author: CRITZ, J. CURETON, C. J.

text:
    SAXON v. ATCHISON, T. & S. F. RY. CO.
    No. 1409-5601.
    Commission of Appeals of Texas, Section A.
    March 4, 1931.
    Winbourn Pearce and Walker Saulsbury, both of Temple, for plaintiff in error.
    Turney, Burges, Culwell & Pollard, of El Paso, for defendant in error.
   CRITZ, J.

One J. W- Moore, now deceased, was the head brakeman on a freight train of the defendant railway company, running from a point in New Mexico to another point in the same state. At a place between these two points Moore fell under one of the cars of his train and was instantly killed. Mrs. Bertha Moore, surviving wife of the deceased, qualified as administratrix of deceased’s estate in New Mexico, and as such administra-trix filed this suit for herself and her two minor children for damages growing out of the death of her said husband. Hater Mack Saxon, plaintiff in error here, duly qualified as ancillary administrator and personal representative of deceased’s estate, and intervened in the suit. Trial was had in the district court before a jury, and resulted in a judgment for Saxon in his representative capacity. The railway company duly appealed •to the Court of Civil Appeals for the Eighth District át El Paso, which court reversed the judgment of the district court and rendered judgment for the railway company. 21 S.W. (2d) 686. Writ of error was granted to this court on application of Saxon.

We copy the following statement from the opinion of the Court of Civil Appeals:

“Appellee Saxon alleged the death of J. W. Moore, that he was killed at Tolar, N. M., while in the discharge of his duties as head brakeman of appellant .railway company, without fault on the part of J. W. Moore, deceased; that appellant was a common carrier engaged in interstate commerce; that the deceased, Moore, received the injuries resulting in his death while in appellant’s service handling interstate commerce, and that the injuries to and the death of J. W. Moore, deceased, were proximately caused by the negligence of appellant railway company, and assigned several acts of negligence, among them the fast running of the freight train, and rough handling; however, the only ones submitted by the trial court to the jury being alleged, substantially, as follows: At said time and at the station Tolar, J. W. Moore, the deceased, had thrown the switch, permitting the entrance of said freight train into said side or passing track, and had, with a flag in his hand, as his duty required, proceeded up the main line track for the purpose of flagging an in-coming passenger train, and that as the freight train entered onto the side or passing track, and proceeded to the other end of the track, J. W. Moore, deceased, as required by his duty, crossed over to the side of said freight train for the purpose of boarding the same, and riding to the further end of the side track, in order to be in better position to discharge the duties required of him with reference to the flagging of said passenger train; that on the side of the passing track or. switch track next to the main line, is a well marked and beatqn path, wherein brakemen and trainmen, in discharge of like duties, traveled; that the deceased, J. W. Moore, in the discharge of his duties, was walking and running in said pathway, and while so engaged, by reason of a large hole or soft-place in said pathway, was caused to be thrown or fall under said train and killed.
“The specific negligence assigned is alleged to be in causing or making a hole and depression in the said pathway and in maintaining and keeping said hole and depression and soft place in said pathway; and thereby negligence in failing to furnish deceased a reasonably safe place to work.
“In addition to the general denial, appellant pleaded in substance that deceased Moore, was an experienced brakeman who knew the location-of the tracks and the purpose of the train movement at the time of the accident; that he was familiar.with the pathway in question, knew the speed of the passing freight train, and that if he undertook to -get on the train on the passing track he did so voluntarily, and merely to serve a purpose of his own; that his duties did not require him on the train at that time, and that none of the other employees expected that he would attempt to get on the train; that his only duty was to remain on the ground and close the switch after the passenger train had passed; that if he put himself in a position of danger, he did so voluntarily. Appellant plead assumed risk and negligence on the part of the deceased under and in respect to the circumstances and facts as set up.
“The case was submitted to the jury on special issues. After the evidence was heard and before its submission, appellant presented its motion for an instructed verdict, which was refused. Appellant’s motion for judgment on the answers returned was likewise refused. Judgment was entered for appellee on the answers of the jury on the issues submitted.
“On the issues submitted the jury made the following findings:
“1. At the time and place alleged by plaintiff (appellee) there was .a soft area or hole between the tracks of the defendant’s lines, as alleged by plaintiff.
“2. The deceased, J. W. Moore, was running along the track as alleged, and' while doing so and attempting to board one of the cars with which he was working he stepped on or upon such soft area or hole and was thereby caused to fall and be injured. ■
“3. The presence of such soft area or hole was due to the negligence of the defendant.
“4. Such negligence was a proximate cause of the accident and injury to the deceased, J. W. Moore.
“5. Deceased, J. W. Moore, did not know of such soft area or hole and by the use of ordinary care incident to his employment would not have known of it.
“6. The accident or injury to the deceased complained of was not due to some other risks of the employment assumed by the deceased.
“7. States the reasonable compensation ap-pellee is entitled to recover as the damages sustained.
“On the verdict of the jury the court entered judgment for appellee and against appellant for the amount of damages found.”

Prom the above statement it is evident that plaintiff in error recovered in the trial court on the theory that the deceased, while in the discharge of his duties as a brakeman, was running along by the side -of the track of the railway company and while doing so, with the purpose . and intent of • boarding one of the cars in the train, he stepped on or upon some soft area or hole in his pathway, and was thereby caused to’ fall and be run over and killed.

We here call attention to the fact that this action is brought under the Federal Employers’ Liability Act (45 USCA §§ 51-59), and the rights and obligations of the parties depend upon such act and the principals of the common law as applied by the courts of the United States. Under such act it is essential that the plaintiff establish negligence on the part of the railway company as the cause of the injury. Toledo, St. L. & W. R. R. v. Allen, 276 U. S. 165, 48 S. Ct. 215, 72 L. Ed. 513.

We are of the opinion that the evidence quoted by the Oourt of Civil Appeals, and some further facts shown in the record, are sufficient in law to sustain the finding of the jury as regards the cause and manner of deceased’s death. Davis, Federal Agent, v. Preston (Tex. Civ. App.) 264 S. W. 331; Id., 118 Tex. 303, 16 S.W.(2d) 117.

As we understand the opinion of the Oourt of Civil Appeals, that court reverses the judgment of the district court, and renders judgment for the railway company on the theory that there is no evidence in the record sufficient in law to sustain the finding of the jury that the hole or soft place in the place of work was the direct and proximate cause of J. W. Moore’s death. The evidence in the record on this question discloses that, while in the discharge of his duties, the deceased, who was an experienced brakeman, was running along the pathway beside the track on which his train was running, and toward the hole or soft place in such pathway; that, when last seen, he was within, a few feet of such hole or soft place; that a short time after the injury a footprint was found in such hole or soft place; that such footprint was going in the same direction as the deceased ; that such soft place or hole was directly in the pathway of deceased; that deceased was bound to step in or over such hole or soft place; that the above-mentioned footprint was a heavy one, and made by a man running; that the place where deceased fell under the train was about ten feet beyond the hole or soft place, and just about the distance deceased would have fallen if he had stepped in such hole or soft place and stumbled ; and that such hole or soft place was the only thing shown which could probably have caused deceased to fall. In this connection we call attention to the fact that one of the witnesses who examined the hole or soft place, and himself stepped into it, testified:

“If a man was not looking and didn’t know it was there and stepped in it, it could easily cause him to stumble, in my judgment.”

It is true that the evidence shows, as found by the Oourt of Civil Appeals, that deceased intended to get on the train, but we are unable to find any evidence in the record, and none has been pointed out to us, showing as a matter of law that he actually made the attempt; that is, that he actually caught hold of the .train. On the other hand, there is circumstantial evidence to, in law, support a fact finding that he was caused to stumble and fall under the train by stepping into the hole or soft place in the pathway along the side of the track and in which pathway he was running. This issue was fairly presented to the jury and found as above stated.

We recommend that the judgment of the Court of Civil Appeals be reversed, and the judgment of the district court affirmed.

CURETON, C. J.

Judgment of the Court of Civil Appeals is reversed, and that of the district court is affirmed, as recommended by the Commission of Appeals.


source: Caselaw Access Project

author: BARCOS, J.

license: Public Domain

text:
    SOUTHERN PUB. CO. v. FOSTER.
    No. 982.
    Court of Civil Appeals of Texas. Waco.
    Jan. 29, 1931.
    Rehearing Denied March 12, 1931.
    Sleeper, Boynton & Kendall, of Waco, for appellant.

      W. R. Poage and Joseph W. Hale, both of Waco, for appellee.
   BARCOS, J.

Appellee instituted this suit against appellant to recover damages, which he claims to have suffered by reason of the publication of the following article in the Times Herald, a newspaper of general and wide circulation owned and operated by appellant:

“Damage Suit Filed vs. Waco American
“Circulation Contest Drawn in the Courts
“A suit against the Central Texas Publishing Company et al growing out of a circulation contest recently sponsored by the Waco American, a daily newspaper published here by that company, was filed this morning in the 19th District Court by Wade H. Nesbitt, a contestant.
“Those named in the suit are W. H. Bleam, W. S. Foster, T. D. Walling, F. D. Dennison, A. J. Hubbard and the Sanger Motor Company.
“Nesbitt asked judgment against the defendants jointly and severally for alleged damages.”

