author: CRITZ, J. OTJRETON, O. J.

text:
    KUCK et al. v. DE WITT COUNTY et al.
    No. 1466—5703.
    Commission of Appeals of Texas, Section A.
    June 10, 1931.
    H. W. Wallace, of Cuero, and Durell Miller, of Voakum, for plaintiffs in error.
    Proctor, Vandenberge, Crain & Mitchell, of Victoria, and Crain & Hartman and T. A. Graves, all of Cuero, for defendants in error.
   CRITZ, J.

It seems from the record of this case that in Eebruary, 1927, the commissioners’ court of De Witt county, Tex., selected the First State Bank of Westhoff, in such county, as its general depository for all funds of the county, except its school funds, as provided and required by article 2544, et seq. R. C. S. of Texas, 1925. The bond of such bank was fixed at $249,900. On March 16, 1927, the bond of the above bank was duly approved by the commissioners’ court. It was also approved by the state comptroller on March 24, 1927. This bond was signed by the bank as principal and by L. A. Walker, Philip Wel-hausen, M. O. Driscoll, B. H. Traybig, D. J. Shall, G. A. Lowrence, and K. E. Carson as sureties. This bond was executed under the provisions of article 2547, R. C. S. of Texas, 1925, as a general county depository bond.

Later, on January 5, 1928, the above bank filed with the county another bond in the principal sum of $100,000. This bond was approved by the county on the same date. It was never approved by the state comptroller. So far as shown by the record, there was no ■order entered in the minutes, of the commissioners’ court requiring this second bond, and there is no record as to when, how, or why it was< required, except the statements contained in the bond itself, and the order approving same. The material parts of the second bond read as follows:

“The conditions of the foregoing obligation are such that whereas the above bound principal, First State Bank of Westhoff, West-hoff, Texas, is the duly authorized, bonded and acting County Depository, and further security has been required of said Bank as such Depository, to cover additional moneys, contemplated to be deposited with said Bank.
“Now, therefore, if the above bounded First State Bank of Westhoff, Texas, shall faithfully do and perform all the duties and obligations devolving on it by law as the county depository of DeWitt County, and shall upon presentation, pay checks drawn on it by the County Treasurer of DeWitt County, Texas, Shall faithfully keep and account for all funds belonging to the county which are deposited with it and all other funds deposited with it under the requirements of Chapter II, Acts of the Thirty-fifth Legislature passed at its Kegular Session, and shall pay the interest at the time and at the rate hereinabove stipulated; and shall at the expiration of 'the term for- which it has been chosen turn over to its successor all the funds, property, and other things of value coming into its hands as such depository, then and in that event this obligation is to be and become null and void, otherwise to remain in full force and effect.”

The order of the commissioners’ court approving the above second bond is dated January 5, 1928, and according to the record, is, in substance, as follows: “ * * * It is ordered by the Court that the bond of The First State Bank of Westhoff be approved, said bond is additional to the original bond filed and is to cover additional amounts on deposit in the bank, and to be deposited in the bank during the current year, from the sale of district road bonds and from any other sources.”

This second bond was signed by the bank as principal and by Philip Welhausen, M. C. Driscoll, E. Hagens, L. A. Walker, E. Hertz, E. H. G-erdes, Louis Poth, Eilert Kuck, and D. J. Shall.

It will be noted that some of the sureties on both bonds are the same. Also it seems that Hertz, a surety only on the second bond, was sued, but dismissed from the case on account of bankruptcy.

At the time the new bond was executed, the various funds of the county on deposit in the depository bank amounted to $252,-932.22. Wé are not apprised by the record what these funds consisted of. At the time the bank failed, and was taken over by the banking department for liquidation, there was on deposit in the various county and district funds the sum of $153,584.05. Of this sum $54,573.70 belonged to the county as a whole, and the balance belonged, in various sums, to the road districts Nos. 1, 2, 3, 4, 5, 7, and 8, and drainage district No. 1. From the foregoing it will be observed that at the time •the new bond was filed and approved, the county had on deposit with the depository bank a sum in excess of its general depository bond in the amount of $3,032.22. Also it is shown by the undisputed record and the opinion of the Court óf Civil Appeals that between the date of the approval of the new bond and the closing of the'depository bank, the county deposited in the bank further sums amounting to about $266,000, and withdrew funds amounting to $366,000, thus resulting in a net reduction of the amount on deposit at the time the bank closed of about $100,000. That is to say, the county had on deposit in the bank at the time it closed about $100,000 less than it had on deposit when the new bond was given. Also, it is conclusively shown that the funds were all deposited at all times in one general county account, and were never allocated in the bank to any special county or district fund.

On final trial in the district court, the county recovered judgment as follows:

(a) Against the bank as principal, and James Shaw as banking commissioner, and against Philip Welhausen, L. A. Walker, M. C. Driscoll, B. H. Traybig, D. J. Shall, G. A. Lowrence, K. F. Carson, E. Hagens, E. H. Gerdes, Louis Poth, and Eilert Kuck, as sureties, for $109,000. This judgment made proper safeguards with reference to the liability of the banking commissioner in his official capacity.

