DocketNumber： No. 13639.
Judges： Bond, Looney
Filed Date： 9/28/1945
Status： Precedential
Modified Date： 10/19/2024
When this cause was originally decided by the majority of this court, I merely expressed the view that I was in accord with the trial court in holding that appellee was not liable for the torts alleged to have been committed by Local Union No. 47 or its Executive Board done outside of the constitution and by-laws of the International Union; and, if perchance, appellant was deprived of a valuable right guaranteed to him as a member of the local union, and damages resulted therefrom, he should redress his wrong against the wrongdoer. It was my intention to express my views no further, being content that the majority's opinion demonstrates the untenable conclusion that the International is liable for the alleged malfeasance, misfeasance, neglect, or omission of duty by members of the Executive Board of the local union. However, realizing duty imposed in effecting the object of dissent, I extend my opinion on the record related by the majority and the undisputed evidence, showing that the judgment of the unwavering, *Page 777 unbiased trial judge of Dallas County should be affirmed.
There can be no question but that a labor union has a right to make reasonable rules regulating the management of subordinate unions and to govern the conduct of its members; and, indeed, a working man is free to join a union, and when rules and regulations have been promulgated to govern his conduct, such become in effect a contract of membership which the courts will enforce — if not immoral, or contrary to law or public policy. Therefore, when one chooses voluntarily to unite with others in forming or joining an organization for the purpose of bringing about for all its members more favorable conditions of employment, he is bound, so long as he decides to remain a member, to conform his conduct to that standard which they shall have agreed upon for the best interests of all, and to submit within certain limits his own freedom of action. All labor unions have a right to act for themselves in the enforcement of their by-laws, and to exact obedience thereto by enforced fines and other suitable penalties. The right to retain, or obtain, a job is not a membership right within the purview of the by-laws of the International Union. The International Union is not a tort-feasor in the suspension of members by subordinate unions done outside of its own by-laws and constitution. Hence, here, when appellant was suspended and fined by the local union under its own by-laws and constitution, if wrongfully, he had recourse against that agency, and might have proceeded without exhausting his remedies by appeal within that organization.
It is in evidence that the local union's relation with the International is set forth in the constitution and by-laws of each of the two unions; the local or subordinate union was chartered by the International, with its own constitution and by-laws, elects its own officers, prescribes its own rules and regulations governing its members and the manner of imposing fines and other suitable penalties for disobedience. The International Union has its own rules and regulations, free and independent of the local union. Appellant's fine and suspension were not imposed under procedure prescribed by the International Union. The most that is claimed by appellant is that the secretary of Local No. 47 refused to issue him a paid-up dues card until he paid his back dues and a $25 fine assessed against him, plus a fine of 25 cents a day for the period of his suspension, imposed by the Executive Committee of the local union; and that some member of the union told appellant that he could not work on the job where he was then engaged, because of his breach of contract with the union. It will be observed from the record, and from the opinion of the majority, that the fines and suspension imposed against appellant were recommended by the Executive Board of the local union under its own by-laws and rules of procedure. Appellant was fully advised of its acts and the charge preferred against him, and had due notice of the hearing; hence, if the procedure was outside of the by-laws and constitution of the union, which, clearly, it was not, appellant was privileged to resort to the courts for injunction to restrain such alleged unauthorized interference, or sue for damages for the tortious acts committed by the local union and the members thereof. Whether or not appellant had a cause of action against the local union or individual members is not before this court, as neither the subordinate union nor the individual members thereof are parties to the suit, except as their action may reflect agency on the part of the local union toward the International as to impute liability to it.
The majority seems to hold the International Union liable for the torts committed, or breach of membership contract, under the doctrine of respondeat superior. The fundamental rule underlying the doctrine is universally stated:
"Where it is sought to hold a principal responsible in damages for his agent's tort, the substantial question involved, from the point of view of the law of agency, is the scope of the agency. Liability cannot of course be found unless the tort-feasor was in fact agent for the defendant; but once it is admitted or found that the agent, in pursuance of express or implied or apparent authority, did the act upon which tortious liability is predicated, his principal's liability follows as a matter of course. In other words, the principal must respond in damages for all tortious acts committed by the agent in the course of his principal's business and in furtherance of his principal's interests. On the other hand, if the agent commits an injury as a personal affair and not in furtherance of his principal's business the principal is not responsible. In harmony with the fundamental rule for determining responsibility, the *Page 778 principal may be held liable only for such consequences of his agent's acts as might have been anticipated or foreseen by him." 2 Tex.Jur. pp. 551, 552, 553, § 149.
