author: PLEASANTS, O. J. -

text:
    RODRIGUEZ et al. v. TEXAS EMPLOYERS’ INS. ASS’N et al.
    No. 9479.
    Court of Civil Appeals of Texas. Galveston.
    Dec. 18, 1930.
    Rehearing Denied Jan. 22, 1931.

      Fitzpatrick & Sargent, of Houston, and David E. Hume, of Eagle- Pass, for appellant Maria Rodriguez.
    Barkley & Webb and W. K. Richardson, all of Houston, for appellant Concha Mendez.
    Morris, Sewell, Taylor & Morris, of Houston, for appellee Texas Employers’ Ins. Ass’n.
   PLEASANTS, O. J. -

This suit was brought by Maria Rodriguez against the appellee insurance association to recover compensation claimed to be due her as a dependent sister of Gregorio Rodriguez, deceased, under a policy of insurance issued by the appellee association in compliance with the provisions of the Employers’ Liability Act of this state (Vernon’s Ann. Civ. St. art. 8306 et seq.) to the Houston Transportation Company, the employer of the deceased.

Appellant Concha Mendez, who was claiming to be the common-law wife of the deceased and the right to the compensation due under the insurance policy, was made defendant by the petition.

The defendant Concha Mendez answered by cross-action against the plaintiff and the defendant insurance association, claiming compensation under the policy of insurance as the common-law wife of the deceased.

The defendant insurance association answered -the petition of each of the claimants by a general demurrer and a general denial.

The plaintiff answered the cross-action of Concha Mendez by a general demurrer and a general denial.

The cause was submitted to a jury upon special issues.

In response to the issues submitted to it, the jury found: That the injuries which caused the death of Gregorio Rodriguez arose out of, and were received by him in the course of, his employment; that plaintiff, Maria Rodriguez, was not dependent upon her brother, Gregorio Rodriguez, for her support; and that Concha Mendez was not the common-law wife of Gregorio Rodriguez-at the time of his death.

Upon return of this verdict, judgment was rendered in favor of defendant insurance association against each of the claimants under the policy. Each of these claimants has appealed against the other and the insurance association.

The first assignment presented by the brief of plaintiff, Maria Rodriguez, complains of the finding of the jury that she was not partially dependent upon her brother for support, on the grouAd that such finding “is contrary to and unsupported by the entire testimony, or by any of it.” The proposition presented under this assignment complains of the verdict on the ground that it is “against the overwhelming weight of the evidence.”

The proposition presents a different question from tha-t raised by the assignment upon which it is based, which only raises the issue of whether there is any evidence to support the verdict, and we, under well-settled rules of decision by our Supreme Court, could, because of this difference between the question raised by the assignment and that presented by the proposition, refuse to consider either. The assignment is not required to -be considered because it is not followed by a proposition presenting the issue raised by it, and the proposition can be ignored because it is not germane to any assignment contained , in the record.

We have, however, considered the proposition, and find from an examination of the record that the evidence is sufficient to support the finding of the jury that plaintiff was not dependent in whole or in part upon her brother, Gregorio Rodriguez for her support.

The evidence shows that the plaintiff, who is 35 years old, lives in the suburbs of the city of Guerrero, Mexico. She, Gregorio, and another brother, now deceased, inherited a farm or ranch of 30 or 40 acres upon which she and the widow of her brother who died in Mexico eleven years ago reside. She and her brother Gregorio jointly owned a few cows which are kept on this farm. Her uncle, who is the father of her sister-in-law, and lives near her, testified:

“¡Since the time my daughter married Maria Rodriguez’s brother Maria has lived close to where I live, lived with us. She never paid any board but received the same treatment as my own daughter did. I am Maria’s uncle and I take care of her in the same way I take care of my daughter or any other member of my family. Whenever Maria needed anything like clothes or anything like that all she or the others had to do was to ask me. I would take them to Piedras Negras and buy their shoes or anything they wanted. This continued over a period of- 17 years. ’ Maria was never sick during that time, but at any time she wanted any food or clothing and asked me for it I furnished it to her. * * * Maria worked around my household and my farm and done the same labors as any of the other members of my family per-, formed; she did the same as all of my family. The' same as if she was my daughter or any of my family. That continued over a period of 17 years. ⅜ * *

“I had lived with Maria Rodriguez and have lived with her since her other brother died about eleven years ago. They lived on a farm. The residence belongs to Maria Rodriguez. She is a part owner. It is a big family and all of them own a part of that land, including Maria. It is a ranch of about 30 or 40 acres. They have about 20 head of cattle on that ranch. The stock belongs to the dead man, Rodriguez, and to his sister, Maria. Stock is all they have on the ranch but, of course, they grow corn, wheat and cotton on it. I am administrator and take care of everything that is raised on that ranch. There is no store on this ranch. Maria Rodriguez doesn’t own a store. They buy $200.00 or $300.00 worth of groceries at a time and divide it up. Maria is the one that takes care of distributing the groceries and she is the one receives the money after they collect it.”

On cross-examination this witness further •testified that at times he had been mayor of the city of Guerrero, and that he and plaintiff, Maria Rodriguez,- belonged to one of the outstanding families of the town and lived as well as anybody in the town; that Marla lived just as his family lived and was one of •the outstanding women of the town.

. The deceased, Gregorio Rodriguez, came from Mexico to Texas, where he has continuously resided for the past seventeen years, during which time he has made three visits to his old home in Mexico. At the time of his death on October 24, 1928, he was earning $3.50 per day.

In support of her testimony that her brother Gregorio sent her money a-t various times “from $25.0Q down,” sometimes once a month and sometimes once in two or three months', which she used to “buy clothes and things,” the plaintiff introduced four letters -from Gregorio of date January 18, 1927, April 2, 1927, March 18, 1928, and July 2, 1928, respectively. In the first of these letters he says that on the 24th of the preceding December he had sent the plaintiff $26 “Christmas,” and that he has not heard whether she received it, and asks her to let him know if she needs more money. In the second letter he inclosed $10 “in case it may be able to help” her. In the third letter he tells her that, if she will send him some patterns, he will have some clothes made for the children, but, if she cannot do this, he will send money with which to buy the clothes.

. There is no testimony that plaintiff, who was unmarried, had any children of her own, and it is a fair presumption that the children mentioned in this letter were those of the widowed sister-in-law who lived with the plaintiff.

In the fourth letter he writes plaintiff and incloses $10 to buy clothes for the children of “Rakila,” and advises her that he understands that she has some trouble with her eyes, and that she can sell his cows in order to cure herself, and, if she will not do that, to let him know and he will send her money.

The witness Dora Bozeman, who testified for plaintiff that she wrote letters for Gregorio to his sister and also sent money to his sister for him, “sometimes every month and sometimes every two or three months,” further testified: “The sister was named Maria Rodriguez. That is her setting over there; sometimes he would get a letter from his sister and say they need money; one time said somebody going to get married and wanted fine clothes, fine silk dresses and stockings and shoes, but I don’t know if it was in a month or two weeks, I don’t remember that, Big Boy was a neat dresser himself; he wear fine clothes.”

Plaintiff testified that the moneys sent her by Gregorio were transmitted by checks, or little green papers which were called cheeks in Mexico, but she did not know whether they were checks or post office money orders.

The president of the Houston Transportation Company, Gregorio’s employer, testified: “Gregorio did tell me that he sent money home to pay his taxes; he called it a ranch ■that he had and said he had some cows there, and he sent money once in a while to pay his taxes and keep his cows through the winter. I don’t know so much about his telling me that he sent that money down there to his sister for that purpose. I’ll tell you that I was always under the impression that they had a pretty good tract of land there. I don’t know how many cattle they had but he always spoke of it as a ranch and he sent money home once in a while and I don’t know any more than just that he said to help keep up the ranch. I don’t think Big Boy sent a lot of money home at any time but he did tell me he had to send some down there to pay his taxes and keep up his ranch and keep up his cattle.”

While there was evidence from which the jury might have found that the plaintiff looked to and partially depended upon her brother, Gregorio, for her means of support or living in the state of life to which she was accustomed, the finding to the contrary is not so against the great weight and preponderance of the evidence as to authorize this court to disturb it.

All of the evidence shows that Gregorio was an affectionate and thoughtful brother and frequently made gifts to plaintiff, and she has doubtless suffered' financial loss because of his death, but these facts are not sufficient to require a finding by the jury that the sister was dependent in whole or in part for her support upon the contributions or gifts of her brother. For a recipient of gifts to become a dependent upon the giver in the purview of our statute, such gifts or contributions must in a substantial way aid the recipient to live. Oilmen’s Reciprocal Association v. Gilchreas (Tex. Civ. App.) 283 S. W. 633; Howard on Vorkman’s Compensation, vol. 1, p. 234, and footnote on page 237.

The testimony of plaintiff’s uncle before set out is sufficient in itself to justify the conclusion of the jury that plaintiff was not dependent upon her brother for her support, and when we add to this the testimony of the other witness tending to show that the specific remittances of money shown to have been made plaintiff by the deceased were largely made for taxes and care of property owned jointly with his sister, and occasional gifts to the plaintiff for her use and enjoyment and that of other members of their family on special occasions, it cannot be held that the finding is so against the great weight and preponderance of the evidence as to require or authorize an appellate court to set it aside.

Plaintiff’s second assignment complains of the charge 'of the court submitting the issue of dependence. This charge is as follows: “You are instructed with respect to Special Issue No. 3 that to constitute one a dependent of another the contributions, if any, must be substantial as distinguished from trivial. One may be dependent on another although the beneficiary is not destitute or wholly dependent; but if contributions of one to another are made reasonably substantial, having in mind the condition of the parties and other circumstances, and are received and relied upon by the beneficiary in meeting the needs of the beneficiary, and are not merely occasional gifts, then such condition would constitute the .beneficiary a dependent.”

No written objection to the charge was presented to the court, but a bill of exception approved by the court after the return of the verdict shows that the attorneys for plaintiff verbally excepted to this charge “because the court submitted the issue on dependency, not including partial dependency.” The language of the charge just quoted is a complete answer to this exception. The jury were expressly told by this charge that plaintiff might be found dependent on the deceased although she was shown to be not “wholly dependent.” Clearly such submission does include partial dependency.