Appellee alleged that appellant meant by the use of the words, “Those named in the suit are W. H. Bleam, W.. S. Foster,” etc., and intended to mean by the use of said words, that appellee, W. S. Foster, had been sued as a defendant in said suit, and that damages were asked against him in said suit. Appellee alleged that as a matter of fact he was not named as one of the defendants in said suit, neither was there any damage asked against him, and that said article was libelous, and that appellant, by the publication thereof, intended to and did convey the idea to its readers that he was untrustworthy and could only be compelled to carry out his undertakings and promises by suit, and alleged that such interpretation was the interpretation that would be placed thereon by the ordinary reader. Appellee further alleged that appellant, in publishing said article, intended to and did damage and injure his standing and influence and the faith and confidence the public had in him, and did expose him to public hatred, contempt, and ridicule, and tended to impeach his honesty, integrity, virtue, and reputation, in order that it might destroy appellee and be able to perpetuate its monopoly of the publication of the daily paper in Waco and vicinity. Appellee further alleges that said publication was wickedly, maliciously, and designedly published for the purpose of injuring him, and that in connection therewith, and as evidence of said wicked and malicious design, appellant published, on December 8, 1928, an article relating to W. H. Bleam, under the heading “Publisher of American Arrested,” and that on the following day, which was Sunday, appellant published an item relating to W. H. Bleam under the heading: “Bleam Released on $1,000.00 Bond.” Appellee alleged that appellant by publishing said articles relating to W. H. Bleam, who appellant named as one of the co-defendants with appellee in the damage suit filed by the Waco American, intended to and did mean to convey the idea to. the-reading public that W. H. Bleam was untrustworthy, unreliable, and not worthy of the confidence and support of the public, and that appellant intended to mean and did mean, by publishing said articles relating to W. H. Bleam, that appellee was of the same character of person as W. H. Bleam, who had been charged with a crime and arrested and put under bond.

Appellant answered by a general demurrer and a number of special exceptions, and by way of special answer alleged that the publication was not libelous or defamatory, and that the statement published therein was true, and that said statement did not allege that appellee had been sued as a defendant, but that his name had been mentioned in the pleadings filed in said cause, and contended that appellee could not, by innuendo, enlarge said article and thereby make same libelous or defamatory. It further alleged that it did, immediately after same was called to his attention by appellee, publish a correction thereof, in which correction it stated that appellee was not named as one of the defendants in said suit, and that no personal judgment was asked against him by the plaintiff Wade H. Nesbitt.

The cause was tried to a jury and submitted on special issues, and the jury found that the article in question reasonably conveyed the idea to the ordinary reader that appellee was being sued in said suit, and that said article reasonably conveyed the idea to the ordinary reader that appellee was untrustworthy and could only be compelled to carry out his undertakings and promises by suit, and that said article exposed appellee to public hatred, contempt, or ridicule, or financial injury, or impeached his honesty, or his reputation, and found that said article was not substantially true, and found that appellee had suffered damages as the proximate result of said article in the sum of $2,500. Based on the findings of the jury, the trial court entered judgment for said amount for appellee.

By a number of propositions, appellant presents the general proposition that the trial court committed error in overruling its general demurrer and its various special exceptions, and in refusing to sustain its motion for instructed verdict, and in submitting the spe-‘ cial issues, because the article complained of is not libelous per se, and because its meaning could not be enlarged by any proper innuendo deducible therefrom and no special damage was proven, and because said afticle was substantially true. We overrule these propositions.

The record shows that the suit brought by Wade H. Nesbitt named the Central Texas Publishing Company, a corporation, of which W. S. Foster (appellee) was president, and upon whom service of citation could be had, and H. W. Bleam, T. X>. Walling, A. J. Hubbard, and Sanger Motor Company, a corporation, of which Asher Sanger is president, as defendants, and asked for judgment against each of the defendants, jointly and severally, in the sum of $10,800. The reporter for appellant who obtained the news item that was published, as well as the managing editor under whose supervision it passed before same was published, testified, in substance, that they thought appellee, W. S. Foster, had been named as one of the defendants in said suit .and was being sued as such and that a personal judgment was being sought against ap-pellee, and that it was their intention to convey such an impression or idea to the reading public. Whether the article as a matter of law should be construed as meaning that appellee had been sued as a defendant, it is not necessary for us to, and we do not, determine, since the issue was submitted to the jury, and it so found. The general rule for the construction of an article published is stated by the ¡Supreme Court in A. H. Belo & Co. v. Smith, 91 Tex. 221, 42 S. W. 850, 851, as follows: “The question is: What effect would the publication have upon the mind of the ordinary reader? What construction would he have put upon it? For in defamatory language it is not so much the idea which the speaker or writer intends to convey as what he does in fact convey. It is the effect upon the character of the person alleged to be defamed by the utterance which the law considers, and therefore the utterer uses the language at his peril.” This now seems to be the accepted rule in Texas. Guisti v. Galveston Tribune, 105 Tex. 497, 150 S. W. 874, 152 S. W. 167; Walker v. ¡San Antonio Light Pub. Co., 80 Tex. Civ. App. 165, 70 S. W. 555; Times Publishing Company v. Ray (Tex. Civ. App.) 1 S.W.(2d) 471; Id. (Tex. Com. App.) 12 S.W. (2d) 165.

The above authorities hold also that a published article which is ambiguous and uncertain in its meaning may be made intelligible by pleading innuendos which are deducible from the article as published, and if the article, read in the light of said innuendos, is libelous and defamatory, same is actionable. If the published article is plain and unambiguous, appellant, of course, is correct when it says that such an article cannot be made' defamatory or libelous by innuendos. We think the pleadings and the evidence amply support the finding of the jury that the article in controversy here was intended to and did convey the idea that appellee had been sued as a defendant and that a personal judgment was sought against him. If the article is not libelous per se, it is, in the light of the pleadings and evidence, capable of being understood by the ordinary reader as alleging the appellee had been in said cause of action sued as a defendant. It is the reasonable or ordinary construction given a written document by the ordinary reader which largely controls the determination as to whether it is libelous or defamatory in its nature. The jury found said issues favorably to appellee, and said findings are abundantly supported by the testimony.

Appellant further complains at the action of the trial court in overruling its exceptions to that portion of appellee’s pleadings which alleged the publication of certain articles relative to H. W. Bleam and to the action of the trial court in permitting said articles to be introduced in evidence; said portion of appellee’s pleadings related to the maliciousness with which appellee claimed the article affecting him was published. For said purpose we think the pleadings as well as the evidence were proper. The trial court did not submit the issue as to whether the article was published maliciously, and no request was made by appellant to have said testimony withdrawn from the jury after the court determined not to submit same, and appellee does not complain at the action of the trial court in having failed to submit that issue. We do not think, in the light of the record,' there was any error in the court’s action in overruling said exceptions or in admitting said testimony.

Appellant contends the trial court erroneously permitted appellee to testify that the publication of the article in controversy caused him mental suffering, chagrin, and embarrassment, its contention being that said testimony is purely a conclusion of the witness. We overrule these propositions. Appel-lee testified fully with reference to the entire matter, both on direct and cross-examination, and in connection therewith testified that the publication of the article did cause him mental suffering, chagrin and embarrassment. We think there was no error in the action of the trial court in admitting said testimony. Where, as in this case, said conditions, if caused, are proper to be considered by the jury in arriving at the amount of damages,' our courts have uniformly held that the plaintiff can testify relative thereto. M., K. & T. Ry. Co. v. Miller, 25 Tex. Civ. App. 460, 61 S. W. 978 (error refused); Texas Electric Ry. Co. v. Whitmore (Tex. Civ. App.) 222 S. W. 644 (error dismissed); T. & P. Ry. Co. v. Crockett (Tea Civ. App.) 298 S. W. 654; Central Texas Mutual Life Insurance Association V. Parrish (Tex. Civ. App.] 23 S.W.(2d) 780.

Appellant contends that the verdict of the jury is excessive and was a result of prejudice or some undue influence. The record shows that at the time of the publication of the article in question appellant owned and published the only two daily papers being published in the city of Waco, and that appellee had organized a company, of which he was president and manager, to establish a daily paper. He had, according to his testimony, practically made arrangements to finance the paper, and had obtained a substantial advertising list, and contracted for the necessary printing presses and machinery and was in a position to have speedily begun the publication of a daily paper. The evidence tends to support his contention that, as a result of the publication of said article,' those from whom he was to borrow money and who were to go into the new enterprise with him refused or failed to make the loans and refused to go into the newspaper business with him, and that as a.result the enterprise failed and had to be abandoned. Under ap-pellee’s testimony he had been engaged in publishing and editing newspapers for a number of years in different sections of Texas and had come to Waco with his family for the purpose of engaging in the newspaper business, and up to said time had enjoyed a good social, moral, and financial reputation. The question of the amount of damages in a case of this character is largely in the discretion of the jury, and, unless it is apparent from the record that the verdict is excessive or is a result of prejudice, the appellate court should not disturb same. In view of the entire testimony as reflected by the record, we cannot say that the verdict is excessive, or that the trial court abused its discretion in refusing to set aside same by reason of its excessiveness.

We have examined all of the other propositions presented by appellant and same are overruled, and the judgment of the trial court Is affirmed.


author: WALKER, J.

text:
    TONEY v. HERMAN HALE LUMBER CO.
    No. 2032.
    Court of Civil Appeals of Texas. Beaumont.
    Feb. 27, 1931.
    Rehearing Denied March 4, 1931.

      Pouts, Amerman, Patterson & Moore, of Houston, for appellant.
    King, Wood & Morrow, of Houston, for ap-pellee.
   WALKER, J.

