author: ALEXANDER, J. BARCUS, J.

text:
    WIGGINS et al. v. HOLMES et al.
    No. 997.
    Court of Civil Appeals of Texas. Waco.
    May 7, 1931.
    Rehearing Denied June 11, 1931.
    R. L. Henderson, of Waco, for appellants.
    Sleeper, Boynton & Kendall, of Waco, for appellees.
   ALEXANDER, J.

This suit involves the title to a tract of land in Waco, Tex., on which is located several small rent houses, which land was at the time of his death, in 1903, the separate property of Jacob Wiggins. Appellant Cicero Wiggins is a nephew of Jacob Wiggins, and he and the other appellants claim title to an undivided one-half interest in said property on the theory that Jacofi Wiggins died intestate, without issue, leaving only Emma Wiggins (Holmes), his widow, surviving him, and that Cicero Wiggins is the nearest of kin. Appellees contend that Jacob Wiggins left surviving him two sons and his widow and that appellees have title to the property by reason of deeds of conveyance from said sons, and they further contend they have title by the ten-year statute of limitation. The cause was tried to a jury, and at the conclusion of the testimony the trial court instructed a verdict for appellees.

If there is any material issue of fact raised by the pleadings and proof, it was of course error for the court to give the peremptory instruction. It therefore becomes necessary for us to determine this question. Appellants contend that the issue of adverse possession and whether Jacob Wiggins left any children were each controverted issues of fact. If the evidence is undisputed that Jacob Wiggins left any children surviving him, or that the appellees have held adverse possession of the property for ten years as provided by article 5510 of the Revised Statutes, the judgment should be affirmed.

We will first discuss the question as to whether Jacob Wiggins left any children surviving him. If he left any child surviving him, then Cicero, as a nephew, infierited no interest in the land. There is evidence that he married Matilda Hamilton in December, 1868, and was divorced from her in May, 187S; that he married Frankie Durham in February, TS79, and was divorced from her in May, 1883; that he married Emma Patterson in December, 1883; and that he died in 1903 leaving the said Emma Patterson Wiggins as his surviving wife. If he left any child surviving him, it was either John Wiggins or Henry Wiggins. Jacob Wiggins was a colored man, and, on account of his many marriages, none of those who testified were intimately acquainted with his family history nor the number or names of his children. The evidence introduced to show that John and Plenry were children of Jacob Wiggins consisted of the alleged declarations of Jacob Wiggins, and the circumstances surrounding their association with his family. Jacob Wiggins was engaged in the hack business in the city of Waco from 1880 to the time of his death. There was evidence that' there were two boys who lived with the family, worked around the stables, and rode with Jacob on his hack. In order to get. passes over the tollbridge for his family, Jacob listed two boys as members of his family and referred to them as his sons. Some of the witnesses testified that John and Henry were the boys so referred to by Jacob as his sons. Others testified that John never lived with the family nor worked at the stables, but lived in another part of town and drove a hack for another transfer company. There was evidence that Jacob pointed to John and said that John was trying to claim kin with him since he had “gotten up in the world” and accumulated some property, but that he did not know anything about John. There was therefore a direct conflict in the evidence as to whether John was a son of Jacob, and this raised an issue of fact for the jury. With reference to whether Jacob had a son named Henry who survived him, there was evidence that Cicero Wiggins, one of the-appellants, and Jake, Jr.’, were the two boys who lived with the family, worked around the stables, and rode on the hack with Jacob. Some of the witnesses testified that Jake, Jr., who died prior to the death of Jacob, was sometimes called “Henry.” Others, who were in a position to know, testified that there was never any boy named Henry who lived with the family and that they never heard of a son by that name. There was therefore no clear nor positive evidence that Jacob had any such son. Whether or not the evidence showed that he had such a son depended on the inference to be drawn from all the facts and surrounding circumstances in evidence. Where the disposition of a ease depends on an inference to be drawn from the facts or circumstances in evidence,- or the facts sought to be established are not shown by evidence with such certainty that reasonable minds cannot differ as to the effect thereof, the trial court should not peremptorily instruct the jury thereon, but the case should be left to tire jury for determination. Stooksbury v. Swan, 85 Tex. 563, 571, 22 S. W. 963; Early-Foster Co. v. W. F. Klump & Co. (Tex. Civ. App.) 229 S. W. 1015, pages 1019, 1023; Texas Life Ins. Co. v. Legg (Tex: Civ. App.) 229 S. W. 5S7; Boone v. City of Stephenville, 37 S.W.(2d) 842, decided by this court April 2, 1931, and cases cited in Gulf, C. & S. F. Ry. Co. v. Coffman (Tex. Civ. App.) 11 S.W.(2d) 631, pages 641, 642.

Appellants further contend thdt the evidence shows as a matter of law that they and those under whom they claim have had adverse possession of the property for more than ten years, and that by reason thereof the trial court was justified in giving the instructed verdict in their favor. The property involved in this appeal was the separate property of Jacob Wiggins and was occupied by him as his homestead until his death in 1903. In 1905 Emma Wiggins, Ms widow, married L. J. Holmes. In April, 1906, one John Wiggins filed a suit in the district court of McLennan county against Emma Wiggins Holmes and her husband, claiming that he was the son of Jacob Wiggins by a former marriage, and by reason thereof was entitled to one-half of the community property and all of the separate property of Jacob Wiggins. The jury in said cause found that John Wiggins was a son of Jacob Wiggins and awarded him one-half of the community property and all of the property involved in this appeal, subject to a one-third interest for life in Emma Wiggins Holmes and her right to occupy same during her life as a homestead. In December, 1906, Emma Wiggins Holmes purchased from-John Wiggins all of his interest in the property as awarded to him under the judgment. She also secured from Henry Wiggins a deed to all his interest in the property. About 1908 Emma Holmes and her husband abandoned the property as their homestead, but continued to collect the rents and to pay the taxes thereon to the time of her death in 1926. The evidence of her occupancy of the property was sufficient to establish limitation as against a stranger, but the question is: Was it sufficient as a matter of law to show limitation against her cotenant, Cicero Wiggins? (Of course, whether Cicero Wiggins owned any interest in the land depended on the question as to whether Jacob Wiggins left any children surviving him. Since we have decided that this was a question of fact to be determined by the jury, we will assume, for the purpose of discussing the question of limitation, that Cicero Wiggins owned an interest in the land and was a cotenant with Emma Holmes.) Emma Wiggins (Holmes) as the surviving wife of Jacob Wiggins at all times, both before and after the judgment in favor of John Wiggins against her, owned an undivided interest in the property. As' such surviving wife, she held a homestead interest, with the right of occupancy, in the whole of the land. If Jacob Wiggins left no children, she owned a one-half interest in fee in the property. If he left children, she owned a life estate in one-third of the property and’ a homestead interest in the whole thereof. Under the judgment in favor of John Wiggins, she was decreed a homestead interest in the whole of the property 'with a life estate in one-third thereof. She was therefore at all times a co-owner of the property. Occupancy by her as such co-owner was not therefore necessarily adverse to her cotenant, Cicero Wiggins. In order for one cotenant to assert the running of the statute of limitation in his favor against his co-tenant, there must not only be an exclusive occupancy of the property under an adverse claim, but notice of such hostile adverse claim must in some way be brought home to the other cotenant. His occupancy even of the whole of the property will be presumed to be in recognition of the common title unless and until notice of his adverse claim is brought either to the direct attention of his cotenant or unless his acts are of such unequivocal notoriety as that the other cotenant will be presumed to have notice of such adverse holding. Long v. McCoy (Tex. Civ. App.) 294 S. W. 633, 637; McCoy v. Long (Tex. Com. App.) 15 S.W.(2d) 234; Arrington v. McDaniel (Tex. Com. App.) 14 S.W.(2d) 1009, 1012; Liddell v. Gordon (Tex. Com. App.) 254 S. W. 1098, 1100; Stiles v. Hawkins (Tex. Com. App.) 207 S. W. 89, 95; Phillipson v. Flynn, 83 Tex. 580,19 S. W. 136; Crump v. Andress (Tex. Com. App.) 278 S. W. 422, par. 2.

The appellees insist that even if it be conceded that John Wiggins was not a son of Jacob Wiggins and did not own any interest in the property, since he actually recovered judgment against Emma Holmes for an undivided interest in the property with an order of partition thereof and afterwards deeded the interest so recovered by him in the property to Emma Holmes, this in itself was, as a. matter of law, such an overt act as to start limitation in her favor.as against her cotenant, Cicero Wiggins. Cicero Wiggins was not a party to the judgment in the partition suit brought by John Wiggins, and of course he was not bound thereby. It has been held that where some of the cotenants file suit and bring about a partition of the property in hind'among themselves, ignoring other cotenants, and possession is taken under the decree of partition, such partition of the property is such an overt act as will as a ‘matter of law start the running of the statutg of limitation against the cotenant whose rights are ignored thereby. Cryer v. Andrews, 11 Tex. 170; Clymer v. Dawkins, 3 How. 674; 11 L. Ed. 778; Honea v. Arledge, 56 Tex. Civ. App. 296, 120 S. W. 508, 510. It will be noted, however, that in each of the above eases, the parties to the partition suit not only recovered a judgment determining the extent of the interest of each of the parties in the property, but they procured an order of the court partitioning the whole of the property in kind and each of such parties was awarded the fee simple title to the respective tract set aside to him and he took exclusive possession of the tract so awarded to him. In the partition suit between John Wiggins and Emma Wiggins Holmes there was never in fact a partition of the property. John Wiggins recovered a judgment awarding to him an undivided interest in it, but the judgment was never carried into effect and the property was never partitioned in kind. Neither party to that suit took exclusive possession of any part of the land by virtue of a partition decree. In fact, John Wiggins never went into possession. and Emma Wiggins Holmes was never ousted of the original possession held by her. Before the partition decree was executed, John Wiggins deeded his interest to Emma Wiggins Holmes.

