text:
    DICKINSON v. SANDERS.
    No. 1059.
    Court of Civil Appeals of Texas. Waco.
    May 14, 1931.
    Mr. & Mrs. C. S. jBradley and J. E. & B. L. Bradley, all of Groesbeck, for appellant.
    L. W. Shepperd, of Groesbeck, for appellee.
   ALEXANDER, J.

This suit was brought by W. L. Sanders against Mrs. Pearl Dickinson to recover a broker’s commission alleged to be due plaintiff by the defendant for bringing about an exchange of defendant’s property, consisting of some brick buildings in Coolidge, for certain land belonging to R. E. Perry. The plaintiff alleged an express contract for a commission of 2½ per cent, for bringing about an exchange of said property, and, in the alternative, sued in quantum merit for the reasonable value of his services. The case was submitted to a jury on special issues, and, on the answers of the jury thereto, the court e'ntered judgment for the plaintiff for the sum of $750. The defendant appeals.

The jury found that the appellant knew that the appellee was engaged in the real estate business; that appellant employed ap-pellee to find a trade for the property in question and agreed to pay him a commission of 2½ per cent, of the trade value of the property ; that appellee was the procuring cause of the trade by which the property was traded to R. E. Perry; that appellant accepted the services of the appellee in bringing about the trade, ⅜⅛ full knowledge of the fact that appellee was engaged in the business of effecting sales and trades of real estate for a commission, and that the usual and customary commission for such services was 2%,per cent.

At the close of the testimony appellant requested an instructed verdict in her behalf, and here contends that the evidence was insufficient to show either that there was a contract of employment between appellee and appellant or that appellee was the procuring cause of the trade. The appellee testified that he had a conversation with the appellant in the Post Office building at Coolidge about June, 1930, with reference to finding a trade for her property. In this connection, he testified : “I asked Mrs. Dickinson if she would pay a commission, and she asked me how the commission went through trades. I told her the customary commission would be 5% for cash, and 2½ in trade, and she said go ahead and trade that stuff off.” Later on, after the parties had been brought together and were about to complete the trade, appellee had another conversation with appellant, and he testified with reference thereto, as follows: “ * * * Then Mr. Martin and Mr: Miller went around to look at the buildings and I just got into the car with Mrs. Dickinson, and Mrs. Dickinson asked me: ‘What are you going to get out of this’, and I said: T am going to get a customary commission’, and then we discussed again about the five per cent and the two and one half per cent.” There was other corroborating testimony not necessary to here mention. This evidence was sufficient to raise a question for the jury as to whether the appellant employed appel-lee and agreed to pay 'him a commission for bringing about a trade for her property.

With reference to whether appellee was the procuring cause of the sale, it appears that a Mr. Miller and a Mr. Martin of Hillsboro were representing Perry in the sale or exchange of his land. The appellee immediately after his conversation with the appellant in the Post Office building got in touch with Miller and had him and Martin come to Coolidge for the purpose of inspecting the appellant’s property. The appellee arranged a meeting between the appellant and Martin and Miller at the hotel in C'ool-idge and took the appellant to the hotel for that purpose. Martin first offered to trade another tract of land known as the Poindexter land, but finding that this involved too much money, that trade was abandoned. Martin then suggested trading the Perry land. The appellee took part in the interview and discussed with all parties the trade for the Perry land. It was then agreed by all parties that the negotiations might thereafter be carried' on by Martin directly with the appellant in the event the appellee was not available to participate in the discussions. After several weeks of negotiations, the trade was finally consummated. The testimony of the appellee to the above facts was corroborated by other witnesses. It is appellant’s contention that, although appellee brought the parties together for the purpose of bringing about an exchange of appellant’s land, since Martin was the first party to suggest an exchange for the Perry tract, Martin’s act in suggesting the particular trade, and not the acts of the appellee in bringing the parties together, was the procuring cause of the trade. It is true that Martin first suggested the trade for the Perry land, but it was through the efforts of the appellee that the parties were brought together for the purpose of making the trade. We think the evidence was ample to support the findings of the jury that appellee was the procuring cause of the sale. Keener v. Cleveland (Tex. Com. App.) 250 S. W. 151; Cruz v. Perkins (Tex. Civ. App.) 21 S.W.(2d) 1078. There being evidence in the record reasonably tending to support the verdict, this court is bound thereby. Crawford v. Beaver-Electra Refining Co. (Tex. Civ. App.) 273 S. W. 892; Trimmier v. Carlton, 116 Tex. 572, 296 S. W. 1070, par. 18.

The appellant next complains of the action of the court in defining “procuring cause.” The court defined this term as follows: “By the term ‘procuring cause’ as herein used is meant that cause which- is a natural and continued sequence, unbroken by an independent intervening cause, producing the event without Which it would not have occurred.” We do not think there was any error in this charge. Keener v. Cleveland (Tex. Com. App.) 250 S. W. 151, par. 1; Cruz v. Perkins (Tex. Civ. App.) 21 S.W.(2d) 1078 (writ ref.).

The appellant objected to the following charge by the court: “When a real estate broker is instrumental in bringing together the seller and a purchaser who is acceptable to the seller and they consummate a sale and purchase of property on terms that are satisfactory to the seller, the agent is the procuring cause of the sale.” Appellant’s. objection to this charge is not made clear by the brief. She seems to think that it would permit the jury to find that appellee was the procuring cause of the trade if they found that he brought the parties together for some other purpose and the parties after-wards discovered the possibilities of making the trade, and negotiated the trade themselves. While it is true that there may be circumstances in which the mere bringing together by the agent of the seller and the purchaser who afterwards make a trade would not be sufficient to constitute the agent the procuring cause, we think the charge must be construed as a whole and in the light of the facts and circumstances before the court and jury and not in the light of a supposed state of facts not raised by the evidence. Walcott v. Brander, 10 Tex. 419; St. Louis, S. F. & T. Ry. Co. v. Houze (Tqx. Civ. App.) 28 S.W. (2d) 865, par. 3;', Moore v. Davis (Tex. Civ. App.) 16 S.W.(2d) 380, par. 3; M., K. & T. Ry. Co. v. Redus, 55 Tex. Civ. App. 205, 118 S. W. 208, par. 2. The purpose of the charge is to apply the law of the case to the facts in evidence. When the above charge is construed in the light of the testimony before the jury» we do not think that it could be misunderstood. The'jury could only have understood that the appellee was the procuring cause of the trade in the event he first brought the parties together as seller and purchaser for the purpose of bringing about an exchange of the two pieces of property, and that he was the immediate cause of the negotiations that'finally culminated in the trade.

Neither is the charge objectionable as violating the rule against the giving of a general charge when the case is submitted on special issues. The court had submitted the iásue to the jury as to whether the appellee was the procuring cause of the trade. The charge as given was but a definition and an explanation of the terms used in the special issues as submitted. Revised Statutes, art. 2189..

The appellant complains of the action of the court in refusing to give her requested issue No. 3, as follows: “Did defendant, Mrs. Pearl Dickinson, know before she signed the written contract of date August 1st, 1929, for the exchange of her land, of plaintiff’s connection, if any, with the procurement of such contract and that plaintiff expected her to compensate him therefor?” If the appellant actually employed appellee to bring about an exchange of her property and agreed to pay him a commission and he was the procuring cause of such trade, ’ as was found by the jury, then it was immaterial whether she knew that he was the procuring cause of such trade at the time she signed the contract. Where a principal employs an agent to find a buyer for property and' agrees to pay him a commission, and the agent procures such purchaser, the agent is entitled to his commission, even though the seller does not know at the time the deal is closed that the agent is the procuring cause of the sale. Graves v. Bains, 78 Tex. 92, 14 S. W. 256; McDonald v. Cabiness (Tex. Civ. App.) 98 S. W. 943, affirmed 100 Tex. 615, 102 S. W. 721; Bound v. Simkins (Tex. Civ. App.) 151 S. W. 572, par. 2; Miller v. Eldridge (Tex. Civ. App.) 286 S. W. 999, par. 1; Hill v. Huber (Tex. Civ. App.) 202 S. W. 785; Goodman v. Henck (Tex. Civ. App.) 295 S. W. 349, par. 3. Since the issue as requested was not a controlling issue, it was immaterial, and the court did not err in refusing to submit same. Blumrosen v. Burke, 37 S.W. (2d) 1070 (decided by this court February 19, 1931); Schaff v. Morris (Tex. Civ. App.) 227 S. W. 199, 205; Brokaw v. Collett (Tex. Com. App.) 1 S.W.(2d) 1090; Rathbun v. Miller (Tex. Civ. App.) 266 S. W. 818.

The court in the concluding paragraph of the charge, instructed the jury as follows: “You are the exclusive judges of the facts proved, of the credibility of the witnesses, and of the weight to be given to their testimony; but you are not the judges of the law, and by this instruction you will be guided in making your answers to the special issues which are submitted to you in this cause.” It is proper for the court to instruct the jury that they are the exclusive judges of the credibility of the witnesses and the weight, to be given to their testimony, but the law they are bound to receive from the court as given them in the charge and that they must be governed thereby. International & G. N. Ry. Co. v. Muschamp, 40 Tex. Civ. App. 358, 90 S. W. 706 (writ ref.); International & G. N. Ry. Co. v. Hays, 44 Tex. Civ. App. 462, 98 S. W. 911 (writ ref.). While the charge as given was perhaps not in as apt language as it should have' been, we do not think the jury could have been misled thereby. West Texas Coaches, Inc., v. Madi (Tex. Civ. App.) 15 S.W.(2d) 170, affirmed (Com. App.) 26 S. W.(2d) 199.

Finding no error in the record, the judgment of the trial court is affirmed.


source: Caselaw Access Project

author: FLY, C. J.

license: Public Domain

text:
    WARMAN v. WARMAN.
    No. 8604.
    Court of Civil Appeals of Texas. San Antonio.
    April 22, 1931.
    Rehearing Denied June 3, 1931.