In the case, Western Weighing Inspection Bureau v. Armstrong, Tex.Com.App., 288 S.W. 119, 120, the agent of appellant falsely inflated weights of freight handled by the railroad company, and mistakenly or fraudulently made statements of such inflation as to cause damages to innocent third parties. Our Supreme Court affirmed the holding in this language: "Of course, it was his (agent's) duty to correctly weigh the freight, and any mistaken or fraudulent statement of the weights would not be binding upon the railroad or the shipper, and the railroad company might be liable for any damage which it might reasonably anticipate would be caused others by such negligent or fraudulent act of the agent, but, in order to charge it with such liability, the evidence must be sufficient to show that it had knowledge of facts from which it could reasonably anticipate that such damage would be sustained."
So, in the case at bar there is no evidence to sustain a finding that the International Union had any knowledge of the tortious acts of members of the local union, if any committed, in suspending and fining appellant; and certainly the International could not reasonably anticipate that some member of the local union would falsely and maliciously charge appellant with a breach of contract with the union so as to cause his employer to discharge him and prevent his employment elsewhere. The opinion of the majority sets out no evidence to sustain such finding, but rests its conclusion on a question of law wholly upon the fact that the International Union is liable on the legal assumption that tortious acts of the local union and its members done outside of its by-laws and constitution are imputable to the parent union. On the same critical standard of construction, it might well be said that a father is liable for the acts of his son because the son is his child. Such theory, it seems to me, is destructive of the principle of law that relieves one from liability for the unauthorized act of his agent not ratified or acquiesced in by him, but wholly within the authority of the agent's independent rights.
The constitution and by-laws of "Fort Worth Printing Pressmen and Assistants' Union Number 47, Revised and Adopted January, 1939", which appellant, in writing, pledged to abide, provides (pertinent here):
"Article XVI. Sec. 1. Members who allow themselves to become in arrears to this union to the amount of two months' dues, fines or assessments, and refuse to pay upon demand, must be reported to the union by the secretary at the next regular meeting for suspension, and upon such suspension they must be so published, and shall be deprived of all rights as union members until the expiration of six months, when they shall be expelled. * * * For every day a member remains suspended he shall be charged 25 cents, which sum, in addition to his arrearage, must be paid before suspension can be removed. * * *."
Section 13. "All questions arising not provided for in the constitution and by-laws shall be decided by the Executive Committee, whose action shall stand until the next regular or special meeting of the union when it may be reversed by a majority of the members present at that meeting."
To the Web Division, in which appellant belonged, the by-laws provide: Article IV. Section 1: "When written charges have been preferred against any member of this union, the member shall place them in the hands of the chairman of the Executive Committee and if he finds that the charges have been properly drawn up as to name of offender, time; place, and specifications of offense, and names of witnesses, he shall call a meeting of the committee. If the committee deems the reasons as stated sufficient it shall conduct an investigation. The person accused shall be notified of the charges and the same shall be read to him, that he may prepare his defense. The committee may call such witnesses as they see fit, and shall report at next regular meeting that the charges be dismissed or committed for trial."
Section 2. "When a member of this union shall have been committed for trial, he shall have the right to select a member of the International Union to act as his counsel at such trial. The president shall select a member of the Printing Pressmen's Union (a division in the local union) to represent the union."
Article V provides for the formation of chapels within the union where there are two members of the union or more employed, in which a chapel chairman is *Page 779 selected, and prescribes the chairman's duties:
Section 3. The chairman "shall hear all complaints as to violation of union laws and rules"; section 4 he "shall see that the laws relating to members are properly complied with"; and section 5 he "shall report at once all matters of dispute between the employers and the men employed in his office to the chairman of the Executive Committee."
Section 2, under heading of "Important Duties of Chapel Chairman", article V, provides: "Any member reporting for work in an intoxicated condition shall on first offense be automatically laid off by the chairman, second offense shall be automatically fined five dollars, and laid off, third offense shall be subject to dismissal."
Article X, section 11, provides: "In case of dispute or difference between any member of this union, it is obligatory for such member to exhaust all remedies provided by the constitution and by-laws of this union before resorting to a court of law or equity."