There is a marked difference so far as notoriety of adverse ;claim is concerned, where land is partitioned in kind and each party takes exclusive possession of the tract so set apart to him, on the one hand, and, on the other, where a party recovers judgment for a part of the whole of the land, but before the cotenant is evicted, deeds the land to the cotenant in possession. Where a stranger asserts a superior title to the property and the tenant in possession is evicted, such tenant may then acquire the outstanding title for his exclusive benefit, for in such case the relation of cotenants has been dissolved. Bush v. Bush (Tex. Civ. App.) 275 S. W. 1096, par. 1; 7 R. C. L. 861; .38 Cyc. 44. But where the tenant in possession, and without being evicted, purchases an outstanding title, he is presumed to have purchased it for ^the mutual benefit of himself and his eotenant. Roberts v. Thorn, 25 Tex. 728, 78 Am. Dec. 552; Hacker v. I-Iaeker (Tex. Civ. App.) 4 S.W.(2d) 218, par. 2; Johnston v. Johnston (Tex. Civ. App.) 204 S. W. 469 ; 7 R. C. B. 857; 38 Cyc. 40; 11 Tex. Jur. 453. Since Emma Holmes was never evicted from the possession of any part of the property under the decree in favor of John Wiggins, it will be presumed that she purchased his outstanding title for the benefit of herself and her cotenant, Cicero Wiggins, and not in derogation of the claim of Cicero Wiggins. Notwithstanding the decree in favor of John Wiggins, she was never defeated in her claim to a life estate; in one-third of the property nor denied the right to occupy the whole of the property as a, homestead. Therefore, the fact that she remained in possession of the property was not inconsistent with the claim of Cicero Wiggins. If at any time thereafter Cicero Wiggins had found her in possession of the property, there would have been no occasion for alarm for she was the very person whom he should have expected to find in possession of it. The fact that John Wiggins recovered a judgment against Emma Holmes for an undivided interest in the land with an order of partition, and that she áfterwards purchased such interest, was not such an overt act as would, as a matter of law, start the running of limitation in her favor against her cotenant, Cicero Wiggins, where such judgment was never carried into effect and the property partitioned in kind.

Neither was the execution and recording of the deeds from John Wiggins and from Henry Wiggins to Emma Holmes sufficient, as a matter of law, to start the running of the statute of limitation in her favor. The taking and recording of a deed by one cotenant to a part or the whole of the property either from another cotenant or from a stranger is not conclusive evidence of an adverse claim. Long v. McCoy (Tex. Civ. App.) 294 S. W. 633, 637; McCoy v. Long (Tex. Com. App.) 15 S.W.(2d) 234; Arrington v. McDaniel (Tex. Com. App.) 14 S.W.(2d) 1009, 1012, par. 10; Towery v. Henderson, 60 Tex. 291; Lynch v. Lynch (Tex. Civ. App.) 130 S. W. 461 (writ ref.); Liddell v. Gordon (Tex. Com. App.) 254 S. W. 1098.

The question of whether the holding of one tenant in common under such a deed is, under the circumstances, adverse to other tenants in common, is usually one of fact for the jury. Long v. McCoy (Tex. Civ. App.) 294 S. W. 633, 637, par. 7; McCoy v. Long (Tex. Com. App.) 15 S.W.(2d) 1009, 1012; 7 R. C. L. 854; Martinez v. Bruni (Tex. Com. App.) 235 S. W. 549, 551; Id. (Tex. Civ. App.) 216 S. W. 655, 663. Under the circumstances of this case, it was a question of fact for the jury as to whether the taking of the judgment by John Wiggins and the taking and recording of the deeds from him and Henry Wiggins to Emma Holmes, and the circumstances surrounding her adverse claim of the ownership of the property, were .of such notoriety as to put Cicero Wiggins on notice of her claim. The trial court should have submitted the ease to the jury instead of giving an instructed verdict for the plaintiff;

The appellants complain of the action of the court in refusing to allow Cicero Wiggins to testify to a conversation between himself and Jacob Wiggins in which Jacob Wiggins told him not to disturb Emma Wiggins in her possession of the property in question so long as she lived. The evidence was offered for the alleged purpose of explaining his long delay in filing this suit, but its real effect was to impute to Jacob Wiggins a recognition of Cicero Wiggins as an heir to his estate. It could be construed to mean that Jacob Wiggins recognized that he had no children and that Cicero would own an interest in the property at his death. Cicero Wiggins was a party to the suit and was claiming the property as an heir of Jacob Wiggins. The appellees were likewise claiming the property as an heir and successor in title of Jacob Wiggins. The evidence related to a statement by the deceased, Jacob Wiggins, and was therefore inadmissible. Revised Statutes, article 3716; Beil v. Warren (Tex. Civ. App.) 187 S. W. 1052; Smith’s Heirs v. Hirsch (Tex. Civ. App.) 197 S. W. 754, 762, par. 5; Dodson v. Watson (Tex. Civ. App.) 225 S, W. 586.

The appellees in their petition set up the judgment recovered by John Wiggins against Emma Wiggins Holmes and upon the trial of the case introduced same in evidence. The appellants excepted to the allegations in the petition setting up the judgment and objected to its introduction in evidence. As before stated, after John Wiggins recovered the judgment against Emma Wiggins Holmes, he executed to her a deed to his interest so recovered in the property. The appellees were entitled to plead and prove these facts as circumstances showing her adverse claim and the notoriety thereof. The trial court did not err in overruling the exception nor in admitting the judgment in evidence.

The appellants by their fifth and ninth propositions raised more serious questions. The appellees were permitted, over the objection of the appellants, to allege in their petition and to prove that in the suit between John Wiggins and Emma Holmes the issue was whether or not John Wiggins was a son of Jacob Wiggins, and that the jury in that case found that he was a son of Jacob Wiggins. Whether John Wiggins was in fact a son of Jacob Wiggins was one of the main issues in the ease on trial. As before stated, it was proper to allow appellees to show that John Wiggins recovered a judgment for an interest in the property and that he afterwards conveyed same to Emma Holmes. This was admissible to show the notoriety of her adverse claim and to raise a presumption of notice thereof to Cicero Wiggins. It was also properl for appellees to allege and prove that John Wiggins was a son of Jacob Wiggins in order to connect the title which Emma Holmes afterwards acquired from him with the common source of title. Hamman v. Presswood (Tex. Civ. App.) 120 S. W. 1052. It served no useful purpose, however, for -the plaintiff to allege and prove that the very issue involved in this case, that is, whether John Wiggins was a son of Jacob Wiggins, had been tried in the former case, to which appellants were not parties, and decided favorably to the appellees. The fact that another jury had theretofore in another case determined the very question at issue in the case on trial would have had a strong tendency to induce the jury in the latter case to reach the same conclusion and would‘therefore have been very prejudicial. While a trained lawyer would understand that the verdict of the jury in the former case, to which Cicero Wiggins was not a party, should have no weight in deciding the same issues in the ease on trial between different parties, the average juror would not ordinarily be able to maintain the distinction. Millers’ Indemnity Underwriters v. Hughes (Tex. Civ. App.) 256 S. W. 334, par. 2; Kelley v. Fain (Tex. Civ. App.) 168 S. W. 869; Texas Employers’ Ins. Ass’n v. Pierce (Tex. Civ. App.) 230 S. W. 872, par. 2; Texas Employers’ Ins. Ass’n v. Nunamaker (Tex. Civ. AppO 267 S. W. 749, par. 3; Ocean Accident & Guarantee Corporation v. McCall (Tex. Civ. App.) 25 S.W.(2d) 653, par. 4; Maryland Casualty Co. v. Marshall (Tex. Civ. App.) 14 S.W.(2d) 337, par. 5; Farris v. U. S. E. & G. Co. (Tex. Civ. App.) 251 S. W. 612, par. 6; Texas Employers’ Ins. Ass’n v. Downing (Tex. Civ. App.) 218 S. W. 112, par. 12; Georgia Casualty Co. v. Darnell (Tex. Civ. App.) 243 S. W. 579, par. 6. Upon another trial, such allegations should be stricken from the pleadings' and the evidence supporting the same excluded.

The other assignments of error are without merit.

It appears that this suit involves several tracts of land, but that appellants have disclaimed as to all of said property except the lots on-the northeast side of North Third, street; in the city of Waco, which is the only property involved in this appeal.

The judgment of the trial court in favor of the plaintiffs against all defendants as to all of said land except that involved in this appeal is affirmed. The judgment of the trial court in favor of the plaintiffs for the title and possession of the land involved in this appeal is reversed, and the cause is remanded for a new trial.

BARCUS, J.

(dissenting).

I regret my inability to agree with the opinion of my associates in this cáse.

Admittedly, the only property involved is the separate estate of Jacob Wiggins which he owned at the time he married Emma in 1883. The only claim appellants have to the property is necessarily contingent on the fact that when Jacob Wiggins died he did not leave any surviving children, and the burden of proof was on appellants to establish said fact. Under the law of descent and distribution, if Jacob Wiggins left no surviving children, his wife, Emma, inherited one-half of the real estate involved, and appellant Cicero Wiggins, his nephew, the remaining half. If J’acob Wiggins left any surviving child or children, Emma Wiggins, the surviving wife, would have inherited a life estate in a' one-third interest therein with her right to occupy the premises as her homestead.

The record shows without dispute that Jacob Wiggins married Matilda Hamilton in December, 1868, and was divorced from her in May, 1878; that he married Erankie Durham in February, 1879, and was divorced from her in May, 1883; that he married' Emma Patterson in December, 1883; and that he died in 1903, leaving Emma as his surviving wife. In 1905 Emma Wiggins married D. J. Holmes. In April, 1906, John Wiggins filed suit in the district court of McLennan county against Emma Wiggins Holmes and her husband, claiming that he was a son of Jacob Wiggins by a former marriage and by reason thereof was entitled to the property in controversy in this suit, subject to Emma’s life estate in one-third thereof and her right to ’occupy same as a homestead. Judgment was rendered in said cause in favor of John Wiggins establishing the fact that be was Jacob Wiggins’ son and awarding him all of said property subject to Emma’s one-third life estate and her homestead rights. After said judgment became a finality, Emma Wiggins Holmes ⅜ 1906 purchased from John all of his interest in the property in controversy.

In June, 1906, Emma Wiggins Holmes purchased from Henry Wiggins, who claimed to be a son of Jacob Wiggins, all the interest he had in said, property. About 1908 Emma Wiggins Holmes and her husband abandoned the property as their homestead and established their home in another portion of the city where she continued to live until her death in 1926. After she abandoned same, she continued to pay taxes on the property and collected the rents and made some improvements, the property having a fifty-foot frontage and running back 165 feet and had at all times from three to seven small negro rent houses on it.