      Atlas Jones, of Uvalde, and Leonard Brown, of San Antonio, for appellant.
    O. C. 'Wurzbacli and Chas. W. Anderson, both of San Antonio, for appelle¡e.
   FLY, C. J.

This is a suit for divorce instituted by ap-pellee against appellant, and for allotment of her separate property to her. In addition to a prayer for alimony and attorneys’ fees, she prayed for an injunction requiring appellant to deliver the keys to the house to appellee, and'that he be restrained from “speaking to plaintiff and otherwise molesting her.” .

The cause was tried by jury, eleven special issues being presented to them, and upon the .answers thereto judgment for divorce was denied appellee, but was granted appellant on his cross-action, and a part of the property was set apart to appellee as her. separate property, and the property found to be community estate was ordered sold and the proceeds divided between the parties.

No statement of-facts has been filed in this court, and the court is not in a position to pass upon questions of fact, which are the only matters raised in the motion for new trial. Appellant has sought to bring’ other assignments of error before this court, raising questions not presented in the motion for new trial, but which for the first time are presented in this court. There is no fundamental error raised by such additional assignments of error, and they will not be considered by this court. No bills of exception, prepared as required by law, are contained in the record.

There are some unusual features contained in this case, which have not been explained. Correspondence of appellant with several parties is included in the transcript; among the number being a letter from the special judge who tried the cause, which brings out some singular matters in connection with the case. The letter is as follows:

“San Antonio, Texas, December 13, 1930. “Mr. Atlas Jones Attorney at Law, Uvalde, Texas
'“Dear Mr. Jones: I received a copy of your Bills of Exception and application for extension of time in the case of Gertrude Day War-man v. T. J. Warman. I also have before me yoür letter of December 11 and note the contents of same.
“I notice that in your application for extension of time you say: the only issues that are of any importance to the parties to said case upon an appeal of the same are the property issues.’ This statement is true, but the unfortunate thing now is that the parties have agreed to accept the decision of the jury as to the division of the property, and the’ property has been sold and each party has received his or her part of it. In my judgment, it would be very foolish to further press this matter. There is nothing to adjudicate. The parties have by agreement accepted the-verdict of the jury; and I do not believe that I would be justified in sigping any bills of exception and application for extension of time for filing said bill. The matter has been settled by your client and the plaintiff in this case.
“Respectfully yours, W. S. Anthony.”

The letter speaks'for itself.

No error is apparent of record, no statement of facts has been filed, and, the assignments being based on matters of fact, the judgment must necessarily be affirmed.


author: HALL, C. J.

text:
    Jesse McCULLOUGH, Appellant, v. Bertha McCULLOUGH, Appellee.
    No. 3245.
    Court of Civil Appeals of Texas. Amarillo.
    April 29, 1931.
    For former opinion, see 20 S.W.(2d) 224.
    Cook & Donaghey and Storey, Leak & Stor-ey, all of Vernon, for appellant.
    Marvin O. Culbertson, of Vernon, for ap-pellee.
   HALL, C. J.

Upon submission, the judgment of the trial court was affirmed. 20 S.W.(2d) 224. Appellant’s motion for rehearing and to certify was granted, and, in response to the certified questions, the Supreme Court [36 S.W.(2d) 459], speaking through the Commission of Appeals, holds that the plaintiff’s petition was sufficient as against a general demurrer and that there was evidence to sustain the statutory grounds for divorce set out in the peti-tiom

Based upon these answers, the motion for rehearing is overruled, and the judgment is affirmed.


author: COBBS, J. SMITH, J.

text:
    MEADOWS v. MITCHELL et al.
    No. 8615.
    Court of Civil Appeals of Texas. San Antonio.
    May 20, 1931.
    Carter & Stiernberg, of Harlingen, for appellant.
    Greenwood & Lewis, of Harlingen, for ap-pellees.
   COBBS, J.

This suit was by appellant to recover the sum of $3,149.96 from appellees. It was alleged that D. B. Meadows and M. E. Mitchell owned an undivided one-half interest in a certain office building in Harlingen, Cameron county, Tex., known as the Commerce Building ; that M. E. Mitchell and his wife, Grace B. Mitchell, appellees, purchased a one-half interest in the said building and the lots on which it was situated, from John Baker, about July, 1928, and shortly thereafter appellant acquired the other one-half interest from John Baker, each party assuming one-half of a loan in favor of the Jarrett Mortgage Company, of San Antonio. Appellant and appellee continued to operate this building until some time in March, 1929, when a corporation known as the “Commerce Building, Inc., of Harlingen, Texas,” was formed, and each party received one-half of the capital stock of said corporation, in’ consideration for their one-half interest in said building. Prior to such incorporation, on February 7, 1929, an installment of the Jarrett mortgage came due and, the building having no net earnings, the Mitchell .family paid $1,600.01, and appellant, D. B. Meadows, paid $1,600.01,. to discharge the same; these obligations having been assumed by the individuals in their • deeds from John Baker. These payments were credited to their re--spective personal accounts in the ledger. In the conveyance from appellant and appellee and his wife to the corporation, the Commerce Building, Inc., of Harlingen, Tex., the corporation did not assume the Jarrett loan. On August 1, 1929, another installment on the Jarrett mortgage became due, and the corporation not having funds from which to pay the installment, appellant and appellee each paid the sum of $1,549.95, which was credited to their personal accounts in the ledger. In December, 1929, appellant sought to sell, and appellee Mitchell sought to purchase, the interest of appellant in and to the corporation and everything incident thereto and the building and everything incident thereto, for a net consideration of $23,878.20; it being understood that appellee was, in the same transaction, reselling the property to Harry Landa, and appellee Mitchell was obtaining the entire property, the sum constituting an agreed settlement, purchase, and sale for $25,000 for all the interest of appellant and the net amount of account stated to be $23,878.20, as aforesaid. In this contract appellee Mitchell agreed to assume and hold appellant free and acquitted from the. obligations of the corporation and all the mortgages and liens against the real estate. Appellee Mitchell not only purchased the entire interest of appellant, but further agreed to assume the obligations appellant owed and to indemnify the appellant by reason of the same. Appellant agreed to make proper transfer and delivery of . all the property conveyed upon the consumma-tioil of the deal, but the record does not disclose that such transfers from appellant to appellee were ever made.

This suit was brought by appellant against the corporation claiming that the corporation agreed to indemnify him for the payments made by appellant on his obligation to the Jarrett Mortgage Company, totaling $3,174.96, and interest, and also sued appel-lee Mitchell on the theory that said sum was the debt of the corporation, and that in the contract of purchase and sale Mitchell assumed the payment of the debt. After hearing all the testimony the court instructed the jury to return a verdict.

The charge of the court constituted fundamental error, provided there was any evidence whatever to go to the jury. This is largely a fact ease, and we have searche'd ■the record in vain to find any agreement, express or implied, to bind appellees to repay, under any circumstances, the money advanced by appellant in payment of the corporation debts. The agreement between Meadows and Mitchell was that they would go out and secure money to pay Jarrett, due to the fact that the company did not have any money on hand,- with the distinct understanding between them^ that the company would pay them back with interest. Mr. Meadows testified that the parties deeded the building to the Commerce Building, Inc., and that the consideration for this deed was “that we would transfer the building and all of the assets, together with the accounts which were then owing to us by the partnership, together with the idea of this corporation assuming all of the liabilities, so far as the Jarrett Mortgage was concerned, or Mr. Mitchell and myself.” He also testified that the building so conveyed to the Commerce Building, Inc., was worth around $200,000, and that the only reason the capital stock was not made for more than $50,000 was that the parties wanted the corporation to pay a dividend. Mr. Meadows further testified that after the building had been deeded to the corporation in July, there was another payment came due on the mortgage on August 1, 1929, and, the corporation not having the funds with which to meet the payment, Mr. Meadows and Mr. Mitchell each advanced $1,549.95, which sum was advanced to the corporation; “the agreement was that money was to be credited to the loan account and paid back to each of us by the corporation.” Both of these advances were carried on the books of the company, and the pages of the company’s books where these advances have been credited to the parties appear on pages 38 and 39 of the statement of facts.

Upon this issue it is the contention of appellant that the court in instructing the verdict erred in holding that the corporation did not assume the sum of money sued for by the plaintiff. On the question of assump-sit Mr. Meadows testified that the advances were to be treáted as loans to the partnership and to the corporation, to be repaid to the parties making the advances, with interest.

While it is true the books of the company showed the items named and perhaps thereby showed loans and advancements to the corporation, but that would not justify the unqualified construction that the corporation by any act assumed their payment.

Under the rules of law in Texas it is the duty of the court to submit every contested fact to the jury. Young v. Blain (Tex. Com. App.) 245 S. W. 65; Peerless Fire Ins. Co. v. Barcus (Tex. Civ. App.) 227 S. W. 368; Davis v. Wagner (Tex. Civ. App.) 237 S. W. 612. And that was required in this case.

The only evidence tending to prove that the corporation did not assume these advances appears in the testimony of Mr. Mitchell, who says that “Mr. Meadows was entitled to that credit as an additional investment, but not as a loan.” It is almost uncontradicted that these advances were to be treated as loans, and to be repaid to the parties making them by the corporation, but the corporation did not expressly assume the obligations of the partnership; it was only an implied assumption that it would pay them. • 10 Tex. Jur. p. 1018; 1 Fletcher, Cyclopedia Corporation, par. 379, p. 796. So also to the same effect is Modern Dairy & Creamery Co. v. Blanke & Hauk Supply Co. (Tex. Civ. App.) 116 S. W. 153, 154, and Thompson on Corporation (3d Ed.) vol. 4, par. 2438, p. 20.

