#### WM. CAMERON & CO., Inc., v. MALLICOTE et al.

No. 12658.

Court of Civil Appeals of Texas. Fort Worth.

April 2, 1932.

Rehearing Denied May 7, 1932.

Charles Kassel, of Fort Worth, for appellant.

Billingsley & Billingsley, of Fort Worth, for appellees.

BUCK, J.

T. J. Mallicote and Ben Daniels, doing a milling business under the name of Fort Worth Planing Mill, filed suit against Wm. Cameron & Co., a corporation. Plaintiffs alleged that on July 26, 1928, at the special instance and request of E. C. Tays, manager of the North Side Fort Worth Yard of defendant, they sold to defendant Wm. Cameron & Co., Inc., hereinafter called Wm. Cameron *&*Co., as buyer in the regular course of business, the window frames, door frames, stairways, and all baseboards for a certain apartment dwelling known as the “Nowlin job” in the city of Fort Worth for the agreed oral contract price of $987. That later, plaintiffs, at the instance and request of defendant, sold and delivered to the defendant goods, wares, and merchandise which were additional purchases made for said “Nowlin job,” for $291.30, making a tot^l of $1,278.30. That defendant thereby became bound to pay to plaintiffs on demand so much money as said goods, wares, and merchandise were reasonably worth, and the defendant did on the 4th day of August, 1928, pay to said plaintiffs the sum of $100, and on September 29, 1928, defendant paid $300, making a total cash payment on said account of $400. That in addition to said cash paid to plaintiffs by defendant, the defendants credited the account of the plaintiffs for lumber and materials sold to said plaintiffs in the sum of $306.51, and there is now a balance due on said account of $571.79. The account was duly verified. Plaintiffs prayed that upon a final hearing they have judgment against defendant for $571.79.

Defendant answered by a general demurrer and a general denial.

The cause was submitted to a jury upon one special issue, as follows: “Did Mr. Tays on or about the 19th day of July, 1928, agree to purchase for Cameron Lumber Company from the plaintiffs, Mallicote and Daniels, the mill work described in plaintiffs’ petition? Answer: Yes.”

From the judgment entered upon this verdict in the sum of $571.79, the defendant has appealed.

Opinion.

Appellant urges, in reply to the objection of appellees, that no consideration, obligation, agreement, or terms of payment were contained in the' instrument, hereinafter noted as “the estimate,” since, as contended by appellant, the obligation to pay. would necessarily be implied by law, and also protests against the statement in appellees’ objection No. 7, on page 7 of their brief, to the effect that there was no evidence of O’Zee being the agent of Nowlin. We think the fact of this relation was testified to more than once by both O’Zee and Nowlin. Appellant also urges that Nowlin testified on the stand, admitting his liability, and it manifestly appeared from the contract that O’Zee was signing as contractor on behalf of Nowlin.

Subsequent to O’Zee’s going out to plaintiffs’ planing mill, Mallicote, one of the plaintiffs, testified that his daughter copied the following estimate of prices for which plaintiff's would do the work: “This agreement entered into by and between Mr. H. B. Now-lin (owner) and Olin O’Zee (contractor) for additional repairs to Nowlin Apartment in the city of Fort Worth whereby the North Ft. Worth Planing Mill agrees to furnish (51) fifty-one window frames outside and inside *408trim with pulleys attached as per architect drawing for the sum of ($306.00) three hundred and six dollars. Thirty-four door frames inside and outside trim as per detail of drawing for ($170.00) one hundred and seventy dollars. Eight door frames with transoms for ($48.00)' forty-eight dollars. To furnish material for two stair-ways as per detail of drawing sanded and ready to be installed by contractor, Mr. Olin O’Zee for the sum of ($295.00) two hundred and ninety-five dollars. Sixteen hundred and eighty lin. feet of one by eight (1x8) sanded and beveled for base board similar to base in original apartment, for ($168.00) one hundred and sixty eight dollars. Making a total of ($987.00) nine hundred and eighty seven dollars, for which has been agreed to by all parties concerned.”

