Medical Personnel Pool of Dallas, Inc. v. Seale

554 S.W.2d 211, 1977 Tex. App. LEXIS 3041

• Court: Court of Appeals of Texas
• Decided: May 31, 1977
• Docket: 19121
• Status: Published

Opinions

ON REHEARING OUR FORMER OPINION IS WITHDRAWN AND THE FOLLOWING SUBSTITUTED

AKIN, Justice.

This is an appeal from a judgment non obstante veredicto rendered against plaintiff, Medical Personnel Pool, and in favor of Mrs. Jack Seale, one of two defendants. Mrs. Jack Seale’s mother-in-law, Mrs. W. 0. Seale, the other defendant, was injured in an automobile accident, and Mrs. Jack Seale requested plaintiff to furnish nursing services to her mother-in-law. When the bill for these services was not paid, plaintiff sued both women. Following a jury trial, the trial court rendered judgment against Mrs. W. 0. Seale, but granted judgment n. o. v. in favor of Mrs. Jack Seale. Plaintiff perfected this appeal, which it limited to the action of the trial court in denying judgment against Mrs. Jack Seale. In this respect, plaintiff contends that the jury findings entitled it to a judgment against Mrs. Jack Seale. Because we hold that there was sufficient evidence to support the jury finding on the disregarded issue, we reverse the judgment n. o. v. We also hold that plaintiff is not entitled to judgment against both defendants, but must elect which defendant against whom it wants judgment. In accordance with its election in this court, we reverse and render judgment against Mrs. Jack Seale and reverse and render judgment that plaintiff take nothing against Mrs. W. 0. Seale.

Three special issues were submitted and answered as follows:

ISSUE NO. 1

Do you find from a preponderance of the evidence that Medical Personnel Pool of Dallas, Inc., performed nursing services for Mrs. W. 0. Seale?

ANSWER We do

If you have answered the last preceding issue “We do,” then answer the following issue; otherwise do not answer the next following issue.

ISSUE NO. 2

Find from a preponderance of the evidence the reasonable value of the nursing services performed by Medical Personnel Pool of Dallas, Inc., for Mrs. W. 0. Seale in Dallas County, Texas.

ANSWER $4,165.55

ISSUE NO. 3

Do you find from a preponderance of the evidence that Mrs. Jack Seale disclosed to Medical Personnel Pool of Dallas, Inc., that she was ordering the nursing services in question for the account of Mrs. W. 0. Seale?

ANSWER We do not

No additional fact findings were requested by the parties or made by the trial court.

We consider first Medical Personnel Pool’s contention that the trial court erred in rendering judgment n. o. v. because there is evidence to support the jury’s answer to issue number three. We agree. As we interpret special issue number three, it requires the jury to pass on whether Mrs. Jack Seale disclosed that she was acting as Mrs. W. 0. Seale’s agent. In passing on this question, the jury had to assume that agency existed; it was not called upon to pass on the question of agency. See Cactus Drilling Co. v. Williams, 525 S.W.2d 902, 906 (Tex.Civ.App.—Amarillo 1975, writ ref’d n. r. e.).

Since special issue number three was limited to an inquiry as to the disclosure of agency, the trial court’s action in disregarding the answer to special issue number three and rendering judgment n. o. v. in favor of Mrs. Jack Seale was proper only if there was no evidence to support the jury’s finding that Mrs. Jack Seale did not disclose that she was acting as Mrs. W. 0. Seale’s agent in ordering the services. In making this determination, we may consider only that evidence which tends to show lack of disclosure. Douglass v. Panama, Inc., 504 S.W.2d 776, 777 (Tex.1974). An employee of Medical Personnel Pool testified that Mrs. Jack Seale ordered the services to be rendered to Mrs. W. 0. Seale. This is not, however, equivalent to a disclosure that she was ordering the services as agent for Mrs. W. 0. Seale and not individually. The question is whether the existence of an agency was disclosed. Mrs. Jack Seale’s testimony as to what she told Medical Personnel Pool when she ordered the services is contradictory. At one point she testified that she ordered the nursing services to be rendered to Mrs. W. 0. Seale; no mention was made of her capacity. In another part she testified that she disclosed that she ordered the services as agent for Mrs. W. 0. Seale. Finally, she admitted that her testimony was contradictory. Thus, the jury was entitled to conclude that she did not inform Medical Personnel Pool that she was acting as Mrs. W. 0. Seale’s agent in ordering the services. The trial court erred, therefore, in disregarding the jury’s answer to special issue number three.