(b) Against the bank as principal, and the banking commissioner, and also against Philip Welhausen, L. A. Walker, H. C. Dris-coll, B. H. Traybig, D. J. Shall, G. A. Low-renee, and K. F. Carson, as sureties, for $53,-584.05. This part of the judgment also properly safeguards the judgment against the banking commissioner.

The above judgment was affirmed by the Court of Civil Appeals. 23 S.W.(2d) 411.

As we interpret the above judgment, its result is that all sureties who signed both bonds were held for the entire sum the county had in the bank when it closed, while those who signed the second bond only, were only held to the extent of the second bond. In other words, the trial court held all sureties who signed both bonds up to $100,000, and held the sureties on the first bond for the additional sum of $53,584.05, the balance due by the bank to the county. We here call attention to the fact that the Court of Civil Appeals inadvertently says: “Judgment was rendered, upon a trial before the court without a jury, in favor of the county against the principal for all of said amounts, and against the sureties upon the second bond for $100,-000, the amount thereof, and against the sureties on- the Original bond for the balance of •$53,000.”

A reading of the opinion of the Court of Civil Appeals discloses that the effect of its ruling- is to hold that the new $100,000 bond is not, strictly speaking, a statutory bond at all, but additional security taken by the county to secure all of its deposité in the depository bank. . In this connection, the Court of Civil Appeals holds that the mere fact that the law prescribes certain methods by which county depositories shall secure county funds does not, as a matter of law, make a contract between the county and the bank, which secures the county deposits in a manner other than that prescribed by law, unenforceable between the parties.

The plaintiffs in error, who are the sureties on the second bond, who did not sign the first bond, contend that the second bond, construed in the light of the undisputed record, discloses as a matter of law, that the second bond was given under the provisions of article 2548, R. C. S. of Texas, 1925, as a bond to cover special deposits, and since there is no evidence to show that any loss occurred to the county which was a special deposit, and thus protected by such second bond, the judgment of the two lower courts cannot stand.

In order to determine this question, we must first interpret and construe the various depository statutes involved.

Articles 2544 to 2546, inclusive, R. O. S. 1925, relate to various steps prescribing the selection of county depositories. It is not necessary to further notice these statutes.

Article 2547; as amended by Acts 40th Leg. (1927) c. 129, § 1 (Vemon’s Ann. Civ. St. art. 2547, note) in minute detail, prescribes the general bond or bonds, or other security to be furnished to the county by the depository selected under the provisions of the preceding articles. This last-named article prescribes the form, conditions, and amount of the general depository bond. Also, it, in great detail, prescribes the security required, in case the bond is signed by personal sureties. This article also provides for the giving of a surety bond. It also expressly authorizes more than one general bond. It prescribes the conditions of the general bond as follows: ‘‘ ⅜ * ⅛ The condition of the bond or bonds, or contract for securities pledged shall be conditioned for the faithful performance of all the duties and obligations devolving by law upon such depository, and for the payment.upon presentation- of all checks drawn upon said depository by the county treasurer of the county and that said county funds shall be faithfully kept by said depository and accounted for according to law. Any suits arising thereon shall be tried in the county for which such depository is selected.”

The other provisions of this article are not material here.

We deem it advisable to copy article 2548 into this opinion. It is as follows: “Whenever, after the creation of a county depository, as by this chapter provided, there shall accrue to the county or any subdivision thereof, any funds or moneys from the sale of bonds or otherwise, the commissioners court of such county at its first meeting after such special funds shall have come into the treasury, or depository of such county, or so soon thereafter as may be practicable, may make written demand upon the duly .accredited and established depository of the county for a special additional bond as such depository in a sum equal to the whole amount of such special fund, to be kept in force so long as such fund remains in such depository. Such extra or special bond may be canceled and a new bond contemporaneously substituted therefor as such special fund may have Been reduced. Such special bond shall at all times be sufficient in amount to cover such special fund then on hand. Upon the failure of such depository to furnish such additional bond within thirty days from the date of such demand, the commissioners court may cause such special funds to be withdrawn upon the drafts of the county treasurer from such depository, and cause the same to be deposited in some solvent national bank or State bank whose combined capital stock and surplus is in excess of such special fund, and to leave the same or so much thereof as may not have been expended with such national bank or State bank of last deposit, until such time that such county depository may have filed with the commissioners court the required additional bond, when such special fund or so much thereof as shall not have been expended shall be forthwith returned to and deposited with such county depository. The requiring of such additional or special bond shall be optional with such commissioners court. When a banking institution selected, qualified and acting as a county depository shall become insolvent and it shall become necessary to resort to the depository bond or bonds to collect the county and State funds deposited therein, payment shall be made to the county and State pro rata.”

Article 2556 relates to the giving of a new general depository bond. It is as follows: “If the commissioners court shall at any time deem it necessary for the protection of the county, it may require any depository to exe- . cute a new bond; and, if said new bond be not filed within five days from the time of the service of a copy of said order upon said depository, the commissioners court may proceed to the selection of another depository in the manner provided for the selection of a depository at the regular time for such selection.”

