Houston & Texas Central Railroad Company et al. v. Martin Strycharski, 92 Tex. 1

BROWN, Associate Justice. The Circuit Court of the United States at Galveston, Texas, appointed Charles Dillingham receiver of the property of the Houston & Texas Central Eailroad Company. The date of the appointment is not material to the question involved. On the 4th day of May, 1888, that court entered a decree ordering that the railroad be sold for the payment of certain bonds which were foreclosed upon it. The property was sold September 8, 1888, being purchased by F. P.

Oleott for himself and associates, and the sale was confirmed December 4, 1888, and the court directed a deed to be made to the purchaser, which was done. The purchaser and his associates incorporated the Houston & Texas Central Eailroad Company, plaintiff in error, on August 1, 1889, and soon thereafter organized the company with Charles Dillingham as its president. Oleott conveyed the railroad to the newly organized company on April 1, 1890.

After the sale was made to Oleott and after he had conveyed the property to the railroad company, Dillingham held possession of the property and operated the road under orders of the Federal court, during which time Martin Strycharski was in the employ of receiver Dillingham and engaged in the discharge of certain duties devolving upon him in connection with a train standing in the railroad yard at the city of Houston. While so engaged he received injuries, for which this suit was brought against Dillingham originally, to which the railroad company was made a party defendant.

It is unnecessary to state the facts of the case, but it is sufficient to say that upon material issues necessary to be established by the plaintiff, the testimony was conflicting; and there was proof tending to show contributory negligence on the part of the plaintiff, upon which issue also the testimony was conflicting.

During the pendency of the suit the United States Circuit Court ordered Dillingham to surrender the property to the railroad company to which Oleott had conveyed it, which he did, and thereafter entered his plea in this cause setting up the fact that he had been discharged as receiver, claiming that he was not subject to judgment in favor of the plaintiff in this case. His pleadings set up several defenses to the merits of the plaintiff’s case. The railroad company adopted the pleadings of Dillingham. Both defendants were represented by the same attorneys.

After the evidence had been introduced the court charged the jury generally as to the liability of Dillingham as receiver, but made no mention of the railroad company otherwise than as defendant, and then only by using the plural “defendants.” At the request of defendant Dillingham the court instructed the jury, in effect, that the evidence established the fact that Dillingham had been discharged as receiver by the United States Circuit Court and that they would find for him.

Under the instructions, the jury found a verdict in favor of the plaintiff against the Houston & Texas Central Railroad Company for $7500 and in favor of Charles Dillingham, receiver. Upon this verdict the court entered judgment in favor of the plaintiff against the railroad company and in favor of Dillingham against the plaintiff. The plaintiff in the court below moved the court to enter judgment in his favor against Dillingham, non obstante veredicto, which motion was overruled.

From the judgment of the court the Houston & Texas Central Railroad Company appealed and the plaintiff below made cross-assignments of error as hereafter stated. The Court of Civil Appeals affirmed the judgment against the railroad company, but reversed the judgment of the District Court in favor of Charles Dillingham and rendered judgment against him for the same amount as the judgment against the railroad company. Both the Houston & Texas Central Railroad Company and Charles Dillingham applied to this court for writs of error.

The application of Charles Dillingham, receiver, is based upon the following assignment of errors: “The Court of Civil Appeals erred in sustaining and holding as well taken defendant’s cross-assignments of error 1 and 3, which are as follows: “1. There was error in the court’s charge directing the jury to find in favor of defendant Charles Dillingham as receiver upon his plea in abatement. “3.

The court erred upon the pleadings and uncontroverted evidence in denying the motion of Martin Strycharski for judgment against defendant Charles Dillingham, as receiver, under the verdict returned against his codefendant.” Under this assignment of error the following proposition is submitted: “Where the issues in a case are submitted to the jury and a verdict is directed by the court, it was the duty of the appellate court, if error was committed in such direction, to reverse and remand the cause, and it can not, under the rules of practice in this State, reverse said cause and render a judgment therein.” The authority of the courts of civil appeals to render final judgments m causes wherein they have reversed the judgments of the trial courts is found in the following

article of the Revised Statutes: “Article 1037. When the judgment or decree of the court below shall be reversed, the court shall proceed to render such judgment or decree as the court below should have rendered, except when it is necessary that' some matter of fact be ascertained, or the damage to be assessed or the matter to be decreed is uncertain.