We take the following statement of the nature and result of this suit from appellee’s brief:

“This was a suit by appellant against ap-pellee, appellant alleging among other things, that he was injured through the negligence of appellee when an automobile driven by L. M. Belser, Jr., in which appellant was riding, ran, after dark, into the rear end of a truck trailer which had been left parked on the right hand side of the-road leading in a southerly direction toward Houston so as to obstruct the portion of the highway used by automobiles proceeding in the direction in which appellant was proceeding. Appellant alleged that the truck trailer was left unlighted and that its color blended with the color of the highway and ‘that at the time it was dark and the automobile in which plaintiff was riding had its headlights burning, ahd plaintiff was meeting other automobiles with headlights burning.’ Appellee answered by pleading, among other things,'that appellant’s injury was caused solely by the negligence of the driver of the automobile in which appellant was riding in that, among other things:

“(1) That the driver of the car in which plaintiff was riding was operating the automobile at a speed in excess of thirty-five miles per hour;
“(2) That such' driver was operating said automobile at a high, excessive and unlawful rate of speed;
“(3) That said driver was passing and attempting to pass another motor vehicle then and there on the public highway at an unlawful, high, excessive and dangerous rate of speed;
“(4) ‘(h) That said driver, at the time and on the occasion in question, continued to drive said automobile at an excessive, fast and dangerous rate of speed while his vision of the road ahead of him was obscured and impaired by the headlights of another,motor vehicle approaching the plaintiff from the opposite direction in which plaintiff’s said driver was proceeding
“(5) ‘(i) That said driver, at the time and on the occasion in question drove and operated his said automobile while he was blinded and unable to see by reason of the reflection and glare of headlights from another motor vehicle approaching from the opposite direction in which he was proceeding.’
“It is also alleged that appellant and the driver of his car were on a joint enterprise, and that the foregoing specifications of the driver’s negligence were imputable to appellant.
“Appellee further pleaded that appellant’s injuries were proximately caused and/or contributed to by appellant’s own negligence in that:
“1. ‘(1) That the plaintiff, at the time and on the occasion in question failed to exercise ordinary care to keep and maintain a reasonable and proper lookout for objects on the road in the course in which the automobile in which he was riding was being operated
“2. ‘(2) That the plaintiff, at the time and on the occasion in question failed to warn or direct the driver’s attention to this defendant’s truck and trailer in time to enable the said driver to stop the car and avoid colliding with said truck and trailer, though said plaintiff saw, or by the use of ordinary care, would have seen said truck and trailer in ample time to have caused, the driver of said automobile, with proper warning, to have stopped or avoided said collision;’
“3. That appellant had been drinking, was under the influence of intoxicating liquor, and incapable of exercising ordinary care for his own safety and did not do so;
“4. That appellant was negligent in riding with Reiser knowing that Belser was under the influence of intoxicating liquor and- did not have full possession of his faculties and also in that appellant failed to assume control of the automobile under the circumstances and in failing to disembark ;
“5. That appellant failed to keep a reasonable and proper lookout for obstructions on or near the road in the course in which said automobile was going with a view of warning the driver of said automobile of the existence of such obstructions or othierwise extricating himself from the perils incident to a possible collision therewith; ‘with full knowledge ⅞ * ⅜ saj,j ¿River was blinded by the glare of headlights.’
“The case was tried before a jury and on special interrogatories the jury found that appellee was negligent in not lighting its truck and trailer, in not placing a guard at its truck and trailer, in leaving its truck and trailer in a position reasonably calculated to obstruct traffic;
“And answered that the driver of the car in which appellant was riding had his vision of the road ahead obstructed or -impaired by lights on an approaching car at the time of and immediately preceding the collision; that certain specified acts of the driver of the car in which appellant was riding were not any of them the sole proximate cause of appellant’s injuries; that the driver of the car was not negligent in certain respects.
“There were four special issues and answers thereto supporting the judgment in favor of appellee, to-wit:
“ ‘Special Issue No. 32
“ ‘Did E. P. Toney, plaintiff, after it was ascertained by him that L. M. Belser, the driver of the automobile in which hfe was riding, was having difficulty in seeing ahead of him, and after ascertaining that Belser’s vision was obscured and impaired, fail to exercise ordinary care for his own safety in reference to keeping a reasonable lookout for the existence of objects on or near the highway?
“ ‘Answer “Yes” or “No” as you find the fact to be.’
“ ‘Special Issue No. 33
“ ‘If you have answered the preceding issue that he did fail to exercise ordinary care, then answer the following special issue:
“ ‘Was such failure on his part a proximate cause of his injuries?
“ ‘Answer “Yes” or “No” as you find the fact to be.’
“The jury answered both the foregoing is-siies ‘Yeé.’
“ ‘Special Issue No. 39
“ ‘Did the plaintiff, E. P. Toney, at the time and on the occasion in question and under all the circumstances fail to exercise ordinary care for his own safety with reference to keeping a reasonable lookout for the existence of objects on or near the highway?
“ ‘Answer “Yes” or “No” as you may find the fact to be.’
“ ‘If you have answered the preceding issue in the affirmative, then answer
“ ‘Special Issue No. 40
“ Was such failure to so keep a reasonable lookout for his own safety a proximate cause of plaintiff’s injuries, if any?
“ ‘Answer “Yes” or “No” as you may find the fact to be.’
“The jury answered both the foregoing issues ‘Yes.’
“On the verdict the court rendered judgment in favor of defendant (appellee).”

Appellant presents the following propositions of error:

First. Appellant complains of the testimony offered by appellee detailing the speed at which appellant and his companion were driving their car at a place twenty-five miles distant from the place of accident. This testimony was objected to upon the ground that it was remote, irrelevant, immaterial, and highly prejudicial. No reversible error was committed in receiving this testimony. It had no probative force and could not have been considered by the jury in their answers to the issues of contributory negligence found against appellant. Other questions on this issue were submitted to the jury, such as those asking whether or not appellant’s driver was intoxicated and whether or not their car was being driven at the time of the accident at a rate of speed in excess of thirty-five miles per hour. The testimony complained of might have been considered by the jury in answering these issues, but these, issues were answered in appellant’s favor. In fact, all questions on the issue of contributory negligence submitted to the jury were found in appellant’s favor, except the four questions given above in the statement of the case. St. Louis, B. & M. Railway Co. v. Cole (Tex. Civ. App.) 4 S.W.(2d) 1019, 1022, directly supports our conclusion that the introduction of this testimony was not reversible error. In that case the court said: “It is a sound proposition of law that where there are several grounds of negligence found by a jury, any one of which would entitle the plaintiff to a judgment, the verdict should be sustained, notwithstanding there may have been committed errors with reference to other grounds of negligence proven. The jury found that there was no flagman stationed at the crossing with reference to trains approaching from the south side, which was a dangerous crossing, which failure under the circumstances constituted negligence.”

Second. Appellant’s second proposition is as follows: “It is error for a court to submit circumstances to the jury, only ultimate issues of fact being properly submitted, and in asking Special Issue No. S, if the driver's vision was obscured at tbe time of the accident, was a mere circumstance and its submission as an issue over the objection of the defendant gave it undue weight, and as it was used in subsequent issues answered adversely to the plaintiff, the error was prejudicial.”

Issue No. 8 was as follows:

“Special Issue No. 8
“Was L. M. Belser’s vision of the road ahead of him at the time of and immediately preceding the collision, obscured or impaired by lights from an approaching car?
“Answer ‘Yes’ or ‘No’ as you find the fact to be.”

This proposition is without merit. One theory of contributory negligence was that L. • M. Belser was appellant’s only companion in the car at the time of the accident and was the driver of the car; that Belser’s vision of the road, immediately preceding the collision, was impaired by the lights of an approaching automobile; that Belser advised appellant of the trouble the lights of the approaching car were causing him, and asked appellant to help him keep a lookout, and that, being advised of these facts, appellant failed to exercise ordinary care for his own safety, which constituted negligence and was a proximate cause of the accident. On this theory question No. 8 did not submit “a mere circumstance” or evidentiary matter, but one of the determinative issues of the case.

Third. In full submission of the theory of "contributory negligence” alluded ■to under the discussion of the foregoing proposition, the court submitted issues 32 and 33, as set out above in the statement of the case, which were answered against appellant. Appellant complains of these issues on the following grounds: (a) They were on the weight of the evidence; (b) they submitted immaterial issues, as appellant was merely the guest of Belser, the driver of the car, and had no control over the car. Though it be conceded that appellant was the mere guest of Belser, yet he was “under the duty of exercising such care to avoid injury as would have been used under the attendant circumstances by an ordinarily prudent person.” Texas Mexican Railway Co. v. Hoy (Tex. Com. App.) 24 S.W.(2d) 18, 20. The failure to use such care would convict him of contributory negligence. That was the issue submitted by the question complained of by these propositions. While the issue was in the ease, and appellee was entitled to its submission, appellant correctly asserts that question No. 32, as submitted, was on the weight of the testimony. If the judgment in appellee’s favor rested alone on the answer to these questions, this proposition would constitute a serious challenge to .the judgment. But appellee’s judgment also has support in the answers to questions Nos. 39 and 40. As we understand the record, these questions are before us without objection. They affirmatively submitted the issue of contributory negligence, and, therefore, support the judgment. Though without an exception raising the point, or a proposition supporting it, appellant argues that the error in submitting questions Nos. 32 and 33 must be read into these questions. He is wrong in that contention. As that point was not called to the trial court’s attention, or even presented here by proposition, if there was error in the case in this respect it was waived.

Fourth. Question No. 45'was as follows, answered as indicated:

“Special Issue No. 45

“Did L. M. Belser, .the driver of the car in which plaintiff was riding,- fail to exercise ordinary care at the time and on the occasion in question to discover the automobile truck and trailer in time to have avoided colliding therewith? ■

“Answer ‘Yes’ or ‘No’ as you find the' fact to be.” :

Answer: “No.”

By the fourth proposition the contention is made that a conflict exists between the answer to this question acquitting Belser of negligence, and the answers to questions Nos. 39 and 40, convicting appellee of negligence^ Appellant supports this proposition with the following argument: “There was nothing whatever in the roof to evidence thát' both E. P. Toney and L. M. Belser were not men of normal vision, and, therefore, both must be assumed to be' of normal vision. There is no reason presented, nor can it be argued, indicating that one could not see as well as the other. Belser was the driver of the car, and Toney was a mere passenger. Therefore, if there should be any difference in' their status, it goes to show that Belser should have kept a better lookout and exercised moré care to keep a lookout than Toney.”

The following summary of the ..testimony on this issue, taken from appellee’s .brief, completely answers this proposition: “Under BeL ser’s testimony, not in any manner discredited or contradicted by Toney, Belser told Toney that he, sitting on the left-hand side of the car was being blinded by cars coming from the opposite direction, wherefore he asked appellant Toney to help him watch the road in front. Toney admitted he wasn’t watching when the accident occurred. Belser made no such admission. The jury, believing everything Belser and Toney testified to on these and all other issues' in this case, found that Belser was looking as best he could and that Toney was negligent in failing to look. Taking the testimony of these two gentlemen at its face value, appellant’s fourth proposition is wrong."