The second proposition under this assignment assails the ruling of the court in refusing to give a charge upon the issufe of plaintiff’s dependency requested by her. This charge need not be set out. It is sufficient to say that it is so argumentative and so manifestly upon the weight of the evidence that it should not have been given to the jury, and the trial court correctly so ruled.

By her third and fourth propositions plaintiff complains of the action of the court in receiving the verdict of the jury in the absence of the plaintiff, and her attorney, thereby depriving her of her right to have the jury polled on the verdict; and “in refusing to set aside the verdict because it was made to appear to the court that the jury misconstrued the court’s charge on the question of dependency, said special issue having been objected to on the ground that it failed to include the element of partial dependency and it being made to appear also to the court that the jury agreed to the verdict with misgivings.”

There is no merit in either of these complaints. The bill of exceptions preserved by plaintiff on the first of these complaints shows that “the ease had been on trial for five days; that the hours throughout the trial for the noon recess from Monday to Friday, inclusive, were from 12 o’clock noon to 2 p. m. There are no recess hours on Saturday afternoon because if the judge of the court is working on Saturday he works until he can get away, and if he has work that carries him through the lunch hour, he stays. That the above case was concluded on Saturday, the case being submitted to the jury just before noon; that no time was fixed for the Court to reconvene. That Mr. Sargent, one of the counsel for Maria Rodriguez, testified that he relied on the custom of recessing until 2 p. m. That there was no other testimony given on tbife point. That the court received the verdict at 1:45 p. m. and discharged the jury. That counsel for Maria Rodriguez was not present in court, and for this reason had no opportunity to poll the jury. That Mr. Sargent, one of the attorneys for Maria Rodriguez, stated that he was at lunch at the time the jury returned its verdict. Mr. Hume, the other attorney for Maria Rodriguez, left on the preceding Friday night for Eagle Pass and was not in the City of Houston on Saturday, but as above stated, he left for Eagle Pass on the preceding Friday and left the case in charge of Mr. Sargent and Major Fitzpatrick.”

It has been expressly ruled that the return and acceptance by the court of a verdict in the absence of a party to the, suit and his attorney affords no ground for attack upon the verdict, for the obvious reason that there is no statute or rule of procedure requiring the parties or their attorneys to be present when the verdict is returned. Lawrence v. Copper Co. (Tex. Civ. App.) 237 S. W. 959.

There is .nothing in the facts stated in the bill of exceptions which tends in the least to indicate that appellee did or said anything to mislead appellants’ attorney and prevent his presence when the verdict was returned, and the court in accepting the verdict at the time it was returned was following a well-known rule or custom of the court.

The second of these complaints presents no valid ground for impeachment of the verdict. As we have before said, the charge of the court clearly included the issue of partial dependency, and could not have reasonably misled the jury, and the fact- that some or all of the jury may have had misgivings as to the verdict canno't affect its validity. Especially is that true in a civil case where the issues must be determined by a preponderance of the evidence, and not, as in a criminal case, beyond a reasonable doubt. Hermann v. Schroeder (Tex. Civ. App.) 175 S. W. 788; Twichell v. Klinke (Tex. Civ. App.) 272 S. W. 283.

In addition to several assignments and propositions presented in the brief of Concha Mendez complaining of rulings of the court upon the admission of evidence objected to by her, the main complaint, which we will first dispose of, is that the trial court should Save instructed the jury to return a verdict in her favor on her claim that she was the common-law wife of the deceased at the time of his death.

We think the preponderance of the evidence supports the finding of the jury that Concha Mendez was not the common-law wife of Gregorio Rodriguez. Concha testified: That she had lived with Gregorio as his wife for two or three years before his death, that they occupied the same room and bed in a house which they had rented on Meek street in the city of Houston, and that he paid for the groceries and vegetables which she ordered for their use. “He loved me and I loved him. He talked to me that he loved me, and T loved him. I tell him that he is my husband and that I like him. That was in 1925. I am' asking for the money in preference to his sister, because he is my husband. He, speaking of deceased, paid somewhere around $40.00 to $50.00 a month for lights, groceries, and general household expenses. Sometimes he would give me the money with which to pay it. At other times would buy it himself. He also bought all my clothes, but I can’t figure what that would amount to. He kept that up right along from the time he commenced living with me until he was killed.”

Mr. Kalb, from whom she rented the house she occupied on Meek street, testified: “That she started renting from him on or about the 15th of August, 1927; that he first met the deceased when they rented the house in August, 1927; that when she came to look at the house and said she liked it, and if her husband liked it she would rent it; that she would show the house to her husband on such and such a day, but she said for him to come to her house on the next day, I believe it was, and I went out there and she says: ‘My husband like that,’ and he said he liked the house and he gave me $10.00.”

Five or six other witnesses testified to facts tending to corroborate her statements that she and Gregorio were at the time stated by her living together as husband and wife. Several of these witnesses testified that Gregorio and Concha occupied the same room in the house in which Concha lived, and two or three of them testified that Gregorio spoke of Concha as his wife. Two of these witnesses were dealers' in supplies, and testified that Gregorio told them Concha was his wife, and that he would pay them for groceries1 and vegetables sold her. The vegetable dealer stated that Gregorio did pay him for vegetables sold to Concha.

Frank (Poncho) Najar testified: “That he had known the deceased over two years before his death; that the brother of Concha introduced the deceased to him as his brother-in-law, and that the deceased introduced Con-cha to him as deceased’s wife; and that the deceased told him if Concha needed any money while he was out of town to loan it to her and he would pay him when he came back. He spoke of Concha as his wife.”

After Gregorio had died from his injuries, Concha wrote the plaintiff, Maria Rodriguez, the following letter:

“Houston, Texas, Oct. 1928.
“Sra. Maria 0. Rodriguez
“Señorita: She who write you is a woman who lived with your brother Gregorio. Know you that while at work, he was hurt and it was useless trying to save him. I, since we were not married, can do nothing. They do not want to deliver his body to me until they hear from you.”

Mr. McAughan, under whom Gregorio worked, testified: “I have had a conversation with Concha Mendez, the little girl you point to there. She came over there to our yard and I went over to her house a couple of times. Concha told me that Poncha Najor was her husband, and she had a little girl there about this high and said it was her little girl. Poncha Najor is also known as Prank Poncha. I always called him Poncho. I know him when I see him and I saw him outside of the courthouse today. Both he and Concha Mendez have told me that he, Poncho, was her husband. Concha never did tell me that she was married to Gregorio Rodriguez. If Gregorio Rodriguez was ever married I did not know it.”

The witness further testified: “It was after Big Boy (Gregorio Rodriguez) got killed that I went over to Concha’s house; I think I went over the same day, maybe the next, and this big fellow (Poncho) was there. * * * He (Gregorio Rodriguez) stayed in camp most of the time; as long as we had a camp he stayed right in camp all of the time. As to whether he came into town Saturdays and Sundays, why I didn’t keep up with him, but most generally Gregorio worked all the time. He worked in the oil field a whole lot. * * * I know this man Poncho. All I know about him is I just saw him twice or three times. I do say that he told me Concha Mendez was his wife. And he had a little girl over there and said that she was his little girl by her, and then Concha has told me the same thing. What Poncho said about his wife ■not having anything to do about trying to ■collect this insurance is this. I was over there and he said something about he was not going to have any thing further to do with it —that was when this woman (he pointed to Maria) was here; thdt he was tired of it. •* * * I do not know how long Gregorio Rodriguez had been living at Concha’s house, ■boarding out there or staying out there, but think he must have been there seven or eight months. I don’t think he was there much longer than that and it may have been a little less or a little more. He had made his home with Frank Bozeman all the time up until we started this job at the market known as -the Farmers’ Market. He had always lived and made their place his home, wherever they were; wherever you found them you found .him. * * * i have never seen Big Boy out with any woman except Frank Bozeman’s wife when he lived with them, and he lived with them practically all of the time until the time we started to work on the market. I don’t think he lived with anybody else up to that time. When I speak of Big Boy I have reference to Gregorio Rodriguez. They started work on the Farmers’ Market about seven or eight months before the deceased was killed. * * * Big Boy lived out at Frank Bozeman’s place just like he was at home. He cooked a lot for them when they were boarding men. He was just like one of the family.”

Enrique Delgado, a witness for plaintiff, testified, in substance, that in, March, 1928, he took Gregorio, who was in search of a room and board, to Concha’s boarding house on McKee street, and introduced him to Concha, and that Gregorio got a room there with another boy.

Brazilliano Adame testified: That from May, 1928, until Gregorio’s death they occupied the same room in Concha’s boarding house, in which each had a bed, that he and Gregorio worked together on the “new market” job, and that his boarding house was too far from his place of work and that Gregorio proposed to him to come to his boarding house. “I went to interview Concha Mendez because Gregorio had told me 'he was paying six and a half dollars a week, and when I talked to Concha she wanted eight dollars, and I told her no, that I only received three and a half a day and consequently that was too much. So is was arranged then that I would sleep in the same room .with Gregorio and pay the same amount that Gregorio paid. I made the arrangements with Concha. * * * I have never seen Gregorio take Concha Mendez to a picture show, or have I ever seen him take her to the grocery store on the corner. Gregorio always slept in his own bed at night, not in Concha’s bed. I paid my board money to Concha Mendez, and sometimes I have seen Gregorio pay board money to her, but it is impossible for me to remember how many times, but I will say it was more than five times. It was $6.-50 Gregorio would pay to Concha. Sometimes when we were both together we would both pay her.' I nave never seen Gregorio give Concha his pay check. * * * Gregorio Rodriguez never told me he was married. He and I have talked about many things in confidence but that was never told me. Many times though Gregorio has told -me that he was not married. * * * Many times while we were working we talked about things such as marriage. Gregorio would ask me if I was married and I told him I was not, and I would ask Gregorio if he was married and he would tell me that he was not. Many times during our work we had conferences like that. * * * After knowing Gregorio ten years more or less I am of the opinion that he was not married. I do not remember the date in 1928 when Gregorio told me lie was not married because we were then at our wort and it was impossible for pie to say.”

