BASHAM et al. v. SMITH et al.
No. A-2650
Supreme Court of Texas
July 5, 1950
On Rehearing Oct. 4, 1950
297
A study of the statement of facts discloses that there was a dispute in the testimony either as to whether the matters referred to in the requested findings occurred or as to whether they caused any material injury to the tomatoes. Hence the refusal of the trial court to make the findings amounted to a finding against respondent‘s contention and we are not authorized to disturb it.
While petitioner did not give respondent formal notice of nondelivery of the shipment immediately after the expiration of 72 hours following the car‘s arrival in Chicago, it is clear that respondent had that information long before expiration of the 72 hours. Respondent was the consignee of the car and its sales manager at San Benito, testifying as a witness for respondent, said that he got “almost daily” market reports from La Mantia Bros., one of the largest produce houses in Chicago, and the record shows that La Mantia Bros. inspected the car, at respondent‘s request, at 3:15 A.M. December 8, which was 27 hours and 5 minutes after its arrival. In the face of this undisputed evidence of actual notice, it cannot be said that respondent was hurt by petitioner‘s failure to give further notice after 72 hours.
Our holding does not conflict with cases like Belcher v. Missouri, K. & T. Ry. Co. of Texas, 92 Tex. 593, 50 S.W. 559, 561, which declares, “If the plaintiff (shipper) showed negligence on the part of the defendant (carrier), he was prima facie entitled to recover all of the damages sustained, and the burden of proof rested upon the defendant to prove the negligence by which plaintiff enhanced the amount of the damage or failed to prevent the injury, as well as the extent to which such damages were enhanced, or to which they might have been lessened by the use of ordinary care on the part of the plaintiff.” In that case there was a delay of more than 48 hours in starting the shipment, which delay the shipper alleged was negligence on the part of the carrier and which caused his damage; whereas in this case the delays which the trial court found caused all of respondent‘s material damages were admittedly chargeable to respondent and there was no material enhancement of respondent‘s damages by any act of petitioner.
It follows that the judgment of the Court of Civil Appeals is reversed and that of the trial court is affirmed.
Bonney, Paxton & Wade and J. B. Look, Jr., Dallas, for respondents.
GARWOOD, Justice.
The Court of Civil Appeals reversed and remanded this cause in which the petitioners, Basham et al., as plaintiffs, had judgment on a verdict in the district court for statutory triple damages and attorney fees under
The reversal below rested primarily on the ground that the claim should have been first presented in probate and, under
The ruling, as respondent in effect now concedes, is erroneous. The action was indisputably one against an independent executor in charge of an estate, which is altogether different from a claim against an estate being administered by a nonindependent executor or an administrator or a suit against heirs or beneficiaries of a will to reach property of the estate in their possession. The “applicable statute” is not
Art. 3437. Creditor may sue executor. - “Any person having a debt or claim against the estate may enforce the payment of the same by suit against the executor; and, when judgment is recovered against the executor, the execution shall run against the estate of the testator in the hands of the executor that may be subject to such debt. The executor shall not be required to plead to any suit brought against him for money until after one year from the date of the probate of such will.”
Referring to this and other articles of the same chapter, this court has said: “The statutes do not contemplate that the estate should be entirely withdrawn from the jurisdiction of the probate court, but that the appointment of an independent executor withdraws the estate from the supervision and control of the probate court, except in so far as some other statute may authorize the court to exercise its jurisdiction; and so long as it remains in the hands and under the control of the executor, the probate court has no jurisdiction to approve a claim against the estate. * * * The district court or county court, and not the probate court, has jurisdiction of all claims against the estate, as in any other cause of action not regulated by a special statute.” Rowland v. Moore, 141 Tex. 469, 174 S.W.2d 248, 249.