Fifth. The fifth proposition is as follows: “It is error for a. court in connection with the submission upon special issues to give a general charge.”

Under the rule reannounced by this court in Clevenger v. Burgess, 31 S.W.(2d) 675, this proposition is too general to invoke the jurisdiction of the court. But apart from that point, there is no merit in the proposition. Appellant would support this proposition with the following statement:

“Special Issue No. 25 given by the court reads as follows:
“ ‘Special Issue No. 25. Did L. M. Belser at the time and on the occasion in question and under all the facts and circumstances then existing fail to have his automobile under reasonable control ?
“ ‘Answer “Yes” or “No,” as you may find the fact to be.’
“The plaintiff objected to the giving of this issue as a general charge. See page 43 of the transcript, where the plaintiff objected as follows:
“ ‘Plaintiff objects to Special Issues Nos. 25, 26 and 27, which inquire if L. M. Belser had the car under reasonable control, for the reason that this 'issue is covered by other special issues, which inquire of the various things that Belser did, or failed to do, and is a general issue, involving several distinct questions of fact.’ ”

It appears from this statement that appellant reserved no exception to question No. 25 that it constituted a “general charge,” but only that it was multifarious. However, this question was in no sense a general charge.

Appellant’s sixth and seventh propositions are as follows:

“In this case the defendant had plead and attempted to prove that the plaintiff and the driver of the car were intoxicated and had been drinking, and had indicated to the jury that whiskey figured in the case, and it was error to refuse to permit plaintiff to prove where whiskey was found on the scene of the accident, and the amount - thereof, and that it was in defendant’s possession and not in plaintiff’s, it being a material inquiry in the case.”
“It was error for the court to refuse to permit Mrs. Epley and Mrs. Clark to testify as to the true facts with reference to the Whiskey upon the scene of the accident and the amount thereof, and to permit plaintiff tó show, first, that there was not enough whiskey to make a man* drunk, and, second, that the whiskey there was in the possession and control of the defendant and was responsible for its negligence in the manner it left its truck, and refute the accusation of the defendant that plaintiff had been drinking or had whiskey.”

We quote as follows from appellee’s brief in answer to this proposition: “The sixth and seventh propositions complain that appellant was not permitted to prove something about some whiskey in the truck of appellee left on the side of the road. Since the jury found appellee guilty of primary negligence in every particular submitted, particularly since appellant did not plead, and the court did not submit whether or not whiskey had anything to do with appellee’s primary negligence ; and since no effort was made by ap-pellee to connect appellant or his automobile driver with whiskey by any evidence, the evidence offered by appellant and excluded by the court, was totally immaterial. If whiskey was in appellee’s truck, it had not the slightest bearing on whether or not appellant was keeping a proper lookout.”

No error having been committed in the trial of this case, it is ordered that the judgment of the lower court be, and the same is, hereby in all things affirmed.

Affirmed.


author: GALLAGHER, C. J.

text:
    TEXAS & P. RY. CO. v. WYLIE.
    No. 984.
    Court of Civil Appeals of Texas. Waco.
    Jan. 29, 1931.
    Rehearing Denied March 5, 1931.

      Samuels, Foster, Brown & McGee, of Fort Worth, for appellant.
    Claude Spratling, H. T. Cooper, and A. B. Curtis, all of Fort Worth, and R. T. Bailey, of Dallas, for appellee.
   GALLAGHER, C. J.

This suit was instituted by appellee, Mrs. M. C. Wylie, against appellant, Texas & Pacific Railway Company, to recover damages for the death of her son, Robert L. Wylie, who was run over and killed by one of appellant’s ears at Hodge, a shipping station on appellant’s line of railway. Said station was a shipping point for the Transcontinental Oil Company. Appellant used three parallel tracks in handling its business at that point. One was the main line and the other two were switch tracks. One of these was used as a passing track, and the other was called the stock track. These tracks were situated about 10 feet apart. The passing track was west of the main line and the stock track west of the passing track. Just prior to the accident in which Wylie was killed a string of twenty-seven tank cars was standing on the stock track. The north car of this string was about 100 feet south of a road crossing. One McMullen, appellant’s ear inspector, was examining these cars for the purpose of ascertaining whether they were in fit condition to be put in a train and carried to their respective destinations. It was his duty to make air couplings, see that the brakes were adjusted, and make minor repairs thereon, if found necessary. He discovered that one of these tank cars which had just been loaded by the oil company and switched out from its loading rack was leaking and not in condition to be received for transportation. It is conceded that it was the duty of the oil company to stop this leak before it could demand that the car be received and transported by appellant. It was customary in such cases, and had been for several years, that when a leak was discovered, instead of switching the car back to the loading rack for repairs, the oil company should be notified by the inspector and it should send its own workmen to repair the same on appellant’s track. What precautions, if any, had theretofore been employed to prevent accident to the oil com-party’s employees while so engaged are not disclosed. Appellant’s loading rack was situated east of the main line and connected therewith by a switch track. When McMullen discovered the leak he went to this loading rack, a distance of about 200 yards, and notified Connelley, foreman thereof, -of such leak, and was advised by him that workmen would be sent immediately to repair the same. Con-nelley instructed the deceased Wylie and one Bannister, employees of the oil company, both of whom were present and heard the conversation, to go to the car and stop the leak. McMullen saw them on their way and knew their purpose. He returned to the string of cars, resumed his work thereon, and paid no further attention to Wylie and Bannister. He took no precaution whatever to protect them while they were at work on said car. He testified that he was not expecting the switch engine to enter that track nor move the cars thereon at that time, though he further testified that the switch engine had been in the yards and moving about therein for some time prior thereto. Said switch engine, at the time Connelley, in response to Mc-Mullen’s request, sent the deceased and Bannister to stop the leak in the car, was standing above the crossing on the oil company’s switch track. Shortly thereafter it entered the main line, passed .south from the crossing to the switch or switches connecting the stock track with the main line, backed over the same to the cars on said track, and started to pull them away. When Wylie and Bannister reached the car they proceeded at once to try to stop the leak. In order to do so it was necessary that one or both of them should go on the track under the car and tighten the fitting with a wrench. They did so. Bannister came out from under the car but Wylie remained thereunder, according to Bannister’s estimate, for about three minutes, watching to see whether the tightening had effectually stopped the leak. During this time the switch engine started the string of cars and Wylie was run over and killed by the car under which he was working. The testimony does not disclose that either Wylie or Bannister did anything to secure their safety while so engaged. Bannister testified, however, that when they arrived at the car, before they went under the same, he looked south to the end of the string of cars; that at that time no engine was attached thereto and none was in sight. He further testified that he did not hear the switch engine pass south on the main line; that a string of cars was situated on the passing track which obscured his vision, and that he never discovered the engine.until after Wylie was killed. Appellant’s rules for the government of its employees in the discharge of their duties provided that a workman engaged in repairing a car should indicate that fact by a blue flag placed on the track or on the end of the car; that the display of such flag advise employees operating engines that workmen were under or about such car or cars, and that no engine was permitted to couple onto or move such car or cars when such flag was displayed. The testimony showed that such flags were in the possession of McMullen or accessible to him; that no such flags were furnished or placed accessible to the oil company or its employees. There is no testimony that the deceased Wylie or his companion, Bannister, ever heard of such flags or their use.

The case was tried to a jury and submitted on special issues. The jury, in response thereto, found in substance: (a) That it was the duty of McMullen, appellant’s car inspector, to see that blue flags were placed at the end of the string of cars under which the deceased was working at and prior to the accident; (b) that his failure to so place such flags was negligence; (c) that such negligence was the proximate cause of the death of Wylie; (d) that such death was not the proximate result of an unavoidable accident; (e) that appellee, by reason.of such death, suffered financial loss in the sum of $5,000. On appellant’s defense of contributory negligence the jury further found: (f) That Wylie, in placing himself under said car, did not keep a watch or lookout for movement thereof; (g) that such failure was not negligence; (h) that his remaining under the car for three or four minutes after the leak had apparently been stopped to ascertain whether it was effectually stopped was not negligence; (i) that his failure to require the placing of the blue flag as a signal that he was working under said car and his going under the same without the placing of such signal was not negligence; (j) that Bannister failed to keep a watch or lookout for the movement of the car under which Wylie was working; (k) that such failure was not negligence: (1) that the failure of Con-nelley to notify the operators of the switch engine that Wylie had gone to work under said car and should be protected from danger was not negligence. The court rendered judgment in favor of appellee awarding her a recovery against appellant for the sum of $5,-000.00. Hence this appeal.

Opinion.

Appellant, by a group of propositions, complains of the testimony of appellee’s witness Leonhart. ‘This witness was permitted, over the objection of appellant, to testify that it was the rule and custom of the company that a blue flag should be placed at the end of' a car while the same was being repaired; that it was the duty of the man working on or under the car to place such flag; that an outsider would not be permitted to place a flag on the tracks, though there was nothing in the rule book about that. Appellant having made the specific objection that the company’s book of rules was the best evidence of its contents, the witness was excused from the stand, procured a copy of such book of rules, returned and read therefrom that a blue flag displayed at one or .both ends of a car indicated that workmen were under or about it; that a car so protected should not be coupled to nor moved; that the flag was to be displayed by those working on the car and they alone could remove it. So far as appellant’s objection that the testimony of this witness previously given was not the best evidence, any error of the court in permitting same to remain before the jury was fully cured by the fact that the written rules were actually introduced and were in substance identical with the oral testimony of the witness. Appellant had theretofore introduced oral testimony on this subject from at least three of its witnesses without producing the rule book. M., K. & T. By. Co. v. Johnson (Tex. Civ. App.) 193 S. W. 728, 729, par. 3. The witness was properly permitted, notwithstanding appellant’s objection, to testify to the usage and customs of appellant’s employees with reference to the application of the rules under consideration. Such testimony was not an invasion of the province of the jury as contended by appellant. G.. H. & S. A. Ry. Co. v. Still, 45 Tex. Civ. App. 169, 100 S. W. 176, 182 (writ refused); 6., H. & S. A. Ry. Co. v. Collins, 24 Tex. Civ. App. 143, 57 S. W. 884, 885 (writ refused); S. A. & A. P. Ry.. Co. v. Engelhorn, 24 Tex. Civ. App. 324, 62 S. W. 561, 65 S. W. 68 (writ refused). Appellant’s contention that the customs testified by such witness were inadmissible because not pleaded is without merit. Such customs were merely incidental and indicated the practical application of such rules made by appellant’s employees. 17 C. J. p. 518. Of course, a different rule applies where it is contended that a custom enters into and forms a part of a contract and thus determines in part the rights of the parties. Spaeth & Co. v. Bevering (Tex. Civ. App.) 290 S. W. 802, 804, pars. 3 and 4, and authorities cited.