When Mallicote took this estimate or offer out to O’Zee where he was working on the building, O’Zee submitted it to Nowlin and Nowlin accepted it. Thereupon it became a binding contract between the plaintiffs and the defendant, O’Zee having signed it as representing Nowlin. While Mallicote and Daniels both testified that they were not willing to furnish the work and material for the job unless Wm. Cameron & Co. would stand responsible, and that they telephoned E. O'. Tays, manager of the North Side Xards, as to who would pay for the work and labor, and that Tays told them that Wm. Cameron & Co. would pay; that subsequently, when it became necessary to furnish additional work and material, they telephoned E. C. Tays again, and he told them to go ahead and send the material and work out to the job; that they did so. But the defendant’s witnesses stated that nothing was said to any of the employees or agents that Wm. Cameron & Co. was liable or would- be expected to be liable for the work and labor, and that while Wm. Cameron & Co. did take a conveyance and an assignment of the mechanic’s and material-man’s liens, made out by Nowlin to O’Zee as contractor, it was merely to protect Wm. Cameron & Co. and the other subcontractors. There was evidently an issue of fact based on the testimony of . the plaintiffs - and defendant as to whether this offer of the plaintiffs to furnish the labor and material for a designated price, and the acceptance of such, offer by the owner and the contractor, or whether this was a mere estimate not intended as an offer by either party.

The defendant offered the following special charges, which were refused:

> “(2) .Was the contract for the mill work to be furnished by the plaintiffs ■ for the Nowlin job verbal or in writing?

> “(3) If you shall have answered that the contract for the mill work on the Nowlin job was in writing, then answer whether Wm. Cameron & Co., Inc., through E. C. Tays obligated itself verbally to see that the plaintiffs in this case were paid for such work.

> “(4) If you shall have answered that the contract for the mill work on the Nowlin job was in writing then state whether under such contract it was intended as an agreement between the plaintiffs in this case and Olin O’Zee or was intended as an agreement between the plaintiffs in this case and H. B. Nowlin. If intended as a contract with Olin O’Zee answer ‘O’Zee,’ and if intended as a contract with Nowlin answer ‘Nowlin.’

> “(5) Was the written instrument dated July 12, 1928, and signed by T. C. Mallicote, Ben Daniels and Olin O’Zee as contractor intended as an estimate to be followed by another contract if accepted or was it intended to be binding on 'the plaintiff as a contract for the work if accepted by Olin O’Zee as contractor and signed by him? If intended as an estimate to be followed by another contract later answer ‘estimate,’ and if intended to be a contract whenever signed by Olin O’Zee as contractor. for H. B. Nowlin, then answer ‘contract.’

> “(6) If you find that the instrument dated July 12, 1928, and signed by Mallicote, Daniels and O’Zee as contractor was intended as a contract for the work whenever signed by Olin O’Zee as contractor and when approved by the owner Nowlin, then state whether under such contract payment was to be made by Nowlin or O’Zee or whether under the evidence payment was to be made by Wm. Cameron & Co.”

We believe that under the evidence there was an issue of fact based on the testimony introduced in evidence as to whether this offer was intended as a proposition, and when signed by O’Zee, as contractor for Now-lin, became a written and binding contract, or whether the plaintiffs relied entirely upon the alleged verbal agreement to pay the debt.

It will" be noticed that E. C. Tays testified that he was never in the North Eort Worth .Planing Mill while Mallicote and Daniels were there, and he positively knew that he was not there while this job was under construction, and that he felt sure that he was not present while they were in charge of the planing mill. It is true that Mallicote testified that he was present with O’Zee in the yards while they were discussing the price of the work, etc., but that is a question of fact upon which there is a conflict. Mr. Douglas Woolsey, manager of the main yards of Wm. Cameron *&*Co. on Jennings avenue, testified that Mr. Nowlin made the arrangements with O’Zee to do the work, and after they had completed the figures for the work, and after Wm. Cameron & Co. had given him a satisfactory price for the work, then Wm. Cameron *&*Co. agreed to carry him for the amount of the loan that he was expecting to get to make the improvements; that Wool-*409from being shot in one of his hands. According to allegations in the petition, plaintiff was shot by the defendant Bralley and others accompanying him and acting with him and under his direction while plaintiff was fleeing from a still situated on a ranch in Wichita county, which was being operated in the manufacture of intoxicating liquor. It was further alleged that the still was raided by Bral-ley and those acting with him for the purpose of arresting the persons who were present at the still, including the plaintiff, and that Bralley was responsible, not only for his own act, but for the acts of each and all of his companions then and there acting with him or under his direction; that the wound in plaintiff’s hand from the shot fired was so serious as to -require the amputation of it at his wrist, and his hand was amputated shortly after the wound was inflicted.