We shall now proceed to determine by process of elimination, which, if any, of the above statutes the second bond was given under.

It is too plain for argument that it was not furnished or intended to be furnished under article 2556. It is for only $100,000; it shows upon its face that it was not intended as an entirely new general depository bond filed to take the place of the original bond, for it expressly states that it is given as further security. It is therefore plainly evident that it was not given as a new; bond, as contemplated by article 2556.

We think it is equally plain that this bond was not given or intended to be given under the provisions of article 2548. This article, by its very plain and simple terms, provides for the giving of a special bond to secure some special fund or deposit. This statute undoubtedly contemplates that the bond therein provided for is intended to secure a special and designated fund. This appears because the statute provides that the county has the right to make written demand on the county depository for a special additional bond in a sum equal to the whole amount of such special fund to be secured thereby, and that it is to be kept in force only so long as such special fund remains in the depository. The /statute then proceeds to use other language that demonstrates that the bond contemplated thereby is special, and 'that the fund secured thereby has to be designated in some manner so as to adequately identify it. In this connection, we call attention to the fact that this statute provides for reducing the bond as the special fund is ■expended.

When we come to examine the instant bond in the light of the record, we are unable to escape the conclusion that the trial court was justified in finding that it was not given under article 2548, supra. There is no order requiring‘this bond, or designating any special fund or funds to be secured thereby. The bond itself recites the fact that the depository bank has been required to furnish further security to cover additional moneys contemplated to be deposited in the bank, but absolutely fails to, in any manner, designate or identify such additional moneys or funds as special deposits to be secured under the bond required and defined by article 2548. The bond then proceeds in sweeping language to bind the sureties to the obligation that the bank will faithfully do and perform all the duties and obligations devolving upon it by law, as the general county depository of De Witt county. In other words, the bond in every detail complies with the requirement' of the statute with reference to general depository bonds, ■except it is not approved by the comptroller. It is, therefore, plainly evident that this bond was not given under article 2548.

We now come to consider whether this ,. bond was given under article 2547.

An examination of the terms of the bond discloses that it, by its express provisions, covers and protects no special fund, but every . kind and character of county deposit; it guarantees the performance of every lawful duty incumbered upon a general county depository; and it plainly shows upon its face that it ■ is not intended to take the place of the original bond, but is in addition thereto. Fur- . thermore, article 25⅜7 expressly makes provision for more than one bond by providing “(a) by executing and filing with the Commissioners Court a bond or bonds,” etc. There is absolutely nothing in this record that will' militate against a finding that this bond was given in compliance with article 2547, except-that it was not approved by the comptroller.. We think such a fact would be no defense to, the liability of the sureties thereon for county funds.

Finally even should it be held that this, bond was not given under article 2547, which holding would necessarily result in the conclusion that it was given without express statutory authority, still it would be a good common-law 'obligation to protect and secure all deposits of -the county in the depository bank, and to protect the county by requiring the bank to obey every detail of the law, as applied to general county depositories. Sullivan v. City of Galveston (Tex. Com. App.) 34 S.W.(2d) 808.

It follows that whether this bond was-given under article 2547, or given without any express statutory authority, it covers - and protects all county deposits.

We recommend that the judgments of the Court of Civil Appeals arid the district court' be both affirmed.

OTJRETON, O. J.

Judgments of the district court- and Court of Civil Appeals are both affirmed,'as recommended by the Commission of Appeals.


source: Caselaw Access Project

author: SHARP, J. OURETON, C. J.

license: Public Domain

text:
    CATO v. TEXAS & P. RY. CO.
    No. 1451—5686.
    Commission of Appeals of Texas, Section A.
    June 10, 1931.

      S. P. Jones and Franklin Jones, both of Marshall, and J. A. R. Moseley, Jr., of Texar-kana, for plaintiff in error.
    King, Mahaffey & Wheeler, of- Texarkana, for defendant in error.
   SHARP, J.

The Supreme Court granted a writ of error to review the opinion of the Court of Civil Appeals for the Sixth District. Plaintiff recovered judgment against the defendant for damages sustained while boarding a passenger train at its depot in Texarkana, Tex. For the sake of brevity, we refer to the opinion of the Court of Civil Appeals for a more detailed statement of the case. 19 S.W.(2d) 858.

We refer to the parties as they were designated in the trial court.

' The Court of Civil- Appeals reversed the judgment of the trial court and remanded the case for another trial upon the ground that the issues of negligence submitted to the jury did not warrant the judgment entered. In view of this holding we deem it expedient to set out herein a brief statement of the nature of the pleadings; the material parts of the testimony introduced at the trial, and the material issues submitted to the jury and their answers thereto.