In the case of Modern Dairy & Creamery Co. v. Blanke & Hauk Supply Co., supra, the court used the following language; “If there had been any proof that the corporation had been formed by the members of a partnership that had incurred the debt, and that the assets of the partnership had been .assigned to the corporation for the continuance of the business, it could be presumed that the corporation assumed the partnership debts, and would be prima facie liable therefor. Cook, Priv. Corp. pp. 346, 347. Nothing appears in the record, however, on which to base such a presumption.”

The language of the court in this cáse clearly indicates that had there been evidence that the corporation was formed by members of the partnership for the purpose of continuing the business and all of the assets assigned to the corporation, then- the corporation would be liable for the' debts of the old partnership. This question does not seem to have been directly passed upon by the courts of this state. In the case of Morrison et al. v. Sewell et al. (Tex, Civ. App.) 4 S.W.(2d) 1029, it was held that where the-owner of a business transferred the assets to a corporation, in which he owned the capi-, tal stock, the corporation is presumed to have assumed the debts of the business as prima facie liable therefor. The court said, in passing on this question: “Where owner of business transferred assets to corporation in which he owned capital -stock, corporation is presumed to have assumed debts of business and is prima facie liable therefor.”

We have reached the conclusion that there was no evidence of the implied assumption of the debt sufficient to pass the question to the jury with instructions.

The judgment of the court is affirmed.

SMITH, J.

I concur in the result.


text:
    FORT WORTH & D. C. RY. CO. v. ARMITAGE.
    No. 3603.
    Court of Civil Appeals of Texas. Amarillo.
    May 6, 1931.
    Rehearing Denied June 3, 1931.
    W. W. Gibson and Morgan, Culton, Morgan & Britain, all of Amarillo, and Thompson & Barwise, of Port Worth, for appellant.
    E. O. Northcutt and H. D. Bishop, both of Amarillo, for appellee.
   HALL, C. J.

This is an action to recover damages for personal injuries instituted by appellee Armi-fage against the defendant railway company.

It appears that the appellee came to Amarillo seeking employment. That his occupa-tion was that of hoisting engineer, and after remaining in Amarillo a day or two, he decided to go either to Denver or Chicago. He purchased a ticket to Dalhart, Tex., intending to leave Amarillo on the night of March 21st, on a west-bound passenger train which left at 9:15 p. m. Entering the station some time before the departure of his train, he purchased his ticket, bought a Denver paper, and was reading it when the train arrived. According to his testimony he did not hear the train arrive, but heard the station man call, “All aboard for the train north.” After hearing this call he went into the toilet and heard the station man again call, “All aboard train north.” He then hurriedly left the depot to get on the train, negligently leaving his overcoat in the toilet. He testified that he got on the train between the first two passenger cars, one of the vestibules of which was open. He looked into the second ear and saw that the seats were practically all taken. He then turned to the left and went into the smoker, taking the first seat on his right as he went in. That he then realized he did not have his overcoat and got up at once and went out on the car platform and saw that the doors next to the depot were closed; that a door on the opposite side of the- train was open. He saw none of the crew, so he stepped off of the train at this north door. The train was moving. There were no lights between the tracks on the north side and he stepped. off in the dark. That his left foot became tangled in certain rubber hose laying by the side of the track which had been used in servicing the cars, filling the water tanks with water.

The acts of negligence alleged are: (a) In leaving the north door of the train open, unguarded, and unattended; (b) in leaving the rubber hose next to the track; (e) in violating a rule of the company by leaving the side door and trap door of the vestibule open while the train was in motion; and (d) in failing to light the premises on the north side of the train.

In addition to demurrer, exceptions, and a general denial, defendant pleaded in substance: (a) That the injury was due to the' failure of plaintiff to exercise care for his own safety, in that he attempted to alight from a moving train at night on the wrong side; (b) his attempt to so alight without looking to see if there were any objects near the track to cause him to stumble; (c) that in so attempting to alight, plaintiff repudiated his contract obligation and abandoned the obligations imposed upon him to. continue his journey to Dalhart, and thereby released de: fendant from its contract obligation and himself prevented defendant from performing its contract and obligation and thereby assumed the risk of his own voluntary act in so disembarking ; (d) that plaintiff was not injured because of any violation by defendant of any duty it owed to him under such contract, because by attempting to alight before reaching his destination, Without invitation or knowledge on the part of the defendant and at a point and place not contemplated by the contract, he released defendant from the obligations it owed to him under said contract.

The court submitted the case to the jury upon special issues, which, with the answers, are as follows:

1. (a) Did the defendant Fort Worth & Denver City Railway Company leave a hose at the place where the plaintiff, A. W. Armitage, got off the train in question? Answered; ■“Yes.”

(b) If so, was the leaving of said hose at said place negligence on the part of the defendant, under the circumstances, as the term “negligence” has been defined in this charge? Answered: “Yes.”

(c) Was such negligence, if any, the proximate cause of any injury to the plaintiff? Answered: “Yes.”

2. (a) Was the act of the plaintiff in alighting from the train in question, at the time and place and under the circumstances existing at the time he alighted therefrom, negligence upon the part of the plaintiff as the term “negligence” has been defined in this charge? Answered:. “No.”

3. Was the injury received by the plaintiff upon the occasion in question the result of an accident? Answered: “No.”

4. What amount of money, if paid now, would reasonably compensate plaintiff for the injuries, if any, sustained by him as the proximate result of the negligence, if any, upon the part of the defendant? Answered: “$8,000.00.”

Special issue No. 1 requested by defendant: Did plaintiff, at the time he disembarked from defendant’s train, do so with the expectation of not continuing the journey on the train but continuing his journey on a subsequent train? Answered: “No.”

The material facts upon which this action is based are practically undisputed. The plaintiff testified that he was 49 years of age and, when able to secure work, his average monthly wage was about $230. That he had not been employed for many months and had been traveling over the country seeking work. That his last employment was at St. Peters-burg, Fla. pihat he left there intending to go to Boulder Dam but, upon reaching El Paso, ascertained that work was not available at Boulder. That he then came to Amarillo, traveling on trucks and automobiles which picked him up along the road. That he reached Amarillo on the night of March 20th, and on the morning of the 21st endeavored to find work. Being unable to do so, he decided to go either to Denver or Chicago. He intended to go to Dalhart and make up his mind there whether he would go to Denver or Chicago. That about 5 o’clock in the afternoon he went to the defendant’s depot to inquire about the movement of trains and learned that a train would leave about 9:15 that night. That he went back uptown and later returned to the station close to 9:15. After he returned he sat down in the depot, then bought his ticket to Dalhart and a Denver paper, and, as heretofore stated, he did not hear the train when it arrived, but heard the calls. That after forgetting his overcoat he wept to the opening on the south side of the train next to the depot, exhibited his ticket to the company’s employee, who waved him onto the. train. That he did not remember whether he got on to the smoker, vestibule or the vestibule of ■the chair car. That the train was so arranged that the smoker was on the west or left-hand side and the chair car on the east of the entrance. That after getting on board he sat down and commenced to read his paper, and just as the train started to move, realizing that he did not have his overcoat, he got up at once and went on the car platform and saw that the doors next to the depot were closed. That a door on the right-hand side of the train, or north side, was open. That he saw none of the crew there and he disembarked at this north door. He saw that the train was moving but intended to get his coat. That he went down the steps and glanced at the ground and so far as he could see it was in a smooth condition. While there were no lights between the tracks, since he saw nothing to prevent it, he got off the step. That just as his left foot was coming, he got tangled up in the rubber hose which was alongside of the train and stumbled. This threw him under the train, which passed over both his feet, so that both legs had to be amputated just below his knees. He testified that there was plenty of light on the depot side or south side of the train where he embarked. That he knew the doors of the train were closed on the depot side, and he further knew the train was gradually increasing its speed. He also knew that he was not getting off on the depot side and tliat it was dark on the north side. He further testified that the hose he stepped on was not by the car door at the- place where the train had been stopped while it was waiting to take on passengers, but was laying on the ground a car or a car and a half length farther west toward the head of the train, and that very likely it would have been about the baggage ear before the train started. He testified that immediately adjoining the depot there was a brick platform and beyond it the house tracks or station tracks. That he boarded the train by stepping from the brick platform onto the train which was on the first track. He testified that he had had about fifteen years’ experience in railroading and knew how to get off of a train. That just before alighting he reversed his position to get off, that he turned around and backed down the. steps and put his right hand on the left handle and his left hand on the right handle, and then let go with his right hand as he stepped out on.the ground, which would throw him facing the train, but that he still held with his left han'd. That just as he let go with his left foot and before he ever turned loose his hold with his left hand, he became entangled in a rubber hose and was tripped and thrown under the train and injured. He further testified that at the time he got off the train was not going more than three miles an hour.

.The testimony .of J. W. Mode, defendant’s division superintendent, was to the effect that the grounds on the north side of the train where plaintiff disembarked had never to his knowledge been used by passengers, either in getting on or off the trains. By his testimony he showed that it was necessary to have the doors on the north side open at Amarillo so that the trainmen and yardmen could properly service the train by putting water and ice into the- coaches.

It will be - seen that the only act of negligence on the part of the defendant which the court submitted was in leaving the hose at the point where it was when the plaintiff stepped onto it.

The appellant first contends that the court erred in refusing to direct a verdict for the defendant railway company.

