Western Cottonoil Company v. Hodges, 14702.
| Decision Date | 21 January 1955 |
| Docket Number | No. 14702.,14702. |
| Parties | WESTERN COTTONOIL COMPANY, Appellant, v. J. C. HODGES and Mary Weinberg, Appellees. |
| Court | U.S. Court of Appeals — Fifth Circuit |
M. S. McCorquodale, Houston, Tex., Carl P. Springer, Abilene, Tex., McMahon, Springer, Smart & Walter, Abilene, Tex., Fulbright, Crooker, Freeman, Bates & Jaworski, Houston, Tex., for appellant.
Eugene E. Piper, Borger, Tex., Dallas Scarborough, J. R. Black, Jr., Beverly Tarpley, Abilene, Tex., Piper, Gassaway & Allen, Borger, Tex., Scarborough, Yates, Scarborough & Black, Abilene, Tex., for appellees.
Before BORAH, RIVES and TUTTLE, Circuit Judges.
This is an appeal from a judgment by the court without a jury in favor of plaintiffs, as the owners of a motor court, against the defendant for the maintenance of a nuisance in the nature of an open pit in which defendant stored an ill-smelling by-product known as "soap stock." The issues as to liability and damages are narrowed here by the concession made by appellant in its brief as follows:
Another specification of error is that the trial court overruled a plea in abatement alleging that there was a non-joinder of parties plaintiff. This plea was based on the fact that the nominal plaintiffs were divorced during the pendency of this suit, and, the plea alleged, that in dividing the property of husband and wife, the divorce court had awarded one-third of any recovery which might be obtained in this action to parties other than the nominal plaintiffs, (it being contended that the state court judge in the divorce action assigned to the lawyers this one-third interest).
Considering the matter of the plea in abatement first, it appears from the judgment of the state court in the divorce action that there was no such assignment of an interest in the pending Federal court suit as would make the assignees necessary parties to this litigation.1
Appellant contended that in appellees' argument in the trial court and in their disclaimer filed in response to the plea in abatement their counsel repeatedly considered the action of the divorce court a mistake and it contends that the statement that a mistake was made by the divorce court is binding on appellees; that therefore the court below should have abated the action to permit the state court to correct this mistake. The answer to this contention is that it is immaterial to this proceeding if the "mistake" of the divorce court did not result in placing an interest in this suit in the lawyers. If the mistake merely consisted of the court's erroneously directing that one-third of the ultimate recovery be paid to the lawyers, which we hold is the effect of the judgment there, then the court below is not in any way concerned with the correction of any such "mistake" by the divorce court. Certainly it cannot be contended that we are bound to conclude from counsel's construction of the divorce court's order as an assignment of an interest in the suit that such was its legal effect when we have the actual order before us. It is our duty to construe it and in doing so we are not bound by any construction that may have been placed on it by either the parties or the court below.
Furthermore, even if the effect of the divorce court's judgment was to transfer an interest in the suit to the lawyers, they not only filed a disclaimer, but also signed a conveyance themselves as to any interest they had to the nominal plaintiffs. Appellant complained that this was an effort by the lawyers to make a disposition of an asset of the community and that only the divorce court could do that, since in a divorce proceeding in Texas the court has jurisdiction to decree a division of the estate of the parties in such a way as the court may deem just and right, citing Ex parte Scott, 133 Tex. 1, 123 S.W.2d 306.
The action by the lawyers here however, if they actually owned any interest in this suit, was not to dispose of any asset of the community of Hodges and wife, but it was a disposition by them of an asset that belonged to them. They could make such disposition of it as they saw fit. The fact that they conveyed it to Hodges and his wife in no way changed the nature of their act into an interference with the divorce court's right to dispose of the community assets.
Under the facts as set out and the circumstances existing at the time of trial, we hold that the trial court did not err in overruling appellant's plea in abatement.
The court found, and appellant in effect conceded the correctness of such finding, that between June 1, 1952, and a period ending nine months after April 13, 1953, plaintiffs would suffer a total reduction of revenues in the sum of $10,000 under that which would have been enjoyed but for the existence of a set of intervening circumstances. These circumstances, found by the court, were a change in the location of a main highway, the departure of one of the plaintiffs, Mrs. Hodges, who moved away after the divorce and thus ceased to devote her time to the running of the business, and the existence of the admitted nuisance.
The court allocated 50% of this $10,000 loss to the removal of the highway, 25% to the departure of Mrs. Hodges and the building of new tourist courts, and 25% to the nuisance, and thus entered a judgment for $2500 in favor of plaintiffs.
Appellant stated as its contention that: "A finding that 25% of the loss was caused by the soap bowl is against the clear preponderance, and is against the overwhelming preponderance, of the evidence." In the statement of its specifications of errors, appellant goes further and states: "There was no substantial evidence to establish that one-fourth of the loss of revenue was caused by the defendant."
Rule 52(a) of the Federal Rules of Civil Procedure, 28 U.S.C. provides that "in all actions tried upon the facts without a jury * * * findings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses." This court has held, in conformity with this rule, that it may reverse "(1) where the findings are without substantial evidence to support them; (2) where the court misapprehended the effect of the evidence; and (3) if, though there is evidence which if credible would be substantial, the force and effect of the testimony considered as a whole convinces that the finding is so against the great preponderance of the credible testimony that it does not reflect or represent the truth and right of the case." Sanders v. Leech, 5 Cir., 158 F.2d 486, 487.
Viewed against this standard by which we must measure the question whether the trial court's finding of damages can stand, we conclude that the findings are not without substantial evidence to support them; this court did not misapprehend the effect of the evidence, and giving due regard to the opportunity of the trial court to judge of the credibility of the witnesses, and accepting therefore, his finding that plaintiffs' witnesses spoke the truth as to the facts related by them the finding is not so against the great preponderance of the credible testimony that it does not reflect or represent the truth or right of the case.
While no witness testified as to the number of persons who left the tourist court or who failed to patronize it specifically on account of...
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