It was further alleged that prior to the injury plaintiff was strong of body, earning $5.50 a day as an oil field worker at the time of his injury, and by reason of his injury, pain, and suffering sustained thereby, and his diminished capacity to labor in the future, he sustained damages in the sum of $25,000, for which he sued.

Upon the trial before a jury, judgment was rendered denying plaintiff any relief, and from that judgment he has prosecuted this writ of error.

The following facts were established by uncontroverted proof: -O. E. Goodwin, sheriff of Archer county, and his deputy, E. L. Kink-aid, and W. G. Bralley, sheriff of Wichita county, and his deputy, H. L. White, acting uppn information that an illicit still was being operated on the Ancell ranch, went for the purpose of investigating and arresting the persons guilty of the offense.' The location of the still was reported to be near the boundary line between Wichita and Archer counties, andf there was an understanding between the officers that an arrest would be made by the officers of the particular county in which the still might be found. They discovered the still and found that it was near the boundary line but in Wichita' county. When they approached the still they discovered the plaintiff, William T. Locke, up on a tank which was a part of the equipment of the still. When plaintiff saw the officers approaching and all armed, he, together with his companion, one Tom Norwood, fled. The testimony offered by defendants was -that Bral-ley called out to them to stop, saying that he was the sheriff, although plaintiff testified that he did not hear that command. When plaintiff failed to stop, all the officers, except Deputy White, began firing, the two sheriffs using pistols and Deputy Kinkaid using a rifle, several shots being fired by each of them and all in the direction that plaintiff was running, but none of the shots took effect, except one fired’ by E. L. Kinkaid, which was the one that wounded plaintiff’s hand. When plaintiff discovered his hand bleeding, he stopped, turned back, and surrendered to the officers who took him to Elee-tra to a doctor for treatment, and almost immediately the doctor amputated his hand at the wrist. The shooting took place near the middle of the day. Later an automobile owned by the plaintiff was found near the still loaded with mash and other material used in the manufacture of whisky. Prior to his injury plaintiff had been engaged in manual labor in the oil fields and had borne a good reputation; since his injury he has been unable to follow his former pursuits for a livelihood.

The. following are special issues submitted to the jury with their findings thereon:

> “1. Do you find from a preponderance of the evidence that at the time the arrest was attempted, Wm. T. Locke, the plaintiff, was then in the act, in the presence and view of the officers, of operating or aiding in operating a .still for the manufacture of intoxicating liquors for sale? Answer: Yes.

> “2. Who do you find from a preponderance of the evidence fired the shot that struck W. T. Locke? Answer: Curley Kinkaid.

> “3. Do you find from a preponderance of the evidence that the person who fired the shot that struck Wm. T. Locke, fired same without any intention to kill the said Wm. T. Locke, and only with the purpose of frightening him into submitting-to the arrest? Answer: Yes.

> “4. Do you find from a preponderance of the evidence that the person who fired the shot that struck Wm. T. Locke was acting under orders or instructions from the defendant W. G. Bralley? Answer: No.

> “5. Do you find from a preponderance of the evidence -that the defendant W. G. Bral-ley, and any person acting under him as deputy or under his orders or instructions on the occasion of said attempted arrest, used any more than reasonable means to effect suqh arrest? Answer: No.

> “6. Do you find from a preponderance of the evidence that the defendant W. G. Bralley and his deputy or any person acting under his orders and instructions at the time.of said arrest or attempted arrest, used any greater force than was reasonably necessary -to secure such arrest? Answer: No.

> “7. Find from a preponderance of the evidence whether the defendant, W. G, Bralley, and the witnesses Goodwin -and Kinkaid were acting together in a common purpose to- effect the arrest of the plaintiff at the time of the shooting? Answer: Yes.

> “8. Find from a preponderance of the evidence what amount of money, if paid now in cash, would reasonably compensate the plaintiff for the damages, if any, sustained toy him. Answer: $0000.”

*410 The court did not err in submitting speeial issue No. 2 to ascertain who fired tlio shot that injured the plaintiff. We belie\e it was also proper to submit issue No. 3, inquiring whether or not the person who fired the shot did so only for the purpose of frightening the plaintiff into submitting to an arrest and without any intention of killing him.