In this connection, appellant contends that plaintiff having purchased a ticket from Amarillo to Dalhart and having entered defendant’s train for the purpose of going to his destination, defendant had only one obligation to perform and that was to safely transport plaintiff to his destination, and there being no evidence which tended to show that any passenger had ever made use of that portion of the right of way on which plaintiff disembarked or that there was any reason or excuse for passengers on said train to make use of such portion of said right of way for any purpose, the defendant owed plaintiff no duty to keep that portion of its right of way in any particular condition. '. That in the absence of a duty there could, of necessity, be no negligence and defendant insists that a peremptory charge should have been given for the further reason that when defendant was attempting to comply with its contract to transport plaintiff to Dalhart, plaintiff was guilty of contributory negligence, when, of his own volition, without notice to defendant, he abandoned his contract, placing himself in a position inconsistent with that of a passenger by attempting to disembark before reaching his destination in a manner and at a place not ordinarily used by passengers, and in his effort to disembark from such train and abandon it for the purpose of getting his overcoat, he was at most only a licensee toward whom the defendant owed no duty to keep that portion of its grounds used by its employees exclusively, in any character of condition. That the court further erred in refusing to peremptorily instruct the jury because the evidence fails to show that any duty rested upon defendant, toward a passenger destined to Dalhart, to have its premises north of the train in proper condition for alighting passengers, and for the further reason that the evidence does not raise the issue that the defendant should have reasonably anticipated that a passenger holding a ticket for a point (north) west would, after taking a seat on the train, change his mind and disembark in the dark on the wrong side of the train after it had started on its journey and without making his purpose to disembark known to any of the employees. A further contention is that because plaintiff admitted that he knew he was disembarking on the opposite side of the train from the regular side of entrance and knew that the doors on the south side, prepared for passengers to get on and off, had been closed, and knew that the defendant did not expect passengers to then get on or off its train, and that by his own testimony he shows that he was guilty of contributory negligence, which was, as a matter of law, the proximate causé of his injuries.

The first contention of appellant which we will consider is that when Armitage decided to leave the train for the purpose of getting his overcoat, he left with the intention of resuming his journey upon another train and for the time the contract of carriage had been abandoned and the relation of carrier and passenger no longer existed, citing 8 Tex. Jur. 012, § 433, and authorities. The contention is that the facts in evidence show that the relation of carrier and passenger no longer existed after he fully decided to abandon his journey, notwithstanding his testimony to the effect that his intention was to again get on that train if he had time after getting his overcoat.

It must be admitted that the record tends to show that his intention'to resume his joufc ney on that train is an afterthought. He had admitted that-lie knew Amarillo was a division point where the train was serviced and that when he arose to leave the car he saw that the train was moving. The facts show that it was a long train, containing about half a dozen cars, and at the time he decided to leave, the train was gradually increasing its speed. He was in the smoking car near the front end of the train. He testified: “I knew that it was gradually increasing its speed and I knew I was going to have to get off pretty quick if I got off. As to my expecting to get off on the north side of the train and wait until that long train had passed and then go and get my overcoat and then come back and catch the train, I hadn’t thought anything about getting around that train. I did not think anything about waiting there until the train had passed and then going and getting my overcoat and then coming out and catching the train. The only thing I did was the action of getting off. I knew that I was not getting off on the depot side.”

It was shown that he had alleged in a former suit as follows: “Upon noticing that none of the employees of the defendant were present and that all of the doors had been closed and that said train was moving and had started on its destination from Amarillo, Texas, to Dalhart, Texas.” And had further alleged in three other petitions filed in the former suit: “That said train was moving very slowly and had started on its destination from Amarillo, Texas, to Dalhart, Texas.” Notwithstanding these allegations, his supplemental petition filed in this suit October 10, 1030, alleges that: “He had no knowledge that said train was then leaving Amarillo or on its way to Dalhart, Texas.”

It was further shown that shortly after the accident, in a written -statement made to the defendant’s claim agent, he said: “I decided I had better get off and get it (my overcoat) as I knew my ticket would be good the next day. ⅜ * * I had the overcoat on my mind and the train was moving and I knew if I got off, I would have to hurry. I wás not worrying about getting hack on this train, as I knew I would only be out a night’s lodging and I needed my overcoat badly.”

It must be admitted that the plaintiff voluntarily alighted from the train on the wrong side without informing any of the defendant’s employees of his intention to do so, and that he alighted at an unusual place in an unexpected manner and at a time when the defendant could not have reasonably 'anticipated that a passenger holding a ticket entitling him to transportation to a distant station would disembark. In thus- disembarking, we strongly incline to the opinion that his conduct made him a licensee and probably a trespasser when he got off in a part of the defendant’s yards not used or intended to be used by passengers, either in embarking or disembarking. While we think that there is merit in appellant’s contention, we do not base our disposition of the case upon that theory.

We cannot assent to the contention of the appellee that the evidence sustains the finding of the jury to the effect that the railway company was negligent in leaving the hose at the place where the plaintiff jumped off of the train. It conclusively appears that the place at which appellant was injured was not intended for the use of passengers, and it. further appears that it was not a place at which passengers would naturally alight or where they expected to disembark at that time, and the defendant therefore owed plaintiff no duty to remove the hose, especially after the train had left the depot. Ordinarily it is the duty of a railway company to keep its grounds in a reasonably safe condition, and it must use more than ordinary care in keeping that portion of its depot grounds designed for the use of passengers in a safe condition; but as to such portions of its depot premises which are to be used by its employees only in the performance of their duties and at division points in servicing trains we know of no authority which requires a railway company to remove the hose used in furnishing water for its cars immediately upon the cessation of such use. If it be admitted that it owed this duty to its employees, we think the trend of decisions in this state is that it was not required to remove the hose in the performance of any duty toward Armitage or any ether passenger. Ratteree v. Galveston, H. & S. A. Ry. Co., 36 Tex. Civ. App. 197, 81 S. W. 566; Davis v. Houston, E. & W. T. Ry. Co., 29 Tex. Civ. App. 42, 68 S. W. 733; Fort Worth & D. C. Ry. Co. v. Allen (Tex. Civ. App.) 179 S. W. 62; Houston, E. & W. T. Ry. Co. v. Grubbs, 28 Tex. Civ. App. 367, 67 S. W. 519; 8 Tex. Jur. 749, 819.

The plaintiff testified that when he went to the depot at about 5 o’clock in the afternoon to inquire concerning the departure of trains, he spent some time there looking over the grounds and saw the situation and conditions as they existed. He furtlier testified that he knew that the platform on the south side of the train was well lighted and that the north side was dark. Under such conditions he must be held to have taken the dark side as he found it, and the company certainly owed no duty to light that side of its grounds for him. Missouri, K. & T. Ry. Co. v. Criswell, 101 Tex. 399, 108 S. W. 806. 1-Ie admitted that he was familiar with the operation of several kinds of vestibule doors, yet he did not attempt to make any explanation of why he did not open the vestibule door on the south side and get off there rather than on the north side where it was dark. It cannot reasonably be claimed that the open door on the north side was an invitation for any passenger who had just embarked for a distant station to use it in alighting from the train which had started on its journey and moved about one hundred feet and was gradually increasing its speed, and especially When the doors on the depot 'side had been closed, all indicating to passengers inside, as well as those on the outside, that the time for-ingress or egress had ended.-

We find ourselves unable to approve the finding of the jury that the act of defendant in leaving the hose on the ground where the plaintiff alighted was the proximate cause of his injuries. With reference to this feature of the case, the evidence- is undisputed. Through his act in not leaving the depot when his train was called, and in going to the toilet, and his further negligence in leaving his overcoat there, forgetting it, and boarding the train, he may be subject to the charge of contributory negligence, or at least these facts are in no degree chargeable to the defendant. ' To be the proximate cause, the injury must be the natural and probable consequence of the act complained of and of that character which should reasonably have been foreseen as such a consequence in the light of attending circumstances. Eames v. T. & N. O. Ry. Co., 63 Tex. 660; Texas & P. Ry. Co. v. Bigham, 90 Tex. 223, 38 Si W. 162; Steed v. Gulf C. & S. P. Ry. Co. (Tex. Com. App.) 231 St W. 714, Id. (Tex. Civ. App.) 209 S. W. 772; Galveston, H. & S. A. Ry. Co. v. Bell, 110 Tex. 104, 216 S. W. 390.

These and other cases hold that foresee-ableness is a necessary element of proximate cause. Linn Motor Co. v. Wilson (Tex. Civ. App.) 14 S.W.(2d) 867; Blanch v. Villiva (Tex. Civ. App.) 22 S.W.(2d) 490. The defendant could not, by the exercise of reasonable care, have foreseen that a passenger destined for a distant station would board the train, leaving his belongings in the depot, or that he would attempt to alight from the train on the wrong side in the dark after it had started on its journey, nor can we assent to the contention that even though it be admitted its act in leaving the hose where it was when the. train started is negligence in any sense, that it could have foreseen that any one would alight at that particular place. We incline to the opinion that the acts of plaintiff constitute an intervening cause for which plaintiff alone is responsible and which exclude the idea that the presence of the hose where it was was the pr.oximate cause of his injuries.

We have not undertaken to discuss the numerous propositions urged in detail, but are convinced, after a careful review of the undisputed testimony, that the verdict is not supported by the testimony. We are not authorized to set aside a finding of the jury and substitute our own findings and render a judgment for the defendant, but we sustain the contention of the appellant that the trial judge should have directed a verdict for defendant upon the evidence disclosed by the record.

- Eor this reason we reverse the judgment and remand the cause for another trial.


author: WAEKER, J.

text:
    CITY OF JASPER v. BROWN.
    No. 2055.
    Court of Civil Appeals of Texas. Beaumont.
    March 31, 1931.
    Rehearing Granted in Part June 3, 1931.
    Garland Smith, of Jasper, and A. D. Lipscomb, of Beaumont, for appellant.