Section 13: "The union shall have power to fine any member for any offense against the laws and regulations of the union, in any sum not exceeding $25.00."
Section 20, provides: "Any member who shall accept a situation as pressman and neglect his duties through intoxication or leaves a situation without due and sufficient notice, without cause, shall be deemed guilty of conduct unbecoming a union man and shall be fined according to the laws of the union."
Section 29 provides: "All questions arising, not provided for in the constitution and by-laws, shall be decided by the Executive Committee, whose action shall stand until the next regular or special meeting of the union when it may be reversed by a majority of the members present at that meeting."
The evidence in relation to the constitution and by-laws of the local union and its members, pertinent here, is that the Fort Worth Local Union was under contract to employ and furnish to the Fort Worth Press (publishers of the Fort Worth Star Telegram, Morning Star Telegram and Fort Worth Tribune, metropolitan newspapers of Texas), a sufficient number of reliable, sober and efficient employes to man their large intricate printing presses. Appellant, as a member of the union, applied for apprenticeship position, and was employed under the union's contract with the Fort Worth Press, agreeable to be subservient to the rules and regulations of the union; and, at the time of the occurrence in question, he was engaged for the Fort Worth Star Telegram. Mr. Frank Benke, foreman of the pressroom of the Star Telegram, testified:
"Q. I wish you would tell the jury whether or not you barred Mr. Smith from working in your pressroom. * * * A. Yes, I did.
"Q. Why? A. He was under the influence of liquor. * * *
"Q. Do you know when a man is drunk? A. Yes, sir. * * *
"Q. Have you had trouble with Mr. Smith in your pressroom because of whiskey? A. Yes, sir.
"Q. Was it because he was intoxicated you barred him from the pressroom? A. Yes, sir.
"Q. Tell us whether or not you fired him for six months. A. Yes, that is the limit of my bar of the man.
"Q. That is the limit of your authority? A. Yes, sir.
"Q. Did he come back after the six months bar and ask for re-employment? A. Yes, sir.
"Q. What condition was he in? A. He was in an intoxicated condition.
"Q. Did you fire him again? A. Yes, sir.
"Q. Has he ever been back in an intoxicated condition? A. Several times.
"Q. Do you consider him a safe man to work around a web press? A. No, sir, I do not, when he is under the influence of liquor."
On cross-examination: "Q. Did he work for you seven or eight months and then come in and you bar him for six months employment? A. He was under the influence of liquor more than the one time; just like I have said, I have warned him dozens and dozens of times before that, until I came to the point I wasn't going to be responsible for his losing an arm or hurting somebody else."
Jim Peers testified:
"Q. Are you foreman of the All Church Press over there (Fort Worth)? A. Yes, sir. *Page 780
"Q. Is that also known as the `Fort Worth Tribune'? A. Yes, sir * * *.
"Q. Now, Mr. Peers, what were you doing in 1940? A. I was working for the Tribune there in the pressroom.
"Q. Was another of your co-workers here Mr. L. R. Smith there? A. Yes, sir.
"Q. Tell the jury whether or not during that period of time you worked with him he was strong on drinking whiskey, beer, or intoxicants? A. Yes, sir, he was very strong on drinking beer.
"Q. Have you seen Mr. Smith a considerable number of times around the pressroom there? A. Yes, sir.
"Q. Worked with him along there a couple years before 1940? A. Yes, sir * * *.
"Q. Did you know of your own knowledge whether Mr. Smith was barred from the Fort Worth Press in 1940? A. From the Tribune.
"Q. From the Tribune, yes, sir, the All Church Press? A. Yes sir, he was barred.
"Q. Why? A. He couldn't cover the job.
"Q. Barred for drunkenness and incompetency, March 1940, is that correct or not? A. Yes, sir."
R. C. Bailey testified:
"Q. Did you work with him (Smith) over there in Fort Worth any? A. Yes, sir.
"Q. Where did you work with him there? A. Star Telegram.
"Q. Anywhere else? A. Well, maybe on a few occasions at the Tribune.
"Q. Mostly at the Telegram? A. Yes, sir.
"Q. Do you know whether or not he was barred over there from the Fort Worth Telegram. A. I think he was.
"Q. Do you know of your own knowledge whether he was barred? A. Yes, I can say he was.
"Q. Do you know of your own knowledge what he was barred for? A. Not covering his job.