It was admitted on the trial that Gregorio was not the father of Concha’s .child, a girl several years old.

Ramon Lopez testified that he had known Concha Mendez since he came to Houston about six years before the trial; that when he first knew her she was at Frank (Poncha) Najar’s place where there was a dance hall; that she ran away from there with another fellow, and moved over to Preston or Louisiana street; , that he and she were good friends; that he does not know the name of the street in which she has been living for the past two years, but thinks it is called Meek street; that he knows Concha has a child, but does not know its father; that he had seen Concha and Poncha Najar in bed together many many times, and that he sees him at Concha’s home every day.

It is unnecessary to further incumber this opinion with quotations from the testimony. It is suificient’ to say that other witnesses whose credibility was not attacked testified to many circumstances tending to refute the claim of Concha Mendez that she and Gregorio agreed to lived together as husband and wife, and did so live during the last two or three years of his life. This testimony, which the jury could have reasonably accepted as true, is to the effect that the boarding house which was conducted by Concha during the last two years of Gregorio’s life was in fact a house of prostitution, and that Concha was conferring her sexual favors upon a number of men. It is not material that there is a seeming contradiction as to the name of the street upon which the boarding house is situated, as all the evidence identified it as the house in which Concha had lived for the two years immediately prior to the death of Gregorio.

In this state of the evidence it seems to us that the dictates of reason and considerations of social morality uphold the finding of the jury that there was no honest sincere contract of marriage between Concha and Gregorio which they continued to recognize and endeavored to faithfully perform. This is the only common-law contract of marriage which our courts have recognized and enforced.

There is no merit in the contention of Concha Mendez that the court erred in admitting the testimony as to the character of the boarding house conducted by her and as to her relations with other men during the time she claims she was the common-law wife of Gregorio. She was permitted, undei the well-settled rules of evidence, in proof of her claim of a common-law contract of marriage, to show that her conduct towards and treatment of Gregorio was that of a wife, and it would be contrary to every rule of equity and good conscience to hold that her claim of marriage could not be refuted by proof of facts wholly inconsistent with the marriage contract.’

The jury having found upon sufficient evidence that neither of the claimants was entitled to the benefits of the policy sued on, it follows that the judgment of the trial court should be affirmed, and it has been so ordered.

Affirmed.


source: Caselaw Access Project

author: BAROUS, J.

license: Public Domain

text:
    CLEMENT GRAIN CO. v. ST. LOUIS SOUTHWESTERN RY. CO. OF TEXAS.
    No. 978.
    Court of Civil Appeals of Texas. Waco.
    Jan. 22, 1931.
    Rehearing Denied Feb. 19, 1931.

      John McGlasson and Bryan, Maxwell & Dardnne, all of Waco, for plaintiff in error.
    Ramey, Calhoun & Marsh, of Tyler, for defendant in error.
   BAROUS, J.

Plaintiff in error instituted this suit against defendant in error to recover freight and demurrage which it paid on a carload of oats shipped from Waco to Los Angeles, Cal., and return. It alleged that it paid the freight charges and delivered a carload of bulk oats to defendant in error in a Missouri, Kansas & Texas car; that the same was consigned to itself at Los Angeles, Cal., with instructions to notify the Pike Grain Company, of Los Angeles, to whom it had sold same, of its arrival; that after it had loaded and- delivered said car, and while same was still in the yards at Waco, Tex., it 'discovered that there was in existence in the state of California a quarantine regulation against .-cotton seed and that under said regulation, if there were any cotton seed in the car, same could not be unloaded upon reaching Do'S Angeles; that it then requested defendant in error to carefully inspect the car for the purpose of determining whether there were any cotton seed in the car and if there were to return same to it. It further alleged that defendant in' error, in violation of said instructions, negligently and willfully shipped the car of oats through its connecting carriers to Los An-geles, and that upon its arrival there same was inspected by the authorities of the state of California, and they discovered the car contained cotton seed, and said authorities refused to allow the consignee to unload the oats; that, as a result thereof, it not being able to sell the oats in California or the adjoining states, requested defendant in error to return the car of oats to Waco without charge, and, upon its refusal so to do, plaintiff in error ordered the car returned to Waco, at its expense. It. alleged that, if defendant in error had followed its instructions and inspected the car before it left Waco, it would have discovered the existence of cotton seed in said ear and could and would have prevented its transportation to Los Angeles. It alleged that it had paid, in addition to the freight, $78 demurrage, and sought to recover the freight and demurrage paid. By a trial amendment plaintiff in -error fúrther alleged that defendant in error failed to deliver the car of oats to it after it reached Los Ange-les because of an alleged quarantine regulation claimed by it -to be in force, and that it represented to plaintiff in error there was such a quarantine, and that, if there was no quarantine in. California, then defendant in error was liable because of the false representations made to it with reference thereto. It further alleged that defendant in error, by [having accepted the shipment after having inspected same, became liable because of its failure to deliver saíne after it reached Los , Angeles.

Defendant in error, in addition to a general demurrer and general denial, specifically alleged that it carried out its contract and transported the oats to its destination at Los Angeles and tendered same to the consignee, and that plaintiff in error knew of the quarantine in California before the car was ■shipped, and alleged that, at the time the car was delivered to it, same was then loaded and sealed, ánd that it was not under any obligation to inspect said car for plaintiff in error; that it did, however, on request of 'plaintiff in error, inspect the walls and roof of said car to ascertain if there were any cotton seed therein, and that it found none. It alleged that, if the car was quarantined at Los Angeles, it was not by reason of any cotton seed in the car, but by being in the oats themselves when they were loaded, and -that plaintiff in error knew, or should have known, that there were cotton seed in said oats at said time. It further alleged that, under and by virtue of the bill of lading which it issued, it was specifically provided that, if the oats were quarantined, its only obligation was to unload same in the quarantine depot or wherever the quarantine regulations or authorities required or wherever plaintiff in error requested or by returning the oats to plaintiff in error at its expense in Waco, and that, in compliance therewith, it did, at the request of plaintiff in error, return said car of oats to Waco in as good condition as when same left.

The cause was tried to a jury, submitted on special issues, and the jury found that th-e oats when loaded in the car contained cotton seed; that there was cotton seed in the vacant car at the time same was loaded; that, after the car was loaded, plaintiff in error requested defendant in error to inspect the walls and ceiling of the car to ascertain whether there was any cotton seed therein, but did not request it to inspect the oats to see if they contained ^cotton seed; that defendant in error did inspect the car for cotton seed, and that it did not discover, and could not have, discovered, by the use of ordinary care, any cotton seed in said car; that the car of oats was quarantined in California because of the cotton seed that was in the oats. Based upon the finding of the jury, the trial court entered judgment denying plaintiff in error any recovery.

By its first proposition plaintiff in error contends that the trial court should have given its request for instructed verdict because it affirmatively appears the oats were not delivered to it in' Los Angeles and that the Quarantine Act of California, under and by virtue of which the oats were quarantined, was unconstitutional; its contention being that quarantine regulations in so far as it relates to interstate shipments is a matter lodged entirely in the power of the United States under and by virtue of title 7, § 161, U. S. Code (7 USCA § 161), as same was construed by the Supreme Court of the United States in Oregon-Washington Railway Company v. Washington, 270 U. S. 87, 46 S. Ct. 279, 70 L. Ed. 482. After the opinion in said case was rendered in March, 1926, the United States Congress, in April, 1926, amended.said law (7 USCA § 161), evidently to conform to said opinion, and provided, in effect, that, until the Secretary pf Agriculture of the United States shall have made a determination with reference to the necessity of the quarantine, nothing in the federal statutes should be construed to prevent any state from promulgating, enacting, or enforcing a state quarantine : regulation.

It appears from the record that plaintiff in error did not urge or suggest the unconstitutionality of the quarantine law of California in the trial court until after the jury had returned its verdict, and its first suggestion in said court with reference thereto is made in its amended motion for new trial. It pleaded affirmatively in the trial court that there was a valid quarantine • law in California against cotton seed being shipped into said state, and it offered in evidence said Quarantine Act. In Boatner v. Providence-Washington Insurance Company (Tex. Com. App.) 241 S. W. 136, 140, the court stated: “The law forbids the assumption of an attitude on appeal inconsistent with that taken at the trial, and on appeal litigants are restricted to the theory upon which the cause was prosecuted or defended in the court below. This principle of law is well settled”— citing a large array' of authorities. Under said authority, if it could be said that the quarantine, law in California was unconstitutional, plaintiff in error could not avail itself thereof, since it affirmatively pleaded there was a valid quarantine, and by evidence established said fact.

Defendant in error complains at tie action of the trial court in refusing to submit its special issues as to whether defendant in error was negligent in furnishing a car which had cotton seed therein and whether same was the proximate cause of the oats being quarantined. We overrule these propositions. Under the undisputed facts, defendant in error had nothing to do with the furnishing of the car before it was loaded, and, under the finding of the jury, after it was loaded it' could not have, discovered said cotton seed, and under the undisputed testimony of the quarantine officer in California the sole reason for same having been quarantined was because of the cotton seed contained in the oats themselves. Mr. Clement testified that after the oats reached Los Angeles the Pike Grain Company notified them that the car was under quarantine and that it could not accept it on that account. He further testified that, after he had this information from the Pike Grain Company, plaintiff in error did everything it could to get the Pike Grain Company to take the oats, and that it would not do so on account of said quarantine, that they then took the matter up with the Department of Agriculture at Washington and could not get any relief, and that they then requested the defendant in error to return the oats to them at Waco, without expense, and, when that was refused, requested it to return the oats to them and they would pay the return freight, and that said car of oats was returned to them. No contention is made that the oats were not in as good condition when returned as when loaded in the car. Under the bill of lading issued by defendant in error and accepted by plaintiff in error,-it is provided specifically that “in case of quarantine the property may be discharged at risk and expense of owners into quarantine depot or elsewhere as required by quarantine • regulations or authorities or for the carriers dispatch at nearest available point in carrier’s judgment, and in any such case carrier’s responsibility shall cease when property is so discharged or property may be returned by carrier at owner’s expense to shipping point, earning freight both .ways.”