Under the above undisputed facts, I think the trial court was authorized to instruct the jury to return a verdict for appellants on the question of limitation. The suit by John Wiggins in 1906 established the fact that he was a son of Jacob Wiggins, deceased. While that judgment is not necessarily binding upon Cicero Wiggins, it was of such a notorious character that he was charged - with notice thereof, and the recovery by him of said property in said suit and the deed by him to Emma Holmes was sufficient to start the running of limitation in her favor. When John Wiggins recovered the property from Emma Holmes, it dissolved any possible co-tenancy between her and Cicero Wiggins, and in order for her to hold possession of said property she was required to and did purchase same from the then record judgment holder, John Wiggins. She thereafter purchased the title claimed by Henry Wiggins as a son of Jacob Wiggins.' In 1908 she abandoned the property as a homestead and for almost twenty years held possession thereof under said titles, collecting rents, paying taxes, and openly and notoriously claiming the entire property by virtue of said judgment and deeds of conveyance. Cryer v. Andrews, 11 Tex. 170; Honea v. Arledge, 56 Tex. Civ. App. 296, 120 S. W. 508 (error ref.); Bush v. Bush (Tex. Civ. App.) 275 S. W. 1096 ; 7R.C. L. 861.

In Cryer v. Andrews, supra, it appears that after the death of George Duty, certain of his brothers and sisters had his estate divided by the probate court without recognizing the interest of one sister, Mildred Cryer. Thereafter she brought suit for her portion. The Supreme Court, speaking through Chief Justice Hemphill, said: “Inasmuch as this partition was a notorious act of ouster, the other parties claiming the whole of the land, to the exclusion of the plaintiff, [Mildred Cryer] it would, on general principles, as against a citizen not laboring under a disability, operate as the commencement of prescription in favor of all who held adversely, under such decree; and possession under it, accompanied with the circumstances enumerated in the statute, would ripen into a bar against a joint owner thus disseized.” And the court held that the title obtained by the brothers and sisters, who had the partition made without naming their sister, had ripened in their favor into a limitation title. The same doctrine was again expressed in Honea v. Arledge, supra. The authorities seem to be uniform that a suit in a court of competent jurisdiction between adverse claimants of land is such a notorious act of ouster that a judgment rendered is sufficient to begin the running of the statute of limitation against all parties and that possession under and by virtue of same by one of the parties to the suit will ripen into a title by limitation.

If it could be said that the ouster suit brought by John Wiggins against Emma Wiggins Holmes was not such a notorious act as to start the running of limitation, it was sufficient to put Cicero Wiggins on notice that any possible cotenancy between him and Emma Wiggins Holmes had been thereby dissolved. If said judgment did dissolve the cotenancy between Cicero Wiggins and Emma Wiggins Holmes, or if it was sufficient to put him on notice of said fact, then she was authorized to and had the right to purchase the outstanding title from John Wiggins the same as any other person, and the title so purchased inured to her individually. Bush v. Bush (Tex. Civ. App.) 275 S. W. 1096, and authorities there cited.

In 7 B. C. L. 861 it is stated: “After a co-tenancy is actually dissolved, there is nothing in the law which forbids a former tenant in common from acquiring the entire property. He then has the same rights as any other person.” The mere fact that Emma Wiggins Holmes did not Wait until she was actually evicted from possession before she purchased the title that had been awarded John Wiggins, I think does not defeat her right to purchase said outstanding title. The record shows without controversy that Emma Holmes did in 1908 actually abandon the occupancy of the property as a residence and for almost twenty years has openly and notoriously collected the rents therefrom and paid the taxes thereon under and by virtue of the title She purchased from John and Henry Wiggins, and that Cicero Wiggins, although living in Waco and seeing Emma Holmes frequently and knowing that she was renting the property, made no claim to any part thereof.

I am further of the opinion that the judgment of the trial court was correct on the theory that it was shown without controversy that Henry Wiggins was the son of Jacob Wiggins and was living at the time Jacob Wiggins died. It is, of course, the recognized rule of evidence that pedigree and relationship and marriage may be proven by hearsay evidence. Article 3713, Revised Statutes, and rule of evidence No. 35 thereunder.

E. D. Russell testified that he began collecting toll on the suspension bridge in Waco in 1884 and kept that position for six years, and that he personally knew both John and Henry Wiggins and that Jacob Wiggins told him that he had two boys and that John and Henry were his boys and members of his family. Mr. Russell testified that on several occasions Jacob Wiggins told him that both John and Henry were his sons. The evidence shows without dispute that when this cause was tried John \Vas dead and Henry Wiggins lived in Houston.

Li. J. I-Iolmes testified that both John and Henry Wiggins addressed Jacob Wiggins as “papa” and that Jacob Wiggins said they were his sons, and he further testified that John and Henry Wiggins lived with their father, Jacob Wiggins, and that Jacob Wiggins claimed that John and Henry were his lawful children.

Jackson Moseley testified that he personally knew John and Henry Wiggins and that he heard Jacob Wiggins say that they were his boys. , . ;

While there were some witnesses who tes'tified that they heard Jacob Wiggins say that John was not his son, there was not a single witness who testified that they at any time heard Jacob Wiggins' deny or even suggest that Henry -was not his son. Neither was there a witness who testified that he ever heard Jacob Wiggins say he did not have any living children. Since family relationship can admittedly be established by hearsay, it occurs to me that the testimony of the witnesses Russell, Holmes, and Moseley is sufficient to establish as a matter of law that Henry was the son of Jacob Wiggins.

I am further of the opinion that there was no''error in the action of the trial court in instructing the jury to return a verdict ¿gainst appellants for the reason that, before appellants could recover, it was necessary for them to offer some evidence tending to show that Jacob Wiggins died without issue. Unquestionably, appellees had title by limitation if Jacob Wiggins did leave children, and it1 is further unquestionably true that if Jacob Wiggins left children, appellants were not in any event entitled to recover. It was therefore incumbent upon appellants to offer some proof tending to show that Jacob Wiggins did not leave any living children. There was not a single witness who testified that Jacob Wiggins did not leave children; neither was there any witness who testified that Jacob Wiggins at any time or under any condition told them or suggested to them that he did not have children. The record shows without dispute that he married first in 1868; that he had three wives and that he died in 1903. Before the trial court was authorized to submit'the issue as to whether Jacob Wiggins died without leaving issue, the burden was on appellants and it was imperative that they offer evidence to support said issue. It is to me a strange doctrine to hold that the trial court was required to submit to the jury the issue as to whether Jacob Wiggins left any children when there was no evidehee tending to show that he died without issue.

For the reasons given, I think the judgment of the trial court should be affirmed.


source: Caselaw Access Project

author: WALKER, J.

license: Public Domain

text:
    KENNEDY et al. v. McMULLEN.
    No. 2067.
    Court of Civil Appeals of Texas. Beaumont.
    May 7, 1931.
    Rehearing Denied June 6, 1931.

      J. E. Newberry, of Dallas, and Jno. S. Red-ditt, of Lufkin, for appellants.
    J. J. Collins, of Lufkin, for appellee.
   WALKER, J.

On the 8th day of February-, A. D. 1928, appellee, C. S. McMullen, was operating, arid for some months prior to that date had been operating, passenger busses between the towns of Lufkin and Huntington in Angelina county, a distance of approximately ten miles, under authority of a certificate of public necessity and convenience, issued to him-by the Railroad Commission. On that date L. Kennedy and C. L. English, two- of the appellants herein, made application to the Railroad Commission- for a certificate of public necessity and convenience to operate passenger busses from Lufkin, in Angelina county, to Beaumont, in Jefferson county, through Huntington, Zavalla, and all other towns situated upon the proposed route between Luf-kin and Beaumont. On the 1st day of March, A. D. 1928, appellee, McMullen, made application for a like certificate to operate passenger busses over the same route described by Kennedy & English. Under orders of the Railroad Commission hearings were had upon these applications, but pending these hearings, without a formal order being made by the Railroad Commission the- applicants made a written agreement settling the contest between them, stipulating' that appellee Mc-Mullen would, waive his application for the certificate in favor of Kennedy & English, and that the certificate should issue to Kennedy & English and that he would apply to the Railroad Commission for authority to abandon 'the operation of his busses between Lufkin and Huntington, -and that the Lufkin-Hu-nt-ington route should be taken over by Kennedy ,⅛ English and operated by them. The consideration for the contract, as stipulated therein, was as follows: “In consideration of the foregoing undertakings on the part of the party of the second part, the parties of the first part hereby obligate and bind themselves that from and after the commencement of their operations of their bus lines between Lufkin and Beaumont they will pay to the party of the second part the sum and amount of twenty-five cents per capita for each adult passenger from whom a fare is •collected by parties of the first part and twelve and one-half cents per capita for each passenger transported at half fare between Lufkin and Huntington and regardless of whether or not the passenger goes to or beyond Huntington and regardless of where such passenger originated and the same amount shall be paid by parties of the first part on all passengers transported from Huntington and regardless of destination; it is also agreed that when any passengers are transported along the route between Lufkin and Huntington to any intermediate points between said town of Huntington and Lufkin, of the fare charged such passengers for such transportation the parties of the first part shall pay to the party of the second part one-half thereof. By adult passengers is meant any person over eleven years of age, and every person other than adults is meant children between the ages of five and eleven years, who shall be charged one-half fare.” It was further stipulated in the contract that it was conditioned on the issuance to Kennedy & English of the certificate as requested by them, and on orders of the Railroad Commission permitting appellee McMullen to abandon his route between Lufkin and Huntington, and further: “All of the above agreement is made subject to the approval of the Railroad Commission of Texas and this instrument is executed by the parties in triplicate, original, one copy to be filed with the Commission and one copy retained by parties of the first part and one retained by party of the second part.”