The Court of Civil Appeals briefly states the nature of the pleadings as follows:

■ “The suit was by appellee for damages for personal injuries received by him while, as he alleged, in the relation of a passenger, through negligence on the part of the railway company in the following respects: (1) In allowing a long passenger train on track No. 1, parallel with and next to .the depot, to block the access of awaiting passengers to the passenger train on track No. 3, upon which the plaintiff was to take passage. (2) In failing to provide a free and unobstructed passageway from the depot to the train upon track No. 3, which was stopped there awaiting passengers. (3) In maintaining a square wooden boxlike structure, protruding above the surface of the ground, between the two tracks, the track on which the train was placed and the next track in the direction of the station therefrom; and in maintaining such structure in an ill state of repair. (4) In failing to provide any lighting system whatever for the space between the two tracks where the plaintiff was required to pass to board his train.
.“The defendant company specially pleaded, as negligence causing and contributing to cause the injuries, that the plaintiff was familiar with the arrangement and location of the track and the trains; that a considerable and reasonable time before the scheduled time for the departure of the train on track No. 3 the trains then occupying tracks Nos. 1 and 2 had been cut in twain so as to allow free and easy passage from the station- over and across tracks 1 and 2 to the passenger train on track 3; that a porter was provided to distinctly announce the impending departure of trains and to give directions about how to cross tracks 1 and 2 in order to reach the train on track 3; that the plaintiff attempted to board the train while in motion.”

The material parts of the testimony introduced are stated as follows:

“On December 21, 1927, the date of the injury, the Missouri-Pacific Railway Company, the Kansas City Railway Company, and the appellant company, maintained and respectively were using at Texarkana a union depot for receiving and discharging passengers. The depot building extended east and west. Near the middle part of the building was the ticket office, the waiting room for white passengers, and the one for colored passengers, and closets and lavatories. On the east end of the building were the baggage and express rooms, and on ‘ the west end were the railway terminal rooms and those used by the Postal Service of the United States. Along the entire front of the depot was a concrete walk, covered by a shed extending its entire length. Immediately south of 'and parallel with the concrete platform were located three tracks, called 1, 2 and 3, used for passenger trains. Between tracks 1 and 2, and between tracks 2 and 3, were plank platforms, which were on a level with the rails of the tracks, extending the entire length of the depot. 'There were lights as far as the platform extended. Begifining at the west end of the platform was the railway yard, used as such. -;Six and one-half feet west of the west end of the depot platform, and located 'between tracks 2 and 3, is a water box, inclosing a hydrant, used and maintained by the companies in necessary operation of trains. According to the evidence in behalf of the defendant, the water box extended 1¾ inches above the level of the cinders between the tracks. According to the plaintiff, the water box was about 6 inches above the leVel of the surface.
“On the evening of December 21, 1927, the appellee went to the union depot above described and purchased a ticket to Eoulke, Ark., over the T. S. & N. Railway, a line operated by appellant between Texarkana, Tex., and Shreveport, Da. The train was regularly run as a mixed train, consisting of one combination coach for baggage, mail, and passengers, and the ordinary freight cars and caboose carried in a freight train. It was invariably placed on track No. 3, with the combination coach nearly opposite the express ' and baggage rooms on the easterly end of the depot and the board platform above described. The train was so placed in order to receive passengers, mail, and express. According to a schedule of long standing this train was due to leave the depot at 7:30 o’clock p. m. On the evening in question, it actually left the depot at 7;35 o’clock. At the time the appellee purchased the ticket, there was standing on track No. 2 a passenger train of the Texas Central Railway, operated by appellant, and on track No. 1 a passenger train of the Kansas City Southern Railway Company. The' Texas Central passenger train arrived on schedule time at 6:35 o’clock p. m., and discharged all passengers; Texarkana being the end of the run. The rear couch of that train rested in close proximity to the water box above described, and the engine rested east thereof and about a car length, or 60 feet, west of the west end of the baggage room. Passengers were discharged at this point on this occasion, but that was not done there before. The Kansas City Southern passenger train was scheduled to arrive at the depot at 6:20 o’clock p. m., and was due to depart therefrom at 6:50 p. m. On the particular evening of December 21 that train was about 35 minutes late, arriving at 6:55 p. m., and departing at 7:50 o’clock or later. The train consisted of an engine and six cars. According to appellee’s testimony, however, the train ‘was long, of seven or eight cars and an engine.’ The engine of the train, headed east, rested nearly to and opposite the baggage room and approximately 150 feet east of the door of the waiting room for white passengers in the depot. The train, standing connected up, would entirely block the way to passengers seeking to embark on the train on track No. 3. When disconnected or cut in twain at a point opposite or nearly opposite to the baggage room of the depot, an open clear way would be afforded passengers or persons to go from the waiting room and concrete platform to the plank platform and passenger coach of the train on track No. 3.”