      J. T. Adams, of Orange, and Adams & Hamilton, of Jasper, for appellee.
   WAEKER, J.

This ease was tried in the district court of Jasper. County upon the pleadings of appellant as plaintiff, and appellee as defendant. No evidence was introduced. Appellant alleged that it was a municipal corporation duly incorporated under the laws of the State of Texas; that its citizens, under authority of law, had voted a bond issue of §60,000.00 for the purpose of building a sewer system for the use of its citizens; that the sewer system was regularly installed and in installing it it was necessary to cross appellee’s land; that he gave his oral consent to this act on the part of appellant and that without objection he permitted appellant to install its sewer system across his land; that after it was thus installed appellee, without the knowledge and consent of the city council of the City of Jasper or of any member of the city council or any representative of the city, went upon his land and “wilfully, maliciously and unlawfully made excavations into the main line of said sewer system and did break and destroy same so as to prevent the continuous flow of the sewerage that is now being emptied into said line for transmission into the final disposal plant at the end of said line.” Appellant alleged that appellee had damaged its system $500.00 and by his interference was destroying the effectiveness of the system and thereby damaging appellant in the further sum of $60,000.00. The prayer was for a temporary injunction restraining appellee from • interfering “with the repairing and reconstruction of said sewer line, and from intimidating the employees of said city' in the construction and repairing of said line” etc. The temporary injunction was granted as prayed for, it remaining in force until the case came on regularly for trial.

Appellee’s answer presented the propositions that appellant’s petition was defective in the following respects: (a) the petition failed to allege whether- the permission given to cross appellee’s land was oral or in writing; (b) if an-oral agreement it'was in violation of the statute of frauds; (c) oral consent cannot be the basis of a perpetual easement in land “unless a consideration is paid, together with possession and valuable improvements”; (d) there was no allegation that the property was under the exclusive control and management of the defendant; (e) there was no allegation that appellant had no adequate remedy at law in that the petition failed to state “whether the defendant Brown was insolvent and could not respond in damages for the acts alleged to have been committed 'by him” and “said petition shows on its face that it is an effort by plaintiff to accomplish the whole purpose of the suit by injunction, without trial on the merits.”

. It was conceded by appellee that appellant’s petition, tested by it allegations, shows on its face “that the City of Jasper, incorporated as alleged, is vested with thé power of eminent domain for the purpose of acquiring the rights as alleged.” Appellee specially plead that he was the owner in fee simple of the land in controversy; that it was his homestead; and that appellant entered upon his' premises without his permission and without any authority of law and constructed its sewer line across his premises. He further plead that appellant had appropriated his premises, thereby damaging him in- the sum of $1200.00 as the value of the land appropriated and the additional sum of $675.00 for the illegal construction of the sewer system.

Upon trial to the court without a jury, ap-pellee’s special exceptions were sustained, the temporary injunction was dissolved and all relief prayed for by appellant was denied. Appellee was granted an injunction restraining appellant “from the use of the sewerage line on the premises of said cross actor, C. C. Brown, as prayed for in his petition, and on and over the premises described in said cross actor’s petition.” Appellee was granted judgment for all costs incurred. From the judgment thus entered appellant has duly prosecuted its appeal.

This judgment was error. Having the right of eminent domain, appellant’s entry upon and appropriation of appellee’s land for the purpose of constructing its sewer line across the land did not constitute it a trespasser in the sense in which that word is used where one without authority of law enters upon another’s land and erects improvements thereon. In taking appellee’s land, appellant did not exceed its legal rights or jurisdiction, that is, under the allegations of the petition and answer it was made to appear that appellant had the legal right to condemn ap-pellee’s -land and appropriate it for the purpose of its sewer system. The entry without condemnation proceedings or due authority from appellee was merely an irregularity, of which he cannot complain after the sewer system was installed. Of course, the entry was irregular and, had appellee duly complained, the courts would have protected him in his possession by injunctive relief until appellant, by due process of law, had condemned his land. That the entry by appellant was wholly without authority from ap-pellee, or even against his express wishes, did not vest him with the right to oust appellant* by force nor to destroy the improvements placed upon his land by appellant. As the sewer system was laid across the land in question, under the power of eminent domain, appellee’s measure o*f damages and the extent of Ms relief was to pray for damages, as he did in his cross action.

The propositions thus announced have full support in the authorities cited' by us in Stakes v. Houston North Shore Ry. Co., 32 S.W.(2d) 1110. It follows that the trial court erred in dissolving the injunction theretofore granted in appellant’s favor restraining ap-pellee from interfering with the construction, maintenance and operation of its sewer sys'tem. To this extent the judgment of the lower court is reversed and judgment here rendered in favor of appellant, restraining appellee from interfering with the construction, maintenance and operation of the sewer system pending the final disposition of this case in the lower court. It is our further order that on the issue of damages the judgment of the lower court be reversed and upon another trial, upon proper allegations and prayer by appellant, that the land in controversy, or so much thereof as is necessary for appellant’s uses, be condemned under its power of eminent domain and that appellee be granted appropriate relief under his prayer for damages.

On Rehearing.

A careful review of the pleadings of appellant in this case has convinced us that it made no issue in the lower court of ownership of an easement across appellee’s land. The allegation is merely that defendant “gave his oral consent to the City that such lines could be laid across” his premises. Upon this statement of fact appellant alleged that appellee was injuring and threatening to injure its sewer system as and where it crossed his premises. The prayer was merely that the- temporary injunction previously granted restraining appellee from injuring the-sewer system be made permanent. The prayer was also for $60,000' damages to the sewer system. To this petition appellee replied by a' sworn denial of all affirmative allegations made against him, and by further pleading for damages for the trespasses committed by appellant against him and for the appropria- ■ tion made by appellant of the right of way across his premises.

On this statement appellee insists that we erred in our original opinion in granting the injunction against him. This contention must be sustained. Appellant was entitled to an injunction against appellee only on the theory that he was threatening injury to its property. By his sworn answer these allegations were denied, and since appellant offered no proof in support of its allegations and the case was tried merely upon the peti-' tion and answer, the court correctly dissolved the temporary injunction and refused to grant a permanent injunction against ap- , pellee restraining Mm from doing things in the future that he had not done in the past, and was not threatening to do.

However, under article 3269, R. S., and the authorities cited in our original opinion, appellee was not entitled to a writ of possession against appellant and, for that reason, the lower court was in error in granting him an injunction restraining appellant from entering upon his premises and from using the sewerage line across his premises. Whether the trial court was in error or not in sustaining the special exceptions against appellant’s petition, the order we have just made grants it all rights to which it was entitled under its allegations and the answer of appellee on the merits.

When the special exceptions were sustained against appellant’s petition, it appears that appellee abandoned his claim for damages for the trespass and appropriation of the right of way, and that the only two issues adjudicated by the lower court were: (a) The appellant’s right to an injunction; (b) ap-pellee’s right to an injunction. With appel-lee’s plea for damages eliminated, these were in fact the only two issues made by the pleadings in the lower court. It follows that in affirming the judgment of the lower court refusing appellant an injunction, and in dissolving the injunction granted to appellee, we have disposed of all the issues involved in the judgment appealed from.

Appellee also correctly insists that we should not reverse the case to give appellant an opportunity in this case to amend its pleadings and ask for condemnation. So in reforming and affirming the judgment of the lower court it is our order that nothing said on this appeal by us nor adjudicated by the lower court shall be res adjudicata of ap-pellee’s right to sue appellant for damages for trespassing upon his premises-, nor of appellant’s right to reply thereto by a cross action asking for condemnation under article 3269, nor by any allegation of fact that would constitute an answer to appellee’s prayer for damages.

The motion for rehearing is granted and the judgment of the lower court reformed and affirmed, with costs taxed against appellee.


author: WALKER, J.

text:
    UNITED STATES FIRE INS. CO. OF NEW YORK et al. v. ROTHWELL.
    No. 2052.
    Court of Civil Appeals of Texas. Beaumont.
    May 29, 1931.
    Rehearing Denied June 3, 1931.
    Beeman Strong and A. D. Moore, both of Beaumont, for appellants.
    Robert Lee Guthrie and Thompson, Knight, Baker & Harris, all of Dallas, for appellee.
   WALKER, J.

This is an appeal from a judgment of the county court at law of Jefferson county, wherein appellee recovered judgment against appellant United States Eire Insurance Company of New York for $158.75 and against the Franklin Fire Insurance Company of Philadelphia for $146.52, as the value of certain personal property — wearing apparel, bed linen, table linen, towels, etc. — covered by policies of fire insurance duly issued to appel-lee by appellants, and destroyed by fire on ■ the 24th day of October, 1928, while the policies were in force. The policies of fire insurance stipulated that the personal property so destroyed by fire was located in a two-story, shingle roof, frame building at 888 Calder avenue, in Calder addition, Beaumont, Tex., and the insurance was against all direct loss or damage by fire “while located and contained as described herein.” On the 23d of October, 1928, while the policies' of fire insurance were m effect, appellee removed the personal property destroyed by fire, as above stated, to a washhouse on the premises described in the policies, for the purpose of having such personal property. laundered. This washhouse was situated 38.9 feet north of the-building described in the policies and 26.9 feet northeast of a cistern adjoining and attached to the building described in the policies; the washhduse was detached from all other structures on the premises, but was surrounded bj a concrete drive, which in turn was attached to the building described in the policies. The personal property sued for herein was washed in the washhouse above mentioned on the said 23d day of October, 1928, and was in the process of being ironed or pressed when night came on. The ironing or pressing not having been completed, this personal property was permitted, to remain in said washhouse until the following morning, at which time it was contemplated that the ironing or pressing would be completed and the personal property returned to the residence described in the policies. On the morning of October 24th, at 4 o’clock a. m., fire totally destroyed the personal property sued for herein, as above stated. The washhouse, while not attached to the dwelling, was a part of the improvements situated upon the dwelling house lot and used by appellee as a part of his home improvements.' . •

Appellee stresses the following facts in this case, which he says in his brief are extremely important, and which we adopt as having support in the record:

“1. The personal property, for the loss of which this suit is brought, is made up entirely of wearing apparel, bed linens, table linens, and towels, the very character of which is such that it must be temporarily removed from the house often for. the purpose of having same laundered.
“2. The personal property here involved was removed only a few feet from the residence and to a place which was on the premises of the appellee.
. “3. The destroyed property was removed only temporarily from the residence, the intention of the appellee to return same to the residence within a few hours being" clear.
“4. The destroyed property and the premises upon which it was located at the time of its destruction was at all times under the control of the appellee. At no time was said property placed in the custody of someone other than'the appellee.
“5. The destroyed property was removed for the sole purpose of being laundered, a use which was fiecessarily incident to its enjoyment by appellee.”

