, offered in evidence upon trial of a pending suit, that recovery was sought upon two causes of action, one, say, for possession of an automobile, and one for damages for detaining same, and the judgment disposes of one of the causes of action and is silent with reference to the other, it is prima facie an adjudication that the plaintiff in such suit was not entitled to recover upon the other cause of action, in the absence of pleading and proof showing that, before the rendition of the judgment, he withdrew one of the issues or that the court refused to decide it. Rackley v. Fowlkes, 89 Tex. 613, 36 S. W. 77; Davies v. Thompson, 92 Tex. 391, 49 S. W. 215; Trammell v. Rosen (Sup.) 157 S. W. 1161. The pleading and judgment tendered in testimony at trial of the instant case brings the issue here squarely within the rule announced in the cases cited. The circumstance that the judgment recites "that plaintiff was entitled to the relief prayed for" in no sense varies the applicability of the rule, as contended by appellant. The recitation at most is formal and meaningless, in view of the fact that the judgment specifically awards a recovery upon but one of the asserted causes of action. Nor can it be said, as urged by appellant, that such expression in the judgment indicates an abandonment of one of the remedies sought. It occurs to us if the expression has any significance it is contrary to that contended for by appellant, since the "relief prayed for" was both remedies.

The second, third, and fourth assignments of error complain of the refusal of the court to permit appellant to prove by various witnesses under the issue that the work done by appellee's assignor upon his car was inefficient and the charges excessive; in substance that similar work done for them by appellee's assignor was inefficient and the charges excessive; and that they complained thereat and in some instances refused to pay same. Appellant's contention is that the evidence was admissible as tending to show a general course of dealing similar to facts alleged in the instant case. We conclude the testimony was properly excluded. Generally such evidence is not admissible. In some instances, particularly in negligence cases, evidence of similar acts of negligence are admissible as tending to prove knowledge of the very act of negligence complained of in the...