author: BLAIR, J.

text:
    HUMBLE OIL & REFINING CO. v. JEFFREY et al.
    No. 7572.

    Court of Civil Appeals of Texas. Austin.
    April 1, 1931.
    Rehearing Denied April 15, 1931.
    Webb & Eelts and Edwin G. Moorhead, all of Austin, and R. E. Seagler, of Houston, for appellant.
    Page & Powell and Maynard & Maynard, all of Bastrop, and Black & Graves, of Austin, for appellees.
   BLAIR, J.

Appellant, Humble Oil & Refining Company, sued appellees, Wm. E. Jeffrey, T. A. Tiller, Dave G. Tiller, M. C. Kelley, Burt Brydson, Rastus Johnson, Helen Trulove, and C. W. Robinson, in trespass to try title to seven-eighths of the oil, gas, and other minerals in 32.23 acres of land in Bastrop county. Wash Eranklin, deceased, was the agreed common source of title, and appellant claimed seven-eighths of the minerals under an ordinary 88 form oil and gas lease executed to it by Rebecca Eranklin, the alleged common-law wife of Wash Eranklin, and their children, Helen, Emzie, and Wayman Franklin, and Savannah White, joined by her husband, Tom White, and Lee A. Duke also signed the lease, which was dated April 16, 1929. Appellee Jeffrey answered by a general denial, a plea of not guilty, pleas of the three and five year statutes of limitation, pleas of res ad judicata and estoppel by a certain judgment rendered July 16, 1929, by the district court of Bastrop county, against Rebecca Eranklin and her above-named children, in favor of Burt Brydson, Jeffrey’s predecessor in title, for the fee-simple title to the land in controversy; and by an alternative plea that, after Brydson obtained the entire interests of Rebecca Franklin and her children, appellant’s lease terminated by its own terms for failure to pay the annual rental to Brydson, or to his successors in title. Jeffrey also filed a cross-action against his co-defendant Johnson. Brydson and Johnson did not answer. The remaining appellees, who purchased mineral royalties in the land in controversy, disclaimed as to the seven-eighths interest sued for by appellant, alleging that they were only nonparticipating mineral royalty owners under any mineral lease theretofore or thereafter executed on the premises. Appellant replied by supplemental petition that Jeffrey had by certain acts and pleadings ratified its lease and was estopped to deny the validity of the same.

At the conclusion of appellant’s testimony, both parties requested an instructed verdict. The court instructed a verdict for appellees, except Johnson, against whom Jeffrey recovered on his cross-action, upon their motion that appellant failed to show superior title, in that the evidence failed to establish the common-law marriage between Wash and Rebecca Franklin as a matter of law.

In the main, appellant contends that its evidence established as a matter of law both the common-law marriage between Wash and Rebecca Franklin and its plea that appellee Jeffrey had ratified its lease from said Rebecca Franklin and her children. In this connection, and with respect to the common-law marriage, appellant contends that same was conclusively established when the testimony of Rebecca Franklin, which the trial court excluded as being in violation of article 3716, inhibiting her, a statutory incompetent witness, from testifying as to transactions with or statements by her deceased common law husband, is considered with the other evidence adduced. In the alternative, appellant, contends that, if such common-law marriage or its plea of ratification were not established as a matter of law, then such issues were for the jury under the evidence.

If she had been permitted to have done so, Rebecca Franklin would have testified, in substance, as follows: That about the year 1891 or 1892 she and Wash Franklin became engaged to marry; and that at the time of the engagement Wash Franklin was requested by her to talk to her parents about their marriage ; that Wash Franklin did talk to her. parents about their marriage, and immediately thereafter told her that her parents consented to the marriage; that about that time the question of the time of marriage came up and the question of getting a marriage license came up between them, and that Wash Franklin told her that it was not necessary to have a license to get married, and took a Bible and read to her from the scriptures to the effect that “whatever God has joined together, let no man put asunder,” and that, on account of Wash Franklin’s insistence that they needed no license to get married, she consented to become his wife without a ceremonial marriage, and that they immediately began cohabiting and openly living together as husband and wife; that she lived with him, kept house for him, cooked for him, worked on the farm, and bore seven children, and that Wash Franklin was the father of each and all of said children; that they continued in that relation for fourteen or fifteen years; that three of said children died in infancy ; that she left Wash Franklin after about fourteen or fifteen years and lived at other places and apart from him; that Wash Franklin, during the time they lived together, recognized her as his wife, and she recognized him as her husband, and he always recognized as his own the childreii bom to them, the four living children being named Savannah Franklin, now Savannah White, wife of Tom White, Emzie Franklin, Way-man Franklin, and Helen Franklin, all' of age; that the children who died were buried and the funeral expenses paid by Wash Franklin; that during the time she lived with Wash Franklin their children also lived with them, and Wash Franklin supplied all the food and clothing for her and her children; that during Wash Franklin’s last illness he sent for her 'and her children, and that she and some of the children went down there and stayed with him for some time during said illness, one child, Emzie Franklin, remaining with him continuously until his death; that two or three days before his death she was compelled to return to Williamson county, where she was then living, to see about her child, Helen Franklin, who was in school, and that Wash Franklin died before she returned; that she attended his funeral; and that, when Wash Franklin was on his deathbed, he made a statement in her presence, and in the presence of Emzie Franklin, that after his death he wanted his children to each have 100 acres of his land and $1,000 apiece; that Wash Franklin had no children other than those born to her; and that she had no other children.

The trial court erred in excluding this testimony. The provisions of article 3716, under which the testimony was excluded, have no application under the undisputed facts, which show that Rebecca Franklin and her children of the common-law marriage had in g,ood faith parted with all their right, title, and interest in the land in controversy prior to the institution of this suit, and that they were not parties to, nor had any real interest in, the subject-matter of this suit. Under such facts, the admissibility of this testimony is no longer an open question. Stevens v. Masterson, 90 Tex. 417, 39 S. W. 292, 299, 921; Parker v. Cockrell (Tex. Giv. App.) 31 S. W. 221; Ferguson v. Coleman (Tex. Ciy. App.) 208 S. W. 671; Parker v. Nusbaumer, 21 Tex. Ciy. App. 180, 50 S. W. 640; Martinez v. Bruni (Tex. Civ. App.) 216 S. W. 655; Cox v. McClave (Tex. Civ. App.) 22 S. W.(2d) 961; Lassiter v. Bouche (Tex. Com. App.) 14 S.W.(2d) 808; Texas Law Review, Vol. 5, No. 2, pp. 156, 157; Newton v. Newton, 77 Tex. 508, 14 S. W. 157; Roberts v. Yarboro, 41 Tex. 449; Markham v. Carothers, 47 Tex. 25; Tyson v. Britton, 6 Tex. 224; Leahy v. Timon, 110 Tex. 73, 215 S. W. 951; Osborn’s Adm’x v. Cummings, 4 Tex. 12.

The above conclusion is also applicable to the excluded testimony of Savannah White, a daughter of Wash Franklin, deceased.

The parties to this marriage were uneducated negroes. The other witnesses were likewise uneducated negroes, and, while their evidence may not be entirely explicit, it in substance" showed that AVash and Rebecca Franklin lived together “off and on” for about fifteen years; that during that time they recognized each other as husband and wife, and bore the reputation in the community as husband and wife, doing those things ordinarily done by husband and wife; that either six or seven children were born to them while'they were so living together; and that Wash Franklin recognized the children as his own, cared for them in sickness, clothed and fed them, and tried to educate the girl children by sending them away to school. The children all bore the Franklin name. The living children were all over twenty-one years of age at the time of this trial, and some of them testified that their father and mother lived together, slept together, and conducted themselves as husband and wife until they separated some ten or twelve years prior to Wash’s death; that during his last illness Wash sent for all of his children and his wife, and that they all visited him and attended his funeral.

While we cannot say that the preceding evidence established as a matter of law the common-law marriage in question, because the credibility of the witnesses was a matter for the jury, still it would have abundantly supported the jui*y’s finding of such common-law marriage, and the trial court erred in taking the .ease from the -jury. As the first act looking to marriage, the evidence showed at least an implied, if not an express, agreement between Wash and. Rebecca to take each other for husband and -wife thenceforth and forever; that is, they became engaged to be married. Wash sought and obtained' the consent of Rebecca’s parents to the marriage, and, after Wash convinced her that a marriage license was not necessary, Rebecca, “consented to become his wife without a ceremonial -marriage.” As the second act looking to marriage, this agreement was immediately followed by cohabitation of the parties, which means, 'as applied to common-law marriages, and to this case, living together, claiming to be married, in the relationship of husband and wife, doing those things ordinarily done by husband and wife, for a period of about fifteen years; and that while so living together as husband and wife there were born to them six or seven children, who were recognized and cared for by them as the children of that union. When an agreement, either express or implied, to marry is shown, and it is immediately followed by cohabitation as that term is above defined, the law is disposed to raise presumptions in favor of the legality of the relationship of the parties, of the marriage for all purposes, and of the legitimacy of the children born and recognized by the parties during the relationship. The .evidence detailed established every essential element of a common-law marriage under the rules announced by the following decisions on the subject: Edelstein v. Brown, 100 Tex. 403, 100 S. W. 129, 123 Am. St. Rep. 816; Brooks v. Hancock (Tex. Civ. App.) 250 S. W. 296; Clover v. Clover (Tex. Civ. App.) 247 S. W. 300; Simmons v. Simmons (Tex. Civ. App.) 39 S. W. 639; 3 R. C. L. § 5, page 725; Orthwein v. Thomas, 127 Ill. 554, 21 N. E. 430, 4 L. R. A. 434, 11 Am. St. Rep. 159; Grigsby v. Reib, 105 Tex. 597, 153 S. W. 1124, L. R. A. 1915E, 1, Ann. Cas. 1915C, 1011; Berger v. Kirby, 105 Tex. 611, 153 S. W. 1130, 51 L. R. A. (N. S.) 182; Schwingle v. Keifer, 105 Tex. 609, 153 S. W. 1132; Bridgewater v. Hooks (Tex. Civ. App.) 159 S. W. 1004; Grice v. Express Co. (Tex. Civ. App.) 248 S. W. 82; Burnett v. Burnett (Tex. Civ. App.) 83 S. W. 238; Joske v. Irvine, 91 Tex. 574, 44 S. W. 1059; Frazier v. Hanlon Gasoline Co. (Tex. Civ. App.) 29 S.W.(2d) 461; Clutter v. Wisconsin Texas Oil CO. (Tex. Civ. App.) 233 S. W. 322; Henderson v. Burkholder (Tex. Civ. App.) 29 S.W.(2d) 937; Speer on Marital Rights (3d Ed.) p. 37.