"Q. What does that term mean as it applies to Mr. Smith, what was he barred for? A. I guess you would call it because of liquor.
"Q. Do you know of your own knowledge that is true? A. That's right."
O. R. Winkler testified:
"Q. Are you a member of local 47, over there? A. Yes, sir.
"Q. Are you acquainted with Mr. L. R. Smith? A. Yes, sir * * *.
"Q. I wish you would tell the jury whether or not of your own knowledge the union fined him for drunkenness and warning him about other offenses? A. On several occasions he was fined for drunkenness and they warned him that the next time it would be very severe with him if he didn't straighten up and do right.
"Q. Do you know of your own knowledge whether the other pressmen there in Fort Worth didn't want to work with him because of his drinking proclivities? * * *
"Q. Of your own knowledge, did you want to work around the man drunk and handling machinery? A. I have all my fingers because I object to working with drunks * * *.
"Q. Were you familiar with the charges made against Mr. Smith which resulted in his $25 fine? A. Yes, sir.
"Q. Who brought that charge against him? Who brought the matter to the notice of the Union? A. The chairman of the Fort Worth Press and the foreman of the Fort Worth Press.
"Q. What was the charge? A. Coming in drunk and failing to cover his job.
"Q. Tell us whether or not also he was charged with making slanderous remarks * * * Go ahead and tell us what the charge was? A. Mr. Smith was charged on this particular occasion with going into the office and cursing the union and not covering the job because he was out drunk and `leaving the job drag.'
"Q. What do you mean by `leaving the job drag'? A. The union had a contract with the publishers, and it is the union's duty to fulfil those contracts and our organization has always attempted to do such and when a member goes out and gets drunk and doesn't come to the job and show up for work in a condition to work even if he comes in drunk he is not in condition to work because the other men won't work with him and he comes in in a condition he is not fit to work and the chairman has to call in someone else from some other shop to come over there and work, and that is what we call `leaving the job drag.' Even if he shows up in an unfit condition he *Page 781 is still leaving the job drag because men won't work with a man in that condition. Their hands are too valuable.
"Q. Tell us wether or not, on repeated occasions, of your own knowledge, he showed up unfit for work? A. Numerous times at the various shops at Fort Worth. I was chairman of the Executive Board at the time those charges were brought.
"Mr. Klepak: Q. In other words, somebody told you about his condition? A. Complaint was made to me.
"Mr. Klepak: Q. By somebody else? A. Yes, sir.
"Mr. White: Q. He is talking about the complaint which resulted in the $25 fine? A. That and others too * * *
"Q. Do you know of your own knowledge how many times he was fined for being drunk and unable to fill his job, blackout, I believe you call it, how many times, if you know? A. We fined him three times in that month for allowing the job to drag.
"Q. In what month was that, June 1940? A. Something like that.
"Q. Was that the same month in which he had the $25 fine on him? A. Yes, sir, that was the third time that month."
(Counsel reading from section 2 of the union constitution and by-laws above recited, relating to duties of chapel chairman):
"Q. Is that the customary and usual manner of handling these things, by, I believe, the heading of this is `Chapel' — by the way, tell us what a Chapel is? A. A Chapel is a group of men employed in any one shop or on any one shift. * * *
"Q. Fined two times and then on third offense he shall be subject to dismissal? A. The chairman of any chapel is the authorized agent of the union to carry out all laws in that chapel.
"Q. This doesn't say — I have read every bit of Article 5, and it doesn't say anything about a written noice and written charges and that sort of business? A. No, sir.
"Q. Were you chairman of the Executive Committee in 1940? A. I was.
"Q. Was that the year, in June 1940, at which Mr. Smith was tried and fined $25? A. It was.
"Q. You were chairman of this committee at that time? A. I was.
"Q. Was Mr. Smith notified of that trial? A. He was.
"Q. Was he notified of the charges against him? A. He was. * * *
"Q. Did you conduct the hearing or trial? A. Yes, sir.
"Q. Was Mr. Smith present? A. No, sir, he didn't show up.
"Q. Did you talk to the witnesses or the witnesses testify about these charges? A. Yes, sir.
"Q. And you found him guilty? A. We did.
"Q. State whether or not you made recommendations to the union as is customary? A. We did * * *
"Q. Did the union itself vote to sustain the Executive Committee in there? A. Yes, sir, or it wouldn't have been sustained. Any charge, before the executive board brings before our body is voted on and either carried or done away with."