The question of whether Mrs. Jack Seale was acting as the agent of Mrs. W. 0. Seale in ordering the services was not disputed. Indeed, Mrs. Jack Seale admitted in her answer that if she had any contacts with plaintiff, it was only in her capacity as an agent and later, at trial, testified that she ordered the services, but denied that she ordered them on her own account. Consequently, Medical Personnel Pool was entitled to a judgment against Mrs. Jack Seale on the jury finding that she failed to disclose this agency. However, the trial court entered judgment against Mrs. W. 0. Seale for the services, and no one appealed from that judgment.

Mrs. Jack Seale contends that the trial court erred in not requiring Medical Personnel Pool to elect which of the two defendants against whom it sought judgment. We agree. If an agent acting within the scope of his authority enters into a contract for his principal, the principal rather than the agent is liable. On the other hand, if an individual purports to act as agent, but has no authority, he is liable individually, and the principal is not liable. Talmadge Tinsley Co., Inc. v. Kerr, 541 S.W.2d 207, 209 (Tex.Civ.App.—Dallas 1976, writ ref’d n. r. e.). Similarly, if the agent acts within the scope of his authority, but fails to disclose the fact of his agency to a third party, then both the agent and the principal are liable to the third party, but both cannot be held jointly liable. Moody-Seagraves Ranch v. Brown, 69 S.W.2d 840, 844 (Tex.Civ.App.—San Antonio 1934, writ ref’d). Accordingly, appellant was required to elect the defendant against whom it chose to have judgment. Restatement (Second) Agency, § 210A, Comment a (1958).

Our problem is complicated by the failure of Mrs. W. O. Seale to appeal. However, the only possible theory upon which the trial court could have rendered judgment against her was on the basis that Mrs. Jack Seale was her agent. Since the rights of Mrs. W. O. Seale and Mrs. Jack Seale are so interwoven and dependent upon each other, we likewise reverse the judgment against Mrs. W. O. Seale even though she did not appeal. The rule is that where the rights of two defendants are dependent one upon the other and the appellate court finds error in the judgment as to one defendant, the judgment should be treated as an entirety, rather than divisible, and the proper judgment rendered when that course is necessary to meet the demands of justice. Lockhart v. A. W. Snyder & Co., 139 Tex. 411, 163 S.W.2d 385 (1942); Hamilton v. Prescott, 73 Tex. 565, 11 S.W. 548, 549 (1889); United States Fidelity & Guaranty Co. v. Richey, 18 S.W.2d 231 (Tex.Civ.App.—Texarkana 1929, writ ref’d); Glover v. Tide Equipment Co., 506 S.W.2d 330, 333 (Tex.Civ.App.—Houston [1st Dist.] 1974, no writ); see Sherrill v. Bruce Advertising Inc., 538 S.W.2d 865, 867 (Tex.Civ.App.—Houston [14th Dist.] 1976, no writ).

We need not remand this case for an election by appellant because it has stated in this court that if an election between the defendants is necessary, it would elect to have judgment against Mrs. Jack Seale. Accordingly, we reverse and render judgment against Mrs. Jack Seale for the sum of $5,529.99, with interest at nine percent from August 10, 1976, until paid, and reverse and render judgment that plaintiff take nothing against Mrs. W. O. Seale.