Appellee’s recovery herein is based on the affirmative findings of the jury that it was the duty of McMullen, appellant’s car inspector, to see that blue flags were placed at the end of - the string of cars under which deceased was working; that his failure to do so was negligence, and that such negligence was the proximate cause of the death of deceased. Appellant presents propositions in which it asserts that the court erred in submitting such issues. Appellant’s rules introduced in evidence showed that car inspectors were required to inspect all cars and to make such repairs as were necessary, and that they should use the protection afforded by the display of such signal while so engaged. Appellant contends, in effect, that such rule prescribed and limited the duty of its representative McMullen in the premises and absolved him from any obligation to afford to the deceased Wylie while engaged in working on said car, such protection. Appellant also contends in this connection that Wylie, though an employee of the oil company, while so engaged, was in legal contemplation a temporary employee of the railway company, and that the duty of placing such signal for his protection thereupon devolved upon him. The-evident purpose of appellant’s rule' was to prevent accidents to its employees while engaged in repairing oars undergoing inspection. Had McMullen undertaken to stop this -leak himself, he would have been acting within the apparent scope of his duties. We may assume that it would have been his duty to stop the leak himself if said car had been stopped on this switch track while in transit. The custom of calling upon the oil company to stop such leaks apparently arose from the fact that the company owned the cars, loaded them at its rack, and tendered them to appellant for transportation. There is no contention that McMul-len. exceeded his authority in asking the oil company to send workmen for such purpose. Deceased and his companion were at work on the car, not only by invitation, but at the request of BfcMullen, and it was his duty as a representative of appellant to exercise due care for their safety. Payne v. Doubtful (Tex. Civ. App.) 236 S. W. 134, 136,.par. 1 (writ refused); M., K. & T. Ry. Co. v. Thomas, 48 Tex. Civ. App. 646, 107 S. W. 868, 871 (writ refused); J. Rosenbaum Grain Co. v. Mitchell (Tex. Civ. App.) 142 S. W. 121, 123, pars. 1 and 2 (writ refused); M. K. & T. Ry. Co. of Texas v. Holman, 15 Tex. Civ. App. 16, 39 S. W. 130, 131; Hanson v. Ponder (Tex. Com. App.) 300 S. W. 35, 36, pars. 1 to 3, inclusive. Appellee alleged that appellant should have protected them by displaying the blue signal. The rules provided for the úse of the same by the car inspector for his '•own protection. Such use would, under the testimony, have afforded ample protection to deceased and his companion. The jury was authorized, under the testimony before it, to conclude, as it did so, that McMullen should have taken the same precaution for their safety as the rules required him to take for his own. There is no evidence that Wylie knew’anything about the rule under discussion. No such flags were furnished or placed accessible to him. Wé do not think he was charged with knowledge of such rule nor that the same in any way affected appellant’s duty to him. Rio Bravo Oil Co. v. Matthews (Tex. Civ. App.) 20 S.W.(2d) 342, 347 (second column). The issues complained of were properly submitted to the jury. •

Appellant complains of the action of the court in placing upon it the burden of proof on the several issues of contributory negligence and the issues of proximate cause submitted in connection therewith. Appellant contends in propositions presented that the testimony of appellee’s witnesses raised such issues,' and that the same arose out of the acts and conduct of the deceased, and that the effect of such charge was to lead the jury to believe that in determining such issues they should consider the testimony of appellant’s witnesses only. Appellant’s contention was considered by our Supreme Court in H. & T. C. R. R. Co. v. Harris, 103 Tex. 422, 128 S. W. 897, 899, and prior authorities considered. We quote from that opinion as follows: “The rule of law as it is established in this state is that negligence, whether of the plaintiff or defendant, must be affirmatively shown, and this puts the burden on the party alleging it .to make it appear either by evidence furnished by himself or by availing himself of that furnished by his adversary or by both. * * * ' But if the evidence [on the issue of contributory negligence] is such as to require the submission of that question to the jury at all, the fact that some or all of it may come from plaintiff does' not alter the rule of law as to the burden of proof; it is still incumbent on the party who makes the charge to maintain it throughout by making the evidence preponderate in his favor. The evidence still must affirmatively show contributory negligence.” The rule so announced has been consistently followed in this state. Fort Worth Gas Co. v. Cooper (Tex. Civ. App.) 241 S. W. 282, 285, par. 6; Smith v. Dallas Ry. Co. (Tex. Civ. App.) 8 S.W.(2d) 548, 549, pars. 3 and 4; Houston B. & T. Ry. Co. v. Davis (Tex. Civ. App.) 19 S.W.(2d) 77, 81, par. 3; Louisiana Railway & Nav. Co. v. Cotton (Tex. Civ. App.) 1 S.W.(2d) 393, 398, par. 5; Habrick v. T. & P. Ry. Co. (Tex. Civ. App.) 285 S. W. 883, 884, par. 1. Appellant further contends in this connection that the charge complained of constituted, in effect, a general one, such as was considered by this court and condemned in Texas Indemnity Ins. Co. v. Allison, 31 S.W.(2d) 319, par. 1. The con-' tention is without merit. The court’s charge 'in this case enumerated the particular issues on which the burden of proof was placed upon appellant. A charge apparently identical in form and effect was approved by the Commission of Appeals in H. & T. C. Ry. Co. v. Stevenson, 29 S.W.(2d) 995, 999, pars. 3 and 4.

Appellant assigns as error the action of the court in refusing to submit to the jury, for determination the following special issue requested by it, to wit: “Was the failure or ’omission on the part of the decedent Wylie to notify or. warn the crew of the switch engine that moved the train of cars in ‘question that said Wylie intended .to go under said leaking ear to .perform' ’repairs thereon, negligence?” Appellant in connection therewith further requested the submission of the issue of proximate cause in event of an affirmative finding thereon. The issue so requested was apparently based on the testimony of the witness Connelley tending to show that such- switch engine was standing on the oil company’s track at the time the deceased Wylie and his companion started to the car to stop the leak. The gist of the inquiry therein was whether Wylie’s failure to notify the crew operating such engine that he intended to go under said car to repair the same was negligence. Since he left the loading rack for that specific purpose, notice given at that time would have come within the terms of such inquiry. It was of course the duty of the deceased to use ordinary care for his own safety, and a failure to do so would have been negligence. It is the essence of contributory negligence that the person to be charged therewith knew, or by the exercise of ordinary care should have known, of the circumstance or circumstances out of which the danger arose. T. & P. Ry. Co. v. Best, 66 Tex. 116, 118, 18 S. W. 224; Koons v. Rook (Tex. Com. App.) 295 S. W. 592, 597, par. 15; El Paso Printing Co. v. Glick (Tex. Civ. App.) 246 S. W. 1076, 1079, par. 5; Armstrong Packing Co. v. Clem (Tex. Civ. App.) 151 S. W. 576, 578, par. 3 (writ refused); St. Louis Expanded Metal Fireproofing Co. v. Dawson, 30 Tex. Civ. App. 261, 70 S. W. 450, 451, 453 (writ refused); G., C. & S. F. Ry. Co. v. Smith (Tex. Civ. App.) 148 S. W. 820, 822, par. 1; Boltinghouse v. Thompson (Tex. Civ. App.) 12 S.W.(2d) 253, 254, par. 1; 45 C. .1., p. 651, §§ 24 and 25; Id., p. 946, § 506; 20 R. C. L., pp. 107 et seq., pars. 93 and 94. The testimony in this case showed that appellant’s switch engine came to that yard, operated, and left at irregular intervals. The car which the deceased was called upon to repair had been placed in its position on the stock track by an engine of another company. That engine had left the yards. The testimony tends to show that appellant’s switch engine, being the particular one, and only one, involved in the requested issue, had been working in the yards for two hours or more, and that at the time of the accident it was preparing to leave and carry with it said string of cars on the switch track. The deceased, however, was an employee of the oil company, and, so far as the testimony shows, had been engaged in the discharge of his duties at the loading rack until he started, at the direction of his. foreman, to repair said ear. There is no testimony showing affirmatively that he actually knew that this particular engine was operating in the yards at that time or immediately prior thereto. There is nothing to indicate ’ that he in fact observed it standing above the crossing on the oil company’s.switch, where Connelley’s testimony placed it at that time. Bannister testified that he did not discover it. The requested issue apparently assumed that the deceased knew, or by the exercise of ordinary care for his safety should have known, that said engine was located where Oonnelley’s testimony placed it at that time, and submitted the issue of whether deceased, in the exercise of ordinary care, ought to have given the suggested notice to the crew operating the same. Whether deceased actually discovered the location of said engine at that time, or whether he, in the exercise of ordinary care for his own safety, ought to have discovered the same, were, under the testimony, jury questions. 45 C. J. p. 1309, § 863, and authorities cited in note 45; Id., p. 1310, part of § 864, and authorities cited in note 57. No request was made for their submission and determination by the jury. Unless the deceased did know or ought in the exercise of due care to have discovered the location of said engine, no duty on his part to avoid injury therefrom by giving such notice to the crew operating the same arose.- In the absence of a request for the submission of such issues to the jury for determination, there was no predicate for a finding of negligence in response to the issues requested. The court properly refused to submit the same.