The question of whether appellee Jeffrey ratified appellant’s mineral lease from Rebecca Franklin and her children was also one for the jury under the pleadings and the evidence adduced. Appellant’s lease was of record before Rebecca Franklin and her children filed the trespass to try title suit against Burt Brydson. Appellant was not made a party to that suit. Brydson therefore recovered only such interest as the Franklins had as against appellant. Jeffrey purchased Bryd-son’s interest with knowledge both actual and constructive of appellant’s le'ase, and thereafter, in September and October, 1929, sold mineral royalties to some of the appellees, the mineral deeds in each instance providing that: “It is distinctly understood and herein stipulated that said land'is under an oil and gas lease made by grantor, providing .for a royalty of ⅛ of the oil, and certain royalties or rentals for gas and other minerals; and that grantee herein shall receive one-eighth' of the royalties and rentals -provided for in said lease, but he shall have no part of the annual rentals paid to keep said lease in force until drilling is begun.”

Jeffrey instructed ' the scriveners of these royalty deeds what to state in and to convey by them. He knew at the time these royalty deeds were executed that the only mineral lease on the land in controversy was that of appellant. Jeffrey was called -as a witness for appellant to the preceding facts. On cross-examination by his own attorney, he testified in substance, over the objection that the testimony contradicted the terms of his royalty deeds, that he did not tell the attorneys who prepared these royalty deeds “that this land was subject to an oil and gas lease.” Jeffrey was also permitted to testify, over the, objection that the testimony called for a conclusion of fact as well as of law on the part of the witness, as follows: “I did not consider the lease of the Humble Oil & Refining Company as a valid lease.” Clearly these objections should have been sustained. However, if this testimony had been excluded, still Jeffrey’s testimony was sufficient to raise the jury question as to whether he intended to ratify appellant’s lease by the execution of these royalty deeds; especially is this true in view of the fact that the royalty deeds made no specific mention of appellant’s lease, nor any reference to the book and page where same was recorded, and in view of the further fact that the royalty interests conveyed by these deeds vested under any mineral lease theretofore or thereafter executed on the land. It is settled law that ratification involves the intention to ratify. Texas & Pac. Coal & Oil Co. v. Hartley (Tex. Civ. App.) 288 S. W. 619 (writ refused); 2 Pomeroy’s Equity Jurisprudence (4th Ed.) § 964, p. 2089. But the preceding evidence on the issue of ratification would have fully supported a jury finding of ratification, and the issue was therefore for the jury.

Appellant also contends-that, since Jeffrey’s claim of title is -through the judgment in favor of Brydson against the Franklins, the identical parties who executed the oil and gas lease to appellant, and since Jeffrey pleaded that appellant’s lease had terminated by its own terms for failure to pay the annual rental, he thereby ratified the lease. If Jeffrey obtained through that judgment a-11 the remaining interest the Franklins had in the land subject to appellant’s lease, which is not denied by appellant, then, of course, Jeffrey could assert any condition of defea-sance which the Franklins could have asserted under the terms of the lease. <

We do not sustain appellant’s contention that Jeffrey’s claim of title through Brydson’s judgment against the Franklins is inconsistent with the claim of title asserted by his pleadings. Appellee Jeffrey contends in his brief that he did not plead- that judgment as his source of title, but merely pleaded it in estoppel of appellant’s claim that it had purchased the oil and gas lease as an innocent purchaser -and for value. Whatever merit this defense may have is not material hero, since no proof was offered in support of it. Nor do we sustain appellant’s further contentions in this connection that the effect of Jeffrey’s pleadings was to blow hot and cold' with regard to the validity of its lease; that is, that Jeffrey could not sell mineral royalties with reference to the lease and then answer in bar of this suit that the lease had terminated by its own terms for failure of appellant to pay the annua-l rental. The plea that the lease terminated for failure to pay rental was an alternative plea, and not applicable except upon condition that appellant established the validity and superiority of its lease. If appellant established its lease, then appellee Jeffrey, as the successor to the fee-simple title of the Franklins, could assert any condition the Franklins could have asserted as terminating the lease. This discussion, however, has reference only to the contentions of appellant that appellee Jeffrey ratified its lease and that Jeffrey pleaded inconsistent defenses; and not to the merits of the plea that the lease terminated for failure of appellant to pay the annual rental, because tbe agreed facts show that appellant paid the rental as provided for in the lease, and that defense need not be tried or Submitted on another trial of the case.

Nor is there any warrant for the contention of appellant that appellee Jeffrey only claimed title through the judgment in favor of Brydson against the Franklins, the identical parties who executed the oil and gas lease to appellant. Appellee Jeffrey expressly pleaded that he deraigned his title through Burt Brydson and George and Margaret Has-well from Wash Franklin, the agreed common source of title.

Nor do we sustain appellant’s proposition relative to the refusal of the trial court to hear certain proffered testimony for the purpose of showing, or tending to show, that this suit was not barred by tbe Brydson judgment against tbe Franklins. Such was a defensive matter, and, until appellee offered proof in support of tbe allegation, it was not necessary to appellant’s cause of action.

We pretermit further discussion of the pleadings and evidence as presented by this appeal, and the judgment of the trial court as regards the Humble Oil & Refining Company is reversed, and the cause remanded for another trial.

Reversed and remanded.


source: Caselaw Access Project

author: GRAVES, J. PER CURIAM. PLEASANTS, C. J.

license: Public Domain

text:
    GREER v. THAMAN et al.
    No. 9347.
    Court of Civil Appeals of Texas. Galveston.
    May 2, 1930.
    Rehearing Denied March 19, 1931.
    Dissenting Opinion April 8, 1931.
    King, Wood & Morrow and W. States Jacobs, Jr., all of Houston, for appellant.
    Robt. L. Sonfield, of Houston, for appellees.
   GRAVES, J.

Appellant -assails a $4,604.85 judgment for personal injuries in favor of appellee — $604.85 of it for medical attention, hospital bills, and nurse hire, the balance for other damages — - rendered against him on a verdict in response to special issues finding there was negligence on his part that proximately caused one of his autobusses operating as a common carrier for hire between the cities of Houston and Goose Greek, on which the appellee was a fare-paying passenger, to turn over with her into a ditch, in two respects: (1) That he had failed to have the bus equipped with an adequate and sufficient wiper to keep the windshield clear for vision; (2) that the driver of the bus failed to keep a‘proper lookout to observe the condition of the road ahead of him.

The $604.85 allowance as expenses for medical attention, hospital bills, and nurse hire is protested against on the ground that appellee’s pleadings failed to allege that such expenditures were reasonable or necessary, while the remaining $4,000 is challenged as being so grossly excessive in amount as to show; that it is the result of bias, prejudice, or some other improper motive.

Both points must be overruled.

The pleadings as to the first of these -sums was as follows:'

“That because of said injuries, and as the direct and proximate result of said accident, said plaintiffs have been forced to expend and incur large bills for medicines, medical and surgical services and attention, hospitalization, nurse hire, hired help, and X-ray examination, as follows: (Specifying many items, aggregating $914.55.)
“That plaintiffs will have to spend and incur in the future large sums of money for medicines, medical and surgical services and attention, hospital, nurse hire and hired help around their home, in the probable and reasonable sum of Three Thousand ($3000.00) Dollars, which said sum will be a reasonable, proper and necessary charge for such services, attention and help as she will be required to have in the future.”

No special exception pointing out the lack of averment of the reasonableness thereof was directed against any of the amounts so specified; in such circumstances, the pleading has been held sufficient. Dickey v. Jackson (Tex. Civ. App.) 293 S. W. 584, and Id. (Tex. Com. App.) 1 S.W.(2d) 577.

The size alone of the other $4,000 award is said to indicate that some improper motive must have induced it, no misconduct nor prejudice-producing influence of any sort from any source being alleged; when the evidence reflecting the nature and extent of the injuries Mrs. Thaman received from the accident is looked to, no shock to the appellate conscience follows the ascertainment that such a sum was regarded by a jury of her peers in the proper exercise of their exclusive province as only reasonable compensation for them; without detailing the testimony, it is enough to record that the jury were fully justified in finding that they necessitated her undergoing a serious internal ' operation with subsequent confinement of six weeks, entailing much pain before and after, and causing an abnormal nervousness that persisted for more than one year up to the time of this trial.

The heart of the appeal, we think, is found in the next two very ably presented contentions that the trial court erred, (1) in refusing to submit to the jury as an issue of fact whether or not Mrs. Thaman’s injuries were the result of an unavoidable accident, together with a suggested explanation of the meaning of that term, (2) in declining to add to its definition of proximate cause a further and specific explanation of the legal meaning of the expression “new and independent cause” therein contained.

Not without some hesitation, this position, too, is held untenable; in so determining it we pretermit consideration of whether appellant’s appended definitions of “unavoidable accident” and “new and independent cause” to his requests to put these matters before the jury were correct in form, since they were at least sufficient direction of the court’s attention to them.

Under the undisputed evidence, much of it on this phase from the driver of the bus himself, we conclude that the issue of unavoidable accident was not raised; the meaning and application of that term in Texas has been thus stated by the Commission of Appeals:

“ ‘An accident, is inevitable if the person by whom it occurs neither has nor is legally bound to have sufficient power to avoid it or prevent its injuring another. ⅜ * * But in order to provethat an accident was inevitable it is not always enough to show that, under the circumstances existing at tile time, it could not- have been then avoided. It must also be the fact that the defendant was not guilty of any negligence which brought about any of those circumstances.’
“The proper application of the term is explained in 20 R. C. L. p. 20, as follows:
“ ‘If the injury resulting from the act could have been foreseen by a prudent person, the perpetrator will be held accountable therefor; the ease is not one of accident. And conversely, if the injury could not have been foreseen, it is to be attributed, not to the actor, but to accident. Accident, then, is an occurrence that could not have been foreseen.’ ” Boyles v. McClure (Tex. Com. App.) 243 S. W. 1080, at page 1084.