The contract contained no express stipulation as to how long it was to run., but was to become effective on September 1, 1928. It was executed on August 17th in triplicate by Kennedy & English, as parties of the first part, and appellee McMullen, as party of the second part. The Railroad Commission made no formal order approving the contract, but it was made with their knowledge and consent and at their suggestion, as sho.wn by the testimony of Mark Marshall, director of the motor transportation division of .the Railroad Commission, as follows: “As to whether it is a fact that at the time the contract was entered into between C. S. McMullen and Kennedy & English that both C. S. McMullen and Kennedy & English had an application pending before the Railroad Commission of Texas in which they were seeking a permit to operate a bus line from Lufkin, Texas, to Beaumont, Texas, I will state that Kennedy & English and C. S. McMullen and others had an application to operate between Lufkin and Beaumont. The hearing had been held and no decision reached up until the time this was worked out. As to whether it was suggested to both Mr. McMullen and Kennedy & English by the Railroad Commission and by me that Mr. McMullen and Kennedy & English work out some sort of agreement between themselves by which Kennedy & English would take care of Mr. McMullen on his operations from Lufkin and Huntington, which Mr. McMullen was then conducting, I will state that members of the Railroad Commission instructed me to get in touch with these parties and have them work out an agreement covering the operation between Lufkin and Huntington. As to whether on August 17th, 1928 or thereabout, C. S. McMullen and Kennedy & English acting in person and by and through their respective counsel made and entered into an agreement by virtue of the terms of which Mr. McMullen was to be paid twenty-five cents per capita for all adult passengers transported over the route involved between Lufkin and Huntington and twelve and one-half cents per capita for all passengers transported thereover from whom a half fare was collected, I will state that at some date before this matter was finally closed up, ■ Kennedy, with his attorney, and McMullen, with his attorney, came to the ■Capitol to my office; they went into a nearby room and after some hours come back to our place and offered a contract for approval. They stated that they had made an agreement covering the operations between Huntington and Lufkin. I cannot say definitely what part of the fares they were to pay, but to the best of my recollection the amount stated is correct. It is a fact that the parties to the contract advised that they had reached an agreement and requested the approval of the contract by the Railroad Commission and I advised them that the Railroad Commission would not approve the contract but would close the matter up on that basis. As to whether it is a fact that th$ Railroad Commission would not have granted Kennedy & English a permit to operate between Lufkin and Beaumont but for the fact that they had entered into the aforementioned contract with C. S. McMullen, I will state that at that time no persons had been permitted to operate over another who held a certificate of convenience and public necessity unless they entered into a working agreement with the then certificate holder, and I feel sure that they would not have granted this certificate had they not made such an agreement. As to whether it is a fact that the Railroad Commission granted the permit to Kennedy & English because of said agreement entered into by Kennedy & English and O. S. Me-Mullen, as contained in said contract, I will state that it was my understanding that the Railroad Commission would not grant this certificate to Kennedy & English unless an agreement was entered into by the parties affected. As to whether the Railroad Commission was induced to grant Kennedy & English said permit by reason of the execution of the aforementioned contract, I will state that I think the agreement entered into was the reason for granting the certificate to operate between Lufkin and Beaumont.”

On this issue, by letter dated the 21st day of January, 1930, addressed to J. J. Collins, attorney for appellee, introduced in evidence without objection, C. Y. Terrell, a member of the Railroad Commission, stated: “I would not have recommended granting the permit had not your client made the contract with Keiinedy & English and the opposition withdrawn.” Though the Railroad Commission declined to approve the contract, the certificate was duly issued to Kennedy & English; and the parties to the contract entered upon its execution on or about September 1, 1928, and Kennedy & English operated their bus-ses under their certificate, paying appellee according to the terms of the contract, from September 1, 1928, to August 1, 1929, when they gave him notice that they would not be bound by the contract any longer but repudiated all its terms and obligations. Notwithstanding this repudiation on their part, they continued to operate their passenger busses over their entire route. A short while after the certificate was originally issued to Kennedy & English, C. T. English sold his interest in the partnership of Kennedy & English to H. E. English, who, with L. Kennedy, continued the operation of the partnership under the original name. After the act of repudiation, appellee McMullen filed with the Railroad Commission his application requesting that the Kennedy & English certificate be canceled. A hearing was had on this application but no judgment entered thereon. On the 22d day of October, 1929, appellee McMullen filed this suit against Kennedy and C. T. and H. E. English upon the above-described contract to recover his damages for its breach.

In addition to pleading the execution of the contract, by his original and supplemental petitions, he pleaded that the parties waived the approval of the Railroad Commission. He also pleaded ratification, etc. To quote from appellants’ brief, the defense' pleaded by them against appellee McMullen’s petition was as follows:

“First. That the Railroad Commission did not approve said contract, as was required in said contract.
“Second. That said contract was void, in that it gave Appellee a perpetual royalty, with no restriction as to time.
“Third. The contract was void as being against public policy. .
“Fourth. That said contract was without consideration.
“Other defenses were plead, but the above were the principal defenses urged upon the trial of the case.”

The trial was to the court without a jury, with judgment in favor of appellee McMullen against the three defendants jointly for $2,-676.88, from which they have regularly appealed to this court.

In support of his j'udgment, on motion of defendants, the trial court filed his conclusions of fact and law reciting the facts sub-' stantially as stated above, embodying in his conclusions of fact a copy of the contract, and further as follows:

“2. The contract was never, formally approved by the Railroad Commission of Texas, but the Commission was aware that such a contract had been entered into between the parties and advised the parties that such a contract was not required under the laws of Texas to be approved by the Railroad Commission of Texas; that it was a private agreement over which the Railroad Commission had no authority or control; that the contract would be valid and binding without the official approval of the Commission.
“3. The Railroad Commission of Texas would never have granted to Kennedy & English a permit to operate a busline between Lufkin and Beaumont in violation of the rights of the plaintiff, O. S. McMullen, had it not known that an agreement had been entered into by the parties whereby McMullen waived his rights in the premises in favor of Kennedy & English, and that Kennedy & English had agreed to pay McMullen the proportion of fares as shown in the contract.
“4. The parties, C.' S. McMullen, and Kennedy & English, after being informed that the contract was a private agreement not required under the laws of Texas to be approved by the Railroad Commission, agreed to waive the necessity of approval of the Commission as a condition precedent to the validity of the contract and thereafter continued to act thereunder and in all respects recognized the contract as a valid and subsisting obligation, and treated it as continuing one.
“5. Plaintiff, O. S. McMullen, thereafter fully and completely performed all the matters and things which he obligated himself to perform under said contract.
“6. Defendant, H. E. English, shortly after the execution of the contract and before any amount had become due and owing thereunder by defendants, D. Kennedy and C. T. English, composing the partnership of Kennedy & English, and before any liabilities on the part of the said defendants had accrued under said contract, with full knowledge of the contents and provisions of the said contract voluntarily made application before the.Raii-road Commission to buy, and C. T. English made application to sell to said H. E. English, the interest of C. T. English in the partnership of. Kennedy & English and in the motor bus line operation between Lufkin and Beaumont ; with the approval of the Railroad Commission H. E. English purchased and took over the interest of C. T. English in the partnership of Kennedy & English to the assets and property of said partnership, and voluntarily assumed all the existing liabilities and obligations of the said partnership, and became a party to the contract sued on, and thereafter received the benefits of said contract and operated thereunder, paying to Mc-Mullen, plaintiff herein, various sums of money in accordance with the terms thereof, and in all respects recognized said contract as valid and binding upon him, up until June, 1929, when he claimed that, he terminated said contract.
“7. The check made of the number of passengers hauled between Lufkin and Huntington by agents of plaintiff, McMullen, represent the number of passengers carried between both points on 1342 buses out of a total of 1712 buses run during the months of April, through October, 1929.
■ “8. The number of passengers carried over the Lufkin to Huntington route in proportion to the total number of passengers carried over the whole route from Lufkin to Beaumont is thirty-four per cent.
“9. The number of half fare passengers carried over the Lufkin to Huntington route in proportion to the total number of passengers carried over the Lufkin to Huntington route is four per cent.
“10. The total number of full fare passengers carried between Lufkin and Huntington from September 25, 1928, through April 30,
1930, is 14,659.
“11. The total number of half fare passengers carried between Lufkin and Huntington from September 25, 1928, through April 30, 1930, is 582.
“12. The amount, less all just and lawful offsets, payments and credits, remaining due and unpaid under said contract for the period from September 25, 1928, to April 30, 1930, is $2676.77; which amount is due and owing plaintiff by defendants.”
Conclusions of Law.
“1. The Railroad Commission by its conduct and acquiescence in all respects, recognized, ratified and approved said contract.
“2. The parties by their acts and conduct in treating the contract as valid, subsisting 'and binding thereby waived the necessity of approval of the Railroad Commission as a condition precedent to the validity of the contract; and defendants by their conduct in the premises are estopped to deny the validity ' Of said contract.
“3. The contract as to H. E. English is not within the statutes of frauds by reason of the fact that it might have been performed within a year.
“4. The contract on the part of H. E. English is not within the Statute of Frauds, as being an oral assumption of the debt of another, for the reason that no debts were owing under the contract at the time H. E. English became a party thereto, and the debts subsequently accruing were his debts.
“5. H. E. English, by reason of the fact that he acted under the contract, representing to plaintiff that he considered himself bound by the terms and provisions thereof, and accepted the benefits accruing thereunder, is now estopped to deny that he is a party to said contract and that said contract is valid and binding.
“6. The contract as a matter of law is clear, certain and unambiguous in its terms.
“7. The contract on the part of O. S. Mc-Mullen iS' supported by a valuable consideration, to-wit: The withdrawal of McMullen’s application for a permit in favor of Kennedy & English, and the cessation of his operation between Huntington and Lufkin.
“8. The contract does not purport to sell or tránsfer a franchise covering the operation of a motor bus line and therefore does not constitute an effort on the part of plaintiff C. S. McMullen, to usurp the jurisdiction of the Railroad Commission of Texas.
“9. The contract was not executed by reason of any mutual mistake of fact or of law.
“10. The contract fixes a royalty‘of twenty-five cents for each full fare passenger and twelve and one-half cents for each half fare passenger carried between the points of Luf-kin and Huntington and one-half of the fare paid by passengers carried to points intermediate between Huntington and Lufkin. Such royalty does not constitute an unlawful rebate of faros and is therefore not in violation of the Statutes of Texas.
“11. The contract is not rendered unenforceable by reason of the fact that no time is provided for its termination. Where no limitation is expressed in an agreement neither party can terminate it without consent of the -other. The intention of the parties that a contract shall be perpetual and without limit as to duration could not be more properly expressed than by silence as to any time limit and power of revocation. The Court construes said contract as to the time it shall continue to be for the period defendants or their assigns operate said bus line.
“12. The fact that the contract calls for a perpetual royalty is no objection to its validity as between the parties. There is nothing in the law which prohibits parties from entering into a contract providing for perpetual royalties. The rule against perpetu-ities is concerned wholly with the remote Testing of future interests.”