We have examined all the propositions presented by appellant as ground for reversal and have reached the conclusion that none of them require or justify such action. The judgment of the trial court is affirmed.


author: HALL, C. J.

text:
    M. SYSTEM STORES, Inc., v. DAVENPORT et ux.
    No. 3540.
    Court of Civil Appeals of Texas. Amarillo.
    Jan. 28, 1931.
    Rehearing Denied March 4, 1931.

      Douglas & Spiller, of Lubbock, for appellant.
    Kinder & McMath, of Plainview, for ap-pellees.
   HALL, C. J.

The appellant has filed a motion for a writ of certiorari to the district clerk of Hale county, requiring said clerk to transmit; to this court two original bills of exception.

In the affidavit supporting the motion, one of appellant’s counsel avers that immediately after the trial of this case he prepared and presented to the trial judge his bills of exception Nos. 1 and 2. That said bills were presented to opposing counsel, who made some objections, but that the trial judge nevertheless approved both bills and ordered them filed on the 4th day of June, 1930, without qualification or amendment. That after the filing of said bills and without notice to appellant or its attorneys and without any motion to that end, the court corrected said bills, .erased his signature previously affixed approving topth bills, and proceeded to qualify them in the manner shown in the transcript. That said qualification and amendment was made more than one month after the bills had been approved and filed.

In reply to -this motion the trial judge has filed his affidavit, which is further authenticated by the affidavit of one of appellees’ counsel and the affidavit of the court reporter.

In his verified statement the trial judge says that he hurriedly signed the bills, assuming that defendant counsel had prepared them correctly. That appellees’ counsel, however, inspected the bills and protested, saying that he did not think that they were correct and that they should be qualified. That the next day, leading counsel for appellees called the judge’s attention to the errors, and that on July 5, 1930, being the last day of the term, in the presence of one of appellant’s counsel, the matter was again discussed, together with appellees’ counsel, and after mature consideration he erased his signature and added the qualifications now appearing upon the bills. That they were qualified in open court, after having been read over and discussed with counsel for both sides. The trial judge further says that he qualified the bills only because, after full consideration, he was convinced that he had been led into signing the bills thinking they wére correct.

This motion must be overruled. When a party accepts a bill and it has been filed, he is bound by the qualification, and when a bill which has been qualified by the court; appears in the record, it will be presumed that the qualification was made with the consent of the appellant or plaintiff in error, in the absence of something in the way of a bill of exception signed by the judge or by bystanders. Under such circumstances, the qualification is controlling as to the facts therein stated, which must be accepted as true and may not be contradicted nor the facts therein stated varied by an ex parte affidavit of counsel. 3 Tex. Jur. § 464.

The proper procedure and the better practice in fairing bills of exception is to stop the trial when a bill is taken and prepare if then and there and file it with the clerk and R. S. art. 2237 requires the court to give the party excepting time to embody his objections in a written bill. However, the statute further provides for the filing of ■billá of exception after the trial. This is the practice usually resorted to. and results in much confusion and contradictory affidavits in this court. If the party aggrieved has not been given a fair or correct bill of exception, he should resort to the procedure provided in R. S. art. 183S. No bill prepared as provided by that article has been filed in the record, .and therefore this court is not permitted to attempt to correct the bill appearing in,the transcript. The rule is that all bills of exception, as well as other corrections to be made of the record, must be changed, amended, or corrected in the trial court. 3 Tex. Jur. § 549.

The trial judge has the right to amend a bill of exception so as to make it speak the facts, even after appeal, and when he has withdrawn his approval of a bill and changes or reforms it and again approves it, the bill as so amended should be substituted for the one originally approved. Davis v. Wichita State Bank & Trust Co., (Tex. Civ. App.) 286 S. W. 584.

The general rule is that affidavits relating to the record or to proceedings in the trial court, not appearing in the record, cannot be considered by the appellate court unless they relate to matters affecting fhe jurisdiction of said court. 3 Tex. Jur. 560.

It is a further general rule that original papers relating fo the case must appear either in the transcript or the statement of faefs. There is now no provision in the statutes under which original documents may be transferred from the court into the appellate court, even upon the orders of the trial judge. Elrst National Bank v. Van Horn et al. (Tex. Civ. App.) 2 S.W.(2d) 333; Rockhold v. Lucky Tiger Oil Co. (Tex. Civ. App.) 4 S.W.(2d) 1046; Scruggs v. McCart (Tex. Civ. App.) 16 S.W.(2d) 973; Yeager v. Bradley (Tex. Civ. App.) 246 S. W. 688;. Hines v. Howell (Tex. dv. App.) 15 S.W.(2d) 1060.

The appellees have filed a motion to strike the statement of facts because the statement was not filed in the trial court nor presented to the trial judge for approval until the ninety-first day after the adjournment of the term. The term of court 'at which this case was tried could, under the statute, continue only six weeks. The term opened May 26, 1930, and ended on July 5th following. It appears that the trial court granted 60 days from July 5th in which to file statement of facts. The statement was not tendered to the trial judge until October 4th thereafter, being 91 days after the term of court had ended. When it was presented to the clerk of the district court for filing, the clerk refused to file it, having been instructed by the trial judge to that effect.

In their reply to the motion to strike the statement, appellant’s eounsel states that the judgment was rendered on July 4th and motion for new trial overruled the next day. In the order overruling the motion for new trial, 60 days was given appellant in which to file statement of facts; but appellant’s attorneys aver that they were greatly inconvenienced by the fact that the. building ’in which they maintained their offices was totally destroyed by fire August 23, 1930. That they relied on the statement of the trial judge that additional time would be .granted, if needed, under the circumstances, and that such time was certainly needed and wanted. They further set out the fact that they communicated with the trial judge by letter and otherwise in an effort to get an extension of time on September 19 and 22, 1930; that on September 23, the last day in which they could have filed the statement in-the trial court, one of appellant’s counsel drove from his home in Lubbock to Plainview and saw the judge, who told him that he was not going to grant any additional time.

The material parts of this affidavit are denied by a counter affidavit of the trial judge, who says that he did not tell appellant’s counsel that he should have additional time if it was wanted or needed,' but that he specifically refused to allow such time. The judge is corroborated by the affidavit of the court reporter and of one of appellee’s counsel, who say they heard the conversation between the trial judge and appellant’s counsel and that the trial judge did not promise or grant counsel any further time. Neither statement was filed in time.

According to the affidavit of appellant’s counsel, there was plenty of time for the 'preparation of the statements of facts between the date of the adjournment of the court and the fire which destroyed the office building. The statement showing the testimony relative ⅛> the motion for new trial is only 23 pages and the other statement contains only 64 pages, both of letter-size paper, double-spaced typewriting. The fire did not interfere with counsel requesting the court stenographer to prepare the statement. It does not appear when appellant’s counsel requested the court stenographer to prepare question and answer statement, further than that no request had been made on or prior to September 24th. The facts heard upon the motion for new trial appear in a statement dated by the court reporter October, 1930. The statement of facts proper is dated September 30, 1930. No sufficient diligence is shown.

It appears that none of the records of appellant’s counsel were lost in the fire which destroyed the office building, and we are driven to the conclusion that appellants have not used proper diligence to prepare and file a statement of facts. Gerneth v. Galbraith-Foxworth Lumber Co., 117 Tex. 205, 300 S. W. 17; 3 Tex. Jur. §§ 485, 486, and authorities cited; Ellis v. ’Cunningham, 16 Tex. Civ., App. 571, 41 S. W. 522; Brown v. Gatewood (Tex. Civ. App.) 150 S. W. 950.

The appellant insists that the judg-meht should be reversed because of inflammatory language used by the appellees’ counsel in his argument to the jury. This contention is presented by two bills of exception taken to different remarks made by counsel. The trial judge qualified both bills, stating that counsel did not; use the language set out in the bills and in the qualification the judge sets out the language actually used. The qualification further shows that appellant’s counsel had made a statement in his argument to the jury, relating to the operation of automobiles generally on public highways, and that his remarks were outside of the record and not; supported by any evidence. The bills fail to show that the argument ob-, jeeted to was not provoked by any argument of opposing counsel. This being the state of the record, the propositions based upon the two bills of exception do not show reversible error. Galveston, H. & S. A. Ry. Co. v. WorChester, 45 Tex. Civ. App. 501, 100 S. W. 990; Spencer v. Pettit (Tex. Civ. App.) 17 S.W.(2d) 1102; Thompson v. Caldwell, (Tex. Civ. App.) 22 S.W.(2d) 720; Vincent v. Bell (Tex. Civ. App.) 22 S.W.(2d) 753.

The next contention to be considered is that the appellees’ pleadings are not sufficient to raise the issue of discovered peril or last clear chance. It appears that tjie collision occurred in a part of the road where there was a mudhole about 100 yards in length. Through this mudhole there was only one traveled portion. That vehicles had ' made deep ruts, and that outside of the ruts the area of the road was extremely muddy, so that no vehicles had traveled it. The collision resulting in the injuries occurred because both 'vehicles were in the ruts or traveled portion, and plaintiffs allege that they were not able to get their car out of the ruts on account of their depth. These ruts were on the left-hand side of the center of the road traveling south, and the plaintiffs were, therefore, on the wrong side of the road and chargeable with negligence to that extent. In order to avoid the effect of their contributory negligence, they allege:

“That at the time of the aforesaid collision, the road south of said mudhole and ruts was open and unobstructed for a distance of more than 100 yards before defendant’s truck (headed north) reached the south, end of said mudhole and said ruts. Said Castevens ,(the driver of the truck) could plainly see the mudhole and ruts and see that plaintiff’s car was being driven in said ruts and that said Castevens could see and knew, or toy the use of reasonable diligence could have seen and would have known the condition of said mudhole and ruts and the position and condition in which plaintiffs’ car was, as aforesaid, in sufficient time to have slowed down the speed of said truck and to have stopped the same and ⅛> have driven same to either side of said ruts before. he drove said truck into said ruts and it was negligence and carelessness for said Castevens to drive said truck at such fast rate of speed into said ruts and against plaintiffs’ car and that such negligence and carelessness is a direct and proximate cause,” etc.