There was sufficient support for the jury’s finding of appellant’s negligence in both the particulars above specified — the first of these being likewise found to have constituted a, the second the, proximate cause of “the accident and injuries” — and there is no claim to the contrary!

The mishap occurred on a dark rainy night on the way from Houston to Goose Creek at a place where the road, which was shell, while narrow had a sufficient clearance for two cars, but was fringed on its right side with a strip of wet soft dirt lying between it and a ditch of from three to five feet in depth; while being run in a manner the jury so found was negligent in that the windshield was not being kept clear for vision and tES driver was not keeping' a proper lookout as to the condition of the road ahead, the bus, without stopping, turned too far to the right, ran off the road on that side, struck this soft ground, and skidded into the ditch, rolling over upon its side.

Such being the situation under the jury’s unattacked findings to which it must be applied, the sole circumstance out of which appellant claims the issue of unavoidable accident arose was the testimony of three witnesses, one of them the driver of the bus, to the effect that, just before this occurrence, a car from the opposite direction rounded a curve in the road ahead at a pretty fast rate of speed, and, with its bright lights shining in the driver’s face, approached this bus; that the bus was then running on the right side of the road at from twenty to twenty-five miles per hour, whereupon it began slowing down, pulled off the road too far to the right, and slid into the ditch; what are deemed the material portions of the driver’s statement, as to which there is nothing contra from the others, are these:

“I didn’t have any trouble at all until I got over here and met this car coming around a curve. I was on a straight road driving slowly and the car came around the curve at'about sixty miles an hour, and the lights on it very bright, and when those lights got in my face I was in the dark and I slowed down, mighty near to a stand-still, and I missed the road and got off on the edge of the road a little too far and the bus slipped off this bank of about a three foot ditch and laid over on its side. * * * I know the road to Baytown as well as anybody that goes down there. * * *
“When these lights came around in my face, as I have testified, I wasn’t g©ing very fast then before I started to go slow, as I said I did; I suppose I was going about twenty miles an hour, as near as I can figure it, and I had 200 or 100 yards or more to slow up. When the light started around that curve I slowed up, and when he made this turn it came in my face and I was just about slowed up; and as a matter of fact if I had stayed to the left I wouldn’t have gone in the ditch. It was a narrow road there at that time. They have built a new road since then. At that time it was barely wide enough for two cars to go through. '* * *
“I did see that car going sixty miles an hour when it started around this curve. There is curve enough there not to throw a light in your face until it gets around the curve; you don’t see the car until it gets to that curve; you can’t see it in that hollow. There was enough curve there to keep you from seeing it until it started around. I figured it was the best thing for me to do, slow down. * * *
“About twenty miles an hour is about the best I could have driven on this particular night, when I commenced slowing up; and I was then on the eve of stopping when I slipped in this ditch.”

This testimony presents nothing more than ■ the legal equivalent of the state of facts held in the McClure Case, supra, not to have raised an issue of unavoidable accident; just as appeared in that case, there was in this instance, not only no unknown or unexplained cause — that being excluded by the claim that the sudden appearance of the on-coming lights alone constituted'the accident contended for —but that agency could not possibly have so superseded the bus driver’s original negligence as to itself become the sole proximate cause of the injury, since it was admittedly not of such character that he could pot have foreseen or anticipated its happening, nor could it have broken the chain of sequence so found to be still persisting between that negligence and the result of the spill; in other words, whatever its disconcerting influence, under his own testimony it was wholly subjective, reflecting only a state of mind on his part, not any real outside danger, hence simply contributed the necessary condition for making injuriously effective the prior failure to properly equip the windshield and observe' the road, thereby at most constituting merely a concurrent and contributing cause along with those culpable acts; its presence therefore could not have exculpated them. Boyles v. McClure, supra, and authorities there cited.

This net result of what transpired is made entirely clear from the driver’s admission, “as a matter of fact if I had stayed to the left I wouldn’t have gone in the ditch” — that is, what amounts to the same thing, if he had either stopped along or continued pursuing the course he was going before turning out of the road to the right, the approaching car would have passed him unscathed; he further admitted knowing the road “as well as anybody that goes down there” — knew all the other conditions, including the rainy weather, so not only could but should have anticipated such a development; that he in fact did so is shown by his choosing to keep going when the lights appeared.

On like or kindred considerations and authorities, no prejudicial error was involved, we think, in the declination to add the requested explanation as to the meaning of “new and independent cause”; under what has just been given as the undisputed facts obtaining, there could have been no-such ground of defense in issue in the case, notwithstanding the trial court's use of those words in its definition of proximate cause, which appears to have been incidental only; neither can we agree with appellant’s counsel in so construing R. S. article 2189 as to make it require a proper definition of the legal meaning of that expression after being so employed, regardless of whether or not the evidence raised any such issue; it seems to us to only enjoin upon the trial court such a definition of any legal terms employed as is essential'to a proper understanding by the jury of the particular special issue submitted to them — not to require vel non a definition, when the term it explained, however fixed its significance in law may have become, constitutes mere verbiage or recitation in the charge and relates to something neither submitted nor requested to be, which the evidence in the case at hand fails to make a material issue of fact out of; the explanation and definition of a legal term that so amounts to nothing but a detached abstraction could not rehsonably be considered necessary to enable the jury to properly pass upon concrete questions of fact arising out of evidence before them in response to specific inquiries.

Such’ was this situation; while appellant’s brief suggests that the foregoing testimony of the three witnesses in reference to the sudden appearance of the bright lights from the approaching automobile would have justified a finding that it constituted a new and independent cause of the ensuing injury, no issue of that sort was either submitted or requested, the case presented to the jury being simply one of whether or not the appellant as a carrier had — directly or through his agent, the bus driver — exercised that degree of care the law required for the safety of the appellee, his passenger; • in order to guide them in properly determining that question, the court gave this explanation and definition of “proximate cause,” as applicable to the negligence alleged:

“Proximate cause of an injury, as the term is used in this charge, in its legal signification is a cause which in a natural and continuous sequence unbroken by any new and independent cause, produces an event, and without which the event would not have occurred.
“But in order to warrant a finding that negligence is a proximate cause of an injury, it must appear from the evidence that the injury was a natural and probable consequence of the negligence and ought to have been foreseen as likely to occur by a person of ordinary prudence in the light of attending circumstances.”

Appellant’s refused definition of the language “new and independent cause” thus appearing, which is the sole matter here complained of, was as follows: “In this case you are instructed that by the expression ‘new and independent cause’ contained in the court’s main charge, is meant an act or event disconnected from and independent of the original cause and which intervenes and produces the result and without the intervention of which the original causé would have been ineffectual to have produced the result complained of.”

Unless our view that article 2189 only requires such an explanation of those legal terms materially involved in the cause as is necessary to the proper rendition of a verdict on issues the evidence raises is erroneous, plainly the proposed definition was correctly refused, the only claimed foundation of fact for it being the same thing that was offered as raising an issue of unavoidable accident, that the lights of the other car furnished the new and intervening cause so sought to be defined; under the undisputed facts about and the authorities ruling it, already commented upon, that matter could not have involved any such effect, for the reasons before given, Boyles v. McClure, supra, Shippers, etc., Co. v. Davidson, 35 Tex. Civ. App. 558, 80 S. W. 1032 (writ refused) ; the further injection of the expression to which it was exclusively referable by detailed definition, therefore, could have led nowhere, unless perhaps to the confusion of the jury.

Complaints at the refusal of a number of requested special issues relating to alleged contributory negligence on the appellee’s part, and the admission of an answer from Dr. Denman to a question as to whether a medical book made a certain statement, are overruled without detailed discussion; eight special issues were given by the court touching this claim of contributory negligence, which seem to us to have fairly presented the issue raised thereon under the pleadings and evidence.

If there are other properly presented contentions not in effect disposed of by what has been said, they are overruled, since we conclude from the record as a whole that no prejudicial error has been pointed out.

Pursuant to these conclusions, the trial court’s judgment has been affirmed. '

Affirmed.

On Motion for Rehearing.

PER CURIAM.

Rehearing denied.

PLEASANTS, C. J.

(dissenting).

When we originally decided this case and our original opinion was prepared I entertained grave doubts of the-' soundness of our conclusions. Upon further consideration of the questions on motion for rehearing I have reached the conclusion that appellant’s contentions that under the evidence shown by the record the issue of unavoidable accident should have been submitted to the jury, and that the charge of the court should have defined the meaning of the term “new and independent cause” used in the charge, should be sustained. As shown in our original opinion the only negligence found by the jury was the failure of appellant to have his bus equipped with a sufficient wiper to keep the windshield clear for vision, and the failure of the driver of the bus to keep a proper lookout to observe the condition of the roadway. Each of these acts of negligence was found by the jury to be the proximate cause of plaintiff’s injuries.

The only evidence as to the direct cause of the accident was the following: The plaintiff testified: “Coming now to the place where the accident occurred: He was driving thirty-five miles an hour; it was on a bad night and the windshield was dark and cloudy and he really couldn’t see very wen, and lie just ran off tlie road — the bus ran off the road, the right hand side of the road, running into a ditch about four or five feet deep.”'

The bus driver explained the causes that hroughi; about the mishap as follows: “I was on a straight road driving slowly and the car came around the curve at about sixty miles an hour, and the lights on it were very bright, and when those lights got in my face I was in t,he dark and I slowed down, • mighty near to a standstill, and I missed the road and got off on the edge of the road a little t;oo far and the bus slipped off this bank of about a three foot ditch and laid over on its side.”

Miss McCoy, who was riding on the front seat of the bus, testified with reference to the .driver’s action as the approaching car rounded the turn, as follows* * ⅜ And he said, T can’t drive against those cars, those lights; I am going to pull up and stop for those cars to go by.’ So he shifted the gears and pulled up on the side of the road and the bus didn’t turn over with a jolt but just slipped over; it just eased over.”