The appellant gave evidence alone in his own behalf, and after relating his membership in the union and the character of his employment, testified:
"On July 26th, 1940, I was on the job at the Fort Worth Press.
"Q. What happened? A. Three of the men on the executive committee, members of the union, came down and called me off to the side and told me they were going to put a fine on me for some purpose which I don't know at this date, so they told me what my fine was, it would be $25 fine and 25 cents a day until the fine was paid, and a 30 day suspension. All right, I tried to find out a little bit about it at the time, but I couldn't find out much. I told them I didn't have any money to pay them.
"Q. Did anything happen that particular day with reference to your job? A. Well, the foreman is the one that told me as long as I was fined I couldn't hold a job. The only thing he could do was to tell me to pay the fine and then I could work, but I couldn't pay it * * *
"Q. Did anyone from Fort Worth Press talk to you that day about the job? A. The manager of the Fort Worth office-manager —
"Q. Did he or not talk to you about it? A. I was talking to him and he was talking to me, and he said well he didn't know, according to the rules and regulations of this company they have got a contract and he couldn't do anything about it. He couldn't fire me or hire me, it was up to the union; that he didn't fire me and the only *Page 782 thing I could do then was to figure out some other way.
"Q. Did he let you stay on the job as long as a fine was against you with the union? A. No, sir.
"Q. Did he tell you, you had to quit? A. I was automatically out that day. That was my last day.
"Q. Did he tell you that? A. Told me right then. * * *
"Q. Were you willing to pay the fine? A. I was willing to pay the fine with the exception of one item. I was never proved to be guilty * * *.
"Q. Do you remember the names of those men who came to you to tell you you were fired? A. Yes, sir.
"Q. What were their names? A. Bird, Winkler and Miers. The initials I don't know. * * *
"Would they permit you to continue on to work while there was a disagreement over this fine? A. No, I was ordered out right then. That was my last day."
On cross-examination:
"Q. Let me ask you about these dates here. You were a member of Local 47 over there, weren't you? A. Absolutely.
"Q. On December 10, 1939, fined $5.00 for failure to cover job on account of drunkenness. Was that the date, and were you fined $5.00 on December 10, 1939? A. I don't remember that. It was a Tribune job and it wasn't for drunkenness, because I don't know whether I was drunk or sober because I didn't work that day.
"Q. On June 10, 1940, fined one day's pay for failure to cover job on account of drunkenness, June 9th, 1940? A. I don't know about that. That is news to me.
"Q. One day after the last day you worked on the Fort Worth Press, what does that mean? A. I don't know what that is there.
"Q. June 20, 1940, fined $10 for same offense — they took more drastic action. Were you fined in 1940, on June 20th, for $10.00? A. For trying to work two jobs on the same day with two different companies. I was fined a day's pay on that job.
"Q. I am talking about this, were you fined $10 for failure to cover a job on account of drunkenness? A. I never was told that I was fined for being drunk or anything like that. I never did hear it.
"Q. On June 26th, 1940, fined $25 and thirty days suspension for conduct unbecoming a union member, that is, while in a state of intoxication went to the business office of the Fort Worth Press and in a slanderous way made charges against the union that were injurious. Offense committed June 20, 1940. Is that when they told you the offense was committed? A. They didn't tell me who they was. They just said they were the executive committee.
"Q. Did they tell you what date you were alleged to have gone in drunk and made the slanderous remarks? A. No, they didn't tell me no particular day. They said I made a statement to somebody, but they never did tell me who.
"Q. So far as you know it might have been over at the Fort Worth Star Telegram? A. It might have been anywhere; it might have been in Houston or New York City."
The jury found, and the evidence sustained the finding, that "Local No. 47 in regard to its relations with appellant did not act on instructions from appellee"; and, certainly, there was no evidence that appellee knew or acquiesced in the acts of members of the local union, or that it had the power under its laws and constitution to avoid or correct the action of the constituted authority under the local union's independent constitution and by-laws. It is clear that in the enforcement of its rights, the local union had no duty to perform for the International Union in suspending and fining appellant, and it did not perform any for the International Union under its by-laws and constitution. All the acts complained of were performed by members of the local union under the express authority of its own independent bylaws; hence, how could such action, if wrongfully done, be imputed to the International? In harmony with the rule of presumptive evidence, the acts done by the local union were not authorized by the International Union when the issue of authority, as here, was not submitted to the jury, and appellant made no request for its submission; therefore, the finding and judgment of the trial court "that there has been no showing that Local Union 47 was *Page 783 the agent, servant and employee of International Printing Pressman Assistants Union of North America, defendant herein, as respects Local 47's action toward plaintiff, L. R. Smith", raises the presumption, if not established by evidence, that the local union acted with authority under its own bill of rights. Hence the courts should not interfere.