Petitioner contends that the court below erred further in not dismissing respondents’ appeal, but here we do not agree. The argument is that the appeal was made and the appeal documents filed too late, since the corresponding periods began to run from June 14, 1949, that is, 30 days after the filing of respondents’ amended motion for new trial on May 14, which petitioners say was never “presented” under
A more difficult point is the additional ground for reversal taken by the court below, that, the federal statutes omitting provision to the contrary, the death of Mrs. Aldredge, who, as landlord collected the rental overcharges but died before the trial, destroyed the cause of action of petitioners for triple damages and attorney fees under the common law maxim, actio personalis moritur cum persona. While this subject of survival enjoys the doubtful honor of being among the more confused in the law, our own opinion coincides with the conclusion of the Court of Civil Appeals.
No question is raised as to survival of petitioners’ right to recover the bare overcharges, if properly established. But the matter of the additional claim included in “three times the amount” of the overcharge and the attorney fees is something quite different.
The federal law is the ultimate source for determining what is or isn‘t properly a question of federal law. Looking therefore primarily to it, we conclude that the matter of survivorship of a federal statutory cause of action is a question of federal law, and not the law of Texas, though the latter is the forum and place where the cause of action arose. We, ourselves, have said that in a proceeding in our courts to collect a “civil penalty” under the federal income tax laws, we would determine the meaning of a particular word in the statute by reference to federal decisions. Paddock v. Siemoneit, 147 Tex. 571, 218 S.W.2d 428, 7 A.L.R.2d 1062. But the federal decisions, including several made in the face of Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, 114 A.L.R. 1487, seem to carry the scope of federal authority well beyond the matter of mere interpretation of federal statutes into the field of “consequences” thereof, of matters in which “the desirability of a uniform rule is plain” and into “those areas of judicial decision within which the policy of the law is so dominated by the sweep of federal statutes that legal relations which they affect must be deemed governed by federal law having its source in those statutes, rather than by local law.” See Clearfield Trust Co. v. United States, 318 U.S. 363, 63 S.Ct. 573, 575, 87 L.Ed. 838; Sola Electric Co. v. Jefferson Electric Co., 317 U.S. 173, 174, 63 S.Ct. 172, 87 L.Ed. 165; D‘Oench, Duhme & Co. v. Federal Deposit Ins. Corp., 315 U.S. 447, 62 S.Ct. 676, 86 L.Ed. 956; Deitrick v. Greaney, 309 U.S. 190, 60 S.Ct. 480, 84 L.Ed. 694; Board of Com‘rs of Jackson County v. United States, 308 U.S. 343, 60 S.Ct. 285, 84 L.Ed. 313; Awotin v. Atlas Exchange National Bank of Chicago, 295 U.S. 209, 55 S.Ct. 674, 79 L.Ed. 1393; Michigan Cent. R. Co v. Vreeland, 227 U.S. 59, 33 S.Ct. 192, 57 L.Ed. 417, Ann.Cas. 1914C, 176. The court in Gerling (Martin‘s Adm‘r) v. Baltimore & Ohio R. Co., 151 U.S. 673, 14 S.Ct. 533, 541, 38 L.Ed. 311, referred to the earlier decision of In re Schreiber (or Schreiber v. Sharpless), 110 U.S. 76, 3 S.Ct. 423, 28 L.Ed. 65, in these terms, “In that case, the right in question being of an action for a penalty under a statute of the United States, the question whether it survived was governed by the laws of the United States.” This quotation itself survived in Baltimore & Ohio R. Co. v. Joy, 173 U.S. 226, 19 S.Ct. 387, 43 L.Ed. 677. See also 1 Am.Jur., “Abatement and Revival, Cum. Supp., § 157; Bowles v. Farmers Nat. Bank, 6 Cir., 147 F.2d 425; Wogahn v. Stevens, 236 Wis. 122, 294 N.W. 503, 133 A.L.R. 1033. The contrary suggestion in the majority opinion in Stevenson v. Stoufer, 237 Iowa 513, 21 N.W.2d 287, is vigorously contested by the four dissenting justices. The right of a state forum to determine by its own law questions under federal statutes, such as whether the statute imposes a penalty or not, has been asserted by some state courts, but we believe upon a mistaken idea of the application of Conflict of Laws principles to the relationship between the Federal and State governments. See Bowles v. Barde Steel Co., 177 Or. 421, 164 P.2d 692, 162 A.L.R. 328; Robinson v. Norato, 71 R.I. 256,
There is, indeed, a federal statute which provides that: “A civil action for damages commenced by or on behalf of the United States or in which it is interested shall not abate on the death of a defendant but shall survive and be enforceable against his estate as well as against surviving defendants.”