Again it is said: “There is affirmative evidence in behalf of appellant that about 7:15 o’clock p. m. the Kansas City Southern train occupying track No. 3 (1) was cut in twain at a point opposite the baggage room, and which was ‘about two car-lengths above (east of) the waiting-room door.’ The train was separated ‘something like twenty or thirty feet,’ and ‘stayed unconnected about twenty or twenty-five minutes’ and until after the T. S. & N. train on track No. 3 had departed. The mail foreman testified: T told Mr. Kil-way, the acting terminal train master, that we had to get this train (K. O. S.) cut in two so we could get to the mail-cars there (on track 3), and he said all right. He told the conductor, and he cut the train between the baggage and mail-car. The cut was made about two car-lengths above the waiting-room door. After the cut was made'we pulled the mail across over to the T. S. & N., and loaded it right straight on in there. We had forty or fifty sacks of mail put over there and loaded on that train. I$ * ⅜ The railway company did not cut this train until I requested it to be cut, and the reason it happened to be cut that night was the fact that I requested it to be cut.’ ”

Again it is said:

“The appellee testified: T walked right straight out of the station and within six or eight feet of the train that was on the track (No. 1). I then looked both east and west. As it happened then, as I looked at the train, I did not see any opening in the train at all. As I looked at it to the east and looked at it to the west it appeared to be longer to the east, and then I decided to go around the west of the train.* He further testified: ‘I looked up both ways. I could see clear up, but could not see the engine. It was dark. I could not see beyond the express office on account of the trucks there. I knew those trucks did not go up as high as the passenger-coach. * * * There was no cut up there just beyond the depot, in that K. C. S. train.1 There was no cut there at all when I went out and looked, and that was about 7:30.’
“It was shown that three mail trucks were parked within 14 or 16 inches of the body of the end car, which was disconnected from the train on track No. 1 for the purpose of loading mail. It also appears that there were other trucks loaded with mail parked next to the waiting room for colored people. It was shown by appellant that an employee was kept in the waiting rooms to call the departure of trains, and that on this occasion departure of the train on track No. 3 was called at the proper time. It was further shown that this employee showed several passengers how to get through the cut on the train. The appellee did not testify that he made inquiry from this or any other employee as to how to reach the coach on track No. 3.”

The material special issues submitted to the jury and the answers thereto are copied below:

“Question Number One: Did the plaintiff exercise ordinary care in selecting and traveling the route he took in going to the train?” To which' the jury answered, “Yes.”
“Question Number Three: Did the water box extend above the ground?” To which the jury answered, “Yes.”
“Question Number Eour: If you have answered Question No. Three yes, answer this question: Was the defendant guilty of negligence in permitting or having the water box to extend above the ground?” To which the jury answered, “Yes.”
“Question Number Five: If you have answered Question No. Eour yes, answer this question: Did the plaintiff strike his foot against the water b'ox?” To which the jury answered, “Yes.”
“Question Number Six: If you have answered Question No. Eive yes, answer this question: Was plaintiff caused to fall and be injured by.striking his foot against the water box?” To which the jury-answered, “Yes.”
“Question Number Seven: If you have answered Question No. Six yes, answer this question:' Was the negligence, if any you found in answer to Question No. Eour, a proximate cause of said injury?” To which the jury answered, “Yes.”
“Question Number Eight: Do you find from the evidence that the defendant failed to have the way pursued by plaintiff in going to the train lighted?” ‘ To which the jury answered, “Yes.”
“Question Number Nine: If you have answered Question No. Eight yes, answer this •question: Was such failure, ’if any you find, negligence on the part of the defendant, as that term has been defined to you?” To which the jury answered, “Yes.”
“Question Number Ten: If you have answered Question Number Nine yes, answer this question: Was such negligence a proximate cause of plaintiff being injured?” To which the jury answered, “Yes.”
“Question Number Eleven: Did 'the plaintiff exercise ordinary care in selecting and walking along the route he pursued in traveling between the tracks two and three toward the coach of the train on track three?” To which the jury answered, “Yes.”
“Question Number Thirteen: Did the plaintiff, after the defendant’s train he desired to board, was put In motion, and at a place which had not been set apart by defendant for the reception of passengers and in the darkness, and while said train was in motion, undertake to board sáid train?” To which the jury answered, “No.”
“Question Number Sixteen: Was the plaintiff guilty of negligence in failing to reach and board the coach before the train started?” To which the jury answered, “No.”
“Question Number Eighteen: Was the space between the tracks Numbers Two and Three at and about the point where the plaintiff was injured sufficient for plaintiff to walk therein in safety from the moving train on Track No. Three, although both tracks at the time were occupied by trains, and although while so walking he might have stumbled and fallen forward?” To which the jury answered, “No.”
“Question Number Nineteen: Did the plaintiff, while between Tracks Numbers Two and Three, and after the defendant’s mixed train on Track No. Three had been put in motion, without necessity for so doing, and in the darkness, undertake to walk between such tracks and in such close proximity to the moving mixed train as to be in danger if while walking he might stumble and fall forward? ” To which the jury answered, “No.”
“Question Number Twenty-Two: Did the plaintiff, after purchasing his ticket, have time, by the exercise of ordinary care and diligence on his part, considering the route actually taken by him, to reach the defendant’s train on which he desired to take passage, and go aboard said train in safety before it was put in motion?” To which the jury answered, “No.”
“Question Number Twenty-Eive: Did the plaintiff actually reach Track No. Three on which defendant’s mixed train was located for the reception of passengers, in time, by the exercise of ordinary care and diligence, to board said train in safety, before it was put in motion?” To which the jury answered, “No.”