Upon the trial of the case it was agreed:

“The only point at issue between the plaintiff and defendants herein is whether or not the policies sued upon covered the property in question while contained in such wash-house and there burned, while it was temporarily out of the residence and in the wash-house for the purpose of being laundered, in which wash-house said property was destroyed by fire.”

Appellants’ pleadings raised the issue of law thus stated by them in their only proposition: “Where insurance companies insured certain household furniture, beds, bedding, linens, wearing apparel of family, etc., all while located a'nd contained in a particular building described in the policies and not elsewhere, and the articles referred to in the policies while in another building were destroyed by fire, the insurance companies are not liable for the loss.”

Appellee has replied to this proposition as follows: “When a fire insurance policy is issued to cover personal property such as wearing apparel, bed linens, table linens, etc., the very character of which property is such that the contracting parties must have known and contemplated that in its ordinary use said property would necessarily, and often, be o-ut of the usual place of deposit, a loss caused by destruction of same by fire while temporarily removed from said usual place of deposit, (the* reason for such removal being a use that is necessarily incident to the enjoyment of said property) but while still on the premises, and under the control, of the insured, will be construed as covered by said policy.”

We believe that appellee’s counter proposition correctly states the law of this case. Joyce on Insurance (2d Ed.) vol. 3, p. 2914, states the rule as follows, as directly applicable to these facts:

“In considering the effect upon the risk of a removal, an important consideration is that of the character of the property, and the uses which it must be presumed it was contemplated that the property would in all reasonable probability be subjected to during the period of insurance, and in connection with this fact another point is involved, and that is, whether the removal is permanent or temporary. But the mere fact that the removal is a temporary one, when its character and' use does not warrant it, ought not of itself to protect property insured when removed and situate at the time of loss in another place than that specifically designated. In marine risks usage may become another important factor in determining the right to change a designated locality.

“Accordingly, furniture temporarily stored and situate at the time of the loss in a building other than that designated is not covered. But wearing apparel which with other articles is insured as contained in a certain ‘dwelling house’ and which in the course of. its ordinary úse and while being worn ¿way from the premises is destroyed or damaged, has been held to be covered by the policy.”

26 Corpus Juris, 96, says: “When the property is of such a kind that its ordinary use requires it to be moved from place to place, or it is of necessity in frequent need of repairs, the words ‘contained in’ or their equivalent will be held to refer merely to the usual place of deposit, and the parties will be presumed to have contemplated that the policy would cover the property while temporarily away from the designated location. * * * While wearing apparel insured as located in a certain building is not protected if permanently removed, such property is covered while in customary use, although temporarily away from the building described as containing it, or at another place for repairs.' And where patterns used in a foundry were kept in an adjoining pattern shop when not in use, a policy describing them as in the pattern shop will cover them while in the foundry, notwithstanding the policy contained the restrictive words ‘while contained as described herein and not elsewhere.’ ”

The foregoing propositions have full support in the following authorities: Longueville v. Western Assurance Co., 51 Iowa, 553, 2 N. W. 394, 33 Am. Rep. 146; Noyes v. Northwestern National Ins. Co., 64 Wis. 415, 25 N. W. 419, 54 Am. Rep. 631; Lathers v. Mutual Fire Ins. Co., 135 Wis. 431, 116 N. W. 1, 22 L. R. A. (N. S.) 848, 15 Ann. Cas. 659; American Central Insurance Co. v. Haws (Pa.) 11 A. 107; McKeesport Machine Co. v. Insurance Co., 173 Pa. 53, 34 A. 16.

Appellants earnestly insist that their proposition has support in British American Assur. Co. v. Miller, 91 Tex. 414, 44 g. W. 60, 39 L. R. A. 545, 66 Am. St. Rep. 901; Fireman’s Insurance Co. v. Alonzo, 112 Tex. 283, 246 S. W. 82; Taylor v. United gtates Fidelity & Guaranty Co. (Tex. Com. App.) 283 g. W. 161; gtandard Fire Ins. Co. of Hartford, Conecticut, v. Buckingham (Tex. Civ. App.) 211 S. W. 531. We have given these authorities our most careful consideration, but believe they are clearly distinguishable from the facts of this ease, in that their facts do not bring them within the statement of appellees’ counter proposition. Believing that the ease was correctly decided by the lower court, it is our order that the judgment of the lower court be, and the same is hereby, in all things affirmed.

Affirmed.


author: BARCUS, J.

text:
    WEBB v. MARTIN et al.
    No. 1056.
    Court of Civil Appeals of Texas. Waco.
    May 7, 1931.
    Rehearing Denied June 4, 1931.
    Bryan & Maxwell, of Waco, for appellant.
    Witt, Terrell & Witt, Frank Fitzpatrick, and Taylor & Atkinson, all of Waco, for ap-pellees.
   BARCUS, J.

In December, 1889, appellant married. His wife died December 18, 1893, leaving as her only child appellee Yiola Webb Martin, who at that time was eighteen months of age. At the time Mrs. Webb died, she and her husband owned 70 acres of land. On-February 14, 1894, appellant purchased an undivided one-fourth interest in 500 acres of land, paying all cash therefor. He later bought other properties not necessary to further mention. Appellee Mrs. Martin was 21 years old on March 10, 1913. On June 18, 1913, appellant conveyed to her a house and lot, his individual property in Waco, retaining a lien to secure a note for $500, executed by appellee payable to appellant twenty years after date, and bearing 8 per cent, per annum interest, and appellee conveyed to appellant her undivided orie-half interest in the seventy acres of land. On July 16, 1913, said appellee married R. L. Martin, and they have since said time continued to use and- occupy the said house in Waco.

In February, 1924, Viola Webb Martin, joined by her husband, instituted this suit against appellant. In March, 1928, she filed her amended petition in which she sought judgment against appellant for an undivided one-half interest in his one-fourth of said 500 acres of land, claiming that same was purchased and paid for with community funds belonging to appellant, her father, and her deceased mother. She also alleged that, she had been overreached by appellant at ‘the time she executed the deed to him to her one-half interest in the 70-acre tract. In her pleading she offered to reconvey the Waco property to appellant and she asked that said deeds, as well as the note which she had given on the Waco property, be canceled, and .she asked for one-half interest in the 70 acres of land, together with one-half of the rents received by appellant from same since 1894. She. also alleged that her father had purchased other property with community funds belonging to him and her deceased. mother, which constituted community property, which, in view of our disposition of the case, it is not necessary to further mention.

Appellant pleaded the various statutes of limitation and specifically denied that he purchased his interest in the 500-acre tract with the community funds of himself and his deceased wife. The cause was tried to a jury, submitted on special issues, and the jury found that appellant had purchased the undivided interest in the 500-acre tract with community funds belonging to himself and his deceased wife, and that appellant had received rents from said land from the time it was conveyed to him in 1894 up to the date of trial in September, 1930, the sum of $7,000 over and above all expenses and taxes paid. Appellee waived her interest in all of the other property claimed, except a cotton gin which the jury found was not community property. The trial court entered judgment for appellee Mrs. Martin for an undivided’ one-half 'interest in the one-fourth interest which was deeded to appellant of the 500-acre tract, and a personal judgment against appellant in favor of Mrs. Martin for $3,500, being one-half of the rents received by him from said property for the thirty-six years which he had had same, and judgment canceling the $500 note against the property located in Waco, and judgment in favor of appellant for the gin apd the other real estate involved in this litigation.

[I] Appellant complains at the action of the trial court in permitting appellee to introduce in evidence the bank books of the Eirst National Bank of Waco showing the account of appellant with the First National Bank during the months of November and December, 1893, and January and February, 1894, and in permitting the witness Lanning to read said account from said books. Lanning testified that he was the custodian of the old books and files and papers of the First National Bank and that said books were the property of the First National Bank and contained the accounts of various customers with said bank during said period of time. The books appeared in regular order and had been kept in the archives of the First National Bank, Said books show that appellant had on deposit in said bank on November 1, 1893, $501.38. There were charged against said account several checks and several deposits were added thereto. On November 28, 1893, there was on deposit $926.38; on December 1st, $1,854.73;. December . 5th, $1,804.73; December 21st, $1,779.73; January 3, 1894, $1,482.15; January 5, 1894, $1,457.15 ; January 16, 1894, $1,832.15; January 18, 1894, $2,267.15; January 19, 1894, $2,767.15; January 30, 1894, $2,798.22; on February 14, 1894, a check or checks were charged against said account for $2,327.50, leaving a balance ■to the account of appellant at that date of $470.72.

Appellant testified that in 1893 and 1894 he was doing his banking business with the First National Bank. After Mr. Lanning had testified and said books had been introduced in evidence, appellant testified: “They have introduced here some books from the bank which show that on October 31, 1893, I had a balance of $501.03 in the- First National Bank here in Waco and showing the balances I had there in my account through October, November, December, January and on up to February 14, 1894, and showing that on February 14,1894 I had to any credit in that bank $2,798.42; that on that date I drew a check or checks for $2,327.50. I can explain where I got that money and whose money it was and why it was in my name.” He then testified that a few days before his wife died, he had loaned some of his father’s money to his wife’s father and in March, 1894, he collected approximately $1,455 from his wife’s father which belonged to his (appellant’s) father, and that he gave the check for said amount to Mr. Gribble at the First National Bank to be deposited to his (appellant’s) father’s account, hut instead thereof said money was deposited to his (appellant’s) individual account. He-testified that at said time he had considerable money on deposit in his name that belonged to other people, especially his customers at the gin for whom he had sold cotton and to whom he had not accounted.