It will be seen that plaintiffs charge that Castevens knew of their danger. While it is further alleged that he might have known by the use of ordinary diligence, the latter allegation may be disregarded as surplusage. It was necessary to charge knowledge on the part of Castevens in order to raise the issue of discovered peril. This having been charged, the pleading is sufficient. San Antonio & A. P. Ry, v. Green, 20 Tex. Civ. App. 5, 49 S. W. 670; Hawkins v. M., K. & T. Ry. Co., 36 Tex. Civ. App. 633, 83 S. W. 52; Baker v. Shafter (Tex. Com. App.) 231 S. W. 349; Stevens v. Wabash Ry. Co. (Mo. App.) 14 S.W.(2d) 506.

1⅜ is only necessary for a party to prove sufficient facts to entitle him to recover, and he need not prove everything alleged. Morrison v. Sewell (Tex. Civ. App.) 4 S.W.(2d) 1029.

The allegations of plaintiffs’ petition are sufficient to charge negligence and a failure-to use reasonable diligence on the part of-Castevens in the manner and under the conditions in which he was driving ■ his truck at; the time of the collision, and the facts-alleged are sufficient to sustain the jury’s finding that, such'want of care was the proximate cause of plaintiffs’ injuries and the damages sustained. Under the pleadings the court did not err in submitting the several issues reguested upon this phase of the case.

Without a statement of facts we cannot consider the remaining propositions. 3 Tex. Jur. 541, § 380, and authorities cited.

Finding no reversible error in the record, the judgment is affirmed.

On Motion for Rehearing.

It is insisted in the motion that we erred in holding that plaintiffs’ petition was good as against a general demurrer, in that it was necessary „for the plaintiffs to allege the degree of negligence chargeable to the defendant, and that in alleging that the position and condition in which plaintiffs’ ear was “in sufficient time to have slowed down the speed of said truck tó have stopped same and to have driven same to either side of said ruts before he (Oastevens) drove said truck into said ruts” requires a greater degree of diligence than was necessary. In other words, that the law only required the driver of the truck to use ordinary care. It is further insisted that although there is no statement of facts which can be. considered, the issues submitted by the court are not supported by the pleadings.

As said in Prince v. I. &. G. N Ry. Co., 64 Tex. 144, 147:

“The petition alleges that the plaintiff was injured through the negligence of the company’s servants, which includes all degrees ofj negligence, slight, ordinary* and gross, and there was no special exception complaining that the kind of negligence was not stated, even if such an exception could have prevailed.”

The trial judge had sustained a general demurrer and special exceptions to the petition in that case, and the Supreme Court reversed the judgment.

As we understand the rule, the plaintiff is not required to allege the particular degree of negligence. He may charge negligence generally or gross negligencd, and under such allegations he must, as stated in the original opinion, prove only a sufficient degree of negligence to entitle him to recover. Texas Mexican Ry. Co. v. De Hernandez, 49 Tex. Civ. App. 360, 108 S. W. 765; Avey v. G., H. & S. A. Ry. Co., 81 Tex. 243, 16 S. W. 1015, 26 Am. St. Rep. 809.

In determining the question whether the pleadings are sufficient to support the charge of the court or the issues submitted, we. must take into consideration the pleadings of both parties, and when this is done, there is no doubt that the court submitted only such issues as were raised, by the pleadings.

It is further contended that special issue No. 4-a is not supported by the pleadings, in that plaintiffs do not allege that they were in a perilous position. They plead facte which show that they were in such position and it was not necessary for them to use the words “perilous position.” If they had, we may presume that defendant would have objected to such statement on the ground that it was a conclusion of the pleader, as they did to that portion of paragraph 2 of the petition whieh alleges that the truck was negligently and carelessly driven and to that portion, of paragraph 3 which alleges that it was negligence and carelessness for Castevens to drive the truck at a fast rate of speed into the ruts and against plaintiffs’ car.

The other contentions urged in the motion have been disposed of in the original opinion and will not be further discussed. The motion is therefore overruled.


author: GRAVES, J.

text:
    MILLER v. BANKER.
    No. 9500.
    Court of Civil Appeals of Texas. Galveston.
    Jan. 29, 1931.
    Rehearing Denied March 4, 1931.

      Boyles, Brown & Scott, and Frank G. Dyer, all of Houston, for appellant.
    J. H. H. Dennis and J. H. H. Dennis, Jr., both of Wharton, for appellee.
   GRAVES, J.

Appellant sought to recover of the appellee $25,000 as his commission, or as the reasonable value of his services, on the sale by the latter of his 240 acres of land on the Boling sulphur dome in Wharton county to the Gulf Production Company on December 27th of 1927 for $500,000, declaring the claimed sum to be due him under the terms of this written contract:

“lago, Texas, November, 29th, 1927.
“Mr. A. R. Miller, Second National Bank Bldg., Houston, Texas.
“Dear Sir: I herewith authorize you to sell my land in fee being 240 acres out of the Missouri Land Subdivision, and being Lots Nos. 10, 11, 12, 13, of the above named subdivision and being a part of the'S. F. Austin 3-⅛ Leag. in Wharton County, Texas, I am to reserve all my oil and gas royalty.
“It is further agreed that I will furnish abstract and allow 15 days t.o examine title.
“I also further agree if property is sold by you or me to pay you a 5% commission out of the first cash consideration only. Any consideration offered for this property must be submitted to me and price must be accepted by me before you close any deal. This commission does not include any oil gas sulphur royalties retained by me.
“You will acknowledge your acceptance of this letter by signing your names to the bottom of this letter.
“Yours truly,
“[Signed] Willie Banker, Jr.
“[Signed] A. R. Miller.
“Accepted.”

Appellee answered by demurrer and denial, both general, as well as by special plea; wherein he alleged, substantially, that at the time of such sale the declared upon contract between the two parties had been terminated, and that the sale had been effected by others than appellant.

The cause was submitted to a jury on these special issues:

“No. 1. Did the Defendant, Willie Banker, Jr., act in good faith in withdrawing his contract from the plaintiff on the 19th day of December, 1927, and stating to the plaintiff that he had withdrawn his land from the market?
“No. 2. Was the time from the 29th day of November, 1927, to December 19, 1927, a reasonable time in which the plaintiff should hav¡e consummated the sale of the Willie Banker land under said contract?
“No. 3. Was the plaintiff, A. R. Miller, the procuring cause of the sale by the defendant, Willie Banker, Jr., of said property to the Gulf Production Company?”

On the return of a verdict answering No. 1, “Yes,” No. 2, “It was,” and No. 3, “He was not,” judgment was rendfered in appellee’s favor ; from that decree this appeal regularly proceeds.

In assailing this adverse determination below, appellant’s contentions are that the trial court prejudicially erred:

First, in submitting each of the quoted issues, and in not submitting his requested special issues 1 to 5, embodying inquiries on (1) whether or not appellee, in order to procure the return to him of the contract between them, represented to appellant that he was taking the land off the market; (2) whether or not the property was actually taken off as represented; (3) whether or not appellant believed and relied on these representations; and (4) whether or not appellee took the property off the market for the purpose of defeating appellant’s claim for his commission.

Second, in not submitting his specially requested issues 6 and 7, asking whether he had performed services of value to the appellee in connection with the sale referred to, and, if so, what the reasonable value thereof was.

Third, in admitting over his objection testimony tending to show that, contemporaneously with the execution of the quoted contract between them, the parties orally agreed that it might be canceled at any time by the appellee.

In the state of the record, we think none of these presentments should be sustained, concluding rather that the trial court’s theory of the case, as reflected in given issues 1 and 2, correctly comprehended all the material questions raised by the pleadings and proof, and that the jury’s unattacked verdict upon them, there being no contention that it lacked support in the evidence, entitled the appel-lee to the judgment accorded.

The undisputed evidence — indeed the direct testimony of both litigants themselves — was to the effect that the quoted contract, which was in the form of a letter, was withdrawn from appellant by appellee on December 19 of 1927 under the statement of the latter at the time that he had taken the property off the market, and that on the ensuing 27th of that month he sold it through a different intermediary to the Gulf Company for a half million dollars; there was decided conflict between the two as to whether or not, on or before the original signing and delivery of the letter between them, it had been further agreed verbally that appellee might withdraw it at any time, but none as to the occurrences just stated; so that, irrespective of the testimony pro and con on that disputed question and whether or not it was admissible, the.un-controverted facts remain that the declared upon letter was returned by appellant to the appellee on the 19th of December, and that the sale by the latter to the Gulf Company in the manner stated followed on the 27th of the same month.

Under other facts so appearing, as indicated, we regard as immaterial considerations whether the alleged express agreement to withdraw the letter at any time was made and whether appellant was the procuring cause of the sale, since we think the contract — that fixed neither time, place, nor price at or within which a sale might be effected — independently of them gave the ap-pellee the right after the lapse of a reasonable length of time during which no negotiations therefor had been successful to revoke the limited authority it conferred on appellant to sell his land, provided he acted in good faith toward the latter in the revocation ; therefore all that was legally material in appellant’s requested issues 1 to 5, inclusive, was, in substance, embraced within the first two issues the court gave.