The rule is well settled in this state that a railroad company which has provided a safe means of entrance and exit from "its cars, while at the same time there exists another way which is not safe and which is in such general use by its passengers as to induce the belief that it was provided, in part at least, for that purpose, is liable for injury-received by a passenger using such unsafe entrance and exit without warning from the-company’s servants.

■ In the case of Stewart v. I. & G. N. R. R. Co., 53 Tex. 289, 37 Am. Rep. 753, the Supreme Court announced the following well-settled rule: “It is the duty of railway companies to provide reasonable accommodations at their ’ stations for passengers who have occasion to travel on their roads. They' are under obligation ‘to keep in a safe condition all portions of their platforms and approaches thereto, to which the public do or would naturally resort, as well as all portions of their station grounds, reasonably near to the platforms, whore passengers, or those who have purchased tickets with a view to take passage on their cars, would naturally or ordinarily be likely to go.’ ”

■ The case of Missouri Pacific Railway Co. v. Long, 81 Tex. 253, 16 S. W. 1016, 1017, 26 Am. St. Rep. 811, involved the duty of a railroad company to furnish its passengers a safe exit from its cars, and Chief Justice Gaines, in rendering the opinion, says: “The evidence showed there was a safe way provided by the company, by taking which the accident might have been avoided. But such was not the basis of the action. The plaintiff did not seek to recover because there was not a safe way, but upon the ground that there was another way, which, under the circumstances, was not safe, and which, by reason of the conduct of the servants of the company in permitting its general use by passengers, he was led to believe was provided for their use.” Quoting further from the same opinion, it says: “But it does not follow that, because a safe way is provided, a passenger is bound at his peril to ascertain the fact, and to avail himself of that way, when he sees that another way, apparently safe, is in general use by the passengers with the tacit permission of the servants of the company. Such use and such permission are calculated to induce the belief that the way is provided, in part at least, for the egress of passengers, and that a passenger is expected to make use of it, should he elect to do so. Under such circumstances a man of ordinary prudence might avail himself of such a plan of exit, and therefore it cannot be declared as a matter of law that it is negligent to do so. The question would be for the jury. On the other hand, can it be announced as a legal conclusion that a railroad company has discharged its whole duty to the passengers when it has provided a safe exit from its cars, while at the same time there exists another way, which is not safe, and which is in such a general use by its passengers as to induce the belief that it. was provided, in part at least, for that purpose? We think not.”

The case of M., K. & T. Ry. Co. v. Criswell, 101 Tex. 399, 108 S. W. 806, 806, involved the question of liability on the part of the railroad company to one of its passengers for injuries sustained after alighting from a train at a station by slipping down on an incline on a platform leading to the waiting room because of the failure of the railroad to use , ordinary care to keep it in safe condition for the use of passengers or to warn them that it was not a proper way for them to take in going to and from the train, though another and safe way to the waiting room had been provided by the company, where the platform on which the injury occurred was usually used by passengers going to and from the train and where such use had been continued for such a length of time that the railroad company necessarily knew of the use, and Judge Brown, in delivering the opinion for the Supreme Court, says: “The company having established and provided the one walkway for the use of the passengers between its waiting room and the place at which it received and discharged passengers from its trains, and there being another walkway between the same points not intended for the use of passengers, but which for a number of years passengers had usually and ordinarily used for that purpose, the railroad company was bound to take notice of such use, and, in the absence of any notice or warning against using this way by passengers, Mrs. Criswell had the right to assume that the way used by passengers was provided for their use and was in proper condition. The undisputed evidence shows such use of the walk on which the injury occurred as imposed upon the railroad company the duty to use ordinary care to keep it in safe condition for the use of its passengers, and if Mrs. Criswell’s injury resulted from a failure to perform that duty the railroad company must be held liable to the same extent as if the injury had occurred upon the platform provided by it for the use of passengers. Hutchinson on Carriers, § 937; 3 Thompson on Neg. § 2691; Cazneau v. F. R. Co., 161 Mass. 355 [37 N. E. 311]; Collins v. Railway Co., 80 Mich. 390, 45 N. W. 178; Lemon v. G. R. & I. Ry. Co., 136 Mich. 647, 100 N. W. 22; G. C. & S. F. Ry. Co. v. Glenk, 9 Tex. Civ. App. 599, 30 S. W. 278; G. C. & S. F. Ry. Co. v. Hodges (Tex. Civ. App.) 24 S. W. 563; Beard v. Conn. & P. R. Co., 48 Vt. 101.”

Por a list of the authorities cited in support of the foregoing propositions, see Tex. Jqr. vol. 9, pp. 747, 748, 749, 750, 751, 752, 753, 754, etc.