Appellant’s contention is that neither the testimony of Mr. Lanning relative to said books nor said books were admissible in evidence because they were not shown to be the books of original entries nor that they were correctly or accurately kept, neither was it shown that they were kept by Mr. Lanning or under his supervision or under his direction.

Appellee contends that said books were admissible under Evidence Rule 16, under article 3713, of- the Revised Statutes, which provides in effect that instruments more than thirty years old when offered in evidence, unblemished by alterations and coming from such custody as affords a reasonable presumption in favor of genuineness with other circumstances of corroboration, will be admitted in evidence without proof of their execution. Clearly, we think in the light of the entire record, it was not error for the trial ■court to admit said books in evidence. Howard v. Russell, 75 Tex. 171, 12 S. W. 525; Wiener.v. Zwdib (Tex. Civ. App.) 128 S. W. 699; Millwee v. Phelps, 53 Tex. Civ. App. 195,115 S. W. 891, 892. If said books were not admissible as ancient records, the error, if any, in admitting same was harmless because appellant in effect testified that said account was correct and that he had said amount of money in said bank at said time, and he attempted to explain the reason of said amount being on deposit in his name and the sources from which he had received it and its ownership.

Appellant contends that the jury’s finding that he paid for his undivided interest in the 500 acres known as the Bullhide tract, with community funds belonging to himself and his,deceased wife, is without support in the evidence or at least against the great weight of the testimony. We have carefully examined the record and overrule this contention. In his ex parte deposition, appellant testified that all of his funds which he had in the bank at the time his wife died in December, 1893, were community funds of himself and his deceased wife. He further testified that his only source of income through January and February after his wife died was from the sale of the crops that he had made in 1893 prior to his wife’s death. He further testified that part of the "funds with which he paid for the land perhaps belonged to the community estate of him and his deceased wife. His admitted bank account shows that on February 14, 1894, the date he purchased the land, he had more than $2,700 on deposit in the First National Bank and that on said date he drew out of said bank $2,327.50. His one-fourth interest in the land cost him approximately $1,500. He testified that he paid for it in cash and that he borrowed money with which to pay for the same from his father. The jury had all the facts before them and all of 'his testimony. They were the judges of what portions of his testimony they would believe and what portions they would not. Taking the entire testimony as given by appellant and the other witnesses, we think same supports the jury’s finding that said property was bought with the community funds of appellant and his deceased wife, the mother of appellee. _

Appellant contends that the judgment for rent is without either pleading or proof to support same. Appellee filed this suit in 1924. The original petition is not before us and we do not therefore know its contents. In March, 1928, she filed her amended petition on which she went to trial in September, 1930. She alleged that, appellant had, prior to March, 1928, received total rents from his interest in the 500-acre tract of approximately $15,000, and that she was entitled to one-half thereof. She did not pretend to allege the amount of'rents that appellant had collected for any specific year, neither did she ask for rents that might accrue after her amended petition was filed in March, 1928.

Appellant specifically pleaded the statutes of limitation against said appellee’s right to recover rents. The trial court asked the jury to .determine the amount of rents which appellant had .received from said land over and above the necessary and needful expenses in keeping up said property and pay the taxes thereon from 1894 to the date of trial in September, 1930, which the jury answered $7,000, and the trial court entered judgment against appellant for one-half thereof, $3,500.

Article 7389 of the Revised Statutes provides, in effect, that in a trespass to try title suit where the plaintiff recovers any portion of the land from the defendant, that plaintiff cannot recover for the use of said premises for over two years prior to the commencement of the suit. In Gulf, Colorado & Santa Fe Ry. Co. v. Poindexter, 70 Tex. 98, 7 S. W. 316, the court specifically held that in a suit in trespass to try title, the general law- of limitation was not applicable, but that the right of the plaintiff to recover was governed by the statutes regulating suits in trespass to try title, and cited article 4809 of the Revised Statutes of 1879, which is in the identical language as article 738& of the Revised Statutes of 1926. To the same effect is the holding in the case of Johnson v. Johnson (Tex. Civ. App.) 206 S. W. 369. Clearly, under said statute, appellee was not entitled to recover from appellant rents for more than two years prior to the time she filed her suit, and unless she asked for rents in the original petition, she could not recover for more than two years prior to the time she filed her amended pleadings in March, 1928. Since she abandoned the pleadings filed in 1924 and there is nothing in the record to show whether she asked for rents that might accrue after the original suit was filed, it is not necessary for us to, and we do not, determine whether she could now, by amending her pleadings, recover from two years prior to the date she filed her original suit or two years prior to the time she filed her amended petition.

Appellant having specifically pleaded the statute of limitation, and article 7389 of the Revised Statutes specifically restricting ap-pellee from recovering from appellant rents for more than two years prior to the filing of her suit, it was error for the trial court to submit the issue to the jury for its determination as to the rents that had been received from 1894, and it was error for the court to submit to the jury the amount received after the pleadings were filed in March, 1928, because there were no pleadings to support same. Clement v. First National Bank, 115 Tex. 342, 282 S. W. 558; Van Slyck v. Lawyers’ Co-operative Pxxblishing Co. (Tex. Civ. App.) 10 S.W.(2d) 1016.

Appellant further complains of the action of the- trial court in canceling the $500 vendor’s lien note which he holds against the house and lot conveyed by him to appellee Mrs. Martin, in'1913; his contention being that there is neither pleading nor proof to support this portion of the judgment and that there is no finding of the jury • authorizing said judgment, and that in the absence of a finding, the trial court could not cancel said note. We sustain this contention. Said ap-pellee alleged that she had been overreached by appellant at the time she executed to appellant the deed to her interest in the 70 acres of land and received therefor the deed to the Waco property, and that she and her husband were able to and did tender a deed to said property conveying 'same back to appellant and asked the court to require appellant to accept said deed and cancel the note which she had given against said property and 'cancel the deed which she had given to appellant to her interest in the 70 acres of land. There was no contention in her pleading that she was entitled to have the $500 note canceled except and unless the deeds to the respective properties were at the same time canceled. She did not claim by either her pleading or proof that she was to get the Waco property clear of said note in exchange for executing the deed to appellant to the 70 acres of land. There is no suggestion in the testimony that she tendered the deed conveying the Waco property to appellant or that she was willing to do so, or that she in any way desired that said trade as made between her and appellant- in 1913 be canceled, changed, or annulled. Apparently from the entire testimony as given by her, she abandoned any idea or intention of having said trade canceled. She requested no issue to be submitted relative thereto and none was submitted by the -trial court which in any way affected the 70-aere tract of land or the Waco property. The trial court, without' any objection, rendered judgment in favor of appellant quieting'his title in and to the 70 acres of land. There is no theory suggested in the record on which the court based its judgment canceling said note. Clearly, its action in so doing is not authorized either by the pleading or the evidence.

The various contentions of appellant and appellee relative to their respective property rights being severable and entirely independent of each other, the judgment of the trial court awarding appellee Viola Webb Martin an undivided tone-eighth interest in the 500-acre tract described in the judgment, being one-half of appellant’s one-fourth interest therein, is in all things affirmed. That portion of the judgment which awards appellant certain other real estate and the gin property described in said judgment, as well as the judgment in so far as it affects all other parties named therein, is affirmed. That portion of -the judgment which canceled the $500 vendor’s lien nóte held by appellant against the property located in the city of Waco which he conveyed to appellee Viola Webb, in 1913 as shown by deed recorded in volume 248, page 448, of the Deed. Records of Mc-Lennan County, Texas, is reversed, and judgment is here rendered denying appellee the cancellation of said note. That portion of the judgment which awards appellee $3,500 rent is reversed and remanded to the trial court. The judgment, in all other respects not specifically herein disposed of, is affirmed.


author: LESLIE, J.

text:
    MOORE v. FERRIER et al.
    No. 871.
    Court of Civil Appeals of Texas. Eastland.
    May 29, 1931.

      Clyde E. Thomas and Martelle McDonald, both of Big. Spring, for appellant.
    Brooks & Woodward, J. P. Rogers, and John B. Littler, all of Big Spring, for appel-lees.
   LESLIE, J.

The plaintiff Ross Perrier filed this suit against the defendant Billie H. Moore, to recover an indebtedness of $9S7.50, the unpaid balance of the purchase price of an automobile sold by him to her, and to foreclose a chattel mortgage lien on the automobile securing said indebtedness.

The plaintiff Perrier conceived his debt to be insecure, and for some reason, alleged to be based upon a stipulation in the mortgage, declared the obligation due, and sequestered the automobile April 12, 1928, on the ground that he feared the defendant would remove the property'from the state and injure the same during the pendency of the suit. Immediately preceding the filing of the. suit, and quite simultaneously with it, the defendant Billie Moore was arrested for theft of the car, and her examining trial on a charge or complaint filed by one Bettie Hemler took place On the same day, April 12, 1928. During the progress of the trial the sequestration proceedings were initiated by Perrier, who was in attendance on the trial as a witness in behalf of the state.

At the conclusion of the examining trial the defendant Moore was discharged, and thereafter she answered in the present suit. In doing so she moved to quash the affidavit forming the basis of the sequestration, and cross-acted against the plaintiff Perrier and the sureties on his sequestration bond, and also brought in with Perrier et al. as code-fendants in the cross-action, H. L. Propst, and Bettie Hemler. By the cross-action Moore sought to recover actual damages against Perrier and the other defendants in the cross-action on separate and distinct grounds, respectively: Pirst, for wrongfully suing out the writ of sequestration, and, second, for malicious prosecution by reason of said theft charge.

In substance, the cross-complaint of Moore is to the effect that the defendants in the cross-action conspired and confederated together to have her arrested upon the theft charge in order to intimidate and coerce her into delivering the possession of the car to Perrier, and that, in like manner, and to fraudulently injure her and deprive her of the car, the sequestration proceedings were by them instituted, wrongfully and without just cause.

