
    DOUGLASS v. WALLACE, Sheriff, et al.
    (No. 970.)
    (Court of Civil Appeals of Texas. El Paso.
    April 24, 1919.)
    1. Evidence <&wkey;317(5) — Execution <&wkey;471— . Wrongful Levy — Hearsay Evidence.
    In an action against a sheriff and others for conversion, it was proper to permit defendants to testify that prior to levy upon the cotton in question they were informed by plaintiff’s brothers that the cotton belonged to plaintiff’s father and were informed by the owner of the land on which cotton was raised that the land was rented to plaintiff’s father, since they had a right to show that they acted in good faith and without malice, and upon probable cause, where exemplary damages were sought.
    2. Appeal and Error <®=»1050(2) — Harmless Error — Materiality of Evidence Admitted.
    In an action against sheriff and others for conversion of cotton, where material issue was plaintiff’s ownership, an error in admitting testimony that one of the defendants bought the judgment against plaintiff’s father on which judgment the execution against the cotton was levied, from a trustee in bankruptcy was harmless.
    3. Trial <&wkey;350(3) — Submission of Special Issues — Ownership—Statute. .
    In an action against a sheriff and others for conversion of cotton in which the controlling issue was whether plaintiff or plaintiff’s father owned the cotton, the question of who rented the land upon which it was grown was a mere evidentiary fact upon the ultimate issue and should not have been submitted.
    4. Trial <&wkey;351(2) — Special Issues — Written Request.
    Under Rev. St. 1911, art. 1985, failure to submit a special issue is not error, where its submission was not requested in writing.
    5. Execution <&wkey;471 — Ownership of Goods —Evidence—Sufficiency.
    In an action against the sheriff and others for conversion of cotton levied upon and sold under execution, circumstances in evidence held sufficient to support the conclusion, that plaintiff’s claim of ownership was merely colorable and that the cotton was owned by his father.
    Appeal from Young County Court; W. P. Stinson, Judge.
    Action by R. P. Douglass against M. M. Wallace, as Sheriff, and others, for actual and exemplary damages for' conversion of cotton taken upon execution against plaintiff’s father. Judgment for defendants, and plaintiff appeals.
    Affirmed.
    C. W. Johnson and J. M. Parker, both of Graham, for appellant.
    Marshall & King, of Graham, for appellees.
   HIGGINS, J.

In the fall of 1917, M. A. Wallace and W. J. A. Cooper caused to be issued an execution upon a judgment in favor of R. L. Reed & Co. against J. W. Douglass the father of appellant, Richard P. Douglass. The execution was placed in the hands of M. M. Wallace, as sheriff, who thereafter, at the instance of Cooper and M. A. Wallace levied the same upon two bales of cotton at the Love Gin. Thereafter the sheriff sold the cotton, and the same was purchased by R. G. Hallam. Subsequently, appellant, R. P. Douglass, claiming to be the owner of the cotton, sued Hal-lam, Cooper, M. A. and M. M. Wallace for its conversion, and sought to recover as actual damages its alleged value in the sum of $300 and exemplary damages in the sum of $300. The cotton in question was raised on a farm owned by J. E. Smith and which adjoined, or was near, the farm owned by J. W. Douglass and upon which J. W. Douglass resided with his wife and his sons, Richard (R. P.) Archie, Charley, and George.

The case was submitted to a jury upon special issues. A number of issues were submitted, the first reading:

“State whether R. P. Douglass or J. W. Douglass rented the land from J. E. Smith upon which the cotton in this controversy was raised?”

The jury was instructed not to answer the other issues if they found that J. W. Douglass rented the land. In answer to the first issue, it was found that J. W. Douglass rented the land, and, in accordance with the court’s instruction, the other issues were not answered. Judgment was rendered for the defendants.

Cooper and M. A. Wallace were permitted to testify that prior to the time they caused the levy to be made they were informed by Archie and George Douglass that the cotton belonged to their father, J. W. Douglass; also, that they were informed by Archie and George and J. F. Smith that the land upon which the cotton was raised was rented from Smith by J. W. Douglass and not by Richard. It is objected to this testimony that it was hearsay. Plaintiff having sought to recover exemplary damages, it was the right of Cooper and M. A. Wallace to show the information upon which they acted in causing the levy to be made upon this cotton. It was admissible to show the want of malice and that they acted in good faith and upon probable cause. The evidence was admitted by the court for this limited purpose as shown by the bills.

Error is assigned to the admission of the testimony of Cooper that he bought the judgment from the trustee in bankruptcy of R. L. Reed. The error in the admission of this evidence was harmless. The ownership of the judgment was not material. The material issue in this case was whether Richard or his father, J. W. Douglass, owned the cotton. If Richard did not own it, he has no cause of action, regardless of the ownership of the judgment upon which the execution was issued. For this same reason assignments 6 and 10, complaining of the refusal of peremptory instructions to find for plaintiff upon the theory that Cooper and W.allace failed to establish their ownership of the Reed judgment, are overruled.

Complaint is made of the overruling of an exception presented to the first issue. The exception reads:

“The plaintiff excepts to the first special issue of the court’s presentations of issues, because question at issue would be, and is, whether the cotton was produced by the labor and expense of the plaintiff, and not whether the rental contract was with plaintiff or J. W. Douglass — the witness Smith got his rent, in any event, and permitted the plaintiff to farm the land, and there is no evidence in the record that J. W. Douglass had anything to do with the making of the cotton, its harvest, ginning, and sale of the cotton not converted.”

We agree with appellant that this issue should not have been submitted. The ultimate controlling issue in the case was whether Richard or J. W. Douglass owned the cotton. The question of who rented the land from Smith was a mere evidentiary fact upon the ultimate issue. In trying a case upon special issues the ultimate issues of fact are the ones to be submitted and not evidentiary ones. The court should have required the jury to find as to the issue of ownership and given appropriate instructions enabling it to pass upon the question. But under our statute (article 1985, R. S.) the failure to submit the issue of ownership is not reversible error; because its submission was not requested in writing by appellant. What he requested to be submitted was merely evidentiary upon the issue of ownership for the cotton might have been produced by the labor and at the expense of Richard and the father nevertheless be the owner. There is evidence in the record to support a finding that the cotton was owned by J. W. Douglass, and under the statute the issue of ownership must be deemed to have been found by the court against appellant. In this connection may be considered the question presented as to the sufficiency of the evidence to support the judgment as raised by the ninth assignment.

The evidence shows that the father, J. W. Douglass, owned and lived with his family upon a farm adjoining or near the Smith land upon which the cotton was grown. The father was old and rather infirm. Residing with him were his wife'and sons, Richard, George, Charley, and Archie.

There is evidence that Smith rented the land to the father and not to Richard; that after the levy of the execution - the father went to the landlord, Smith, and endeavored to get him to sign a written statement to the effect that the land had been rented to him, J. W. Douglass, which Smith refused to sign. Richard and his brothers, it seems, were young men, living with the father as members of his family. Their purchases at the store were charged to the father. An account of $60 owed by the father to the merchant, McBrayer, was paid out of the proceeds of other cotton which was raised on the Smith land. Considering all of the circumstances, we think the same sufficient to support the conclusion that the claim of ownership by Richard Douglass was color-able merely and that the father, J. W. Douglass, was in fact the owner of the cotton.

Upon the views heretofore expressed, it follows that there was no error in the refusal of the peremptory instruction requested by appellant the refusal of which is the basis of the seventh assignment.

Finding no reversible error, the judgment is affirmed. 
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