The quarantine officer in California testified without contradiction that he inspected the car when it reached California and found cotton seed in the oats, and, by reason of the quarantine law regulation, he refused to permit the oats to be unloaded; that he found a-number of cotton seed in the oats down as far as eighteen inches, and same appeared to be thoroughly distributed through the oats. He testified that he specially examined and did not find any cotton seed in the braces or cracks or the ceiling or walls of the car, that the only cotton seed he found was in the oats themselves, and that that was the only reason he quarantined the car. The fact that, after the car was returnfed to Waco and unloaded and some of the planks on one end of the car were removed and cotton seed found in the walls of the car was not, in the light of the entire record, sufficient to require the trial court to submit said issue. According to all of the testimony, after the car was loaded with oats it would have been impossible for any one to have discovered same.

The car of oats having been quarantined at Los Angeles without any fault of defendant in error, and the contract made between the parties having specifically provided that defendant in error could discharge all of its obligations and liabilities by returning same to Waco, Tex., and it appearing that the car of oats was at plaintiff in error’s request returned to it at Waco, defendant in error has fully complied with its contract, and plaintiff in error is not entitled to recover the freight paid.

We have carefully examined all of plaintiff in error’s propositions, same are overruled, and the judgment of the trial court is affirmed. ;

ALEXANDER, J., tools no part in the consideration and disposition of this case.


author: LOONEY, J.

text:
    BOWER v. YELLOW CAB CO. et al.
    No. 10734.
    Court of Civil Appeals of Texas. Dallas.
    Jan. 10, 1931.
    Rehearing Denied Feb. 14, 1931.
    Leake, Henry, Wozencraft & Frank and W. W. Hilbrant, all of Dallas, for ¿ppellant.
    Winfrey & Lane, of Dallas, for appellees.
   LOONEY, J.

Mrs. Ada Mai Bower sued the Yellow Cab Company, a corporation, its officers and directors, to recover damages for the conversion of stock in the corporation, claimed in her own interest and as independent executrix of the estate of C. L. Bower, her deceased husband. The case has been twice tried and twice appealed. The first appeal was by plaintiff from an adverse judgment based upon an instructed verdict, was transferred to the Eighth Court of Civil Appeals, and by that court reversed and remanded. The case is reported in 13 S.W.(2d) 708, 710, and is here referred to for all purposes.

Passing upon the legal effect of plaintiff’s evidence, the El Paso court held that: “The evidence in this case shows a wrongful refusal to issue certificates of stock to which plaintiff was entitled in the Yellow Cab Company, as the executrix of the estate of C. L, Bower, deceased, and as beneficiary of his will. It further shows her rights as a stockholder were ignored. The evidence shows liability upon the part of the company as for conversion. 14 C. J. 485, § 720; 26 R. C. L. 1105, § 13; Rio Grande Cattle Co. v. Burns, Walker & Co., 82 Tex. 50, 17 S. W. 1043; Baker v. Wasson, 53 Tex. 150, and Id., 59 Tex. 140. And those of the company’s directors and officers who participated therein by instigating, aiding or abetting the company in so doing are liable with the company as joint tort-feasors. 36 Cyc. 2054; 26 R. C. L. 1138, § 51.”

Plaintiff’s evidence on the second trial is, in legal effect, the same as on the first. However, on the last trial defendants introduced evidence, not introduced on the first, consisting of certain stock certificates and the testimony of four of the defendants, who gave their version of the transactions. At the conclusion of evidence, a verdict was again instructed for defendants, judgment was rendered accordingly, and plaintiff has again appealed.

It is doubtless true that defendants’ evidence, which for obvious reasons will not be discussed, is sufficient to warrant findings in their favor on all material issues, but it cannot be said, as a matter of law, that this evidence destroyed the prima facie case made by plaintiff; the utmost that can be said is that, however cogent or persuasive, it simply produced a conflict of evidence and a jury question; in truth, it could not be otherwise, in view of the holding of the El Paso court to the effect that plaintiff’s evidence was sufficient prima facie to take the case to the jury.

The holding of the El Paso court is the law of the case and binding upon this court. The well-settled general rule is that questions of law decided on appeal must govern throughout all subsequent stages, in trials and on appeals. See County of Galveston v. Galveston Gas Co., 72 Tex. 509, 516, 10 S. W. 583; Wolf v. Sahm (Tex. Civ. App.) 135 S. W. 733; Kelley v. Fain (Tex. Civ. App.) 168 S. W. 869; G. H. & S. A. Ry. Co. v. Faber, 77 Tex. 153, 154, 8 S. W. 64; Texas Jurisprudence, vol. 3, §§ 939, 946, and authorities cited. This rule includes decisions determining, as in the case at bar, the sufficiency of evidence to establish a fact. See Western Union Co. v. Erwin (Tex. Civ. App.) 164 S. W. 908; Sheffield v. Meyer, 229 S. W. 614; Campbell v. Turley (Tex. Civ. App.) 229 S. W. 595; Ewing v. Bain (Tex. Civ. App.) 257 S. W. 688.

It is contended, however, that the testimony of defendants, explanatory of the facts and circumstances attending the transactions, is uncontradicted and shows conclusively that no conversion of plaintiffs stock in the cab company occurred. As stated above, we do not think defendants’ evidence stands uncon-tradicted, but if this were true, nevertheless, because of defendants’ interest in the subject matter of litigation, the case ought to have been submitted to the jury, for, as said by Judge Brown in Houston, etc., Co. v. Runnels, 92 Tex. 307, 47 S. W. 971, 972: “it is the province of the jury to pass upon the credibility of the witnesses, and they may disregard the testimony of a witness who has neither been impeached nor contradicted, if they believe his statements to be untrue from his manner of testifying, prejudice exhibited towards the opposite party, or his interest in the result of the litigation, or other things indicating that the evidence is not reliable.” To the- same effect, see the more recent case of Pope v. Beauchamp, 110 Tex. 271, 280, 219 S. W. 447.

Because it is our opinion that the court erred in taking the case from the jury and instructing a verdict, the judgment below is reversed, and the cause remanded for further proceedings not inconsistent with' this or the decision of the El Paso court.

Reversed and remanded.


author: LEDDY, C. CURETON, C. J.

text:
    WICHITA COUNTY WATER IMPROVEMENT DIST. NO. 1 et al. v. CURLEE.
    No. 5330.
    Supreme Court of Texas.
    Feb. 18, 1931.
    Carrigan, Britain, Morgan & King and E. R. Surles and Maurice Cheek, all of Wichita Falls, for plaintiffs in error.
    Ewing Olagett, of Wichita Falls, for defendant in error.
   LEDDY, C.

Defendant in error, W. C. Curlee, instituted this suit against Wichita county water improvement district No. 1 and Wichita county water improvement district No. 2, plaintiffs in error, for the value of eight cows, three of said cows being killed by' eating. poisonous Johnson grass, and five being drowned in the canal constructed by plaintiffs in error. He sought to recover damages in the sum of $360 for the death of these animals. His petition alleged in substance:

That during the years 1923 and 1924 defendant in error used and occupied under lease for the purpose of farming and stock raising a large tract of land through which the canal and irrigation ditches of plaintiff in error were constructed in order to supply water to irrigate adjoining land along the canal, and to supply water to the city of Wichita Falls. The canal and ditches were constructed and ran through the pasture land of defendant in error. During the construction of the canal and ditches, the plaintiffs in error, their agents, representatives and servants, brought, or caused to be brought,, upon the land of defendant in error, and upon said right of way through the land, Johnson grass for the purpose of feeding the teams that were used in the construction of said work, and the seed of said Johnson grass became scattered and mixed with fresh dirt taken out of the canal and ditches, and the seed took root and grew upon the right of way in the pasture of defendant in error, and went to seed. Plaintiffs in error were negligent in permitting the Johnson grass to be brought upon the work in the pasture of defendant in error, and could have prevented the same if they had used ordinary care and caution.

That during the • spring months of 1924 Johnson grass began to grow upon certain portions of said right of way that runs through the lands of defendant in error, and plaintiffs in error negligently failed and refused to kill it after it began to grow, knowing that the grass is very poisonous to live stock during a certain 'stage of it's growth. Plaintiffs in error were guilty of gross negligence in permitting the Johnson grass to grow upon their right of way through the pasture of defendant in error, and they also failed and refused to fence their canal, all of which has caused damages to defendant in error.

That defendant in error kept cattle at all times in his pastures along thé canal, which fact was well known to plaintiffs in error, and they knew that the cattle would be ranging all through the pasture, and would doubtless eat any Johnson grass that was permitted to grow along the canal. That three cows belonging to defendant in error died from eating such grass.

It was further alleged that the cattle were not prohibited from running at large, but had a right to he on the right of way of plaintiffs in error.

That plaintiffs in error did not have any one to patrol the canal until about February 1, 1925, and were guilty of negligence in failing to have some one to keep poisonous grasses killed out for the protection of adjacent property owners.

That during the month of December, 1924, five cows belonging to defendant in error were drowned in the canal of plaintiffs in error, which canal runs through the pasture of defendant in error.

Plaintiffs in error urged a general demurrer to the petition of defendant in error, which was sustained by the trial court. He declined to amend, the case was dismissed, and an appeal perfected to the Court of Civil Appeals. It was there decided that the trial court committed error in sustaining the general demurrer, and the cause was reversed and remanded for another trial.

Plaintiffs in error rested under no legal duty to fence the right of way upon which its irrigation canal was situated. Being under no such obligation, it could not' be guilty of negligence in failing to do so. 1 Thompson on Negligence (2d Ed.) § 965; 20 Cyc. 444; Missouri, K. & T. R. Co. of Texas v. Meyer (Tex. Civ. App.) 161 S. W. 12; Padgitt v. Railway Company (Tex. Civ. App.) 90 S. W. 67.