In either of which eases the cause shall be remanded for a new trial in the court below.” Whenever there is any material fact necessary to support the case of the party in whose favor the court proposes to render judgment which is disputed in the evidence or which is not established by agreement or by undisputed evidence conclusive in its nature, then, within the meaning of the law, it is necessary that a matter of fact shall be ascertained, and the case belongs to the class which the statute commands the court to remand upon reversal of the judgment of the lower court.

The courts of civil appeals, upon reversing judgments of the trial courts, can not enter final judgments unless upon the evidence as it appears in the record one party as a matter of law is entitled to judgment; the evidence must be of that conclusive nature that the trial court should have directed a verdict in favor of that party.

The exercise of such authority in cases resting upon facts which are controverted and about which the evidence is conflicting or uncertain would be to usurp the powers conferred upon a jury in the trial of such causes and to deny litigants the constitutional right of trial before a jury. Elliott, App. Proc., secs. 565, 566; Wise v. Williams, 88 Cal., 30; Gay v. Davey, 47 Ohio St., 396; Jones v. Fortune, 128 Ill., 518; Claiborne v. Tanner, 18 Texas, 68.

In the exercise of its appellate jurisdiction, a Court of Civil Appeal^ may draw from the evidence conclusions of fact different from those arrived at by the jury or judge, and it may reverse the judgment of the lower court and remand the cause for the reason that the verdict and judgment are against the weight of the evidence. But the determination of questions of fact as the basis of a final judgment involves the exercise of original jurisdiction, which has not been conferred upon the courts of civil appeals.

We conclude that the judgment entered by the Court of Civil Appeals against Dillingham as receiver can not be sustained unless, as defendant in error contends, the verdict of the jury against the railroad company is to be given the same effect against Dillingham as against the railroad company. We will examine this ground of support for the judgment.

At the trial of the case in the District Court the judge gave to the jury a general charge submitting to them all of the issues which arose upon the facts between the plaintiff and Dillingham except as to his discharge, but at the request of Dillingham, instructed the jury in substance that he had been discharged as receiver of the railroad company and was not liable to judgment in this case, directing them to return a verdict in his favor, which was done; the jury found against the railroad company in favor of the plaintiff for the sum of $7500, upon which verdict the court entered judgment in favor of the plaintiff against the railroad company and in favor of Dillingham against the plaintiff.

After the judgment had been entered up, the plaintiff moved the court to enter judgment in his favor against Dillingham as receiver for the same amount found by the jury against the railroad company, which motion the court overruled. The following

article of the Revised Statutes prescribes the judgment which must be entered after verdict: “Article 1335.

The judgment 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.” It is made the duty of the court to enter its judgment in conformity with the verdict, whether it be correct or not, and whether the error in the verdict, if there be any, arose from erroneous instructions or rulings by the court or from a misinterpretation of the evidence by the jury. Claiborne v. Tanner, 18 Texas, 68; Lloyd v. Brinck, 35 Texas, 1; Clark v. Pearce, 80 Texas, 146.

The act of the judge in entering judgment upon the verdict is merely ministerial, and he can not disregard the verdict if it is responsive to the issues submitted and in proper form. It follows that the District Court did not commit error in overruling the plaintiff’s ¿notion to enter judgment in disregard of the verdict of the jury, and the judgment of the Court of Civil Appeals can not therefore be sustained upon the ground that the District Court should have entered like judgment upon the verdict.

But the cross-assignments of error in the Court of Civil Appeals challenge the correctness of the charge of the court which directed a verdict for Dillingham, and, although no motion for a new trial was made, the Court of Civil Appeals had the authority to reverse the judgment of the District Court if it concluded as a matter of law that the charge was erroneous in its application to the facts of the case; but the question arises, had that court the authority, after reversing the judgment, to enter final judgment against Dillingham?

After stating that it was error in the trial court to direct the jury to ■find for the receiver, the Court of Civil Appeals in its opinion uses this language: “Though this was done by the verdict of the jury, still the amount found by them for plaintiff is in law a liability of the receiver, and, as the facts are all of record and undisputed, the error can be corrected here.” We understand that the court means by this language that the amount assessed by the jury in favor of plaintiff against the railroad company was binding upon the receiver.