While it was an uncontroverted fact that plaintiff and his companion Norwood were fleeing at the time the officers were firing the shots and none of the officers was in any danger of sustaining any harm at the ■hands of plaintiff and his companion, we cannot say as a conclusion of law that more force was used to effect the arrest than was required. Nor can we say that the finding of the jury on that issue was not sustained by the evidence. Kinkaid testified without contradiction that he knew that a shot fired by him was the one that wounded the plaintiff ; that he could tell from the dust made that one of the bullets from his rifle first struck a rock and then glanced towards plaim tiff; that all the shots fired by him were aimed either above plaintiff’s head or to one side of him, and one of them was fired with the intention of striking him, but for no other purpose except to frighten him into submitting to an arrest.

By article 666 of the Penal Code it is a felony to manufacture intoxicating liquors or to possess a still; and under article 671 possession of a still is prima facie unlawful.

By article 212 of the Code of Criminal Procedure it is provided that: “A peace officer * 3⁄8 * may, without warrant, arrest an offender when the offense is committed in his presence or within his view, if the offense is one classed as a felony.”

Article 216 provides that: “The officer or person making the arrest is justified in adopting all the measures which he might adopt in cases of arrest under warrant.”

Article 241 reads: “In making an arrest, all reasonable means are permitted to be used to effect it. No greater force, however, shall be ■resorted to than is necessary to secure the arrest and detention of the accused.”

Subdivision 8 of article 1212 of the Penal Code reads as follows: “The officer or other person executing an order of arrest is required to use such force as may be necessary to prevent an escape when it is attempted, but he shall not in any case kill one who attempts to escape, unless in making or attempting such escape the life of the officer is endangered, or he is threatened with great bodily injury.”

We quote the following from the syllabus in Eagan v. State, 112 Tex. Cr. R. 107, 14 S.W. (2d) 838: “If officer was attempting to arrest defendant and his sons for operating still, without use oí more force than was reasonably necessary, defenda?it resisting arrest and firing at officer would be deprived of right of self-defense under Code Cr. Proe. 1925, arts. 216, 241.”

The finding of the jury that plaintiff sustained no damages by reason of having his hand so wounded as to require its amputation is of course contrary to the undisputed facts, as insisted in another assignment of error. While that attack on the finding was made one of the grounds of plaintiff’s motion for new trial, yet neither in that motion nor by any assignment of error presented here, independently thereof, has an attack been made on the other findings of the jury on the ground that the bias in favor of Bralley, indicated by the finding of-no damages sustained by plaintiff, was reasonably calculated to and probably did influence findings on the other issues favorably to defendant Bralley. Testimony of three jurors on the hearing of plaintiff’s motion for new trial, to the effect that the finding that plaintiff has sustained no damages was made in an effort to protect the defendant Bralley from supposed possible liability for plaintiff’s injury in the absence of a complaint in plaintiff’s motion for new trial of such action as misconduct of the jury, and over defendants’ objection thereto on that ground, is not available to plaintiff on this appeal. Nor can we say that the apparent bias of the jury in favor of Bralley, evidenced by the finding that the plaintiff sustained no damages by reason of the injury, showed fundamental error which would cause a reversal of the judgment, notwithstanding the failure of appellant to present such an assignment, on the theory that such bias was reasonably calculated to and probably did influence other findings likewise favorable to the defendants; because, in order to reach that conclusion, it would be necessary to examine the entire statement of facts, which this court is not required to do. Houston Oil Co. v. Kimball, 103 Tex. 94, 122 S. W. 533, 124 S. W. 85; Ford & Damon v. Flewellen (Tex. Com. App.) 276 S. W. 903; Heard v. Nichols (Tex. Com. App.) 293 S. W. S05; 3 Texas Juris., p. 815, § 574, and authorities there cited.

In view of the findings of the jury, having sufficient support in the evidence, that, at the time of his arrest, plaintiff was engaged in the commission of a felony in the presence of the officers, and that no more force was employed than was necessary to effect the arrest, it becomes unnecessary to. determine the merits of other contentions presented in briefs of both parties.

 Accordingly, the judgment is affirmed, notwithstanding the serious and regrettable misfortune that plaintiff has sustained; and notwithstanding his positive testimony that he had no connection whatever with the operation of the still; that he had gone to the ranch upon Norwood’s invitation, who said *413his purpose in going was to 'buy some hogs; that when he was discovered by the officers on top of the tank he had merely caught hold of the pump handle, to balance himself and fled from the scene because of fright when he discovered the officers armed and approaching ; the jury being the exclusive judges of his credibility and of the weight of all the testimony.