In the last-cited case appellant’s horse went upon a bridge upon the railroad right of way and was killed by falling therein. Liability upon the part of the railway company. was denied, and, .in passing on this question, the court said:

“At best the evidence shows that appellee had its track in such condition that animals had free access to it. Appellee was not required to keep its track or bridges in such condition as not to injure animals that went upon the right of way.” .

In Railway v. Meyer, cited above, it was attempted to hold the railway company liable for the death of an animal upon the same theory as in the instant case. The negligence relied upon was the failure of the railway company to fence its right of way, and it was alleged that, on account thereof, ap-pellee’s cow wandered upon the right of way and fell into a large excavation which the railway company had made thereon. It was decided that there was no liability, upon the ground that the animal was a trespasser against which the railway company was not required to fence.

In Brown v. Railway Company (Tex. Civ. App.) 69 S. W. 178, it was determined that a railroad company was not liable to one whose cattle strayed from an adjoining pasture through a defective fence inclosing the company’s right of way and ate Johnson grass growing thereon which resulted in „their death. In discussing the lack of any obligation on the part of the railway company to fence its right of way in order to prevent cattle from eating such grass, the court said:

“Fences are built about rights of way not to protect'cattle from eating the vegetation growing thereon, but to keep them from being killed by trains; and, under the circumstances of this case, there was no negligence in permitting the fence to fall into decay, and appellee is no more liable for the injury resulting from the cattle eating the grass than it would be if there had been no fence; and it could not, certainly, be contended that there would be liability for damages arising to stock from eating the natural growth on the unfenced right of way.”

In Ft. Worth & R. G. R. Co. v. Brown (Tex. Civ. App.) 173 S. W. 943, it appeared that the railway company had applied some kind of poison to kill Johnson grass growing upon its right of way. Appellee’s cattle went upon the right of way and ate the poisonous grass, with fatal results. Liability for the death of such cattle was denied upon the theory that the railway company owed no duty to fence against appellee’s cattle in order to prevent their trespassing upon its right of way.

In Dobbins v. Railway, 91 Tex. 60, 41 S. W. 62, 63, 38 L. R. A. 573, 66 Am. St. Rep. 856, the railway company was not required to respond in damages for the death of a little child which wandered on the right of way and fell into a pool of water. The court reached the conclusion that the railway company was under no obligation to fence its right of way to prevent trespassers from falling into a pool situated thereon. In discussing this question, Judge Denman, speaking for the Supreme Court, said:

“If there be no duty the question of negligence is not reached, for negligence can in law only be predicated upon a failure to use the degree of care required of one by law in the discharge of a duty imposed thereby. Since the common law imposes no duty on the railroad to use care to keep its right of way in such condition that persons going thereon without its invitation' may not be injured, and since there is no evidence in the record from which the jury could have found such an invitation to the child, it was no more liable in law for its death than would have been a neighbor had it wandered into his uninelosed lands and been drowned in his tank or creek, or been killed by falling down his precipice.”

No sound reason has been suggested for the existence of any distinction between the duty of a railroad and an irrigation company in respect to fencing the right of way. Neither rests under any obligation at common law or by statute to fence its right of way for the purpose of preventing animals trespassing thereon from being injured either from eating noxious growths or falling into excavations.

If the construction of plaintiffs in error’s irrigation canal through defendant in error’s premises caused his cattle to be subjected to dangers and hazards which would not have otherwise existed, or operated to compel him to incur expense, in fencing his land to protect the cattle from added dangers, these facts were proper elements to be considered in fixing the amount of the consideration for the sale of his lands to the irrigation company or in ascertaining the amount of damages to which he was entitled if the same were acquired through condemnation proceedings.

The irrigation company rested under no higher duty to keep its premises safe for trespassing animals than devolved upon defendant in error’s neighbors owning unin-closed lands.

Defendant in error’s petition contains the allegation that his cattle were rightfully upon plaintiff in error’s right of way at the time they were killed. This is but a legal conclusion, shown to be based upon the preceding allegation that there was at said time no law prohibiting cattle from running at large. The conclusion alleged cannot be justified by the facts from which it is drawn. Even though stock were not legally prohibited from running at large, they would'nevertheless be trespassers if they entered upon the premises of another without lawful authority.

Defendant in error’s petition stated no cause of action; hence the trial court properly sustained the general demurrer urged thereto, and the Court of Civil Appeals erred in reversing the judgment of the trial court.

The judgment of the Court of Civil Appeals is reversed, and that of the trial court affirmed.

CURETON, C. J.

The foregoing opinion is adopted as the opinion of the Supreme Court, and judgment' will be entered in accordance therewith.


author: SHORT, C. CURETON, C. J.

text:
    COCKE v. CONQUEST et al.
    No. 5151.
    Supreme Court of Texas.
    Feb. 18, 1931.
    For former opinion, see 13 S.W.(2d) 348.
    Quin & Harley and Caines & Gaines, all of San Antonio, for plaintiff in error.
    Covey C. Thomas, of Cotulla, and Bruce W. Teagarden, of San Antonio, for defendants in error.
   SHORT, C.

The plaintiff in error, Emmett B. Cocke, has sought to appropriate to the satisfaction of a judgment, originally amounting to $6,-300 against Lee Conquest, and reduced by tbe sale of tbe tract of land on wbicb a vendor’s lien was foreclosed to about $4,000, besides interest, 188.4 acres of land situated in Hidalgo county, found by tbe court to be tbe homestead of the defendants in error, Lee and Minnie Conquest, husband and wife, respectively, residents of Hidalgo county and citizens of Texas, which Lee and Minnie Conquest assert to have been their homestead at the time the plaintiff in error sought to appropriate it, in addition to some other lands also belonging to Lee and Minnie Conquest; among the other lands being 45 acres in several parcels.

However, the suit was originally instituted in the district court of Hidalgo county by Lee Conquest, the said wife, and their son, John R. Conquest, against the plaintiff in error, and a certain constable of that county, who held a pluries execution, and who had levied the same on certain lands as the property of Lee and Minnie' Conquest, aggregating as aforesaid about 45 acres, in which the original plaintiffs, Lee ánd Minnie Conquest, alleged that they were the original owners on and prior to the 29th day of April, 1925, of the 45 acres, and on and prior to the 2d day of September, 1925, they were the owners of the remaining aggregate amount of lands of 188.4 acres, each of these aggregate amounts being in several parcels, and the several parcels composing the 188.4 being segregated by a distance of several miles in some instances, the greatest distance being about 12 miles from the farthest portions, and which they alleged that on the 29th day of April they had conveyed to John R. Conquest the first aggregate amount of 45 acres, and on the 2d day of September, 1925, they had conveyed the remainder of said lands, each for a valuable consideration, and that the plaintiff in error, Cocke, had filed a judgment lien in Hidalgo county whereby he sought to appropriate said lands to the satisfaction of said judgment, and that the other original defendant, as constable, had levied on the first-named 45 acres, and that the filing of the judgment lien in Hidalgo county constituted a cloud upon the title of all the lands. Lee and Minnp.e Conquest also alleged that the 188.4 acres constituted their homestead at the time the judgment was rendered and the lien sought to be fixed-, and- asserted homestead rights in said 188.4 acres. The plaintiff in error filed a cross-action, asserting he had a judgment lien on all of said lands, and that the transactions between Lee and Minnie Conquest on the one hand, and their son on the other, were fraudulent and void.

The original plaintiffs had secured from the district judge an injunction prohibiting the sale of any of these lands, and, the case having been tried without the intervention of a jury, the court, after hearing the testimony, rendered judgment in favor of the plaintiff in error, dissolving the writ of injunction as to the amount of lands aggregating 45 acres, on which the pluries execution had been levied, and established a lien in favor of the plaintiff in error on said lands, and ordered them sold to satisfy said execution. The court .perpetuated the injunction as to the 188.4 acres of land, finding as a fact that, while said 188.4 acres of land consisted of several segregated tracts, separated by a distance not exceeding 12 miles, the same constituted the homestead of Lee and Minnie Conquest, and that, while the conveyance made to their son was the result of a design on the part of Lee and Minnie Conquest to defraud the plaintiff in error, yet, since the lands constituted the rural homestead of Lee and Minnie Conquest at the time they had conveyed it to their son, said fraudulent design was- inoperative against them, the court holding under these facts that the temporary injunction as to the 188.4 acres should be perpetuated and entered judgment to this effect.

None of the original plaintiffs appealed from this judgment, but the plaintiff in error did, and, upon a hearing of the case in the Court of Civil Appeals at San Antonio, that cpurt affirmed the judgment of the district court. 2 S.W.(2d) 992. The case has reached the Supreme Court in the usual way.

The Supreme Court having referred the case to section B of the Commission of Appeals, it was there submitted on oral argument and the briefs of the parties, and an opinion was written by Judge Speer recommending that the judgment of the Court of Civil Appeals, affirming that of the district court, be affirmed, which recommendation was, by the Supreme Court, adopted, and the judgments of the district court and the Court of Civil Appeals were affirmed. 13 S.W.(2d) 348. However, upon a motion for rehearing having been filed, it was granted, and the judgment entered by the Supreme Court was set aside. The case has been resubmitted to, and heard by, the Supreme Court, and the record has been re-examined.

The plaintiff in error presents the third assignment in his application in the following language: “The Court of Civil Appeals holds in this cáse that the language of the Constitution reading ‘provided that the same shall be used for the purposes of a homestead’ applies to lots in town or city but in no manner applies to rural homesteads and thereby, in effect, holds that the head of a rural family is entitled to an exemption of 200 acres of land in every event, whether the same be used for homestead purposes.” He submits under this assignment as one of his propositions the following: “Where segregated tracts of land are claimed as rural homestead just such of them only as are used for homestead purposes are exempted.”

