Standard v. Texas Pacific Coal & Oil Co.

• Decision Date: 11 December 1931
• Docket Number: No. 922.,922.
• Citation: 47 S.W.2d 443
• Parties: STANDARD et al. v. TEXAS PACIFIC COAL & OIL CO. et al.
• Court: Texas Court of Appeals

47 S.W.2d 443

STANDARD et al. v. TEXAS PACIFIC COAL & OIL CO. et al.

No. 922.

Court of Civil Appeals of Texas. Eastland.

December 11, 1931.

Rehearing Denied January 22, 1932.

On Second Rehearing, February 5, 1932.

On Third Rehearing March 11, 1932.

COPYRIGHT MATERIAL OMITTED

Appeal from District Court, Eastland County; Elzo Been, Judge.

Suit by Lela Waldrip Standard and others against the Texas Pacific Coal & Oil Company and others. Judgment for plaintiffs against defendant George Powers, and judgment for other defendants, and plaintiffs appeal.

Affirmed.

Frank Judkins and Owen & Owen, all of Eastland, for appellants.

John Hancock, of Fort Worth, and Frank Sparks, of Eastland, for appellees.

FUNDERBURK, J.

The plaintiffs below were Mrs. Lela Waldrip Standard, joined pro forma by her husband, G. H. Standard, together with Jack Waldrip, Lester Waldrip, and Peggy Joyce Waldrip, minors, suing by Mrs. Lela Waldrip Standard as their next friend. The defendants were Texas Pacific Coal & Oil Company, a corporation, Frank Kribs, and George Powers. Plaintiffs sought to recover damages for the alleged wrongful killing of Aaron Waldrip, the former husband of Mrs. Standard, and the father of said minors. There was another claim for slander or libel, or both, against the said defendants, which, upon the court's sustaining a plea in abatement for misjoinder of causes of action, was dismissed. Liability of the Texas Pacific Coal & Oil Company upon the claim for damages for the wrongful death was sought to be shown by allegations to the effect: (1) That George Powers, its agent, servant, and employee, charged with certain duties as watchman upon one of its leases, and acting under its instructions to kill depredators upon the lease, shot and killed said Waldrip; and (2) that said Powers shot and killed said Waldrip in pursuance of and as the result of a conspiracy and agreement so to do between all the defendants. Frank Kribs was sought to be held liable on the ground that he, as an officer and superintendent of production of the corporation, made the agreement or gave the directions to the watchman, Powers, constituting the alleged conspiracy. The liability of Powers was sought to be shown: (1) Upon the ground that he did the killing; (2) that in doing so he was acting for the corporation as its servant and agent, as well as for himself; and (3) that he did so in pursuance of a conspiracy between him and one or all of his codefendants, which resulted in killing of the said Waldrip.

The trial court sustained a plea in abatement of plaintiffs' suit because of misjoinder of causes of action. By this plea it was contended that a cause of action for libel or slander was improperly joined with a cause of action for wrongful death. The court having sustained the plea, the "plaintiffs," in the language of the judgment, "dismissed their action for libel and slander," and it was "therefore ordered * * * that said action for libel and slander be and the same is hereby dismissed, and said allegations stricken from plaintiffs' petition." By such action a dismissal of the case was avoided, and upon a trial of the action for wrongful death, the jury, in response to special issues, returned their verdict wherein they found from a preponderance of the evidence: (1) That George Powers, at the time he shot and killed Aaron Waldrip, was not acting in the scope of his employment by the Texas Pacific Coal & Oil Company. (2) That he killed Waldrip with malice. (3) That Powers, at the time, was not acting under the instructions of the Texas Pacific Coal & Oil Company. (4) Nor under the instructions of Frank Kribs. (5) That at the time he was not acting in pursuance of a previously formed conspiracy between himself and Frank Kribs and the Texas Pacific Coal & Oil Company. (6) Nor a previously formed conspiracy between himself and the Texas Pacific Coal & Oil Company. (7) Nor a previously formed conspiracy between himself and Frank Kribs. (8) That $300, if paid at the time in cash, would fully compensate Mrs. Standard for loss sustained in the death of said Waldrip. (9) That $900 ($300 to each) would reasonably compensate the three minor children for such death. (10) That $400 was the amount assessed as exemplary damages. And (11) that at the time Powers shot and killed Waldrip he did not reasonably believe himself in danger of death or serious bodily injury.

Upon this verdict the court gave judgment for defendants Texas Pacific Coal & Oil Company and Frank Kribs, and gave judgment for plaintiffs against George Powers for an aggregate of $1,600. The plaintiffs alone have appealed.