Opinion.

Propositions 9 to 18, inclusive, are worded in the same language, each of them being as follows: “A 'finding by the trial court in its findings of fact, must be supported by legal evidence offered upon the trial of the case.” Each of these propositions is related to a specific assignment of error against one of the conclusions of fact. Propositions 19 to 29 are also worded in the same language, each of. them being as follows: “A conclusion by a trial judge must be based upon the pleád-ings supported by the legitimate evidence offered upon the trial of the case.”

Each of these propositions is related to a specific assignment of error against one of the trial court’s conclusions of law. These propositions are too general to point out specific error, in that, by the same language appellants seeks to attack each of the conclusions of fact against which they complain and each of the conclusions of law without any statement in the proposition calling the court’s attention to the error complained ■of. Under the following statement of the law, announced by 3 Tex. Jur. 880, discussing the essentials of a proposition, appellants’ propositions 9 to 29, inclusive, cannot be reviewed: “It must present something definite and tangible and not a mere abstraction or generalization affirming what is alike applicable to ■all cases. In other words a proposition points with certainty to some specific error in the trial, and one which consists merely of a general statement of an abstract rule of law will not be considered. * * ⅞ A proposition which fails definitely to point out some specific error or ruling or to present some concrete question raised in the case, is too general or indefinite to be considered, provided, of course, it does not present fundamental ■error.” Thus, in Hunt v. Evans (Tex. Oiv. App.) 233 S. W. 854, it was held that a proposition was insufficient that merely stated that a finding of fact was not supported by any evidence. The vice in these propositions is made clear by the proposition approved as to form in American Fruit Growers v. Harlan, etc. (Tex. Com. App.) 16 S.W.(2d) 261: “The overwhelming preponderance of the testimony showing that appellee (i. e., American Fruit Growers, Inc.) failed to tender the character of cauliflower it was obligated to tender in the premises, appellant, as a matter of law and justice, was entitled to have the jury verdict set aside, as requested in its motion for a new trial.”

But, notwithstanding the insufficiency of these propositions, we have carefully reviewed them and find them without merit and summarily overrule them except as they present the same issues advanced by propositions 1 to '7 urged in support of appellants’ special defenses. In fact, under these propositions, every essential element presented by propositions 8 to 29, inclusive, are reviewed. Under the first seven propositions the following contentions are made:

Because on the face of the contract it was executed “subject to the approval of the Bail-road Commission,” and because it was shown that the Commission entered no order expressly approving the contract, declining so to do on the ground that it was a private agreement over which it had no authority or control, the first contention is that the contract was null and void and unenforceable.

The general proposition contended for by appellant has support in the authorities. Thus, in Page v. Payne, 41 Tex. 146, it was said: “It is an elementary principle, if a promise is made upon condition, until the performance of the condition, there is no consideration to support it.” And where the consent or approval of a third person is required by the terms of the contract such approval is essential to its validity. 13 C. J. 680. But the provision of the contract relied upon by appellants to defeat its validity must be construed so as to give effect to the intent of the parties. Now on the entiré record it is manifest that this condition was inserted in the contract only because the parties thought such approval was essential to its validity. So it can be said, beyond question, that the parties were not contracting to secure the approval of the Bailroad Commission but were contracting subject to its approval, believing that such approval was essential to the validity of their contract. But since the approval of the Bailroad Oom-mission was not necessary in law to the validity of the contract, the clause requiring its approval became immaterial. Thus, in 10 Tex. Jur. par. 273, it is said: “The subject matter of the contract and the purpose of its execution are material to the ascertainment of the intention of the parties and the meaning of the terms they use, and when these are ascertained they must prevail over the dry words of the agreement. As an aid to what the parties intended and understood by the words employed, the object in making the agreement may be taken into consideration, although the purpose declared in one clause cannot overcome or alter the whole contract or change its manifest purpose apparent from the parts taken together. It is always of much importance in the interpretation of a contract, upon which doubt arises, to ascertain what was the attitude of the parties to the subject and to find out what was their main purpose.”

But the following additional counter propositions advanced by appellee sustain the validity of the contract as against this contention of appellants:

(a) While the Railroad Commission did not give its formal approval to the contract, that is, did not affirmatively approve the contract, under the undisputed facts it did give its approval within the intent of the parties making the contract. Giving full force to the language requiring that the contract he approved by the Railroad Commission, it was clearly the intent of the parties! that nothing more was required,than that it be executed with its permission.

F'rom the testimony of Mark Marshall, quoted above, and from the following quotation from the letter of Commissioner Terrell referred to above: “I would not have recommended granting the permit had not your client made the contract with Kennedy & English and the Opposition withdrawn”— it appears that the contract was made not only with the knowledge and consent of the Railroad Commission, but that appellants were granted their certificate only because the contract was made. The trial court’s third conclusion of fact on this issue, given above, has full support in the evidence.

(b) Where a written contract, not required by law to be in writing, provides for the approval of a third party as a condition of its validity, the parties may, by parol, eliminate, tills condition from the contract. No provision of law required that this contract be in writing. By his fourth conclusion of fact the trial court, as a reasonable inference from the conduct of the parties, found that they agreed to waive the clause requiring the approval of the Railroad Commission. This counter proposition 'has support in the following statement by 10 Tex. Jur. 358, 359: “A written contract which is not required to be in writing may be modified or amended by a subsequent parole agreement, in which case, as a general rule, the entire contract becomes an oral one.”

That waiver may be implied from the acts or conduct of the parties and its consequences is thus stated by the same authority, page 464: “A waiver may he express, or it may be implied from acts or conduct evidencing an intention not to insist on compliance with the provisions of the contract, or inconsistent with a determination to -terminate the contract for a breach. The failure to perform conditions precedent may he waived by failure to insist on performance, and departures from the strict terms of the contract, by failing to object at the time, or by accepting what is done by the other party as a full performance.”

The second contention is that the contract was void because it fixed no specific time for its duration. After appellants ceased making payments to appellee, they gave him due notice that they had terminated the contract and had repudiated its obligations and would make no further payments to him thereunder. But after giving this notice, as (stated above, they continued the operation of their busses from Lufkin to Beaumont through the town of Huntington, thus usurping the route formerly operated by appellee under his certificate. Under this second contention appellants argue a contract which fixes no time for its specific performance is void and unenforceable. Under the facts of this case the trial court denied this contention of appellants and filed in support of his ruling the eleventh conclusion of law given above. As a general proposition a contract indefinite as to the time of its performance may be terminated by either party by giving notice of his intention to do so. But we know of no case supporting a party to a contract in terminating the same where he continued to hold in his possession and operate for his own use and benefit the entire subject-matter of the contract, to the prejudice of the other party. In this case it was shown beyond controversy, and the court so found, that appellants would not have been granted a certificate to operate busses between Lufkin and ■Huntington except on the conditions of the contract sued on herein. Having acquired appellee’s route, under the terms of the contract, appellants now seek to repudiate it in all its obligations and yet retain and operate the route. To sustain their act of repudiation it was absolutely necessary that they restore appellee to the position he occupied before the execution of the contract, at least, to. cease operating his route and put him in position to, ask that his certificate be renewed, 'giving effect to the proposition that appellants could not thus repudiate the contract, the trial court concluded, as appears from his eleventh, conclusion of law, that “as to time, it shall continue to be for the period of defendants or of their assigns operate said bus line.” We believe the trial court correctly construed the contract on this issue, at least, it is a construction of which appellants cannot complain. Any time the payment of the consideration becomes a burden too heavy for them to bear they can escape this obligation by returning to appellee his route from Lufkin to Huntington. 6 R. C. L. 895; 10 Tex. Jur. 339; Foster v. Wright (Tex. Civ. App.) 217 S. W. 1090.

Under this proposition appellants also insist that the contract falls within the condemnation of the rule against -perpetuities. This rule has no relation to this proposition, but is concerned solely with the remote vesting of future interests. 21 R. O. L. 287.

The third contention is to the effect that the contract was void as being against public policy. As a basis for this proposition appellants say: “The contract attempts to designate who shall have the permit, a matter solely within the jurisdiction of the Railroad ’Commission.” The.contract expressly negatives that construction, in that it contains the following stipulation: “Howeyer, this waiver only applies to the parties of the first part herein and to no other applicant.”

It was openly and fairly made at the suggestion and with the acquiescence of the Railroad Commission and on the facts stated did not violate public policy. 6 R. C. L. 710; Queen Ins. Co. v. State, 86 Tex. 250, 24 S. W. 397, 22 L. R. A. 483.

The fourth contention is that the contract was without consideration. Under this contention it.is insisted that the withdrawal by appellee of his application for a certificate did not constitute a vailid consideration for the contract. This contention is not sound. Appellee not only held a certificate to operate his busses between Lufkin and Huntington, but also had the legal right to apply for a like certificate to operate his busses over the route now held by appellants. The certificate under which he was operating was very valuable to him. The following authorities sustain the proposition that by abandoning these property rights to appellants, appellee gave a valuable consideration for the contract: Brown v. Jackson (Tex. Civ. App.) 40 S. W. 162; Hannay v. Moody & Co., 31 Tex. Civ. App. 88, 71 S. W. 325; Benson v. Phipps, 87 Tex. 578, 29 S. W. 1061, 47 Am. St. Rep. 128.