Mrs. 'Martin, another passenger on the front seat testified: “When this bus -rolled over in the ditch that night it was just rolling, barely moving; 'it just rolled over on the side in the ditch. » * * Mr. Wright pulled over to the side of the road and stopped, almost came to a standstill on the edge of the road, with the front wheels on the right hand side; the ground gave out from under the right front wheel and that let the car roll when the dirt gave down under that right front wheel, and it rolled and just turned on its side in the ditch.”

John Jjane, who inspected the scene of the accident on the following day and drove the bus back to town, explained the upset in these words: “The dirt gave way under the wheels.”

It will he here noted that there was no finding of the jury that the driver of the bus was negligent in driving at a too rapid rate of speed, and, as before stated, they only found negligence against the driver in his failure to keep a proper lookout.

It is obvious that, if the suddpn appearance around the curve in the road of the approaching automobile with the headlights so glaring as to make it impossible for the driver to see the roadway and keep off its insecure unpaved portion which gave way under the weight of the truck caused it t° slide into the ditch, neither of the acts of negligence found by the jury could have been the proximate cause of plaintiff’s injury. This was an ultimate fact issue in the case as made by the pleadings and evidence and should have been submitted to the jury. The trial court seems to have recognized the propriety, if not the necessity, of submitting this issue by his definition of proximate cause given in his charge to the jury. The definition was technically accurate as applied to the fact issues raised by the evidence, but the legal meaning of the term “new and independent cause” is not presumed to be known and understood by a layman, and this legal meaning should upon the request of the defendant have been properly explained to the jury. This question has been expressly decided in favor of appellant’s contentions in the following cases: Robertson & Mueller v. Holden (Tex. Com. App.) 1 S.W.(2d) 570; Thomas v. Goulette (Tex. Civ. App.) 12 S.W.(2d) 829; Stamper v. Scholtz (Tex. Civ. App.) 17 S.W.(2d) 184; Rio Bravo Oil Co. v. Matthews (Tex. Civ. App.) 20 S.W.(2d) 342; Texas Electric Ry. v. Scott (Tex. Civ. App.) 21 S.W.(2d) 24.

I think the motion for rehearing should be granted, and the judgment reversed, and the cause remanded for retrial.


author: BAUGH, J.

text:
    SCOTT v. CLARK.
    No. 7563.
    Court of Civil Appeals of Texas. Austin.
    March 25, 1931.
    Rehearing Denied April 8, 1931.

      R. G. Hughes, of San Angelo, for appellant.
    Anderson & Jones, of San Angelo, for appellee.
   BAUGH, J.

Suit by appellee against appellant on four cheeks signed by appellant, payable to appel-lee, two drawn on a San Angelo bank, and two on a Sonora bank, all aggregating $225. After appellant’s plea of privilege to be sued in Sutton, county, duly controverted, was overruled, trial was had to a jury on special issues and upon their answers to same judgment entered in favor of appellee; hence this appeal.

No statement of facts accompanies the, record, and error of the trial court in two respects is here asserted .(1) in overruling appellant’s plea of privilege without hearing any evidence thereon; and (2) in not sustaining appellant’s general demurrer to plaintiff’s petition.

The only proceedings on the plea of privilege disclosed by the record are those recited in the bill of exception, approved by the trial court, the pertinent portion of which reads as follows: “That a hearing on the said plea of privilege and said controverting affidavit was postponed from time to time until the 8th day of February, 1930, when plaintiff and defendant and their respective counsel appeared in court for the purpose of conducting said hearing; that upon the matter being called to the courts attention the court stated that he was familiar with the facts surrounding the controversy (having heard same when it was before him, as this was a re-filing of the case previously dismissed) concerning venue of this cause, whereupon no testimony was offered by either, the plaintiff or defendant and the court accordingly overruled defendant’s plea of privilege, to which action of the court the defendant then and there in open court excepted and here now tenders this Bill of Exception No. 1.”

It is now elementary that, upon filing of a plea of privilege in compliance with article 2007, R. S., the defendant is entitled to have the suit transferred in accordance with such plea, unless the plaintiff both plead and prove facts essential to sustain venue in the forum where such suit is filed, and that neither the pleadings nor the controverting affidavit of such plaintiff in themselves constitute such proof. Unless, therefore, the issue of venue had already been precluded against appellant, the trial court erred in not hearing proof on that issue.

The issue of venue when properly raised is one which the trial court must determine separate and apart from a hearing upon the merits; and from his judgment thereon either party may appeal. And when no appeal is prosecuted from his determination thereof, his action thereby becomes res adjudieata on that issue on subsequent proceedings between the parties on the cause of action wherever asserted. Old v. Clark (Tex. Civ. App.) 271 S. W. 183; Cobb Grain Co. v. H. H. Watson Co. (Tex. Civ. App.) 290 S. W. 842; Id. (Tex. Com. App.) 292 S. W. 174; Carter v. Calhoun (Tex. Civ. App.) 6 S.W.(2d) 191.

Appellee insists that, this case being between the same parties upon the same subject as one theretofore filed in the same court, in which the issue of venue was j-aised, the .trial court could take judicial notice of the former hearing therein, and that it was not necessary to hear any evidence on the venue issue. It is true that a court may take judicial notice of his own orders in such case; that is, of any orders entered by him in the premises. Aetna Ins. Co. v. Dancer (Tex. Com. App.) 215 S. W. 962; State v. Hamilton (Mo. Sup.) 240 S. W. 445; 23 C. J. 109 et seq. But in the instant case the court did not, so- far as the bill of exception shows, overrule the plea of privilege either on the grounds that a former determination of that issue had been made by him, or that he had theretofore entered any judgment or order with reference to ⅛ but overruled such plea, in an original hearing thereon, on the ground “that he was already familiar with the facts surrounding the controversy * * * concerning venue of this cause.”, What those facfs were is nowhere disclosed by the record. While the- court may take judicial notice of his records and of orders entered he cannot, as he evidently did in this case, take judicial notice of testimony heard before him on another trial, and enter an independent judgment thereon.' ‘

But we cannot direct a transfer of the cause, under ’ Such circumstances, as prayed for in the plea of privilege. If, upon a former hearing on such issue, the trial court entered a final judgment thereon, it became res adjudieata, and such transfer of the case would not be proper. And the failure to offer evidence on the issue was not the fault of the appellee. Apparently the court prevented the hearing of testimony, through no fault of appellee, and she should not suffer a removal of her case to another county because of his error. Upon another trial hereof, a hearing upon such plea of privilege should be had, unless that issue has already been adjudicated.

In view of another trial, the defects in appellee’s petition can be corrected by amendment. We think, however, that appellant’s complaint lodged against the sufficiency of her petition was good. Appellee alleged that appellant executed and delivered to her the checks in question; that she indorsed same to the bank where she did her banking business, secured the money thereon, and delivered same to appellant; that payment was refused by the banks on which said checks were drawn when presented to them; and that therefore appellant was indebted to her in said sums. Nowhere did she allege that she had ever repaid the money to the bank where she cashed the checks, or that said bank had ever demanded same of her or was holding her liable for the amount of the rejected checks.

Having received the money on the checks, she was not injured, unless she were required by her indorsement thereof to make good the loss suffered by the bank. Her pleadings wholly failed to allege any such liability, and were therefore subject to demurrer. The court having overruled appellant’s demurrer, she was neither required nor given opportunity to amend such defective pleadings, but may do so upon another trial hereof.

For the reasons stated, the judgment of the trial court is reversed, and the cause remanded for another trial.

Reversed and remanded.


text:
    BIBB et al. v. UNDERWOOD et al.
    No. 7562.
    Court of Civil Appeals of Texas. Austin.
    April 1, 1931.

      Smith & Neill, of San Angelo, for appellants.
    Upton & Upton, of San Angelo, for appel-lees.
   BAUGH, J.

Suit by appellee Nora Bibb Underwood, joined by her husband, against appellants in trespass to try title to a one-sixth, interest in 640 acres of land in Schleicher county. Trial was to the court, judgment for plaintiffs, and defendants have appealed.

W. T. Bibb was the common source of title. Pie died and was survived by six children, one of whom was Joseph W. Bibb, deceased, husband of Emma P. Bibb, and father of the other two appellants. Nora Bibb Underwood was another of said children, and acquired by quitclaim deed dated November SO, 1901, but not filed for record until September 19, 1929, all of the interest of her brother W. P. Bibb. She alleged in her petition that the said Joseph W. Bibb, joined by his wife, Emma E. Bibb, had conveyed in 1892 his one-sixth interest in said land by quitclaim deed to their brother, W. P. Bibb, through whom she acquired title, but that said deed was never recorded and had been lost.

The burden rested upon the plaintiff, appellee here, to establish her title by a preponderance of the evidence. An essential link in that title was the conveyance by Joseph W. Bibb and wife to W. P. Bibb, alleged to have been lost. The wife of Joseph W. Bibb denied that she had ever executed such deed. Appellant’s first proposition, which we sustain, is that no sufficient predicate was laid for the admission of secondary evidence in parol of the execution and contents of the deed from Joseph W. Bibb to W. P. Bibb. This deed was alleged to have been executed and delivered in the spring of 1892. All of the parties appear to have lived continuously in the state of Missouri, and it was not shown who had been in possession of the premises nor who had paid the taxes on nor claimed the same. The plaintiff herself did not testify. All the evidence ex-cept the documentary evidence was by deposition. The only testimony as to any search for the lost deed was that of AY.' P. Bibb, grantee, that “that deed is not now in my possession but I did have such a deed. It is lost or misplaced. I have made a thorough search for it and have not been able to find it.”

Obviously this statement was but a conclusion of the witness. He was not a party to the suit nor claimant of the land. He had conveyed his interest to the plaintiff 28 years before, and presumably delivered'to her his title papers along with his own deed, including the unrecorded deed claimed to have been made to him by his brother, now deceased. It was her duty as plaintiff and claimant of the interest which would vest in the defendants, appellants here, if no such deed were in fact executed, before she could offer secondary evidence thereof, to show by competent testimony that diligent search had been made in such places as the deed would most likely be found, and inquiries made of those who would be the proper custodians of it. The efforts of the witness, the nature, character, extent, and places of such search and inquiry, were matters which should have been presented to the court, upon which to determine whether a diligent search had been made, and whether the requirements of the law imposed upon the admission of secondary evidence had been met.