While the proposition is a correct statement of the law, the record shows clearly that it is not applicable to the facts found by the trial court. That court, among other things, found the following: “I find that when the said suit, meaning the original suit, in which the judgment was rendered in favor of the plaintiff in error against the defend-' ant in error, Lee Conquest, (out of which arose this suit) was filed in Bexar County, Lee Conquest owned at least 315 or 320 acres of land, located in Hidalgo County and consisted of a number of separate tracts within a radius of eight miles from the 20 acres on which the residence stood, the greatest distance between any two tracts being about twelve or fourteen miles and all of which land was used by said Conquest for general farming purposes, in exactly the same way, for growing cotton, principally, and in addition he resided on the 20 acre tract above mentioned. * * * I find that on June 13, 1925, (the date of filing an abstract of the judgment) and ever thereafter Lee Conquest was using and continued to use all the lands he then owned in Hidalgo County, including all that in controversy herein, for the purposes of farming and raising and caring for his cattle and that he used the proceeds derived from such use to pay his taxes, debts, interest on debts, living expenses for himself and family, and operating his farms and that he needed same for those purposes.” Upon these and other findings the trial court concluded that the lands involved (being less than 200 acres) here used by Lee Conquest for homestead purposes should be and were exempted to him, and are protected under the Constitution and laws of the state, and that he had a right to convey such lands to his coplaintiff, John It. Conquest.

It is the contention of the plaintiff in* error that the defendants in error only have homestead rights in the 20 acres of land upon which they actually resided, and that the remaining parcels are subject to be appropriated to the satisfaction of this judgment, rendered in the district court of Bexar county against the defendant in error Lee Conquest, the husband of Minnie Conquest, and the head of the family. The findings of fact by trial court not being attacked by any assignment of error, we might content ourselves with assuming that the testimony supports them, yet we deem it proper, in view of the importance of the question under discussion, to set out some of the testimony of the only witness who was introduced.

Among other things, this witness, the defendant in error Lee Conquest, testifying in his own behalf and in behalf of his wife, said:

“As to Lot No. 2 in Block 18 — that land is located three miles south of the McColl clubhouse, at the resaca.' That is about four and one-half miles from the place where the dwelling is located on the 20 acres, now in dispute. I owned that land just two years prior to the execution of this deed. (Evidently speaking of the deed to his son,, John B. Conquest.) At the time I purchased that land it was pasture land and some brush land. A little had been cleared. I bofight it after I moved to this State. I acquired thát land after I acquired the twenty acre tract. It was a piece of resaca bed and adjoining the resaca bed, and it was grassed over, and we needed it for pasture. I bought it from parties down there at Pharr and McAllen and I bought it for use for grazing purposes. You can cultivate about half of the forty acres— about twenty acres. I have put that to raising feed for the cows. I put cane on it and pastured it off. We used it for six months to run the cows on. Then I leased it to another man for the first year, and after the year was up we took charge .of it again — -I did myself, with the assistance of a man who stayed on the place and milked the cows. And we used it for the same purpose. I used the proceeds derived, from the use of this land in supporting the family. We got half the proceeds after we leased it to that man. The arrangements with that man were that he was to pay $3.00 a day for the use of the land and the cows. That arrangement continued for one year. That was a temporary arrangement. After that my son and I actually plowed the ground and put in a cane crop. We put a man on there to take care of the cows. The proceeds derived from what was raised on it since this lease expired there were used for living purposes. After the lease expired and when my son and I again occupied the land and used it we used the proceeds from it for the maintenance of the family. It was needed for that purpose.”
“As to Lot 88, I got that land the 10th of February, 1922. I contracted for it. If I remember right the deeds are dated at that time. Afterwards I moved down here in September. That was the year 1922. I took charge of it and plowed it up that winter and farmed it.' My son John It. Conquest assisted me with it. He is one of the plaintiffs in this case. I went ahead and with his assistance broke the land out' and put it in crops. We put cotton on it and we farmed it all in cotton for two or three years. We used it as a cotton farm, and we handled it ourselves,-— myself and the boy, with what help we hired, and we used the proceeds to pay the interest, and taxes, and for living expenses. There was nothing left after .that. It never paid anything on the principal. It never has. There is a fraction less than forty acres in that tract. * * * The condition of this land at the time'I bought it in 1922 and began cultivation, was that it had been grassed over. It had been idle for some years and was covered with a heavy growth of weeds and vegetation. We cleared it and burned the weeds and plowed it. It was idle land. It hadn’t been farmed for a year or so when I got possession of it. We continued that for three years. * * * Lot S8 is about seven and one-half or eight miles from the home place — tho homestead. It is three miles north and one mile west of McAllen. We go back and forth from this place by truck, and we kept a man on the farm while we worked it. * * * The means of locomotion is different now from what it was years back. We can get back and forth much quicker. We have a farm truck. We had no house on that land. I did have some land there with three small houses.”
“With reference'to Lot 272 — that land is located three miles south of Pharr and a mile east. I acquired that land the 10th day of February, 1922, when I got the other piece— this 88 acres. That land is paid for in full. I paid $300.00 an acre for that land. At the time I purchased that land in 1022 it was of the same character as the other land. I had to clear that land. It had gone back to brush and had to be broke up. We did break it up ourselves. My son and I did that. • My son had something to do with the breaking, but not with the clearing. I hired the clearing done and my son John broke it with the tractor. That was the winter of 1922-1923. And then we farmed it in cotton the following year. * * * We farmed it for two years, my son John and myself, with hired help. But we rented it for a share after we had plowed it. -That rental occurred in the winter of 1924r-25. We had it rented that summer. That was before the execution of this deed in December. We had it rented out for a share of the crop. We took one-third after we had it plowed and gave the man two-thirds for working it. We had more than we could handle. I had oversight of that. I was on the place every week, — maybe twice or three times a week. This rental began in February,' 1925. * * * He took charge and finished putting in the crop where we had broken it up — that is, where John had plowed and broken it out. Yes, that rental began in 1928. Yes, this correction deed to John R. Conquest was made in-December, 1925. Yes, that land was still rented after that. The term of the rental was from year to year. One year at a time. He only had it one year. The next year we had another man on it. We used the proceeds derived from the rental of that land for living expenses and taxes on the land. The proceeds were not used for any other purpose. The proceeds were needed for that purpose. The taxes are just about taking the procéeds of the farm.”
“As to Lot 272, it is located four miles southeast from the home tract. Lot 273 lies adjoining 272 on the south. The deed recited 44.56 acres in that, but I have never had that surveyed. It is deeded jointly to me as a double tract, 89 acres of land. Yes, Lots 272 and 273, I acquired both of those tracts on February 10, 1922. I had practically the same use and occupancy of Lot 273 as I did of the former tract. They were side by side and John and myself cleared the land and broke it out at the same time. I rented that land the next two years. Yes, that was rented-at the time of the deed to my son John R. Conquest. The land is overflow land and at the time I bought it it had gone back to brush the same as Lot 272, and it had to be cleared before we could break it and farm it. It was done at the same time and under the same contract. * * * It was broken by John R. Conquest after I had hired the brush and trees taken away and burned. John plowed it. We prepared it for a crop and planted it to cotton at planting time. We farmed it during the season and used what we got out of it for living expenses and overhead expenses of the farm. During this time John R. Conquest was living at home at my place. Yes, sir, he was a member of the family. That was before he was married. Yes, I stated that I have no other source of revenue whatever. All this land which you have mentioned to me is suitable for farming and has been used for farming. The proceeds of all that was leased have been applied to the living expenses of my family. Lot 273 is clear of all encumbrance. I paid the same price for it that I did for Lot 272, that is, $300.00 per acre.”
“At the time this correction deed was executed my wife and I had selected these lands as our homestead. And at the time this correction deed was made and executed we claimed this land as our homestead.”
“With reference to the deed of April 29, 1925, conveying the tracts described in the deed to our son John R. Conquest, the lot 1 in Block 7, containing 9.08 acres of land mentioned therein, that land is located four miles north of San Juan, right near to the railroad. That is five miles from the home place. I acquired that land on the 10th day of February, 1922. There are four tracts described in that deed; Those four tracts all lie together and contain forty-five and a fraction acres. (This forty-five and a fraction acres is not claimed as a part of the homestead, and the court decreed it to be sold to satisfy the judgment of the plaintiff in error.)”

This testimony further shows that the parcels of land, about which the witness testified, aggregate 188.4 acres, and are divided into four parcels, one of 89 acres, one of 40 acres, one of 30 acres, and one of 20 acres. These parcels do not include the parcels which aggregate forty-five and a fraction acres, and which the court adjudged to be liable to the satisfaction of the judgment rendered against Lee Conquest in favor of the plaintiff in error.

Section 51, article 16, of the Constitution, in part, is as follows: “The homestead, not in a town or city, shall consist of not more than two hundred acres of land, which may be in one or more parcels, with the improvements thereon.”