The plaintiff Ross Perrier, defendant in» cross-action, urged special exceptions Nos. 1 and 2, respectively, to the above grounds of defense and affirmative relief. The court sustained each exception, and the cross-action was “in all things stricken put.” However, it was stricken out only as to Perrier, Mitchell, and Lyle. The court’s order recites that, “Exceptions Nos. 1 and 2 filed herein by the plaintiff Ross Perrier, and the defendants in' cross-action, O. W. Mitchell and L. N. Lyle,” came to be heard and were sustained, resulting in such matters being “stricken out.” The order of the court is a little broader than the exceptions, which appear to have been urged by Ross Perrier alone. There is nothing in the transcript to indicafe that either Propst or Hemler sought and obtained from the court a ruling on any exception to the same matter. Hence, Bettie. Hemler and H. L. Propst remained in the ease as defendants in the cross-action, having obtained no such ruling in their behalf as that given in ■ the case of Perrier. In this situation the trial proceeded, and resulted in a judgment disposing of all parties to the litigation except Hemler and Propst. The judgment as finally rendered, and the one from which this appeal is attempted, took no notice of either Propst or Hemler. In this the court committed error, as pointed out in the appellant’s assignment 'No. 9 and proposition 4 thereunder. The error lies in this: The judgment rendered is not final, in that it does not dispose of all the parties. It is not enforceable and an appeal cannot be prosecuted therefrom. Simpson v. Bennett, 42 Tex. 241; St. Louis, S. F. & T. Ry. Co. v. Tudle (Tex. Civ. App.) 171 S. W. 797; Willis v. Keator (Tex. Civ. App.) 181 S. W. 556; Britt v. Sweeney (Tex. Civ. App.) 75 S. W. 933; Gathings v. Robertson et al. (Tex. Civ. App.) 264 S. W. 173; Van-Vleet Mansfield Drug Co. v. Spradlin (Tex. Civ. App.) 26S S. W. 786; R. R. Commission of Texas v. Texas Steel Co. (Tex. Civ. App.) 27 S.W.(2d) 861; 3 Tex. Jur. 53-57, and authorities cited therein.

Por a lack of jurisdiction to consider the appeal, this court must dismiss the same. Taylor v. Masterson et al. (Tex. Civ. App.) 231 S. W. 856, and authorities there cited.

While we are without authority to pass • upon other questions raised, in view of the possibility of another trial we indicate our views on some of the points apparently in the case. As noted, the defendant Moore filed a cross-action for damages alleged to grow out of the plaintiff’s wrongfully suing out a writ of sequestration. On special exceptions this was stricken out on the ground that “the plaintiff’s cause of action * ⅜ * was based upon a certain demand, to-wit: an action upon a note, and for foreclosure (5f a mortgage lien thereon, * * * and that defendant’s cross-action is uncertain and is an unliqui-dated demand arising out of the commission of a tort and is not incident to or connected with plaintiff’s cause of action, and therefore should be dismissed.” In sustaining this exception the court erred, as may be seen from the following authorities: Harris v. Finberg, 46 Tex. 79; Walcott v. Hendrick, 6 Tex. 406; Beatty-Folsom Co. v. Edwards (Tex. Civ. App.) 238 S. W. 340; Michigan Stove Co. v. Waco Hdw. Co., 22 Tex. Civ. App. 293, 54 S. W. 357; Natl. Bond & Inv. Co. v. McCoy et al. (Tex. Civ. App.) 263 S. W. 1089.

Such damages as were claimed in this count may be pleaded as. set-off and counterclaims “arising out of or incident to, or connected with, the plaintiff’s cause of action” in this case. Article 2017, R. S. 1925.

By the same process of reasoning it would seem that damages arising out of malicious prosecution, as charged in this case, should also be held a proper- matter of set-off and counterclaim under the statute; but without passing upon that question, or indicating any views with reference thereto, we call attention to the following authorities, which appear to be to the contrary: Pittman v. Keith et al. (Tex. Civ. App.) 24 S. W. 88; Farrow v. Star Ins. Co. (Tex. Civ. App.) 273 S.W. 318.

The Pittman Case was cited with approval in Columbia Natl. Bank v. Rizer, 153 S. C. 43, 150 S. E. 316, 68 A. L. R. 443, by the Supreme Court of South Carolina.

The appellant advances the contention that the affidavit which serves as a basis of the sequestration proceedings, in stating that “plaintiff is the owner of said property,_ or that he holds a chattel mortgage on the same,” is duplicitous, vague, and indefinite, and as a matter of law insufficient to--support the writ, and upon this ground -it appears that a motion was made to quash the affidavit and which was overruled. The motion should have been sustained. The affidavit does not comply with article 6841, R. S. 1925. Subdivision 2 thereof makes provision for such cases. Cooper v. Cook, 286 S. W. 334, is in point. In principle the following authorities support the holding: Hopkins v. Nichols, 22 Tex. 207; Culbertson v. Cabeen et al., 29 Tex. 253; Pearre & Co. v. Hawkins, 62 Tex. 434; Clark v. Elmedorf (Tex. Civ. App.) 78 S. W. 538; Williams v. Givins (Tex. Civ. App.) 11 S.W.(2d) 224.

The suit was for debt and foreclosure, and the judgment makes no spéciiic mention of the amount of the debt adjudged to- be due, unless it be said that it contains a reference to the petition, which might aid in determining the amount, or supply the deficiency. The judgment is attacked by a proposition raising this question of its sufficiency, but since it will be reversed for other reasons a question so serious as this will evidently pot be injected into the case again.

Propositions 7 and 8 relate to the admission of testimony alleged to be irrelevant, immaterial, prejudicial, and inflammatory. The testimony complained of in the eighth proposition is. shown to have been given by-the plaintiff Ross Perrier on direct examination, over the objections of defendant, and is, as disclosed by the bill, as follows: “When I got to Big Spring Bettie Hemler told me about the situation; that is, about Billie Moore stealing this Dodge automobile, and I found out that Billie Moore had gone to Midland and checked out all the money that was in the bank to Bettie’s credit.” This testimony is so clearly objectionable under the pleadings upon which the case went to trial, ⅝ and its prejudicial nature is so obvious, that it will evidently not be injected into the case upon another trial. Proposition 7 relates to matters of the same nature.

From what has been said it is not to be implied that the pleadings are in all respects approved. No opinion is expressed with reference to them, since they were not sought to be tested by exceptions. ✓

For the reasons assigned the appeal is dismissed.


text:
    VALDEZ et al. v. YOE.
    No. 8611.
    Court of Civil Appeals of Texas. San Antonio.
    May 15, 1931.
    Rehearing Denied June 10, 1931.

      O. K. Richards, of Brownsville, for appellants.
    Seabury, George & Taylor, of Brownsville, for appellee.
   FLY, C. J.

This is an action of trespass to try title to 2.90 acres of land off a tract of 12 acres by ap-pellee against Antonio Valdez, Jr., and others. Appellants pleaded not guilty, and three, five, and ten years’ statute of limitation, and res adjudicata. The cause was tried without a jury, and judgment rendered for appellee for the land.

Appellee demurred to that part of the answer setting up res adjudicata because that allegation showed that appellee was not a party to the judgment claimed to constitute res adjudicata. There was no error in that action of the court. Appellee was not a party to that suit, and was in no way connected with it, and consequently could not be concluded by any judgment rendered in the case. No connection was shown between appellee and the parties against whom the adjudication was had. Walsh v. Ford, 27 Tex. Civ. App. 573, 68 S. W. 854. There must be identity of causes of ac tion, of issues involved, and of persons; and there must be a trial on the merits. The answer did not meet the requirements. Phili-powski v. Spencer, 63 Tex. 604.

The first, second, third, fourth, fifth, and sixth propositions are too géheral for consideration, and are overruled.

The eighth proposition complains of the action of the court in permitting John B. Scott, president of the Brownsville Band & Improvement Company, through which company appellee deraigns title, to swear to communications made to him by “old man Cantu,” an ancestor of appellants, to the effect that, although the land in controversy was inclosed by his fence, he did not claim any interest in it Whatever. This was objected to on the ground that it was hearsay and because it was a statement by, and a transaction with, a deceased person, whose executor was a party to the suit. It was not obnoxious to article 3716, Revised Statutes of Texas, which condemns such testimony. The article is as follows:

“Art. 3716. In Actions by or Against Mw-' editors, eto. — In actions by or against executors, administrators, or guardians, in which judgment may be rendered for or against them as such, neither party shall be allowed to testify against the others as to any transaction with,' or statement by, the testator, intestate or ward, unless called to testify thereto by the opposite party; and the provisions of this article shall extend to and include all actions by or against the heirs or legal representatives of a decedent arising out of any transaction with such decedent.” '

It has been held by Texas courts in a number of decisions that the article in question did not apply where the testimony was given by the officer of a corporation or where it was given by a person not a party to the suit. Colonial & U. S. Mortgage Co. v. Thedford, 21 Tex. Civ. App. 254, 51 S. W. 263; Williams v. National Bank (Tex. Civ. App.) 291 S. W. 1083. The cases cited, as well as others, effectually 'dispose of objections raised, under the statute, to the testimony. The testimony was as to the declarations of one who was in possession of the land and who voluntarily disclaimed any interest in the land claimed by the improvement company. It tended to indicate that Cantu was not holding the land adversely to the true owner, and his declarations were properly admitted.

We adopt the findings of facts filed by the trial judge, and are of opinion that they are supported by the statement of facts. The testimony failed to establish title by any period of limitation provided by statute. This view of the testimony disposes of the first six propositions which we think are so general and indefinite as to merit no consideration. Appellants are seeking to hold the land only by limitation, and have failed to establish any title through limitation. The court heard the testimony, and was justified in finding that the title to the land was in appellee.

The judgment is affirmed.