Rodriguez v. Higginbotham-Bailey-Logan Co.

NORVELL, Justice.

R. C. Rodriguez, a well-known traveling salesman, and Higginbotham-Bailey-Logan Company, a Dallas wholesale dry goods corporation, will be referred to as plaintiff and defendant, respectively, as in the trial court.

For twelve years prior to December, 1932, plaintiff was a traveling salesman in the Rio Grande Valley for Perkins Dry Goods Company. When that concern ceased business at the end of that period plaintiff was employed as general salesman in the same* territory by defendant. His pay consisted of certain commissions on sales made directly by him, as well as on sales made by certain other salesmen in his territory. He was allowed a drawing account of $75 every two weeks, which was charged to his commission earnings. At the end of each year the balance of his commissions was paid to him in a lump sum, which the parties called his “bonus.”

This arrangement continued satisfactorily until November 19, 1934, when plaintiff was injury in an automobile accident, and was confined to hospitals and in his home for two years, and never actively resumed his work.

At the date of plaintiff’s injury defendant owed him accrued commissions amounting to $1,335.91, and after his injury defendant continued, as before, to remit to plaintiff every two weeks the amount of his drawing allowance, $75, until $1,050 had been paid him. This left a balance of $285, which was paid to plaintiff in one check, at his request.

Now plaintiff contends, and based this suit upon the contention, that shortly following his injury and resulting disability defendant agreed, through E. L. Blanchard, its sales manager, to continue to pay plaintiff the agreed commissions on all sales made by defendant in that territory during the period of plaintiff’s disability, just as if he had been all the while actively engaged in the field; that Blanchard was duly authorized to make the agreement; that defendant company had ratified the same, and was also estopped to deny its liability upon the contract. It is conceded that if this contention is correct, then plaintiff earned net commissions amounting to $273.04 in the year 1935, $1,173.43 in 1936', and $1,-495.05 in 1937, for all of which he sued.

The defendant under oath denied that Blanchard, the agent, was authorized to make the alleged agreement and by proper pleadings put in issue the questions of ratification and estoppel.

Trial was to a.jury which found that Blanchard had in fact made the alleged agreement with plaintiff.

The issues of Blanchard’s authority and the defendant’s alleged ratification of the agreement and the matter of estoppel were not submitted to the jury, and no request was made for the submission of these issues.

The trial court upon defendant’s motion rendered judgment non obstante veredicto, denying any recovery to plaintiff, Rodriguez, who has appealed.

By his assignments of error, plaintiff asserts that this case must be reversed as the trial court erred in its holdings upon the issues of the agent’s authority, ratification and estoppel. In connection with these assignments, we have examined the evidence and come to the conclusion that it was sufficient to support a finding that Blanchard was authorized to make the contract and also that the defendant company ratified the agreement.

There appears to be no evidence which would support plaintiff’s plea of estoppel.

The trial court’s holdings that there was no evidence of authority or ratification are not justified as the evidence as to these issues was conflicting in that a fact finding either way on both. issues would be supported by the evidence. As the determination of these issues presented a question of fact and not of law, a judgment non obstante veredicto can not be sustained as the case was not one in which it would, have been proper to give an instructed, verdict. This holding does not, however, necessitate a reversal of the judgment, for as said by Judge Critz in Hopper v. Tancil, Tex.Com.App., 3 S.W.2d 67, 71: “If the action of the trial court in withdrawing the case from the jury and entering judgment for Kleas was correct upon any theory, such judgment should be affirmed, whatever reason was assigned therefor, or whether any reason was assigned therefor. Holland v. Nimitz, 111 Tex. 419, 232 S.W. 298, 239 S.W. 185, and Associated Oil Co. v. Hart (Tex.Com.App.) 277 S.W. 1043.”

The holding of the trial court in this case that there was no evidence of authorization or ratification in the case necessarily embraces a finding that the evidence was insufficient to establish by a preponderance of the evidence that the agent was authorized to make the contract or that the company had ratified the agreement. Marshburn v. Stewart, 113 Tex. 507, 254 S. W. 942, 260 S.W. 565; Wallace v. Southern Cotton-Oil Co., 91 Tex. 18, 22, 40 S.W. 399.

We have therefore presented the question of the proper judgment to be entered upon the following findings: (1) (By the jury) the alleged agreement was entered into between Rodriguez and the agent, Blanchard; (2) (by the trial court) the agent, Blanchard, was not authorized to make the agreement; and (3) (by the trial court) the defendant company did not ratify the agreement. If it be conceded that, under the facts of this case, the trial court was authorized to make the two findings above set out, there is no doubt that a judgment that plaintiff take nothing was proper. Such a judgment would not be a judgment notwithstanding the verdict, but one in keeping with and based upon findings by the jury and by the trial court.

The question of whether or not we are authorized in considering the findings of the trial court above set out in determining the proper judgment to be rendered, calls for an examination of Articles 2190 and 2211, Vernon’s Ann. Civ. Statutes.