['15] The fifth contention ⅛ that the court erred in not suppressing the depositions of Mark Marshall, on th,e ground that they were not properly certified to by the officer taking them. The objection to these depositions was by exception, presented for the first time upon the trial of the ease, and not by motion, as contemplated by article 3765, R. S. 1925, which is as follows: “When a deposition shall have been filed in the court at least one entire day before the day on which the case is called for trial, no objection to the form thereof, or to1 the manner of taking the same, shall be heard, unless such objections are in writing and notice thereof is given to the opposite counsel before the trial commences. Such objection shall be made and determined at the first term of the court after the deposition has been filed, and not thereafter.” There is no statement in the bill of exceptions to the effect that these depositions had not been on file in the trial court for one day or more next preceding the day upon which the case was tried. Under authority of article 3765, as construed by Houston, E. & W. T. Railway Co. v. Lacy (Tex. Civ. App.) 153 S. W. 414, no error was committed by this ruling of the court.

The sixth contention is that the court erred in overruling appellants’ pleas of privilege. Since one of the defendants was a resident of Angelina county when this suit was filed and tried, the plea was properly overruled.

The seventh proposition is advanced only by defendant H. E. English, and is to the effect that since the contract was not signed by him nor assumed by him in writing he was not liable thereon. The substance of this proposition is that the contract, as to H. E. English, was void as being in violation of the statute of frauds. This proposition is based upon appellants’ construction of the contract, that it was not to be performed within a period of one year. Under the trial court’s construction of the contract, which we have expressly approved, it might have been performed with a year. • Such a contract does not violate the statute of frauds (Vernon’s Ann. Oiv. St. art. 3995). Thomas v. Hammond, 47 Tex. 42.

It follows that the judgment of the lower court should be affirmed, and it is accordingly so ordered.


author: ALEXANDER, J.

text:
    INVESTORS’ UTILITY CORPORATION et al. v. CHALLACOMBE.
    No. 1063.
    Court of Civil Appeals of Texas. Waco.
    May 21, 1931.

      Robert F. Higgins, of Marlin, W. W. Mason, of Mexia, and J. E. & B. L. Bradley, and Mr. & Mrs. C. S. Bradley, all of Groesbeck, for appellants.
    M. L. Bennett, of Normangee, for appellee.
   ALEXANDER, J.

On January 23, 1930, the Investors’ Utility Corporation entered into a contract with J. R. Ohallacombe, for a community oil lease, in part as follows:

“The State of Texas, County of Freestone
“We, the undersigned landowners hereby bind and obligate ourselves to execute community Oil and Gas leases ⅜ ⅜ * covering the amount of land set opposite our names, * ⅜ * said leases shall be executed in the name of Investor’s Utility Corporation, which Corporation agrees that within ninety days after this is signed, it will secure the services of a competent geologist to survey this tract, and if same is approved by said geologist, then it will commence the drilling of a test well for Oil or gas within thirty days from "such approval by said geologist * * ⅜. It is understood that said leases shall be executed by the subscribers hereto when the acreage has been approved by said geologist, as set out above, at which time said leases are to be placed in the Oakwood State Bank in escrow, pending spudding in of said well, at which time said leases are to be turned over to Investor’s Utility Corporation.
“In witness whereof, the parties hereto have hereunto subscribed their names, this the-day of January, A. D. 1930.
“Investor’s Utility Corporation,
“By W. J. Keeling, Agent
“Landowners: J. R. Ohallacombe
“Number of acres: 6,860, more or less * * *»

The agreement was signed by other landowners, but they are not involved in this controversy. The landowner, Ohallacombe, brought’ this suit in trespass to try title against the Investors’ Utility Corporation, which will hereafter be referred to as the corporation, and others who claimed an interest in the contract, to recover the title and possession of the land described’ therein, and to cancel the contract on the ground that he had not executed the same. The defendants pleaded not guilty and disclaimed as to the land and reconvened for damages in the sum of $40,160, alleging that the plaintiff had breached the contract by leasing the land to another concern. A trial was had before the court without a jury, and judgment was entered that neither party recover, and that each party pay one-half of the costs. The defendants have appealed.

The trial court filed findings of fact in which it was found, among other things, that the appellee, Ohallacombe, executed the contract ; that the same was a valid and binding contract; that the corporation had ninety days from the date of the contract in which to procure a geologist to survey the land; that the corporation used only seven days in procuring such geologist, and that the geologist made a favorable report on the land to the corporation within nineteen days from the date of the contract; that the corporation took no further steps in carrying out any of the terms of the contract or of putting Ohallacombe in possession of the facts which would authorize him to execute the lease until April 15, 1930, about sixty-two days after the date of the favorable report by the geologist. The findings appear to be supported by the evidence, and are not challenged by either party. The plaintiff executed another lease on the same land to another concern on March 29, 1930, approximately forty-five days after the favorable report by the geologist.

We will first discuss the right of the defendants, the corporation, and others, to recover damages on their cross-action. The execution of the lease by Ohallacombe,' the landowner, to the other concern constituted a repudiation of the contract by him, and, if at that time the corporation was entitled to performance of the contract, it is entitled to damages for the breach. On the other hand, if at that time the corporation had itself forfeited the contract, then it was not entitled to damages for the breach by the plaintiff.

The contract at the time of its execution was unilateral and executory, and was in the nature of an option in favor of the corporation. No money consideration was paid for the option. The corporation had the full period of ninety days in which to secure the services of a geologist. The geologist was to survey the land, but there was no time stipulated in which he was to complete his survey and make his report. If his report should prove unfavorable, no further obligation would rest on the corporation. If the report of the geologist proved favorable, the corporation was to begin the drilling of a test well within thirty days from the date of such report. The provision for a survey of the land by the geologist and a favorable report by him was a condition precedent for the establishment of a binding contract between the parties. The corporation performed this condition by procuring the geologist and the securing of a favorable report. However, the contract contained the further covenant on the part of the corporation that it would begin the drilling of the test well within thirty days from the date of such report. This it did not do within the time specified. It becomes‘necessary, therefore, to determine whether the corporation was responsible for this breach, whether time was of the essence of the contract, and whether this was such a breach as would forfeit' the contract.

The contract, in addition to containing the provision that, in the event the report of the geologist was favorable, the corporation would commence the dialling of a test well within thirty days from the date of such approval, also provided that the landowner would execute his lease “when the acreage has been approved by said geologist,” and that he would place same in the bank in escrow pending the spudding in of the well. The landowner did not execute the lease nor place same in escrow, and the corporation did not begin the drilling of the well within the time specified. Did the failure of the landowner to execute the lease and place the same in the bank relieve the corporation of the obligation of spudding in the well within the time specified? While the contract provides that the lease shall be executed when the acreage has been approved by said geologist, it does not provide how the landowner should ascertain that the land had been surveyed by the geologist and a favorable report made thereon. Ordinarily, a party contracting to do an act on the happening of an uncertain event is not entitled to notice of that event as a condition precedent, but, when he contracts to do a thing on the happening of an event that will not ordinarily come to his knowledge, and he must guess or speculate about the matter, and the knowledge of the happening of such event is within the peculiar knowledge of the opposite party, then notice thereof must be given him by such opposite party, unless he actually gains knowledge thereof otherwise. 13 O. J. 635, § 705; In re. Millbourne Mills Co. (D. C.) 165 F. 109, 111; Kelly v. Webb, 27 Tex. 368; Phoenix Mutual Life Ins. Co., v. Wakefield, (English case) 6 M. & W. 442, 151 Reprint, 485.

In the case at bar, the corporation was to select and employ the geologist, and he mjight be employed at any time during the ninety-day period. Since the survey was to be made by an employee of the corporation and for its benefit, to enable it to determine whether it would accept the lease, it is clear that the report was to be made to the corporation and not to the landowner. The landowner had no way of ascertaining at what time during the ninety-day period the geologist would be employed nor when he would complete his report, nor the result thereof. The date of the making of the report and the result thereof was uncertain, and was peculiarly within the knowledge of the corporation. It would therefore be implied that the corporation would notify the landowner when- the report was made and the result thereof, and would call on him to execute his lease and place same in escrow. Such notice from the corporation was necessary in order to complete its acceptance of the contract. The corporation had bound itself in all events to begin the drilling of the well within thirty days from the date of. such report, and, if it desired the landowner to execute the lease and place same in escrow before the beginning of the well and within the thirty-day period, it should have called on him to execute -the lease. The evidence shows that the landowner knew that the survey was being made, but there was no evidence that he knew that it had been completed nor the result thereof. The landowner was therefore not in default in failing to execute and deliver the lease within the thirty days after such report.

Was time of the essence of the contract? At common law the general rule was that a time stipulated in the contract for its performance was of its essence, unless a contrary intent appeared from the face thereof. In eguity, time was not considered as of the essence of the contract, unless it affirmatively appeared that the parties so regarded it. Under the modern rule, whether time is of the essence of the contract is dependent upon its provisions, purpose, and the surrounding circumstances, showing the intention of the par-* ties that the contract must be performed at or within a given time. 13 0. J. 686, § 783; 10 Tex. Jur. 417, § 239.

It is settled law that, where the contract is unilateral or in the .nature of an option, time is of the essence of the contract, and, in order to secure the benefits, the party holding such option must perform within the time specified therein. Johnson v. Portwood, 89 Tex. 235, 34 S.W. 596, 787; 10 Tex. Jur. 420; Wilbanks v. Selby (Tex. Oiv. App.) 227 S. W. 371. Likewise, it is generally held that' in oil and gas mining leases and contracts for the drilling of oil or gas wells time is of the essence of the- contract, and failure to comply within the time specified will authorize a forfeiture. This is because of the vagrant and fugitive nature of oil and gas, their liability to wander or to be drawn elsewhere,- if not developed, the constant shifting of the field of operation, and the fluctuation in value and the opportunity of the lessee to injure or oppress the lessor by delaying developments. Hitson v. Gilman (Tex. Civ. App.) 220 S. W. 140, par. 9; Young v. Jones (Tex. Civ. App.) 222 S. W. 691, par. 2; Miller v. Deahl (Tex. Oiv. App.) 239 S. W. 679, par. 10; Masterson v. Amarillo Oil Co. (Tex. Oiv. App.) 253 S. W. 908, par. 11; Stephenson v. Calliham (Tex. Civ. App.) 289 S. W. 158, par. 4; 10 Tex. Jur. 420.

From the nature of the contract here involved, the specific provisions thereof, and the purpose to be accomplished, it is apparent that the time for performance.as therein provided ■was of the essence thereof.