Appellants present thirty-nine assignments of error and eighteen propositions thereunder. Appellee Texas Pacific Coal & Oil Company makes just criticism of some of the propositions and objects to our consideration of same. For example, one proposition is: "It is error for the trial court to give a general charge to the jury in a case submitted on special issues." Another is: "A charge on the weight of the evidence is reversible error." Still another is: "All issues raised by the pleadings and the evidence should be submitted to the jury." There are many others of the same nature. The objection must be overruled because the last Legislature so amended Revised Statutes 1925, art. 1757, as to eliminate propositions as an essential part of a brief (Acts 1931, p. 68, c. 45, § 1 [Vernon's Ann. Civ. St. art. 1757]). In prescribing the essential requisites of a brief so that in practical effect to leave it optional with counsel whether a brief shall be of any assistance to the court, it appears that propositions, along with all other requirements existing under previous rules and designed to lighten the labors and conserve the time of the court, have been omitted. Such being the case, no question can properly arise as to the sufficiency of propositions.

Appellants' first contention is that the undisputed evidence shows substantial pecuniary loss and the verdict is for nominal damages only, for which reason the judgment should be reversed. The merit in this point is dependent upon the correctness of the proposition that the award of $1,600 damages constitutes an award of only nominal damages. We are not prepared to hold that $1,600 (or $1,200 the latter being the amount awarded as actual damages) is nominal. Whether such damages be inadequate is a different question which, because not presented, we do not feel called upon definitely to determine, although we are inclined to the view that, under this record, we could not hold same to be inadequate.

It is next insisted that the court erred in sustaining the plea in abatement. We believe that this contention is correct. The plaintiff simply sought a recovery against three defendants upon two different causes of action sounding in tort. Under such circumstances we understand that two or more torts may properly be joined in the same suit, even though they be distinct. Wallis v. Walker, 73 Tex. 8, 11 S. W. 123; Cody v. Lowry (Tex. Civ. App.) 91 S. W. 1109; Carter v. Wallace, 2 Tex. 206; Hamilton v. Ward, 4 Tex. 356; Jackson v. Missouri, K. & T. Ry. Co. (Tex. Civ. App.) 78 S. W. 724.

However, plaintiff, by voluntarily dismissing one of the causes of action and proceeding to trial and judgment upon the other, waived the error of the court in sustaining the plea in abatement. The action of the court made necessary by sustaining the plea in abatement was to dismiss the suit, including both causes of action. Plaintiffs avoided that consequence in the only way possible, namely, by dismissing one of them. Such action in legal effect was equivalent, we think, to a voluntary nonsuit. It constituted an acquiescence in the action of the court, whether right or wrong.

The court allowed each of the three defendants six peremptory challenges of jurors. Such action is complained of by a bill of exception insufficient to present any question of prejudicial error in this respect. The bill does not show that sufficient acceptable jurors did not remain after the challenges were made, nor that, because of such ruling, plaintiffs were forced to accept objectionable jurors. Without such showing it has been held that no prejudicial error is manifest. Snow v. Starr, 75 Tex. 411, 12 S. W. 673; Wolf v. Perryman, 82 Tex. 116, 17 S. W. 772; Waggoner v. Dodson, 96 Tex. 7, 68 S. W. 813, 69 S. W. 993.

In one statement and argument addressed to a number of different assignments of error, appellants complain of certain directions and instructions given to the jury which, for convenience, we number and quote as follows:

1. "To guide you in answering the foregoing special issues Nos. 5 and 6, you are instructed that none of the agents and employees of the Texas Pacific Coal & Oil Company would have the right to make and enter such an agreement and conspiracy so as to bind the said Texas Pacific Coal & Oil Company, unless they were authorized to do so by the said Texas Pacific Coal & Oil Company itself."

Said special issues Nos. 5 and 6 were as follows:

"Special Issue No. 5: Do you find from a preponderance of the evidence that George Powers, at the time he shot and killed Aaron Waldrip, was acting in pursuance of a previously formed conspiracy between himself, Frank Kribs and the Texas Pacific Coal & Oil Company?"

"Special Issue No. 6: Do you find from a preponderance of the evidence that George Powers, at the time he shot and killed Aaron Waldrip, was acting in pursuance of a previously formed conspiracy between himself and Frank Kribs?"

2. "You are further instructed that, if you answer Special Issue No. 11 in the affirmative, then you need not answer any other issue in this case."

Issue No. 11 was as follows: "Do you find from a preponderance of the evidence that, at the time George Powers shot and killed Aaron Waldrip, did he reasonably believe himself in danger of death or serious bodily injury?"

3. "You are instructed that you are the...