Plaintiff based his suit for recovery upon several grounds of negligence. In addition to the ground that defendant failed to provide a fi;ee and unobstructed passage way from the depot to the train upon track No. 3, which was stopped there awaiting passengers, he further alleged that defendant failed to provide any lighting system whatever for the space between the two tracks where the plaintiff was required to pass to board his train; that the space between the tracks at the point where plaintiff was injured was unsafe; and also in maintaining á square wooden box like structure protruding above the surface of the ground between the two tracks and in maintaining such structure in a ‘bad state of repair.

The case was submitted to the jury upon twenty-eight special issues, and the answers made thereto establish negligence on the part of defendant on two or more grounds, viz.:

(a) That the defendant was guilty of negligence in permitting and having the water box to extend above the ground.

(b) That the defendant failed to have the way pursued by plaintiff in going to the train lighted.

(c) That the space between the tracks at the point where plaintiff was injured was insufficient for plaintiff to walk therein in safety from the moving train on track No. S.

The findings of the jury also established the fact that each of the first two acts of negligence of the defendant, above' stated, was a proximate cause of the injury sustained by the plaintiff, and the jury answered all issues bearing upon the negligence of plaintiff in his favor.

Independent of the question as to the issue of negligence in failing to provide a free and unobstructed passageway being raised, and not requested to be submitted to the jury, this record would not authorize a reversal of the judgment entered by the trial court. There were two or more grounds of negligence relied upon by plaintiff and submitted to the jury and the jury made favorable findings in answer thereto. The pleadings and proof sufficiently raised these issues of fact to be determined by the jury, and the testimony tends to sustain the findings made by, the jury. Since the judgment finds support in one or more grounds of negligence, the failure to submit another ground of negligence was harmless and immaterial. West Texas Coaches v. Madi (Tex. Com. App.) 26 S.W.(2d) 199; Thornton v. Moody (Tex. Civ. App.) 24 S. W. 331; (error refused); Northwestern Nat. Life Ins. Co. v. Blasingame et al, 38 Tex. Civ. App. 402, 85 S. W. 819 (error refused); Ward et ux. v. Cathey (Tex. Civ. App.) 210 S. W. 289 (error refused); Yoes V. T. & P. Ry. Co. (Tex. Civ. App.) 211 S. W. 311; Eastern Texas Elec. Co. v. Hunsucker (Tex. Civ. App.) 230 S. W. 817, 819.

We think, in view of this record and the foregoing- authorities, that the Court of Civil Appeals erred in reversing the judgment of the trial court and remanding same for another trial.

Therefore, for the reasons herein stated, we recommend that the judgment of the Court of Civil Appeals be reversed, and the judgment of the trial court be affirmed.

OURETON, C. J.

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


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

text:
    JAMES N. TARDY CO. v. TARVER et al.
    No. 1247—5682.
    Commission of Appeals of Texas, Section B.
    June 10, 1931.
    Burgess, Burgess, Chrestman & Brundidge, of Dallas, for relator.
    Robert Lee Bobbitt, formerly Atty. Gen., and W. Dewey Lawrence, formerly Asst. Atty. Gen., for respondents.
   LEDDY, J.

If a corporation, with a sufficiently comprehensive purpose clause, is entitled, under the laws of'this state, to be licensed as an agent for an insurance company, writing fire, marine, and casualty insurance, the writ of mandamus prayed for must be awarded; other wise it should be denied.

Relators insist that, in the absence of a statute specifically prohibiting a corporation from being licensed to act as an agent for a fire, marine, or casualty insurance company, the board of insurance commissioners was not justified in arbitrarily refusing the license applied for on the sole ground that the agent- sought to be licensed was a corporation.

Respondent concedes that relator James N. Tardy Company’s charter is broad enough to authorize it to act as an insurance agent, but insists that the desired license was properly denied by it because a corporation is prohibited by law, other than that authorizing its creation, from acting as agent for any insurance company, and for the further reason that there is vested in respondent a discretionary duty to determine whether a person seeking to act as agent for an insurance company is possessed of good moral character, hence mandamus will not lie to coerce the performance of such duty.

There is no foundation for the latter contention, as it affirmatively appears from the record in this case that respondent did not base the refusal of a license to relators upon the exercise by it of the discretion vested by law to determine whether the person through whom the corporation would act in the event of the issuance of the license was possessed of good moral character. The record shows without dispute that the sole ground for the denial of the license was the fact that it construed the law of this state as prohibiting a corporation from acting as agent for a fire, marine, and casualty insurance company.

If the pleadings in this case had disclosed the fact that the denial of the license applied for was based upon the exercise of respondent’s judgment as to the moral qualifications of the agent through whom the corporation proposed to solicit insurance, then an altogether different situation would bo presented. Under such circumstances we would not be authorized to award the writ prayed for unless it was clearly made to appear that the action of respondent was either arbitrary or capricious.

In the present state of-the record the action of respondent can only be upheld by determining that the reason assigned .by it for the refusal of the license sought is legally a sound one. This brings us to a consideration of the real question involved: Is a corporation, possessing sufficiently broad charter •powers, entitled under the laws of this state to be licensed as an agent for a company writing' fire, marine, and casualty insurance?