The presumption was that the alleged deed was in possession of the plaintiff, and not in that of AY. P. Bibb, who conveyed the land to her. She is “presumed to have it in possession, and to have knowledge of its existence and preservation, or destruction if it is destroyed.” Magee v. Merriman, 85 Tex. 108, 19 S. W. 1002, 1004. The showing required as a irredicate for the admission of secondary evidence is stated in Vandergriff v. Piercy, 59 Tex. 372, as follows: “It must also be shown that there has been diligent search and inquiry made of the proper person, and in the proper places, for the lost deed. The loss of it must be proved, if possible, by the person in whoso custody it was at the time of the loss, if such person be living, and if dead, application should be made to his representatives, and search made among the documents of the deceased. The declarations merely as to loss, of the person in whose custody it was at the time, will not do; such custodian must be produced or his absence satisfactorily accounted for.”

To the same effect are the following eases: Bounds v. Little, 75 Tex. 316, 12 S. W. 1109; Hill v. Taylor, 77 Tex. 300, 14 S. W. 360; Trimble v. Edwards, 84 Tex. 500, 19 S. W. 772; Smith v. Cavitt, 20 Tex. Civ. App. 558, 50 S. W. 167.

The rule laid down in 10 R. O. L. § 76, p. 918, is: “The proponent must show that lie has in good faith' exhausted, in a reasonable degree, all sources of information and means of discovery which the nature of the case would naturally suggest, and which were accessible to him. If any suspicion hangs over a lost instrument, or that it is designedly withheld, a rigid inquiry should be made into the reasons of its non-production.”

As stated, Mrs. Emma E. Bibb, who was alleged to have joined her husband in the deed herein asserted against her, denied that she had ever executed such a deed and testified that, so far as she knew, her husband had not. The plaintiff did not testify. Though presumably the instrument in question was in her possession, no inquiry was shown to have ever been made of her as to its whereabouts. Nor was any effort shown •to have been made to locate or examine the records of the notary named by the witness as having taken the acknowledgments of the grantors. Under the undisputed facts, therefore, and the rules above announced, we think plaintiff wholly failed to show diligence in searching for the instrument alleged to have been executed and lost, which would authorize the admission of secondary evidence of its execution, delivery, or contents, and' that the trial court erred in considering such evidence. This requires a reversal of the case, and we pretermit a discussion of the sufficiency of the evidence, improperly admitted, to sustain the trial court's findings.

Judgment of the trial court is reversed, and the cause remanded.

Reversed and remanded.


text:
    HOME BEN. ASS’N OF BRAZOS COUNTY v. CATCHINGS.
    No. 7589.
    Court of Civil Appeals of Texas. Austin.
    April 29, 1931.
    Rehearing Denied May 13, 1931.
    Henderson, Kidd, & Henderson, of Cameron, and Henderson & Hoyle, of Bryan, for appellant.
    E. A. Wallace, of Cameron, for appellee.
   BLAIR, J.

As beneficiary, appellee sued appellant on its policy of insurance on the life of her husband, and recovered judgment as prayed; hence this appeal.

Appellant claimed forfeiture of the insurance under terms of the policy for failure to pay prior to the death of insured on December 26, 1929, the annual dues of $2, payable October 1, 1929; and for failure to pay assessments 162 and 163 of $1.10 each within ten days from their call dates, November 5 and 15, 1929, respectively. Appellee pleaded and proved waiver of forfeiture by appellant.

It was shown that on December 5,1929, the insured mailed his check for $2.20 to appellant with notation thereon to credit proceeds in payment of assessments 162 and 163; that contrary to this direction, appellant applied the proceeds in payment of assessments 160 and 161, which its books showed to be unpaid; that appellant did not notify the insured of this action, and made no claim of forfeiture for failure to pay assessments 162 and 163 or the annual dues until long after proof of death of insured had been made on blanks furnished by appellant. That on December 20, 1929, appellant sent insured notice of as'sessment 164, which appellee paid on December 28, 1929, by check, after the death of insured, but within the 10-day grace period. That appellant received and appropriated the proceeds of these checks with full knowledge that its books showed the annual dues of $2. to be unpaid, with full knowledge that its books showed assessments 160 and 161 to be unpaid, and with full knowledge that the 10-day grace period for payment of assessments 162 and 163 had expired, when it received and appropriated the check of December 5, 1929, in payment of assessments 160 and 161; and that with full knowledge of all these nonpayments appellant sent the insured notice on December 20, 1929, that assessment 164 was due on his policy.

Manifestly, appellant could not accept the cheGk bearing notation to credit the proceeds in payment of assessments 162 and 163, and apply same in payment of assessments 160 and 161, without the knowledge or consent of the insured, and then claim forfeiture of the insurance for nonpayment of assessments 162 and 163. Nor could it accept the proceeds of the check even in payment of assessments 162 and 163 as directed and then claim forfeiture for failure to pay these assessments within ten days from their respective call dates. The acceptance of an overdue premium or assessment by an insurance company or mutual benefit association waives the right to forfeit the insurance under the terms of the policy or certificates for nonpayment. And manifestly the unequivocal acts of appellant in accepting the check of December 5, 1929, and the mailing of notice of assessment 164 on December 20. 1929, with full knowledge that the policy was forfeited under its terms for failure to pay the annual dues and certain assessments which its books showed to be unpaid, evidenced the intention on the part of appellant to treat the policy as binding after the dates on which, under its terms, it would be forfeited, and such conduct on the part of appellant amounted to a waiver of any forfeiture provision for such nonpayments. Equitable Life Assur. Soc. v. Ellis, 105 Tex. 526, 147 S. W. 1152, and 152 S. W. 625; Calhoun v. The Maccabees (Tex. Com. App.) 241 S. W. 101; Stone v. Brady Mutual Life Ins. Ass’n (Tex. Civ. App.) 2 S.W.(2d) 538.

But appellant contends that it did not know the insured was dangerously ill and that he continued so until his death, at the time it received the checks and appropriated the proceeds as above detailed; and that without knowledge of these facts it could not be held to have waived forfeiture under the provision of the policy that where forfeiture was for nonpayment of annual dues or assessments, the holder could only reinstate the insurance by furnishing a medical certificate showing good health. The contention is without merit for two reasons: In the first place, the policy was never forfeited, but as was held in the Equitable Life Case, supra, the conduct of appellant in receiving and appropriating the proceeds of the checks, and in continuing to send notices of assessments with full knowledge that it could forfeit the policy or that same was at the time forfeited by its own terms, constituted a “manner of dealing by the insurer with a previous default, evidencing a purpose to maintain the insurance in force even at some breach of its rules and general policy.” The matter of furnishing a medical certificate was merely incident to reinstatement of the insurance, and the conduct which waived the right of forfeiture of the policy on the ground of nonpayment of dues would in like manner waive the incidental matter.

In the second place, if the annual dues and assessments had been paid in time, the fact that the assured was dangerously ill at the time of making payments would not be ground for forfeiture of the policy. The 'Only tenable right appellant had for forfeiture was failure to pay the dues and assess, ments when due under the terms of the policy. The following annotation of the cases under consideration by 5 R. O. L. (Permanent Sup.) p. 3767, § 367, states our views in this regard:

“Quoted in Hinkson v. Kansas City L. Ins. Co., 93 Cr. 473, 183 P. 24.
“The acceptance by a benefit society of a check for dues dated within the month during .which they were payable, but not received by it until the following month, and its return of a receipt with notice where to pay future dues, which are accepted until death, waives a provision in the certificate suspending a member for failure to pay dues within the month when they are due, and providing that he cannot be reinstated unless he is in good health, and recovery may be had thereon, although when the payment was received he had been stricken with his last illness, of which fact the insurer was ignorant. O’Connor v. Knights and Ladies of Security, 178 Iowa, 383, 158 N. W. 761, L. R. A. 1917B, 897.”

We find no error in the trial court’s judgment, and it is affirmed.

Affirmed.

On Motion for Rehearing.

By its motion for a rehearing appellant contends that our decision in this case is in conflict with our decision in the case of Milam County Mutual Life & Accident Ass’n v. Watson, 29 S.W.(2d) 813, and the decision of the Beaumont Court in the case of Kansas City Life Ins. Co. v. Elmore, 226 S. W. 709, 719. This contention is predicated upon the following general language either used or quoted in the Elmore Case: “If there was an acceptance of the payment, but this was after the forfeiture, and such acceptance was made in ignorance of the sickness and death of the insured, there would be no such waiver of the forfeiture as would bind the insurer. * * * A waiver presupposes a full knowledge of a right existing and an intentional surrender or relinquishment of that right.”

In the Watson Case the insured was dead at the time the acts of waiver of forfeiture relied upon were done. There is no analogy between that case and the instant case, where the acts of waiver of forfeiture relied upon were done while the insured was living, but ill.

. The Elmore Case is entirely in accord with our opinion herein, and holds that acceptance by an insurance company of payment of a premium before the expiration of the time for payment may waive the right to forfeit the policy for failure to pay in the manner required, though the insurance company when it accepted the payment was ignorant of the serious illness of the insured. We quote as follows from that decision: “As to the manner of payment before forfeiture, we do not hold that it was essential for the appellant to know of the sickness of the insured. If the acts, conduct, or agreement of the appellant with the bank were such as to induce policy holders or their representatives, in paying the premium, to believe that the appellant would accept a deposit in the bank as payment, it may be the manner of payment, from such acts could be inferred, was waived.’’

The motion is overruled.

Overruled.


author: LANE, J.

text:
    LITTLE v. DICKEY BROS. et al.
    No. 9532.
    Court of Civil Appeals of Texas. Galveston.
    March 6, 1931.
    Rehearing Denied March 26, 1931.
    C. M. Alderson and J. H. Pugh, both of Houston, for appellant. •
    Berry & Berry, of Houston, for appellees Dickey Bros.
    Arterbury & Coolidge, of Houston, for ap-piellee Houston & T. C. R. Co.
   LANE, J.

R. N. Little brought this suit against the Houston & Texas Central Railroad Company and the Waco, Beaumont, Trinity & Sabine Railway Company, and against Clayburn Dickey and Willis Dickey, who were doing business under the name of Dickey Bros.