What, then, do we understand the federal decisions to reflect on the survival question before us? The Federal Supreme Court seems not to have passed directly upon it, but Porter v. Montgomery, supra, and Bowles v. Farmers Nat. Bank, supra, both from Circuit Courts of Appeal, have held, on the penalty theory, against survival, as has also in effect the District Court for the Northern District of Texas in Strickland v. Sellers, 78 F.Supp. 274. State courts have contributed their versions of federal law in the same vein, as in Wogahn v. Stevens, supra, and some, like the majority in Stevenson v. Stoufer, supra, have reached the same result by recourse both to their own and federal law. The numerical superiority of available decision closest in point clearly lies with the view against survival. On the other hand, there are earlier decisions, such as Moore v. Backus, 7 Cir., 78 F.2d 571, 101 A.L.R. 379, and Sullivan v. Associated Billposters, etc., 2 Cir., 6 F.2d 1000, 42 A.L.R. 503, casting their weight for survival in the rather analogous situation of a private action for triple damages and attorney fees under section 7 of the Sherman Act,
The more recent decisions above mentioned apparently turn on whether the statutory cause of action should be considered “a penalty“, and in tracking their search for the meaning of that uncertain term, we encounter what Judge Biggs in Porter v. Montgomery, supra, describes as a “welter of law” [163 F.2d 215], in which perhaps the only agreed point is that Huntington v. Attrill, 146 U.S. 657, 13 S.Ct. 224, 36 L.Ed. 1123, is of great importance. See 31 Iowa L.Rev. 663. Porter v. Montgomery, however, treats Huntington v. Attrill as little relevant, and we are disposed to agree, considering that it was a case of applying the full faith and credit clause as between states to a judgment of one of them based on a local statute whereby a false statement in a certificate of incorporation imposed liability on the maker for all the corporate debts. In last analysis, the problem is evidently one of common law and, as above indicated, of common law as stated by the federal courts, without reference to the decisions of the state courts. See In re Schreiber; Gerling (Martin‘s Adm‘r) v. Baltimore & Ohio R. Co.; Baltimore & Ohio R. Co. v. Joy, all supra; U. S. v. Daniel, 6 How. 11, 12 L.Ed. 323; Patton v. Brady, 184 U.S. 608, 22 S.Ct. 493, 46 L.Ed. 713; Bank of Iron Gate v. Brady, 184 U.S. 665, 22 S.Ct. 529, 46
The judgment of the Court of Civil Appeals is affirmed.
On Motion for Rehearing.
The only point raised in the motion for rehearing, in which the respondents in effect join, is with regard to two of the various separate plaintiffs and petitioners, to wit, George D. and Mildred E. Basham, who had judgment in the trial court for $225.00, by way of triple damages, and for attorney fees. It appears that the respondents have not on appeal contested this award insofar as it allowed these two petitioners the sum of $75.00 for the actual rental overcharge paid by them, but on the contrary, have themselves prayed the Court of Civil Appeals to render judgment for the Bashams in this latter amount. That court, by reversing and remanding the cause generally, omitted to do so, and this omission was, in effect if not directly, complained of in the Supreme Court by both petitioners and respondents. We are now requested to modify our previous judgment