In Grand International Brotherhood v. Marshall,
I do not subscribe in full to the doctrine announced in the majority opinion, viz: "If the court below was correct in its holding, that is, that appellant's cause of action was barred by the two-year statute of limitation, or that agency was not shown, its judgment was correct and should be affirmed. On the other hand, if the court was incorrect in these holdings, its judgment was erroneous, should be reversed and the cause remanded to the trial court with instructions to enter judgment for appellant on the verdict of the jury." I concede the point that the judgment should be affirmed if the two-year statute of limitation has application (which I will later mention); or that if agency was not shown the judgment should be affirmed; but I do not concede that, if agency was shown, the judgment was erroneous. Such judgment should be restricted to the granting of relief prayed for and supported by evidence, and while the court deciding the case may express his view or theory on which he acts, if, perchance, the theory is erroneous but the record discloses that the judgment was correct on any theory consistent with pleadings and evidence, then the judgment should be affirmed. Inasmuch as the court having jurisdiction of the controversy is as much entitled to decide erroneously, as correctly, on a theory for decision, it is clear that the mere fact that a judgment may have been rendered on the wrong theory will not make the judgment void. A wrong theory is not a vital one if the right one is supported by pleadings and evidence. I do not take issue with the majority that the local union is an agent of the International Union in furtherance of the International's business and acting within the scope of its agency either expressed or implied; that is not a vital question on this appeal; the vital question, aside from limitation and minimizing of damages, is: Is the International Union liable for the acts of the local union and its members done outside the International's by-laws and constitution, and which the International could not have reasonably anticipated, or avoided, and which were done under the independent by-laws and constitution of the local union? The record in this case answers the question in the negative.
A tort is sometimes defined as a wrong independent of contract, or breach of duty as distinguished from breach of contract. 41 Tex.Jur. 359, § 2. Appellant's cause of action is a tort action, and not a breach of membership contract in the union; hence, if it could be said that appellee was liable for the acts of the Fort Worth Union No. 47, acting outside of its authority — a breach of duty toward appellant — the suit is barred by the two-year statute of limitation. Appellant alleged that the acts — fining and suspension of him by the union — were outside of the membership contract, for which he sued for actual and exemplary damages. Appellee specially pleaded the limitation statute, and, in replication, appellant sought to toll the two-year limitation by an alleged agreement of the local union, made within the two years, to compensate him for his damages and reinstate him in membership, in consideration that he, appellant, should forego entering the suit. On the issue, the jury found that no such agreement was made; and, in consequence, the trial court determined in its judgment: "that plaintiffs cause of action, if any in this cause" (clearly expressing a doubt), "arose on the 26th day of June, 1940, and this suit not having been filed until the 11th *Page 784 day of September, 1943; and, further that plaintiff's cause of action is in tort and not in contract, — the plaintiff having specifically sued for damages for his mental suffering, humiliation and the loss of earning that he would have earned had the fine and suspension not been levied against him; and, further, plaintiff having sued for exemplary damages, — the * * * two-year statute of limitation is applicable." The evidence sustains the findings of the jury and the judgment of the trial court; therefore, the judgment on the issue is a determinative element on this appeal, and should be affirmed.
It is evident from the majority's opinion, that their conclusion reversing the trial court is based on stated questions of law and not on facts. Therefore, if their conclusion is correct, then the judgment should be reversed and rendered for appellant. On questions of law, it is of no useful purpose to remand the cause with instructions to the trial court to set its judgment aside and enter judgment nunc pro tune for appellant, unless, forsooth, some hope is extended to appellee that after the entry of such judgment, on motion of the defendant for a new trial, the trial court, in the exercise of its judicial discretion, would, in accordance with its views of the record, set aside the findings of the jury and the nunc pro tune judgment, and grant a new trial in the interest of justice.
This appeal does not warrant judgment for appellant for $8,050; it is fully developed; hence the judgment of the court below should be affirmed. *Page 814