Plaintiff substantially alleged that he bought a carload of stock hogs, 88 in number, for breeding purposes, from Dickey Bros., at or near Groveton, in Trinity county, Tex., and had them delivered to the Waco, Beaumont, Trinity & Sabine Railway Company at Groveton for shipment from Groveton to Mil-lican in Brazos county, Tex., upon a through bill of lading. He alleged that, at the time he purchased the hogs and at the time they were shipped, they, or some of them, were affected with hog cholera, and that Dickey Bros, had warranted them to be free of such disease. He alleged that a large number of such hogs died, and that, as he had placed them in a pasture with 18 head of hogs formerly owned by him, such hogs took cholera and 17 of them died. He sought recovery against Dickey Bros, and the railway companies for the sum of $625.50, the alleged value of the dead hogs, and $50 medical expenses incurred in doctoring the hogs.

He also alleged, as against the railway companies, that they were negligent in not seeing that the hogs were properly vaccinated by a state live stock inspector before shipping them, and in not attaching a certificate to the bill of lading showing such vaccination.

He also alleged that, if as a fact no cholera existed in the shipment of hogs at the time they were shipped, then he says, as an alternative plea, that the initial carrier, the Waco, Beaumont, Trinity & Sabine Railway Company, loaded the hogs into a car infected with cholera, causing them to become infected with hog cholera.

The Waco, Beaumont, Trinity & S'abine Railway Company answered by general demurrer, general denial, and specially pleaded contributory negligence on the part of the plaintiff.

The .Houston & Texas Central Railroad Company answered by general demurrer, general denial, and specially pleaded that, if plaintiff suffered any damages to the shipment of hogs growing out of any disease they might have had as the result of the failure of defendants to demand a health certificate, then it says that such damages were a direct and proximate result of plaintiff’s own negligence, in that it was his duty to procure, himself, or through his agent, the health certificate and to furnish the same to the initial carrier; that plaintiff failed to perform such duty.

Dickey Bros, answered by general demurrer and general denial.

All the demurrers were overruled by the court. The case was tried before the court without a jury, who, after hearing the evidence and arguments, rendered judgment in favor of all defendants. The plaintiff has appealed.

Upon request therefor the court filed his findings of facts as follows:

“(a) The plaintiff failed to prove by a pre-: ponderance of the evidence that the hogs were infected with hog cholera at the time they were sold to plaintiff at Groveton, Texas.
“(b) The plaintiff failed to prove by a preponderance of the evidence that the hogs were infected with hog cholera at the time they were delivered to the plaintiff at Millican, Texas.
“(e) The plaintiff failed to prove by a preponderance of the evidence that Dickey Brothers expressly warranted to the plaintiff that the hogs were free from cholera at the time they were sold to plaintiff.
“(d) The plaintiff failed to prove by a preponderance of the evidence that the fact that there was no certificate ■ issued by the State Live Stock Inspector attached to the way-bill of the shipment was a proximate cause of the loss to plaintiff.”

The court also found that the plaintiff was the shipper of the hogs, and that as such shipper it was his duty to see that the hogs were vaccinated and to procure and furnish to the carrier a certificate showing such vaccination, and that his failure to so procure and furnish such certificate bars him from any loss which could have resulted from the failure of the carrier to attach such certificate to the waybill.

The court concluded that as a matter of law plaintiff was not upon the evidence entitled to a recovery against any of the defendants.

The assignments of error upon which appellant relies for a reversal are substantially as follows:

1. That the court erred in holding that plaintiff had not sustained by a preponderance of the evidence his allegations that Dickey Bros, had expressly and impliedly warranted that the hogs were sound and healthy and free from cholera, and that there was no hog cholera in the county where the hogs were located, because such holding is contrary to the evidence.

2. That the judgment of the court is contrary to the law, because (1) the court erroneously held that the defendant carriers were not guilty in not obtaining the health certificate provided for by law and in not attaching same to the waybill upon which the hogs were shipped; (2) the court erred in not finding that plaintiff was entitled to recover against Dickey Bros., on an implied warranty that the hogs were fit for breeding purposes; and (3) because the court erred in holding that it was the duty of the shipper, and not that of the carriers, to furnish the health certificate required by law, and in further holding that plaintiff was the shipper of the hogs.

We overrule all of such assignments. It is shown that plaintiff, desiring to purchase hogs for breeding purposes, wrote to one Claude Davis, whom he termed, “My old time friend, who lived at Groveton,” asking him to let him know where he could get some hogs; that in reply Davis informed him that Dickey Bros, had a bunch of hogs to sell; that he went to Groveton, called on Dickey Bros., and went out with Willis Dickey, one of the brothers, and his old friend Claude Davis, to look at the hogs of Dickey Bros., which they had for sale; that he saw about 60 hogs; that they looked all right; . that he and Willis Dickey agreed on a price of IT cents per pound; that the hogs he saw and agreed to pay 11 cents per pound for were not sufficient in number ■ to make a car shipment, so he agreed that Dickey Bros, should get an additional number of hogs to fill out a car shipment, for which he agreed to pay the same price he agreed to pay for the others; that upon such agreement he gave the sellers a cheek for $500 in part payment of the purchase price of the hogs; that he then went home. It is shown that Dickey Bros, got an additional number of hogs, which, added to those seen by plaintiff, made 88 in all; that, when all the hogs were gotten together and ready for shipment, Claude Davis paid Dickey Bros, the balance due on the whole lot by giving them his personal check. It is shown that the $500 given to Dickey Bros, was dated August 2, 1926, and that Claude Davis paid the balance of the purchase-price of the hogs before they were shipped to plaintiff; that the hogs were shipped on August 5, 1926, from Grove-ton over the line of the Waco, Beaumont, Trinity & Sabine Railway Company to Houston, and from thence over the line of the Houston & Texas Central Railway Company to Millican, Tex., arriving there at about noon on August 6, 1926; that Claude Davis hauled the hogs in his truck from Dickey Bros.’ ranch to Groveton, attended to their weighing, and then placed them in the car ready for shipment; that, after the hogs were loaded into the car, Willis Dickey signed the bill of lading as the consignor, which designated plaintiff, R. N. Little, as consignee, and, after Claude Davis had paid Dickey Bros, the balance due on the hogs, he sent plaintiff Little a bill amounting to $174.15, which included the balance paid for the hogs and $15 for his services rendered plaintiff in attending to the weighing of the hogs and thereafter hauling them to and placing them in the car for shipment.

Such showing we think was sufficient to support the court’s finding that the hogs became the property of plaintiff at Groveton, and of course before they were shipped, and that thereafter he-.was the real shipper, and that, being such shipper, it was his duty to see that the health certificate mentioned herein was procured and furnished to the carrier so that it might be attached to the waybill, and that, not having done so, he could not recover as against the carriers any damage which he might have suffered because of the absence of such certificate.

The evidence as to whether Dickey Bros, represented to plaintiff that the hogs were in good health prior to the purchase thereof by plaintiff is conflicting, and we are not prepared to hold that the finding of the court that the evidence did not show by a preponderance that such representations .were made as alleged by the plaintiff was error.

We also think that the finding of the court that it was not shown by a preponderance of the evidence that the hogs at the time they were sold to the plaintiff were afflicted with cholera, or that they had been exposed to cholera, is sustained by the evidence.

Having reached the conclusions above expressed, the judgment is affirmed.

Affirmed.


author: GRAVES, J.

text:
    MITCHELL v. HIGGINBOTHAM-PEARLSTONE HARDWARE CO.
    No. 9556.
    Court of Civil Appeals of Texas. Galveston.
    April 23, 1931.
    Greenwood & Reeves, of Palestine, for appellant.
    J. D. Pickett, of Palestine, for appellee.
   GRAVES, J.

While no written opinion is required of this court under the order of affirmance it has determined must be entered in this cause, in deference to the able counsel for both sides, who have most effectively aided it in reaching a decision by their briefs and arguments, the general grounds of its judgment may be thus indicated; 4

(1) The appellee’s motion to strike out the statement of facts and to dismiss the appeal, taken for consideration with the cause itself, should, if ,for no other reason, be refused, because not filed within the 30 days required by rules 8 and 9 for the Courts of Civil Appeals. ... ⅛⅛-⅞⅞⅛⅜» 1

(2) The undisputed proof on other features, together with the jury’s findings on sufficient evidence in response to the special issues submitted, established a legal estoppel against appellant’s defeating the cause of action declared upon on the ground of minority, in that he must be regarded not only as having at all material times fraudulently held himself out as the owner of the furniture business under such circumstances as to reasonably lead the appellee to then believe him to be sui juris, but also as not having disaffirmed the contract sued on within a reasonable time after having in fact attained his majority. Harseim v. Cohen (Tex. Civ. App.) 25 S. W. 977; Kilgore v. Jordan, 17 Tex. 341; Carpenter v. Pridgen, 40 Tex. 32; Steed v. Petty, 65 Tex. 490; Crayton v. Munger, 9 Tex. 285; Wright v. Doherty, 50 Tex. 41; Bell v. Schwarz, 56 Tex. 357; First State Bank of Oakwood v. Edwards (Tex. Civ. App.) 245 S. W. 478; 31 C. J. p. 1068; Sands v. Curfman (Tex. Civ. App.) 177 S. W. 161; Peck v. Cain, 27 Tex. Civ. App. 38, 63 S. W. 177; Clemmer v. Price, 59 Tex. Civ. App. 84, 125 S. W. 604; Humphreys-Mexia Co. v. Gammon, 113 Tex. 247, 254 S. W. 296, 29 A. L. R. 607.

The judgment of the trial court is affirmed.

Affirmed.


author: HALL, C. J.

text:
    KANSAS CITY, M. & O. RY. CO. OF TEXAS v. FOSTER.
    No. 3586.
    Court of Civil Appeals of Texas. Amarillo.
    April 15, 1931.
    Collins, Jackson & Snodgrass, of San Angelo, L. W. Allred, of Chillicothe, and Terry, Gavin & Mills, of Galveston, for appellant.
    0. Y. Welch, of Quanah; and Fitzgerald & Hatchitt, of Wichita Falls, for appellee.
   HALL, C. J.