Since the corporation breached its part of the contract by failing to notify the landowner of the result of the suryey and'in failing to begin the drilling of a test well within the time provided in the contract, it becomes necessary to determine whether the landowner had the right to treat the entire contract as breached and to repudiate it or whether his only remedy was in damages for such breach. Ordinarily, a breach of an independent covenant by one party will not entitle the other party to rescind the contract; but a breach of a dependent covenant entitles the other party to treat the contract as abandoned. Whether a promise in a contract is dependent or independent depends primarily on the intention of the parties as determined from the language of the contract. The presumption is that all stipulations in a contract are dependent, and a promise will be so regarded in case of doubt. 10 Tex. Jur. 327; 13 C. J. 56S, § 539; Reitzer v. Mediate Development Co. (Tex. Civ. App.) 27 S.W.(2d) 563, par. 3; Rigsby v. Boone County State Bank (Tex. Civ. App.) 241 S. W. 207, par. 4. The corporation prepared the contract, and the familiar rule is that it is to be construed most strongly against the one preparing it. 13 C. J. 544, § 516; 10 Tex. Jur. 277; Phillips v. Western Union Telegraph Co., 95 Tex. 638, 69 S. W. 63.

Where the promise goes to the entire consideration of the contract, and a contrary intent is not shown, such covenant is dependent, and a failure of the promisor to comply therewith deprives him of the right to demand enforcement of the contract. Rigsby v. Boone County State Bank (Tex. Civ. App.) 241 S. W. 207, par. 3; 10 Tex. Jur. 328, 13 C. J. 571; Johnson v. Portwood, 89 Tex. 235, 34 S. W. 596, 787; Wilbanks v. Selby (Tex. Civ. App.) 227 S. W. 371; Smith v. Carpenter (Tex. Civ. App.) 257 S. W. 637; Garrison v. Cooke, 96 Tex. 228, 72 S. W. 54, 61 L. R. A. 342, 97 Am. St. Rep. 906; Presidio Mining Co. v. Bullis, 68 Tex. 581. 590. 4 S. W. 860.

In the case of an option contract or where the contract is executory as in this case, and there is a breach in respect to material parts, and no supervening equities have arisen, a rescission may be had by the other party. Hausler v. Harding Gill Co. (Tex. Com. App.) 15 S.W.(2d) 548, par. 2; Powers v. Sunylan Co. (Tex. Com. App.) 25 S.W.(2d) 808, par. 2.

In the case at bar, the contract was executory. The sole consideration accruing to the landowner was the development of his land for oil and gas mining purposes. His entire purpose was to secure the drilling of a test well. Time was the essence of the contract. The failure to begin the drilling of the well within the time specified was therefore a breach in a material part. The corporation could not prolong nor extend the time for the beginning of the well by withholding the report of the geologist and failing to call on the landowner for the lease. The corporation having breached the contract in a material part, the landowner was entitled to treat it as abandoned and to lease the premises to another party without subjecting himself to liability for damages.

The corporation contends that, since Challacombe did not specifically plead the abandonment of the contract by the corporation, he is not entitled to urge same as a defense to its action for damages for the alleged breach on his part. Challacombe sought to have the contract canceled on the sole ground of non est factum. In this he failed. The corporation reconvened and sought to recover damages for the breach by Challacombe. As to the cross-action, the corporation became plaintiff. The duty rested on it to allege and prove every essential fact necessary for a recovery. Where one party seeks to enforce performance of a contract or to recover damages for a breach thereof, and the contract contains mutual covenants or requires him to do an act to entitle him to the action, he cannot maintain such action without alleging and proving performance or tender of performance on his part, unless such performance has beei^ excused- 13 O. J. 629, § 697; Id. p. 571; Garrison v. Cooke (Tex. Civ. App.) 96 Tex. 228, 72 S. W. 54, 61 L. R. A. 342, 97 Am. St. Rep. 906; 10 Tex. Jur. 402; Matthews v. Deason (Tex. Civ. App.) 233 S. W. 330, par. 1; Shepard v. Weiss (Tex. Civ. App.) 28 S. W. 355. One who has himself breached the contract cannot insist on performance, nor recover, for breach by the other party vsnthout satisfactorily accounting for his own breach. Kidd-Scruggs Co. v. Tyler Hotel Co. (Tex. Civ. App.) 270 S. W. 566, par. 2. The burden was therefore on the corporation to allege and prove performance of its part, of the contract. It alleged, but failed to prove, performance. Since the burden was on the corporation to prove performance, Challa-combe under his'general denial was entitled to prove nonperformance by the corporation in order to defeat its action for damages.

The appellants moved for a new trial on the ground of newly discovered evidence showing that the report of the geologist was not made until long after the time when Chal-lacombe had repudiated the contract by leasing the land to the other concern. On the trial, the appellants’ agent testified positively that the report of the geologist was made within eighteen days after the date of the original contract. The evidence of the time of the making of such report was within the ■ knowledge of the appellant. The burden was on it to produce such testimony. The trial court therefore did not abuse its discretion in refusing the new trial.

The appellee, Challacombe, alleges that the court committed fundamental error in refusing to enter judgment for him for the title and possession of the land. He, as plaintiff, sued in trespass to try title. The defendants pleaded not guilty, and then disclaimed any interest in the land, and sought to recover damages for the breach of the contract. A disclaimer is an admission upon the record of the plaintiff’s rights, and a denial of the assertion of title on the part of the defendant, and, where such disclaimer is filed, it is fundamental error for the .court to refuse to render judgment for the plaintiff for the land. Revised Statutes, art. 7385; Snyder v. Compton (Tex. Civ. App.) 29 S. W. 73; Taylor v. Higgins Oil & Fuel Co. (Tex. Civ. App.) 2 S.W. (2d) 288, par. 13; Tull v. Wilbarger County (Tex. Civ. App.) 36 S.W.(2d) 316, par. 1; Brown v. Brown (Tex. Civ. App.) 280 S. W. 918, par. 2; Herring v. Swain, 84 Tex. 523, 19 S. W. 774. The trial court should have entered judgment for the plaintiff for the land in question.

The judgment of the trial-court denying the plaintiff’s right to recover the land is reversed, and judgment is here rendered in favor of the plaintiff against all defendants for the title and possession of the land in question. The judgment of the trial- court in all other respects is affirmed.


author: GALLAGHEE, C. J.

text:
    GULF, C. & S. F. RY. CO. v. BALLEW et ux.
    No. 1058.
    Court of Civil Appeals of Texas. Waco.
    May 7, 1931.
    Rehearing Denied June 4, 1931.
    Lee, Lomax & Wren, of Fort Worth, and . Irwin T. Ward, of Cleburne, for appellant.
    Randell & Randell, of Sherman, Ocie Speer, of Austin, and O. O. Chrisman, of Cleburne, for appellees.
   GALLAGHEE, C. J.

Appellees, S. M. Ballew and wife, Lela Ballew, sued appellant, Gulf, Colorado & Santa Fé Eailway Company, to recover damages for the death of their minor son, Chester G. Ballew, who was accidentally killed while a passenger on one of appellant’s trains. Said train was run as a special from Cleburne to Temple, Tex., to carry the Cleburne high-school football team, its supporters and friends, to a football game to be played at the latter place. Said train consisted of two engines, baggage ear and sixteen passenger coaches. The baggage car and the first and second coaches had been set apart for the use of the football players and the carriage of their equipment. Deceased was the assistant manager of the team and as such had occasion to pass over the platforms between the first and second coaches, and while doing so the train broke in two at that point, causing him to fall upon-the track, where he was run over and instantly killed. There is no contention that he was guilty of any negligence contributing to his death. Just prior to the accident several young men, who were also passengers on the train desired to pass through the rear door of one of the coaches about the middle of the train, and finding the door locked, lowered the movable glass panel at the top thereof and attempted to crawl through such opening to the rear platform of such coach. One of them, in doing so, lost his balance, and to prevent his falling reached up and grabbed either the lever of the conductor’s air brake valve located just above the door, or the cord attached thereto. The result of such action was to cause the almost instant application of the air brakes in emergency, which was followed, by the breaking in two and parting of the train at the place where the deceased fell. The parting of the train was caused by the breaking of part of the coupling, called a knuckle. There was testimony tending to show that the same was worn and defective. There was also testimony that the use of two engines in pulling the train, which was long and heavily loaded, contributed to the breaking of the knuckle and the parting of the train. There was expert testimony to the effect that the breaking of the train was the inevitable result of the application of the brakes in emergency. There was also testimony that such application would not necessarily causé a break in the train.

The case was tried to a jury. Appellant requested a peremptory charge in its favor, which was refused. The case was submitted on special issues. The court first submitted the issue of whether the death of the deceased was the result of an unavoidable accident, and next, whether such death was proximately and solely due to the act of the passenger in causing an emergency application of the air brakes. The jury were instructed in event of an affirmative answer to either of said issues, to return their verdict to the court without consideration of the other issues submitted. The jury, however, answered both said issues in the negative, and in response to further issues submitted, found that appellant failed to furnish the deceased a safe train to convey him as a passenger on the occasion in question; that the appliances used for coupling the, ears that broke in two and parted 'were worn, defective, and insufficient in strength or power for the purpose for which they were used; that the use of the two engines coupled together in the way and manner they were used increased the shock or strain on the coupling apparatus, and that appellant used too many cars in said train, considering their kind and condition, for the safety of the deceased. The jury further found that each of said acts constituted negligence and was the proximate cause of the death of the deceased. The jury, in response to further issues, found that appellant was guilty of negligence in operating its train with two engines on that occasion and that such negligence was a proximate cause of the death of the deceased. The jury assessed appellees’ damage at the aggregate sum of $10,580. The court rendered .judgment against appellant in favor of appel-lees for recovery of the damages awarded.

Opinion.