We also understand that, when the court said that the facts are all of record and undisputed, it referred to the facts bearing upon the discharge of the receiver by the Federal court, and not to the facts upon which the plaintiff relied for his recovery.

This is made clear by reference to another part of the opinion in which, after stating several material points which were involved in the case, the court says: “There is a conflict of evidence upon the different points, but of the credibility of the witnesses the jury were the judges.” It is claimed, however, by counsel for the defendant in error, in a forcible argument filed in this court, and we understand that the Court of Civil' Appeals acted upon that view of the case, that the jury must have passed upon the evidence relating to the liability of the receiver to the plaintiff in order to have found a verdict for the plaintiff against the railroad company, and that the receiver, being a party to the suit, is bound by the findings of the jury; in other words, the court assumes that all the facts which were found by the jury relative to the manner and circumstances of the injury, as well as the amount of damages, are true and correct, and to be considered, in determining the case against the receiver, as having the like force as in the case of the railroad company itself.

In order to test the correctness of this position, let us suppose that the suit had been against the receiver alone, and after hearing all the evidence the court had charged the jury, as it did in this case, to find for the receiver upon the ground that he had been discharged from the receivership by the Federal court. In that case, the issues made by the evidence upon the question of liability, as well as the defenses of the defendant, would have been withdrawn from the jury, and they would not have been authorized to consider them at all; there would have been no finding upon the facts.

The fact that the railroad company is a party to the suit and that the same evidence applied to i fc as to the receiver does not affect the result so far as the receiver is concerned, for, when the jury was by the court instructed to return a verdict for him, the court virtually discharged the receiver from further care of the case on that trial. While it is true that, in arriving at the verdict against the railroad company, the jury must have weighed the same evidence and reached the same conclusions as if the verdict had been against the receiver, it was not upon issues between plaintiff and the receiver.

As to him the evidence relating to the question of liability and amount of damages was withdrawn from the further consideration of the jury. From that time it became a trial of issues by the jury between the plaintiff and the railroad company alone. If the position taken by the defendant in error, and, as we understand, that upon which the Court of Civil Appeals acted, be correct, then we would have this state of ease: The judgment of the District Court being in favor of the receiver, he could neither move for a new trial nor appeal from the judgment.

He could not ask the Court of Civil Appeals to review the evidence and determine whether or not it was sufficient to entitle the plaintiff to a judgment against him, nor could he call upon it to review the action of the court in giving charges to the jury, or in its ruling upon the admissibility of the evidence, or any other rulings that it might have made during the trial; and yet it would result from this judgment that, being denied these rights, he is to be held bound by the result of a trial between the plaintiff and his codefendant and to be subject to judgment for a sum ascertained by the jury upon issues to the trial of which he was not a party.

We conclude that the Court of Civil Appeals erred in entering judgment against the receiver Dillingham, because he was not bound by the facts as found by the jury, and because the evidence as to his liability to plaintiff was not undisputed and it was necessary to ascertain the facts to determine that question, and for the further reason that the damages to be adjudged were unliquidated and uncertain and could not be adjudged against the receiver upon the verdict rendered against the railroad company; for which error we reverse the judgment of the Court of' Civil Appeals entered against the receiver Dillingham in this case.

We find no error in the judgments of the Court of Civil Appeals and District Court as to the Houston & Texas Central Eailroad Company, but as its liability depends upon the same facts as that of the receiver, and also upon whether or not the receiver was originally liable as such,, we feel that it is proper, if not necessary, to reverse the judgment as to both plaintiffs in error, if the case is to be remanded as to the receiver.

However, the defendant in error has signified his willingness that this, court should in such event affirm the judgment of the District Court as to both the railroad company and the receiver. It is therefore ordered that the judgment of the Court of Civil Appeals entered against Charles Dillingham, receiver, be reversed, and that the judgments of the District Court in favor of Martin Strycharsld against the Houston & Texas Central Eailroad Company and in favor of Charles Dillingham against Martin Strycharsld each be affirmed.

It is further ordered that Martin Strycharsld pay all costs of this suit, and that the Houston & Texas Central Eailroad Company pay the costs of the Court of Civil Appeals. Judgment of Court of Civil Appeals reversed as to Dillingham. Judgment of District Court affirmed.