The appellee sued the Kansas City, Mexico & Orient Railway Company of Texas, and the Panhandle & Santa Fé Railway Company, jointly to recover damages for personal' injuries, alleging that the defendants had been negligent: (a) In requiring him to handle switch ties without a sufficient number of men to assist him, and (b) in permitting a switch block to be left where he could and did stumble over it in handling such ties. "

The defendants’ answer consisted of a general denial and a special answer that appel-lee was in the employ of the Kansas City, Mexico & Orient Railway Company, and not of the Panhandle & Santa Fé Railway Company. That his injuries were caused by his own negligence in walking backward while handling switch ties and in not exercising proper care to retain his balance and in failing to look where he was walking. That if he was injured it was a result of either an unavoidable accident or the appellee’s own contributory negligence.

The jury answered each of the material issues in favor of the appellee and, in response to issue No. 9, fixed his damages at $1,500.

The court gave this explanation in connection with issue No. 9: “In answering special issue No. 9, you may take into consideration only the nature and extent of the plaintiffs physical impairment, if any, pain anu suffering, if. any, that the plaintiff has sustained in the past, or will sustain in the future if you find that he will sustain pain in the future; the reasonable and necessary . expenses, if any, incurred by him for hospital and doctors bills; his loss of earning capacity, if any, from the time of the accident to this date and if you believe that his injuries will continue in the future and there will be a loss of earning capacity in the future, then you will include such sum . as in your judgment, from the evidence, will compensate him for such future loss of earning capacity, if any.’’’

The appellee alleges that he had been compelled to expend $100 for medicine and professional treatment and does not allege that this expenditure was reasonable or necessary. He makes no allegation whatever with reference to hospital expenses.

The explanation appended by the court to special issue No. 9 was duly excepted to because there was no testimony showing that ap-pellee had paid any hospital bills or was liable in any sum for such bills. The appellee contends that because the court’s explanation contains the words “if any,” preceding the words “incurred by him, for hospital and doctors bills,” the error in submitting items of damages not contained in the pleading and not supported by any testimony or insufficient testimony, the error, if any, is harmless. The presence of the words “if any” does not cure the error. Houston & T. O. Ry. Co. v. Kimbell (Tex. Civ. App.) 43 S. W. 1049, 1051. A charge which submits an issue to the jury which is not supported by the pleading and the evidence is presumed to be harmful, and a reversal of the judgment must follow unless it clearly appears that no prejudice resulted to the losing party by reason thereof.

As said in 3 Tex. Jur. § 884:

“It is for the appellee to show that it was harmless; the presumption of injury will be indulged, it being impossible to demonstrate that the verdict was not based on the erroneous charge where the mode of submitting the issues violated the litigant’s right to have his case tried under properly submitted issues of law. To hold otherwise would, it is said, be to deny to him his right.
“As the Supreme Court has observed: ‘While the appellate court will indulge in the presumption that the verdict and judgment are right, yet, when it is apparent that the charge upon a vital issue is erroneous, it yields to the contrary presumption that the verdict, which might be founded on an erroneous charge, is itself vicious.’
“In such cases mere probabilities may be taken into account, and where it appears to be reasonably doubtful as to whether or not the appellant was prejudiced by the giving of the erroneous charge, the case will be reversed. The same idea has been expressed as follows:
“ ‘Unless it can be said that in all probability the error was primarily harmless, or rendered so by the withdrawal of the comment, a reversal of the judgment will follow.’
“In quoting this statement of the law with approval in a later opinion the_ court said that every reasonable doubt should be resolved in favor of the one erred against.” Citing Lamar v. P. & S. F. Ry. Co. (Tex. Com. App.) 248 S.W. 34.

The fact that the court told the jury to take into consideration hospital fees tended to indicate that there was evidence of that ground of damage which had not been pleaded. Eastern Texas Elec. Co. v. Baker (Tex. Com. App.) 254 S. W. 933.

While the appellants’ witness Charley Childress was upon the stand, the appellee’s counsel, on cross-examination, asked him this question: “Have you ever been in the penitentiary?” and over further objections was asked of what offense he had been convicted. The bill of exception shows that this testimony was objected to because it was immaterial and irrelevant. The objection did not point out wherein it was immaterial or irrelevant and therefore amounts to no objection, but there was a further objection that the testimony was prejudicial and that the best evidence of the fact was not proving same by parol testimony of the witness. The witness admitted that he had been in the penitentiary. We think the last objection should have been sustained. It was not shown that he had been convicted of an offense involving moral turpitude, and in the absence of an admission by him that he had been sent to the penitentiary upon a charge involving moral turpitude, the testimony was inadmissible. We are further of the opinion that the record testimony consisting at least of an indictment charging moral turpitude and a judgment of conviction constituted the best evidence. We do not want to be understood as holding that such record proof is necessary where the witness himself admits his conviction upon a charge involving moral turpitude. There is some conflict in the decisions of this state with reference to the admissibility of such testimony to impeach a witness. The last pronouncement relative thereto is found in Texas & N. O. Ry. Co. v. Parry (Tex. Com. App.) 12 S.W.(2d) 997.

' [6, 7] The rule with reference to the admission of demonstrative evidence in personal injury suits is that where a party complains of injuries to the foot, hand, ear, or other member, it is within the sound discretion of the trial court to permit the jury to inspect the injuries and this rule is extended to include cases of hernia. Chicago, etc., R. Co. v. Clausen, 173 Ill: 100, 50 N. E. 680; Missouri, K. & T. Ry. Co. of Texas v. Moody, 35 Tex. Civ. App. 46, 79 S. W. 856; St. Louis & S. IP. Ry. Co. v. Mathis, 101 Tex. 342, 107 S. W. 530. In the instant case plaintiff complained of hernia as the result of the negligence of the defendants. So we are not prepared to say that the exercise by the court of judicial discretion is error. 22 C. J. 788.

The second special issue submitted to the jury is: “Ho you find from the preponderance of the evidence that while employed by the defendant the plaintiff George A, Foster was directed and required by the foreman of the defendant to assist in moving'switch ties being handled at the time of such injury with the assistance of only one other person?” This was answered affirmatively.

The third special issue is: “Do you find from the preponderance of the evidence that said switch tie could not- be safely handled by two men?” This was answered negatively.

The court then charged:

“If you have answered special issue two or three or either of them yes, then you will proceed to answer the following:
“Special Issue No. 4. Do you find from the preponderance of the evidence that it was negligence on the part of the defendant or its said foreman to require and direct plaintiff to assist in handling the switch ties in the manner in which they were?”

The result of the jury’s finding is that Poster was obeying his foreman in handling the ties with the assistance of only one other person ; that they could be handled by two men, but that it was negligence on the part of the foreman to require the plaintiff to assist in handling them in the manner in which they were being handled.

The jury found that it was negligence on the part of the defendant to permit the switch block to be left where it was at the time of the accident and that such negligence was the proximate, cause of the injury. ■ We think the charge, considered as a whole, cannot .be held to be confusing or the findings so uncertain or contradictory that a judgment could not be based thereon.

Por the reasons stated, the judgment is reversed and the cause remanded.


text:
    WESTERN UNION TELEGRAPH CO. v. GARY.
    No. 9483.
    Court of Civil Appeals of Texas. Galveston.
    March 28, 1931.
    Albert Stone, of Brenham, and Prancis R. Stark, of New York City, for appellant.
   GRAVES, J.

The appellee was awarded $550 damages for the failure of appellant to promptly deliver to him at Hempstead, Tex., a telegram, sent from Huntsville, reading as follows:

“Huntsville, Texas.
“Jesse Gary, Hempstead, Texas.
“Aunt Emma is dead.
“Georgia Ann Butler.”

In answer to special issues submitted to them, the jury found, first, that appellant by the use of ordinary care could have delivered the message to appellee in time for him to have reached Huntsville via the transportation facilities available for the funeral of deceased ; second, that such relation between appellee and the deceased existed that he suffered mental anguish by reason of not receiving notice of her death in time to attend her funeral; and, third, that the appellant did not have any notice of such relationship at the time the message was sent.

An examination of the statement of facts discloses that this third and last-mentioned finding of the jury, if not undisputedly so, was so strongly supported by the evidence as to make it binding upon this court. That being true, the trial court had no alternative than to grant the appellant’s motion for a peremptory instruction in its favor. That having been refused, this court is under the duty of now reversing and rendering the cause against the appellee. That order will be entered.

Reversed and rendered.


author: PLEASANTS, C. J.

text:
    MCCRARY v. COATES.
    No. 9535.
    Court of Civil Appeals of Texas. Galveston.
    March 6, 1931.

      Burgess, Burgess, Chrestman & Brundidge, of Dallas, for appellant.
    Benj. A. Denny and Allan H. Kottwitz, both of Houston, for appellee.
   PLEASANTS, C. J.

'This is a suit by appellee against appellant to recover damages for personal injuries sustained by'him while riding with appellant along one of the streets of the city of Galveston in an automobile owned and operated by appellant, which injuries are alleged to have been caused by the negligence of the appellant.

Appellant, who is and was at the time of the accident a resident of Johnson county, in due time filed and presented a proper plea of privilege to be sued in the county of his residence.

In answer to this plea, appellee filed a controverting affidavit in which he claimed the right to sue appellant in Galveston county on the ground that “plaintiff herein is suing for damages for personal injuries to himself u-ising out of a collision caused by the negligence, carelessness and willfulness of the defendant as shown by plaintiff’s petition filed herein, which is hereby referred to and made a part hereof as though fully copied herein, which occurred, in Galveston County, Texas, and therefore this cause of action will come under article 1995, section 9.”