Appellant, by various assignments of error and propositions thereunder, contends that the undbntradicted evidence showed as a matter of law that the unauthorized and unexpected action of the passenger in seizing the lever or cord attached to the air valve, which action resulted in an emergency application of the brakes, was the sole proximate causé of the accident which resulted in the death of the deceased. The testimony showed without contradiction that the act of the passenger in seizing the lever or cord of the air valve resulted in the emergency application of the brakes; that one of the knuckles of a coupling broke and the train parted between the first and second coaches from the engine; that the deceased fell on the track and was run over and killed. The testimony further showed without dispute that said knuckle was of standard type and that the break therein was a new one. The testimony as to the condition of the knuckle was conflicting. Appellant’s witness testified that he examined the broken knuckle and that there was no indication of any flaw, defect, or bad material. Appellees’ witness testified that he examined the broken knuckle; that it had seen lots of service and was well worn; that it had been used until it was strained and that it had a sand crack where the break occurred. Appellant’s expert witness testified that the emergency application of the brakes under the circumstances created a strain far greater than could have been reasonably anticipated and greater than a new knuckle of standard type and perfect construction could withstand. Appellees’ witness testified that under an emergency application of the air a train was liable to break in two if there was a weak point; that such application did not necessarily mean a break in the train, but that if there was a place too weak to support the strain, \then the train would break in, two at that point; that if there was no weak place there would not be a break in the train. There was also testimony that an emergency stop was one of the purposes of the air brake equipment. There was also testimony both from appellant’s and appellees’ witnesses that the use of two engines and the length and weight of the train greatly increased the strain on the couplings.

There, may be two or more independent concurring proximate causes of one accident. While the accidental application by the passenger of the emergency air brake was admittedly a proximate cause of the accident in this case, it does not follow that negligence, if any, on the part of appellant in any of the matters above recited was only a remote cause, and not a concurring proximate cause at all. “Proximate cause” means such act wanting in ordinary care as actually aided in producing the injury as a direct and existing cause. It need not be the sole cause, but it must be a concurring cause such as might reasonably have been contemplated as involving the result under the attending circumstances. Gonzales v. Galveston, 84 Tex. 3, 7, 19 S. W. 284, 31 Am. St. Rep. 17. The issue of concurring' proximate causes was involved in the ease of Gulf, C. & S. F. R. Co. v. McWhirter, 77 Tex. 356, 360, 14 S. W. 26, 27, 19 Am. St. Rep. 755. In that case thq railway company negligently permitted a turntable to remain unfastened and unguarded. The injured party, a child of tender years, tried to climb upon the turntable, when some of the other children playing there gave it a push, catching his leg between the turntable and the ties, and mashing it. The railway company claimed that it was not liable if the party pushing the turntable was of sufficient age and intelligence to know the danger of revolving the same and to be responsible for his acts, and that in such case the negligence of the party pushing the turntable, and not its negligence in leaving it unfastened and unguarded, was the real cause of, the injury. The Supreme Court, in passing upon such contention, said:

“Under the evidence and finding of the jury, it must be conceded that the negligence of appellant contributed to the injury; and, if it be conceded that the person who put the turn-table in motión was sui juris, this would not relieve appellant from liability though another party might also be liable.
“If an accident occurs from two causes, both due to negligence of different persons, but together the efficient cause, then all the persons whose acts contribute to the accident are liable for an injury resulting, and.the negligence of one furnishes no excuse for the negligence of the other. [Citing numerous authorities.]”

Such issue was further considered by our Supreme Court in Mexican Nat. R. Co. v. Mussette, 86 Tex. 708, 719, 26 S. W. 1075, 1079, 24 L. R. A. 642. In that case an engineer negligently left his engine, and while he was gone the fireman, who knew nothing of the working or mechanism of the engine, in some way put it in motion, resulting in an injury to one of the employees of the company. The court held that it was a question for the jury whether the negligence of the engineer was the proximate cause of the injury resulting from the starting of the engine. We quote from the opinion in that case as follows: “It , frequently becomes difficult to determine the proximate cause of an injury, but it is ordinarily a question of fact to be determined by the court or jury trying a capse, whose finding will not be reversed on grounds purely theoretical. 1 ⅜ * * ‘The act of a third person, intervening and contributing a condition necessary to the injurious effect of the original negligence, will not excuse the first wrongdoer if such act ought to have been foreseen. * The original negligence still remains a culpable and direct cause of the injury. The test is to be found in the probable injurious consequences which were to be anticipated, not in the number of subsequent events and- agencies which might arise. Whether, in any given case, the act charged' . was negligent, and whether the injury suffered was, within the relation of cau'se and effect, legally attributable to it, are questions for the jury.’ Lane v. Atlantic Works, 111 Mass. 139; Gonzales v. City of Galveston, 84 Tex. 3, 19 S. W. 284, 31 Am. St. Rep. 17; Jones v. George, 61 Tex. 346, 48 Am. Rep. 280; [St. Louis, A. & T.] Railway v. McKinsey, 78 Tex. 298, 14 S. W. 645, 22 Am. St. Rep. 54; Weick v. Lander, 75 III. 93. * ⅜ * Whether it ought to have been foreseen that an ignorant fireman might intentionally or inadvertently put it in motion, when under steam, and situated as was it, if he left the post assigned to him by his employer, was a question for the jury.”

The same principle was announced and applied in the case of City of Waco v. Branch (Tex. Civ. App.) 8 S.W.(2d) 271, 276 (writ refused), and in Shippers Compress & Warehouse Co. v. Davidson, 35 Tex. Civ. App. 558, 80 S. W. 1032, 1033 et seq. (writ refused). In the latter case numerous authorities were cited and reviewed. See, also, Exporters’ & Traders’ Compress & Warehouse Co. v. Hemphill (Tex. Civ. App.) 292 S. W. 599, 600, 601,. pars. 1 and 2 and 5 and 6, and authorities there cited; Wichita Falls Traction Co. v. Hibbs (Tex. Civ. App.) 211 S. W. 287, 288; U. S. Natural Gas Co. v. Hicks, 134 Ky. 12, 119 S. W. 166, 167, 168, 23 L. R. A. (N. S.) 249, 135 Am. St. Rep. 407; Iamurri v. Saginaw City Gas Co., 148 Mich. 27, 111 N. W. 884, 886, 887; Harriman v. Pittsburgh, C. & St. L. R. Co., 45 Ohio St. 11, 12 N. E. 451, 460, 462, 4 Am. St. Rep. 507; Moore v. Jefferson City Light, Heat & Power Co., 163 Mo. App. 266, 146 S. W. 825, 827, par. 3. Appellant, to maintain its contention that the accidental application of the air brake was the sole proximate, cause of the injury, must show that such action entirely superseded its negligence in the matters above recited, and that it was in itself responsible for the injury and that it was of such a character that it could not have been foreseen or anticipated. The rule applicable is aptly expressed in Shippers Compress & Warehouse Co. y. Davidson, supra, as follows: “Intervening agencies sometimes interrupt the current of responsible connection between negligent acts and injuries, but, as a rule, these agencies, in order to accomplish such result, must entirely supersede the original culpable act, and be in themselves responsible for the injury, and must be of such a character that they could not have been foreseen or anticipated by the wrongdoer. If it required both agencies to produce the result, or if both contributed thereto as concurrent forces, the presence and assistance of one will not exculpate the other, because it would still be the efficient cause of the injury.”

The testimony raised an issue of appellant’s negligence in assembling and operating in one train the baggage car and sixteen heavily loaded coaches, of excessive force arising from the use of two engines in pulling the same, and of a defective knuckle in the coupling which broke. There was also testimony tending to show that all the same contributed to produce the accident as proximate causes, within the legal definition of that term. The jury found in appellees’ favor on all said issues. It is immaterial that such negligence might not have caused the accident without the intervening act of the passenger in making an accidental application of the emergency brake. Such action merely contributed a condition necessary to give the original negligence of appellant an injurious effect. It did not necessarily entirely supersede such negligence and become in itself solely responsible for the accident, nor was it, under the evidence in this case, necessarily of such a character as could not have been foreseen or anticipated. The testimony disclosed affirmatively that one of the purposes of the air equipment was for emergency application. Such equipment provided facilities for such application in the very car in which it was applied. The doctrine of foreseeableness does not require that the exact time, manner or occasion of the emergency application should have been anticipated. The testimony clearly raised the issue of whether such application by the passenger was merely a concurring and not the sole proximate cause of the death of the deceased. Such issue was submitted to the jury and its finding thereon was adverse to appellant’s contention. Appellant makes no complaint of the manner in which such issue was submitted. Appellant’s contention is therefore overruled.

Appellant presents a proposition in which it contends that the damages awarded appellees by the jury for the death of the deceased were excessive. The deceased was eighteen years old, and, according to the evidence, a splendid specimen of young manhood. He was a member of the junior class in the Clebume high school. He was industrious and without vicious habits. He was devoted to his parents and expressed a purpose to qualify himself for employment as a telegrapher to enable him to care for them in their declining years. He had further declared that his father was getting too old to work, as a reason for his hastening to qualify himself for remunerative employment. While the testimony was vague, it indicated that the deceased was an only son and that contributions from him would probably be necessary for the maintenance of his parents in coming years. Appellees incurred an expense of $580 in funeral and burial expenses for the deceased'. The jury assessed the damage of each of the appellees at $5,290, or an aggregate , damage to appellees of $10,000 for the loss of the services and prospective contributions of the deceased. What will constitute a proper award of damages for the death of a minor child necessarily depends to a large extent upon the circumstances of the case. Absolute accuracy with respect to such damages cannot be attained. The assessment of the same is within the peculiar province of the jury. Baker v. Fields (Tex. Civ. App.) 236 S. W. 170, 171, and authorities there cited. The verdict in this case, while large, is not so large as to shock the conscience or to indicate that the jury in arriving at the amount awarded was actuated by improper motives. To disturb their finding as to the amount necessary to fairly compensate appellees for their loss would simply be to substitute our judgment for theirs. The amount so awarded is supported by the precedent of well considered cases in this state and elsewhere. Flippen-Prather Realty Co. v. Mather (Tex. Civ. App.) 207 S. W. 121, 126, par. 11; Hines v. Richardson (Tex. Civ. App.) 232 S. W. 889, 891, par. 4; Oil Belt Power Co. v. Touchstone (Tex. Civ. App.) 266 S. W. 432, 440, par. 11; Houston Electric Co. v. Flattery (Tex. Civ. App.) 217 S. W. 950, 952. See, also, 2nd Parmele on Damage Verdicts, pp. 2211 et seq.

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