Notwithstanding this provision of the Constitution, and notwithstanding the unchallenged facts found by the trial court, supported by ample testimony, as shown by that of the only witness who testified orally in the case, and notwithstanding the facts found by the trial court are approved by the Court of Civil Appeals, it is the contention of the plaintiff in error that the homestead of Lee and Minnie Conquest, husband and wife, shown to be citizens of Texas, is confined to that one of the parcels containing 20 acres on which they resided at the time the conveyance was made of the remaining parcels, aggregating less than 200 acres, by them to their son, John R. Conquest. This contention cannot be sustained. We know of no well-considered authority in Texas which supports it. Separate tracts of land, each claimed and used in connection as a homestead, for homestead purposes, constitute a rural homestead. If these several parcels of land, each of which is shown by the testimony to have had imposed upon it the homestead character, had been contiguous to each other, the claim of homestead would not be seriously contested as to the aggregate amount of the 18S.4 acres. However, it is insisted that, because these parcels of land are detached from the parcel upon which the residence and outhouses are located, notwithstanding their use for homestead purposes, they are not exempt under section 51, article 16 of the Constitution. In Woodward v. Sanger Bros., 246 F. 777, 780, the Circuit Court of Appeals of the Fifth District, Judge Batts delivering the opinion, in discussing this situation, among other things says:

“This provision of the Constitution leaves very little basis for distinction between the homestead consisting of one tract of not more than 200 acres, and one made up of several parcels, aggregating not more than 200 acres. It is, however, a homestead which the Constitution exempts, and not-200 acres of land in the country. A fundamental idea involved is a ifiace of residence. While circumstances might exist which would fix or maintain the homestead character of the land without actual residence, yet residence is normally an element. Whatever of physical difficulty there might be in actually living on more than one tract of land was doubtless under consideration when the quoted provision was incorporated in the fundamental law. At most, only a very small part of 200 acres of land can be used as a place of actual residence. Whatever effect this actual holding for this purpose may have in impressing the homestead character has not, by the terms of the fundamental law, been confined to the tract of actual domicile. The fundamental law making no distinction, there should be a hesitancy in placing a judicial limitation upon the homestead rights based upon an assumed difference between a homestead of a single tract and a homestead consisting of more than one tract. The head of a family owning several tracts not exceeding 200 acres in the aggregate, living upon one of the -tracts, and claiming all as a homestead, the burden of proving one of the tracts not homestead should be upon the person attacking the homestead claim. The presumption should be that all is homestead. * * * Most of the rural homesteads in Texas furnish the means of living as well as the place of living. The law as declared in the Constitution and statutes does not undertake to place any limitation on how the land may be used, other than that it is to be the homestead. There is no warrant for saying that, when a homestead shall be used in the way best calculated to accomplish the purpose of a homestead, it loses its character as a homestead. In perhaps a majority of cases the Texas homestead owner cultivates a part of his homestead land by his own labor and a part through tenants. There is no provision in the Constitution or laws which undertakes to prescribe this or any other method of using it, nor any provision which proscribes this or any other method of using it. * * * The leases referred to in the statement of facts are oral arrangements by which the tenant cultivates the land on shares. The landowner furnishes the land, and the tenant furnishes the labor; the crop is divided. * * * The provisions of the contract are customary and perfectly well understood. The contract ordinarily covers the calendar year. A usual incident is that the landlord is compelled to supervise the farming; he frequently makes ‘advances’; he must look after the division of the crop. The arrangement, if properly called a ‘lease,’ is a temporary lease. If a like contract is entered into from year to year, each new contract makes the beginning and the end of a temporary lease. * * * If a person should use his land in the way indicated, if he should thereby get his living, thereby provide himself in kind with corn and wheat needed for his own consumption, thereby provide the oats and fodder needed for the horse which he rides; by what provision of the law is he placed, with reference to the tract or tracts constituting the 200 acres which might have become his homestead, in any different position than he would be in if he had done a little work on each of the tracts with his own hand or by hired labor? The law could make such á difference, and, if made, whether reasonable or not, it would have to be observed. But why should an absurdity be imputed to the law when there is nothing in its terms that would justify or excuse such imputation?”

See, also, the case In re Buie (D. C.) 287 F. 896, wherein Judge Atwell, speaking for the court, holds that: “Where a bankrupt had six tracts of land, aggregating less than 200 acres, on two of which he had, his residence and a general store and blacksmith shop, and the others of which he farmed, either personally or through hired help or share croppers, his use of all of the tracts was sufficient to impress on them the character of a rural homestead.”

The testimony, a part of which we have quoted, shows beyond dispute that Lee Conquest, the owner, had, since his ownership of each parcel of land, personally worked each parcel. These acts of use are clearly sufficient to have impressed the homestead character upon each of the parcels. When the homestead character has been impressed upon a parcel of land, the authorities are uniform that thereafter a mere temporary leasing thereof, with no intention of abandonment, is insufficient to remove from the land its homestead character. Medlenka v. Downing, 59 Tex. 32; Farmer v. Hale, 14 Tex. Civ. App. 73, 37 S. W. 164, writ of error refused; Gunn v. Wynne (Tex. Civ. App.) 43 S. W. 290, writ of error refused; Baum v. Williams, 16 Tex. Civ. App. 407, 41 S. W. 840, writ of error refused; Ruhl v. Kauffman, 65 Tex. 723; Jacobs v. Hawkins, 63 Tex. 1; Schulz v. Whitham & Co. (Tex. Sup.) 27 S.W.(2d) 1093. The homestead right, when fixed, is an estate in land, and a creditor has no right in it nor to it as a security. This exemption from forced sale of a homestead is founded upon public policy, and must be upheld and enforced, as it should be, and has been scarcely without an exception by the courts of this state, notwithstanding the fact that in doing so they sometimes directly assist a dishonest debtor in wrongfully defeating his creditor. Hargadene v. Whitfield, 71 Tex. 482, 9 S. W. 475.

The framers of our organic law had no thought of exempting 200 acres of land in the country as a home for each family, upon which its members might reside, when they thought proper, but this exemption is only in the event such lands are used for the purpose of a home. The exemption is not of any definite number of acres, but of the home, and the number of acres is a limitation placed upon that home. As said by the author of Speer’s Law of Marital Rights in Texas, par. 463: “Expressions may be found in some of the decisions which seem to indicate that the proviso, with reference to the use of property for home purposes do not apply to the rural homestead. But the better authorities as well as a proper construction of their language of the section show unmistakably that it does.” Brooks v. Chatham, 57 Tex. 31. “Evidently it was the purpose of the framers of our Constitution and the Statutes on this subject to give to the wife a shelter for herself and children against the improvidence of the husband and the greed of creditors. It is not for the husband, nor yet for their children, /that the law has thus interposed; but, possibly in a measure to ameliorate the burdens imposed upon her by our marital laws.” As was said by Justice Moore in Iken v. Olenick, 42 Tex. 195: “The leading and fundamental idea connected with a homestead is unquestionably associated with that of a place of residence for the family, where the independence and security of a- home may be enjoyed, without danger of its loss, or harassment and disturbance by reason of the improvidence or misfortune of the head or any other member of the family. It is a secure asylum of which the family cannot be deprived by creditors. Within its sanctuary, however urgent may he their demands, they cannot intrude.”

While the facts in the case of Woods v. Alvarado State Bank, 118 Tex. 586, 19 S.W.(2d) 35, are in no wise, similar to the facts in this case, yet the Supreme Court, speaking through Chief Justice Cureton, in that case has discussed at some length the history of our homestead laws and • the policy of the state as embodied in them, declaring, among other things, that: “The rule that homestead laws are to be liberally construed to effectuate their beneficient purpose is one of general acceptation.” 29 C. J. p. 787; 13 Ruling Case Law, p. 547; Trawick v. Harris, 8 Tex. 312; Schneider v. Bray, 59 Tex. 668.

As this is the latest expression on the general policy of the state, with reference to its homestead laws, wherein there is a general discussion of them, we pretermit any further ■ discussion of these laws in this case, believing that what is said in the Woods Case is sufficiently illuminative of the question to indicate that the trial court, upon its findings of fact, reached the correct conclusion, and that the Court of Civil Appeals correctly affirmed the judgment of that court.

The conclusion we have reached, with reference to the assignment presenting the question we have discussed, renders unnecessary discussion of the other assignments.

For the reasons stated, the judgment of the Court of Civil Appeals should be affirmed.

CURETON, C. J.

The foregoing is adopted as the opinion of the Supreme°Court, and the judgment of the Court of Civil Appeals is affirmed.


author: CRITZ, C. OURETON, C. J.

text:
    FOX v. KROEGER.
    No. 5266.
    Supreme Court of Texas.
    Jan. 21, 1931.
    Edward L. Dunlap, of Victoria, for plaintiff in error.
    C. C. Carsner, of Victoria, for defendant in error.
   CRITZ, C.

This suit was begun in the county court of Victoria county by J. H. Kroeger against Ben J. Fox, independent executor of the estate of Mrs. C. M. Fox, deceased, upon a promissory note in the principal sum of $769.-03, dated June 28, 1921, due twelve months after date, signed by Mrs. C. M. Fox as principal and J. H. Kroeger as surety, and payable to the Devi State Bank & Trust Company of Victoria, Tex. It seems to be admitted that Kroeger was an accommodation surety upon the note. Mrs. Fox died on February 3, 1922, prior to the maturity of the note. When the note matured, the bank called upon Kroe-ger for payment. On or about the due date Kroeger went to the hank and executed and delivered to it his own promissory negotiable note in full satisfaction for the Fox note, and for the amount due thereon, and the bank, by assignment written on the back of the F'ox note, transferred the same to Kroe-ger, and delivered to him the original note. More than two years after Kroeger paid the note, but less than four years after the due date of the original note, Kroeger instituted suit against Ben J. Fox, executor of the estate of Mrs. C. M. Fox on the original note.

The defense was by demurrer in abatement and by the plea of two-year statute of limitation. The trial was before the court, and final judgment entered in favor of Kroeger for the full amount of the principal, interest, and attorney’s fees of the Fox note. On appeal, the Court of Civil Appeals for the Fourth Supreme Judicial District of San Antonio affirmed the judgment of the county court. 5 S.W.(2d) 180. The case is before the Supreme Court on writ of error granted on application of Fox.

By his petition in the trial court, Kroeger declared upon the note itself, and prayed for judgment for the principal, interest, and attorney’s fees as therein provided.

Fox contended in the county court and Court of Civil Appeals, and now contends, that Kroeger’s only cause of action was upon the implied promise of reimbursement after he had paid off and discharged the note upon which he was surety, and that his cause of action was barred after two years from the time of accrual thereof; such accrual being the time of payment by him of the Fox note. Kroeger contended in the trial court and Court of Civil Appeals, and now contends, that a surety on a promissory note, for the accommodation of the maker, can pay off the obligation and have the same transferred to him, and maintain a suit against the original maker on the note itself. The Court of Civil Appeals sustained the contention of Kroeger, that is, the Court of Civil Appeals held that a surety who pays the obligation of his principal, and takes a transfer thereof to himself, can maintain a suit upon the obligation itself. It is admitted by both parties that, if the suit can be maintained upon the note, it is not barred by limitation, but, if the cause of action must be asserted upon the implied promise of reimbursement, it is barred by the two-year statute of limitation.