• The- petition, referred to in this affidavit does not allege that the plaintiff wag injured by the “willfulness” of defendant. The allegations of the petition upon which plaintiff .bases'his cause of action are as follows:

' “Plaintiff represents that on the 29th day ■ of February, 1928, at the special invitation and request of the defendant, J. N. McCrary, plaintiff went automobile riding with said defendant, McCrary, in the.said defendant’s,. McCrary, auto, riding around in the City •of Galveston, and that after riding around . for 'a short while the said defendant, Mc-Crary, drove said automobile along Twenty- . first Street between Avenues H and I; that wh'ile driving sai'd car along said Twenty-first street the said defendant, J. N. McCrary, operated said car without skill, carelessly,, negligently and recklessly at the time and prior to said injury and caused his said automobile to run into another aufe^nobile with such terrific force that this plaintiff was thrown with violence against the wind-shield of said automobile and was knocked unconscious and was injured,” etc.
■ “Plaintiff alleges that said collision and plaintiff’s said injuries were caused by the negligence and carelessness of the defendant by driving said automobile in a careless, reckless and negligent manner and without skill and his failure to stop said automobile before striking the other car. * * ⅜
“Plaintiff alleges that by reason of the gross negligence, carelessness and recklessness and unskillfulness of the defendant as aforesaid he ought to recover the further sum of Five Thousand ($5,000.00) Dollars as exemplary damages.”

On the hearing of the plea, plaintiff, who resides in Harris county, testified:

“On February 29, 1928, I was in' Galveston and had an automobile accident at that time. I was with J. N. McCrary, and he was the cause of the accident. The accident happened in front of the car bam on 21st Street in Galveston, Galveston County, Texas. I sustained 'injuries in that accident and was confined to the hospital in Galveston. The accident was not caused by any fault of mine; it was the fault of Mr. McCrary.”

On cross-examination:

“I had been in Galveston about 10 days, being down here on business -of my own. I was organizing a Knife and Fork Club. Mr. McCrary was working for me.
“At the time of this accident I had been over to the Lafitte Hotel to see a man by the name of Tracy on personal business between Mr. Tracy and me. Mr. McCrary drove me over there to see Mr. Tracy, and while coming back to the Galvez Hotel from that business trip this accident occurred. ⅜ * *
“I had not been riding around with Mr. McCrary all the time I had been in Galveston. Mr. McCrary had a car and I had a car.
“That evening we had started to dinner. It was dinner time, after business hours. Mr. Tracy called just as we started to dinner and asked me to come up to see him. Mr. McCrary was in the room with me, and he get the message that way that I wanted to go to the Lafitte. There probably wasn’t anything further said about it.
“The only reason I can give for getting in Mr. McCrary’s car instead of my own is. that his car was probably closer to the steps of the hotel than mine. His car was an open car and mine a closed car, and they were both at the hotel. I got in his car and he got at the wheel and drove me over there. He drove me back after I finished my business over there.”

It seems clear to us that the allegations of plaintiff’s petition and plaintiff’s testimony above set out, which was all of the evidence adduced upon the hearing of the plea, both show that plantiffs cause hi action is not founded upon a “trespass” in the «meaning and intent of subdivision 9 of article 1995 of our Revised Statutes, which provides that suits founded upon “such crime, offense, or trespass” may be brought in the county where the crime, offense, or trespass was committed, or in the county where the defendant lives. It is well settled that a trespass in the meaning and intent of this statute is not shown by allegation or proof of a nonfeasance or mere negligent omission to perform a duty. To constitute a trespass under this statute there must be an affirmative act of negligence, not necessarily such affirmative act as would be inherently unlawful and constitute a crime or offense against the public, but an affirmative act as distinguished from an omission of duty. 38 Cye. 994; 26 R. C. L. 930; Ricker v. Shoemaker, 81 Tex. 25, 16 S. W. 645; Connor v. Saunders, 81 Tex. 633, 17 S. W. 236; Austin v. Cameron, 83 Tex. 357, 18 S. W, 437; Brooks v. Hornbeck (Tex. Civ. App.) 274 S. W. 162; Rigby v. Caines (Tex. Civ. App.) 6 S.W.(2d) 422.

The. allegations and evidence in this case show that plaintiff and defendant, both of whom at the time of plaintiff’s injury were nonresidents of Galveston county, were riding on the streets of Galveston in an automobile owned and operated by defendant, and, because of the failure of the defendant to use proper care in the operation of the ear it eame in collision with a street car, and as a result plaintiff, without fault on his part, was injured. Upon this state of the pleadings and evidence, to permit plaintiff to bring this suit against defendant in Galveston county, over defendant’s plea of privilege to be sued in the county of his residence, would be frittering away a valuable right guaranteed a defendant under the statutes of this state.

These conclusions require that the judgment of the trial court be reversed, and the cause remanded, with instructions to the trial court to transfer the case to the district court of Johnson county, and it has been so ordered.

Reversed and remanded, with instructions.


text:
    PEELER v. BEAN.
    No. 7576.
    Court of Civil Appeals of Texas. Austin.
    April 22, 1931.
    Rehearing Denied May 13, 1931.
    J. C. Abney, J. Tom Higgins, and Roy L. Walker, all of Lampasas, for appellant.
    G. A. Walters, of San Saba, H. F. Lewis, of Lampasas, A. L. Curtis, of Belton, and F. B. Lloyd, of Alice, for appellee.
   BLAIR, J.

Appellant sued appellee for a broker’s commission, alleging that appellee listed his 851-acre ranch with appellant for sale at $25 or more per acre, agreeing to pay a 5 per cent, commission on the sales price; and further alleging as follows: “That in pursuance of said agreement the plaintiff did on or about the 10th day of March, 1930, procure for the defendant a purchaser, T. J. Casner, of Llano County, Texas, at a greater sum than $25.00 per acre, to-wit: $26.50 per acre or a total sum of $22,351.50. That the said T. J. Cas-ner was ready, able and willing to comply with said purchase at a greater sum than $25.00 per acre, and ready to pay all cash, or assume the indebtedness against said land, and pay the balance in cash, agreeing to accept said property under the terms and conditions as listed and made to plaintiff by the defendant, and was presented and introduced ■to defendant by plaintiff, and was ready to close said deal on to-wit: the 1st day of April, 1930, as submitted by defendant to plaintiff and presented to said purchaser by plaintiff and defendant. But notwithstanding the agreement and listing of said property by defendant with plaintiff, defendant failed, and refused and still fails and refuses to perform his contract or agreement .with the purchaser, although the purchaser was at all times ready, able and willing to comply with the terms and conditions of said sale as made by defendant to plaintiff, and further fails and refuses to pay plaintiff the commission as agreed upon between them, or a reasonable commission for bis services under tbeir agreement.”

Tbe testimony offered by appellant proved the allegations of his petition. That is. proved the listing of the land with appellant for sale; that appellant procured T. J. Cas-ner as a prospective purchaser. That Cas-ner had executed an option contract to sell his own land to the River Oaks Dam Company on April 1, 1930, and with this in view Casner testified that he and appellee orally agreed on or about January 29, 1930, as follows: “I took my option contract with me, and told Mr. Bean I liked his place and would like to buy it, but couldn’t make a deal with him and make a down payment on the place, but in order to show good faith, I would pay some in the way of an option on his place, and we discussed that, and then he said, ‘Well, if the place suits you, it suits me just as well to wait until April 1st, until you get your money’. I told him I wouldn’t' have any money before April 1st, and he said his abstract was in Houston and ‘We’ll just wait until April 1st, and I’ll get the abstract back, and we’ll carry it right on out.’ And Mr. Bean said, ‘If you will say you will take the place, provided you are bought out, I won’t offer the place for sale to anyone else.’ I said, ‘I’ll take it if I am bought out.’ ”

Oasner further testified: “I next saw Mr. Bean on or about February 11th. I wanted to get hold of his abstract to have it examined, and I went to his house and told him I had brought a little money to get hold of the abstract; that I wanted my attorney to go over thé abstract and have it ready if my deal was carried out in April, and he said he wanted to talk it over with his wife and said, ‘I’ll talk to you tomorrow’, and for me to see Mr. Peeler. He didn’t say he would see me. There, was nothing further said about closing up the deal, only that he wanted to talk to his wife. That was the last conversation I ever had with Mr. Bean, as well as I remember. I was ready, able and willing on April 1st to close that deal.”

Appellee notified appellant on March 15, 1930, that he desired to withdraw his place from the market, and although both appellant and the prospective purchaser protested this action, and requested him to carry out his contract to consummate the sale on April 1, 1930, as agreéd, appellee refused to do so.

At the conclusion of appellant’s testimony the learned trial judge instructed a verdict and rendered judgment for appellee, upon the ground that appellant’s testimony • showed the purchaser’s contract to buy the land was oral and therefore not enforceable against the purchaser. In this the court erred, because appellant both pleaded and . proved that Oasner was ready, able, and willing to purchase the land upon the agreed terms at all times; and that the failure to consummate the sale was due solely to the default of appellee. The law is settled that a broker is entitled to his commission when he procures a purchaser who is ready, able, and willing to purchase the land upon terms agreeable to the seller, and when failure to consummate the sale is due to the default of the seller. Stolaroff v. Campbell (Tex. Civ. App.) 18 S.W.(2d) 838.

Appellee contends, however, in support of the instructed verdict, that: “Appellant in his amended original petition alleges that he procured Mr. T. J. Casner who was ready, able and willing at ail times to pay the price asked by appellee. This allegation is not borne out by the proof. There is not an iota of testimony or evidence of any kind in the record of this case, either express or implied, to the effect that Mr. Casner was ready, able and willing to buy appellant’s property on January 30th, February 11th, March 10th, or at any time before it was withdrawn from the market. On the contrary, the testimony shows that Mr. Casner was not ready, able and willing to buy at that time, but he stated that he might be ready on April 1, and then provided he was able to sell his own land. Appellant in his proof attempts to show that appellee orally entered into a contract with Casner to sell April 1.”

But appellee contracted to “wait until April 1st, until you (Casner) get your money.” “We’ll just wait until April 1st * ⅜ * and we’ll carry it right on out.” “If you will say you will take the place, provided .you are bought out, I won’t offer the place for sale to anyone else.” Casner testified that, “I was ready, able and willing on April 1st t-o close that deal.” So, both the pleadings and the proof raised the jury issues of whether appellee orally agreed with Casner to sell him the land April 1, 1930, and whether on April 1, 1930, Casner was ready, able, and willing to carry out his contract of purchase, and that he would have done so but for’ the default of appellee. Certainly appellee could contract to close the deal April 1, 1930, as the petition and proof showed he did, and as he contracts so is he bound.

The judgment of the trial court is reversed, and the cause remanded.

Reversed and remanded.