As its terms, along with what were shown to be the circumstances attending its execution and delivery, unmistakably indicate this was not the usual and ordinary contract whereby the owner of land employs the real estate agent to find a purchaser ready, able, and willing to buy his property in accord with the stipulated price, time, place, terms, and other specified conditions, but plainly contemplated a mere short-time authorization during its life to sell land that had already within the knowledge of both parties not only become very desirable for sulphur exploitation but also susceptible to rapid fluctuations in market value; in addition to that, it also uneontrovertedly appeared: (1) Appellant had not first found the Gulf Company as a prospective purchaser for this land, the ap-pellee having been negotiating with it direct prior to any approach of his; (2) the appellee originally gave appellant the sum of $500,000 as his price on the property and never thereafter reduced it with him, whereas the highest offer the latter was ever able to get from the Gulf Company for it was not above $350,-000 which the appellee at no time was willing to accept.

In view of all these conditions, the question of what was a reasonable time in the particular circumstances during which the appellant should have been able to bring about a sale, he having pleaded that no less than thirty days was such, was clearly one for the jury. Its unchallenged answer that the time accorded was sufficient settles that issue.

It is the same as to the issue of good faith on appellee’s part in doing what both litigants testify he did do — withdrew the contract from appellant after the lapse of the time just referred to, and about a week thereafter made the sale through other parties to the same concern he had himself first de^lt with at the price he had always held to in his dealings with appellant, and which was admittedly $150,000 in excess of the highest offer the latter had ever been able to obtain from such purchaser. That matter too was fully threshed out before the jury, and its finding thereon has not been attacked as being without support in the testimony; wherefore this court is bound thereby.

Further or more specific discussion of the assignments is deemed unnecessary, since these conclusions determine the merits of the appeal.

The trial court’s judgment has been affirmed.

Affirmed.


author: PRY, C. J.

text:
    RATTNER v. KLEIMAN et al.
    No. 8550.
    Court of Civil Appeals of Texas. San Antonio.
    Feb. 18, 1931.

      Galbraith & Goodrich, of Brownsville, for appellant.
    John O. Myriclr, of Harlingen, for appellees.
   PRY, C. J.

This suit was instituted by Rebecca Klei-man, joined by her husband, R. Kleiman, on promissory notes aggregating $32,000, given for part of the purchase money on twenty-nine acres of citrus fruit land in the valley of the Rio Grande. The original price for the land was $44,000, of which the sum of $12^000 had been paid. No testimony was heard except the notes introduced by appellees, and judgment was rendered for the sum of the notes, with interest at 6 per cent, from the date of execution.

Appellant filed an answer setting up the in-sdnity of Rebecca Kleiman, and he sought to cancel the whole transaction about the land and to recover the $12,000 already paid by him. The- court sustained the exceptions to the answer, and, although the judgment recites that all parties announced ready for trial, no testimony was offered by appellant. The only question on this appeal is as to the legality of the action of the court in sustaining the exception to that portion of the answer alleging the unsound condition of Rebecca Kleiman’s mind at the time and since the execution of the deed to appellant.

The insanity of Rebecca Kleiman did not render the deed made by her void, but merely voidable. Williams v. Sapieha, 94 Tex. 430, 61 S. W. 115. No doubt but that under appropriate circumstances the disability of insanity or of minority could be invoked to procure the rescission or cancellation, of an instrument in writing executed by the person laboring under such disability. The rescission could be secured by the maker of the instrument by a repudiation on regaining reason or reaching majority, and we doubt not through a guardian 'or next friend. This proposition of law, which will not be disputed by any one, places it in the power of the person laboring under the curse of insanity at some time to repudiate an instrument made by such person, at any time to destroy such instrument, and at the same time destroy rights of an innocent party. The blow may fall after many years, for limitations are powerless against such person. The property may have vastly increased in value, and all that the vendee owns may have been expended upon ⅝ but, under the theory advanced by the appellees and sustained by the trial judge, the vendee has no remedy for the situation, but must sit supinely beneath the sword of Damocles which may break its slender thread at any moment and bring destruction upon' him. Whenever the propitious time arises, the deed may be repudiated, and no return of the purchase mony can be demanded or accomplished, because the person under disability cannot be forced to refund, unless it be proved that the money was received by such person or that it is still in his possession, a task probably impossible to be accomplished.

Under the ruling of the trial judge, appellant is compelled to pay $32,000 for land, the title to which may be held uncertain for years, and then possibly result in loss of the land and money, and the prospective victim is informed that he has no remedy in law or equity to protect him from such loss. If there had been any desire to do equity and extend justice to the vendee, appellees could have secured the appointment of a guardian for the person of unsound mind, and thus opened up a method of either protecting the title or rescinding the contract. That was not done, but a woman whose unsoundness of mind is not denied is permitted to go into court and prosecute her suit and flaunt into the face of the vendee the proposition that, while she is insane, she alone can breach that contract and make her sanity a subject of inquiry. We have seen no authority that sustains such a contention. On the other hand, as said in section 410, p. 649, 27 R. O. R.: “Where the transaction is an assignment of the right under an executory contract of purchase, it is held that the assignor impliedly warrants that the contract of sale is not rendered unenforceable by reason of any incapacity on the part of. the vendor to contract, and if such an incapacity exists this will afford ground for the rescission of the assignment by the assignee.” That quotation is fortified by a Virginia decision. Bailey v. James, 11 Grat. (52 Va.) 468, 62 Am. Dec. 659.

None of the Texas decisions uphold the contention of appellees, but merely reiterate the right of the insane person to repudiate a contract made while laboring under the disability. We have seen no case holding that the vendee in a contract of sale could not be relieved from a contract open to attack by the vendor at some time. No one has assailed or questioned such authority, and we have never before been confronted with the contention that the vendee of an insane person can be held on the rack of suspense and torture as to his title and be compelled to lose, not only payments made, but to pay other sums as they may become due on the purchase money. If the sale- may be canceled by the vendor on account of a disability to contract, that same disability should entitle the vendee, whose money and title to the land are at stake, to cancel the deed. The law of self-protection, self-preservation, should intervene in his behalf.

We have been unable to discover much authority ; the Virginia case hereinbefore cited being more in point than any. brought to our attention. That case, Bailey v. James, 11 Grat. (52 Va.) 468, 62 Am. Dec. 659, however, sustains the ruling of this court, as is indicated in the following quotation therefrom: “But in regard to Gillispie, though there was no covenant or warranty as to the title of the thing contracted to be sold, there was an implied undertaking on the part of the appellee that the contract of Gillispie was what it purported to be, a contract by a party who was competent to enter into and bind himself by such contract. In this it appears he was mistaken. Gillispie has succeeded, by the decree of the court, in vacating and annulling the contract upon the ground of infancy; and the appellant thereby loses the life interest of said Gillispie in the subject for which he contracted to pay the appellee the sum of three hundred dollars: For this cause he would have been entitled to call for a rescission of the contract. * * * But the mutual error of the parties, in the substance of the thing contracted for, was a good ground for rescinding the contract; and if the appellant had sought such rescission when the knowledge of the 'mistake was first ácquired, or consented to it when the appellee filed his bill for that purpose so soon after the sale, the parties could have been placed in statu quo, without injury to either.” The ruling is founded on the rules of good conscience and the highest equitable principles.

The parties to such a contract are treated as having equal rights to a rescission of the contract by Black in his work on Rescission and Cancellation, §§ 206, 254, 427, 529, and 667. In section 206 it is stated:

“At present, we are concerned with the general rule that, as soon as it has been definitely ascertained that one of the parties to a contract is unable or incompetent to carry out his part of the agreement, the other party will be justified in rescinding the agreement.”

In section 254 the authority states:

“In the ease of an insane person — that is, one who is wholly unable from mental derangement to make a binding contract — the law presumes fraud from the relative condition of the parties, the presumption being stronger or weaker according to the position of the parties with respect to each other; and if the other party to the contract had notice or knowledge of the existing insanity, his action in concluding a bargain with the insane person, knowing the disability, constitutes a constructive fraud which authorizes the courts to grant relief, even though there was no actual fraud or undue influence. But if the contracting party had no knowledge of the other’s insanity, and dealt with him in entire innocence and good faith, and if, for this reason, the contract cannot be regarded as absolutely void but as voidable at most, still there remains the fact that an insane person cannot give that intelligent consent without which a valid contract cannot he formed, and hence, in this case also, the contract may he avoided or set aside on equitable terms.- And the doctrine that where one of two innocent persons must suffer, the loss should fall on him who made the condition possible, has no application to cases where it is sought to set aside a deed on the ground of the insanity of the grantor, for an insane person cannot be held responsible- for consequences which he could not understand or prevent.”

In section 427 it is stated:

“When a vendor of land, who has bound himself to convey at a given time or on performance of stipulated conditions, is unable to give a good title to the property when called upon to do so, either because he never held the title or -because he has failed to acquire a title which he expected to acquire or because he has been unable to clear the title' from clouds or hostile claims, the purchaser will be entitled to abandon the contract and refuse to make payment of the price, or, if he has made a partial payment, he will be entitled to rescind the contract and recover back what he has given. And in the absence of an explicit agreement on the point, the vendor is bound to tender a good and marketable title within a reasonable time, and on his failure to do so the vendee is entitled to rescind. Nor is a total want of title in the vendor necessary to the application of this rule, for if there are-material defects in the title which he holds, of which the vendee had no notice at the time of contracting, and which the vendor has failed to. cure before the time for delivering a deed, this also will justify the purchaser in demanding a rescission of the contract. And it is to be noted that the vendee’s right to rescind in this case is entirely independent of any fraud, concealment, or false representations on the -part of the vendor. Failure of title is ground for rescission even-though there was no frahd whatever and both parties believed the vendor to hold a good title, to the property. But this is only in the case of an executory contract.”

It will be noted that no such doctrine is promulgated that, while the insane person may obtain equitable relief, the sane vendee, without notice of the insanity of the vendor, can obtain no relief. Such doctrine is monstrous and utterly untenable. The evidence as to the sanity of Mrs. Kleiman at the time and subsequent to the execution of the deed should have been heard, and proof made of such insanity. If her condition was unknown to appellant at the time the deed was executed, he is entitled to a rescission of the contract and a judgment for payments already made by him on the land.

The judgment is reversed, and the cause remanded.