Article 2211 reads in part as follows: “The judgments of the Court shall conform to the pleadings, the nature of the case proved and the verdict, if any, and shall be so framed as to give the party all the relief to which he may be entitled either in law or equity. * * * ”

The part of the article above quoted was adopted as part of the Acts of 1846. At that time and long thereafter, the general jury verdict was used in the trial of civil cases. A proper construction of the words “The judgments of the Court shall conform to * * * the verdict” when applied to a verdict of special issues is that by the term “verdict” as used in the statute is meant one or more findings upon special issues which are in themselves sufficient to support a judgment. In this case the jury’s answer to the special issue submitted is an incomplete verdict, in that it does not purport to cover the issues presented by plaintiff’s pleading, and contains no findings upon the issues of authority of the agent, or ratification by the defendant company which were pleaded by plaintiff and placed in issue by the denial of the defendant. We think it obvious that it was not the ministerial duty of the trial court to enter judgment for plaintiff upon this incomplete jury verdict, and it was not fundamental error (as suggested by plaintiff) for the trial court to refuse to do so. It seems obvious that a party can not demand a jury submission of only a part of his cause of action, presumedly that part upon which his evidence is strongest, and then insist that he have judgment.

Article 2190, supra (copied in the margin) ¹, has been the subject of many opinions of the appellate courts of this State. In Wichita Falls & Oklahoma Ry. Co. v. Pepper, 134 Tex. 360, 135 S.W.2d 79, 85, Mr. Justice Sharp, speaking for the Supreme Court, reviews various prior opinions of that court dealing with the article and states certain rules which are applicable here, namely:

1. “Where the court fails to submit a separate or independent ground of recovery or defense, and there is no request to submit the issue or issues omitted, such issue or issues are waived, and no waiver can be imputed to the other party for such failure.”

2. Where the court submits one or more issues to the jury, but does not submit-other issues which are necessary to support a judgment based upon the ground of recovery or theory under which the submitted issues were given, and no request is made for such submission, the trial court is authorized to determine such unsubmitted issues from the evidence.

As we understand the Pepper case, it approves the following statement from Moore v. Pierson, 100 Tex. 113, 94 S.W. 1132, 1134: “The consequence must necessarily be that when the trial court has expressly submitted some issues and excluded others, and neither party has put in writing a request for the submission of those excluded, they must be regarded in the appellate court as having acquiesced in such action and consented for the trial judge to determine from the evidence the issue not submitted. It is only by a written request that the party puts on record his dissent from the action of the court and his insistence upon the right to have the jury, rather than the judge, decide the point at issue.”

The Pepper case does, however, on the authority of Ormsby v. Ratcliffe, 117 Tex. 242, 1 S.W.2d 1084, restrict the above rule as to the power of the trial court to determine issues not submitted, to those issues which do not constitute a separate ground of recovery or defense.

In applying the rules of the Pepper case to the case at bar, we hold that the un-submitted issues, that of the authority of the agent, and ratification of the agreement by the defendant company, were not issues constituting a separate or independent ground of recovery. These issues related to the one ground of recovery urged by plaintiff, i. e., the existence of a valid agreement between him and the defendant •company. This being true, the plaintiff by not requesting a submission of these issues, consented that these issues should be determined by the trial court.

Our position here is also supported by the case of Nixon v. Hirschi, 134 Tex. 415, 136 S.W.2d 583. In 18 Texas Law Review, this case is discussed by Preston Shirley, former Professor of Law at the University of Texas, and it is therein pointed out that the usual situation presented in the decisions is that in which a judgment has-been entered in favor of the party in whose favor the jury answered the submitted issue, nevertheless, “there is nothing in Article 2190 requiring 'that the omitted issue be found by. the trial court, or be presumed on appeal to have been found by the trial court, in favor of the party for whom the jury answers the submitted issue or issues.” 18 Tex.Law Review 452. See, also, Wilt v. Kellogg, 132 Tex. 345, 122 S.W.2d 1051.

We therefore hold that as the issue submitted was incomplete as a verdict upon which a judgment for plaintiff could be based under the pleading, the plaintiff by failing to request the submission of further issues, in effect, consented for the trial judge to determine all other fact issues raised by the evidence. As the'holding of the trial judge that there was no evidence supporting plaintiff's theories of authorization and ratification embraced findings upon the preponderance of the evidence adverse to plaintiff’s contentions upon such issues, the judgment appealed from will be affirmed.

1 “Art. 2190. * * * Submission of issues

“When the Court submits a case upon special issues, he shall submit all the issues made by the pleading and evidence. Failure to submit an issue shall not be deemed a ground for reversal of the judgment, unless its submission has been requested in writing by the party complaining of the judgment. Upon appeal or Writ of Error, an issue not submitted and not requested is deemed as found by tbe Oourt in such manner as to support the judgment if there is evidence to sustain such finding. A claim that the evidence was insufficient to warrant the submission of any issue may be complained of for the first time after verdict, regardless of whether the submission of such issue was requested by the eom-plaining party.” As amended Acts 1931, 42nd Leg. p. 120, eh. 78, § 1.