It seems that the question here presented has been one of great difficulty to the courts of this state, and on which the opinions' of our Supreme Court, including the Commission, have seriously conflicted. In the early case of Holliman v. Rogers-, 6 Tex. 91, our Supreme Court announced the rule that, where the surety paid the obligation of the principal, the obligation itself was extinguished, and the remedy of the surety against the principal was on an assumpsit, or the obligation implied by law on the part of the principal to reimburse the surety. This rule was reversed in the later case of Sublett v. McKinney, 19 Tex. 439, and the rule announced that in such a case the surety is subrogated to the very debt itself, and can maintain an action thereon, whether it be assigned to him or not, because he is entitled to have it assigned, and the law will regard that as done which ought to have been done. The Supreme Court adhered to the rule announced in Sublett v. McKinney in the subsequent cases of Williams v. Durst, 25 Tex. 667, 78 Am. Dec. 548; Mitchell v. De Witt, 25 Tex. Supp. 181, 78 Am. Dec. 561; Tutt v. Thornton, 57 Tex. 35; and Carpenter v. Minter, 72 Tex. 370, 12 S. W. 180 (Com. App. Opinion Adopted), and this rule does not seem to have been questioned by any opinion of the Supreme Court until the opinion in Faires v. Cockerell, 88 Tex. 428, 31 S. W. 190, 639, 28 L. R. A. 528. In the case last mentioned the Supreme Court, speaking through Judge Brown, expressly reversed the rule announced in Sublett v. McKinney, and the subsequent cases above mentioned, and went back to and reaffirmed the rule announced in Holliman v. Rogers, supra. All subsequent opinions by our Supreme Court which adhere to the rule announced in Faires v. Cockerell do so on the authority of that case.

However, in the very late case of Moore v. Jenkins, 109 Tex. 461, 211 S. W. 975, our Supreme Court, speaking through Judge Greenwood, very clearly gives warning that it is dissatisfied with the bolding in Eaires v. Cockerell, as regards the rights and remedies of a surety who has paid the obligation of his principal. In that case the commission recommended an affirmance of the judgment on the ground that payment by the surety extinguished the debt. The court refused to adopt this holding, saying that the case did not call for an adjudication of that question, and then proceeded to apply the rule announced in Faires v. Cockerell, where liens existed to secure the original debt. This case seems to be the last direct expression by our Supreme Court. However, in the fairly late case of Security Nat. Bank v. Kynerd (Tex. Com. App.) 228 S. W. 123, delivered long after the opinion in Faires v. Cockerell, the right of a surety who had been compelled to pay the obligation of his principal to have the obligation assigned to him, and to maintain an action on the instrument itself, was upheld. The Supreme Court did not expressly adopt this opinion, but could not have entered the judgment recommended, unless it in fact agreed with the holding. It is true that the opinion in Security Bank v. Kynerd attempts, to distinguish that case from Faires v. Cockerell by saying that Faires v. Cockerell involved the unquestioned satisfaction of the debt of the principal by the surety, while in Security Nat. Bank v. Kynerd there was a purchase by the surety of the instrument itself. We do not think the cases can be so distinguished, but that Security Nat. Bank v. Kynerd is in direct conflict with Faires v. Cockerell. In fact, an examination of Faires v. Cockerell will disclose that it did not involve the remedy of a surety who has paid the debt of his principal, but the remedy of a principal against his co-principal. If we regard the opinion in Security Nat. Bank v. Kynerd as the latest Supreme Court authority on the subject, it is certainly authority for the rule that a surety who is compelled to pay the debt of his principal has the right to bring an action on the very debt itself, regardless of the questions of security or priorities.

When we come to examine the authorities on the subject, both English and American, we find that the great weight thereof is in favor of the rule that, where the surety pays the debt of his principal, he is subrogated to all of the rights, remedies, equities, and securities of the principal, and can bring an action on the very debt itself. Of course, we do not mean to say that this remedy is an exclusive one, for we think that under our system of jurisprudence, which gives to our courts jurisdiction of cases that are cognizable 'by such courts, both in law and in equity, in such a case the surety should have his election of remedies.

An examination of the opinion in Faires v. Cockerell will disclose that the holding therein to the effect that, where the surety pays the debt of his principal, and there is no security or right of priority attached to the same, he must pursue his legal remedy, is based on the old English case of Copes v. Middleton, 11 Eng. Ch. 128. That case was decided in 1823. When we come to examine the American authorities on the subject, we find that the rule announced in Copes v. Middleton, which is known as Lord Eldon’s doctrine, has been generally disregarded by American courts and jurists. In fact, the rule announced in Copes v. Middleton has been materially modified, if not entirely abrogated, by act of Parliament. The act of Parliament referred to expressly provides that in all eases where the surety pays the debt-of another he shall be entitled to assignment, and shall be entitled to stand in the place of the creditor in any action or other proceeding at law or in equity. Furthermore, the Texas statute adopting the common law of England means that we adopted same as declared by the courts of the several states and not the common law in force in England in 1840. Grigsby v. Reib, 105 Tex. 597, 153 S. W. 1124, L. R. A. 1915E, 1, Ann. Cas. 1915C, 1011.

Under the civil law the rule is thus stated:

“He to whom a creditor makes over a debt is substituted to tbe right, aud be acquires, together with tbe credit, tbe mortgage and privileges which are annexed to it, whether the assignment be made for a valuable consideration or gratis. For, although it be true that the payment extinguishes the deb't, and that it seems, for that reason, that the creditor cannot transmit to another a right which is extinguished in his person by the payment, yet the assignment, which is •made at the same time, has the same effect as if the creditor had sold his right to him who pays him. And, as to the effect of the assignment, it is the same thing to him who pays for the debtor, whether it be the person , who is bound jointly with him for the debt, or his surety, or a third person. The Civil Raw (1 Domat, b. 3, Sec. 6, art. 1).”

The rule under the Roman law is thus stated by the Supreme Court of Georgia:

“The Roman law goes further than the common law, the well-settled doctrine ofi which entitles a surety who- pays the debt o£ his principal to an assignment of all the in-' dependent securities in the hands of the creditor. By that law, not only is he entitled to these securities, but he is also entitled to be substituted as to the very debt itself to the creditor by way of cession or assignment! The debt in favor of the surety is treated,not as a paid, extinguished debt, but as sold to him, — all its original obligatory force com tinuing against the principal. The surety ⅛ viewed in the light of a purchaser. Lumpkin v. Mills, 4 Ga. 343.”

It will be seen from the quotations above; that under both the civil and Roman laws! the rule was that the surety paying the debt of his principal was subrogated to all the rights of the original creditor, and could maintain an action' on the very debt itself. This is the 'rule adopted by the courts of last resort of. nearly all of the States and by the Supreme Court of the United States. It is also now the ride in England and Canada.

In support of this holding, we call attention to the authorities cited in the annotations under Nelson v. Webster (1904) 68 L. R. A. p. 513; Brannan’s Negotiable Instrument Law (4th Ed.) p. 725 et seq.; Biglow on Bills, Notes & Checks (3d Ed.) §§ 465, 562 et seq.

From what we have said it follows that we now announce the rule in Texas to be that, where the surety pays the debt of the principal, he has his election to either pursue his legal remedies and bring an action on an assumpsit, or the obligation implied by law in his favor for reimbursement by the principal; or he can prosecute an action on the very debt itself, and in either event he' stands in the shoes of the original creditor as to any securities and rights of priority. What we have already said applies with equal force to all debts whether represented by a negotiable instrument or not.

When we come to consider the instrument sued on in the instant case, we find that it is a negotiable instrument, a promissory note signed by Mrs. C. M. Fox as principal, and J. H. Kroeger as surety. Kroeger was compelled to pay the note, and on doing so took an assignment thereof, and brings this action on the note itself. In such a case we find that, regardless of the question as to what the rule was in this state prior to the passage of our Negotiable Instrument Act, R. O. g. of Texas 1925, title 98, arts. 5932 to 5948, inclusive, passed in 1919, the rule as now prescribed by the statute itself regarding negotiable instruments is as hereinbefore announced by us. R. C. S. of Texas 1925, art. 5939, §§ 119 and 121.

The statute above cited, so far as applicable to this case, reads as follows:

“gee. 119. A negotiable instrument is discharged:
“1. By payment in due course by or on behalf of th'e principal debtor;
“2. By payment in due course by the party accommodated, where the instrument is made or accepted for accommodation. * * *
“gee. 121. Where the instrument is paid ¡by a party secondarily liable thereon, it is not discharged-; but the party so paying it Is remitted to his former rights as regards nil prior parties, and he may strike out his own and all subsequent indorsements, and again negotiate the instrument, except:
“1. Where it is payable to the order of a third person, and has been paid by the drawer ; and
“2. Where rt was made or accepted for accommodation, and has been paid by the party accommodated.”

If either section 119 or section 121 were considered alone, the language might make each difficult of interpretation, but the two sections must be construed together, and in the light of each other, since they deal with the same subject-matter. When so construed, the manifest meaning is that the payment by the principal debtor or by the party accommodated discharges the instrument, but payment by a party secondarily liable, other than the principal debtor or party accommodated, does not discharge or extinguish the debt. Also by the express provisions of section 121, subd. 2, the party accommodated is excluded from those secondarily liable, payment by whom does not discharge the instrument. This exception embraces both an accommodation drawer and accommodation indorser. Biglow on Bills, Notes & Checks (3d Ed.) §§ 465, 466, 562, 563, 563a, 564, 564a, 565, 565a, 566, 566a, 567 and 568; Brannan’s Negotiable Instrument Law (4th Ed.) p. 767 et seq.

It follows from what we. hqve. said that under the very terms of our statute it requires payment by the principal debtor to discharge a negotiable proínissory note, and that the payment thereof by the surety does not discharge the obligation.

For the reasons stated, the judgments of the Court of Civil' Appeals and the trial court, both of which upheld the right to prosecute the suit on the original note itself, should be affirmed.

OURETON, C. J.

The foregoing opinion is adopted as the opinion of the Supreme Court, and judgment be entered in accordance therewith.