At the outset it may be said that the rule seems to be well settled that a corporation, so authorized by its charter, is entitled to act as agent for an insurance company unless specifically prohibited by statute. Saufley v. Smith, 209 Ky. 134, 272 S. W. 379; Saufley v. Lincoln Bank & Trust Co., 210 Ky. 346, 275 S. W. 802; Wm. Messer Co. v. Rothstein, 113 N. Y. S. 772, 129 App. Div. 215; Crall & Ostrander v. Commonwealth, 103 Va. 855, 49 S. E. 638; Standard Oil Co. v. Commonwealth, 107 Ky. 606, 55 S. W. 8; Rogers v. Ramey, 198 Ky. 138, 248 S. W. 254; Wm. Penn Motor Indemnity Exchange v. Haddad, 86 Pa. Super. Ct. 307; Fletcher on Corp. vol. 2, p. 1791, § 819; Couch’s Encyclopedia of Insurance, vol. 2, § 487.

The author of Couch’s Encyclopedia of Insurance, vol. 2, § 487, after reviewing the authorities on the question as to whether a corporation is entitled to a license to act as agent for an insurance company, arrives at the following conclusion: “Thus it is apparent that in the absence of statutory restriction a corporation may act as an insurance agent, provided such an activity is within the scope of its corporate powers.”

In Fletcher on Corporations, vol. 2, p. 1791, § 19, the author thus states the rule on the subject: “The fact that a business or trade cannot be carried on without first obtaining a license does not preclude a corporation from engaging in such business or trade. Thus a corporation may conduct the trade of a plumber although a license is required.”

The Legislature of this state has never passed a statute which in terms specifically prohibited a corporation from acting as agent for a fire, marine, or casualty insurance company. It' did, however, in 1909, enact a statute with reference to corporations acting as agents for life insurance companies. This statute has remained on the books continuously since its -passage, and is now article 5064, R. S. 1925. It in terms expressly declares that “no corporation or stock company shall be licensed or granted a certificate of authority as the agent or representative of any life insurance company in soliciting, selling or in any manner placing life insurance policies or contracts in the State.”

It thus appears that the Legislature has adopted a statute expressly prohibiting a corporation from acting as an agent for a life insurance company, and has failed to adopt a similar one with reference to other insurance companies. The question is naturally suggested that, if it was within the legislative contemplation a corporation should not be licensed to act as agent for any character of insurance company why the lawmaking body has not so declared in terms as explicit as those used to prevent corporations from acting as agents for life insurance companies.

It seems that various insurance commissioners and attorneys general for a long period of years construed the insurance laws as prohibiting not only the licensing of a corporation to act as an agent for a life insurance company, but also from being licensed as an agent for any other insurance company.

This long-continued construction of the insurance laws by those charged with the duty of their enforcement was not without substantial basis during the period it covered. In 1009 the Legislature adopted what was article 4955 (Rev. St. 1911), prior to the codification of 1925. It provided: “All the provisions of - the laws of this state applicable to the life, fire, marine, inland, lightning, or tornado insurance companies, shall, so far as the same are applicable, govern and apply to all companies transacting any other kind of insurance business in this state, so far as they are not in conflict with provisions of law made specially applicable thereto.”

Evidently the departmental construction aforesaid was based upon the fact that article 5064, which applies expressly only to life insurance companies, by virtue of the provisions of article 4955, was made applicable to all companies writing any other character of insurance. It is needless for us to determine whether this departmental construction was a proper interpretation of these statutes prior to 1925, as article 4955 was repealed by being omitted from the codification of 1925. The question under consideration must therefore be determined without the aid of the provisions of the repealed article. The repeal of this article, however, is not without significance, as it tends to throw some light upon the legislative intent on the question under consideration. If its effect while a part of the statutes of this.state was to make applicable to all other insurance companies the prohibition contained in article 5064, then its repeal must necessarily reveal an intent on the part of the Legislature to abandon the policy of prohibiting corporations from acting as agents for any insurance companies other than those engaged in writing life insurance, unless such a prohibition may be found in other portions of the statutes.

Respondent insists that there is an implied prohibition against a corporation acting as agent for a fire, marine, or casualty insurance company because in the statute making provision for license the word “person” is used. This circumstance is of little weight when we consider the declaration of our Code to the effect that the word “person” includes corporations, unless a different meaning is apparent from the context in which it is used. Article 23, R. S. 1925.

It is also argued by respondent that it is apparent only natural persons were intended to act as agents for insurance companies because of the provision that the person applying for a license must be determined to be of good moral character before the license may be issued, and that this condition is impossible of fulfillment as it cannot be literally complied with by a corporation.

Courts of other jurisdiction have found little difficulty in answering such an objection. It is thus solved by Fletcher on Corporations, vol. 2, p. 1791, § 819:

“The fact that a business or trade cannot be carried on without first obtaining a license does not preclude a corporation from engaging in such business or trade. Thus a corporation may conduct the trade of a plumber, although license is required.
“It has been held also that while a license cannot issue to a corporation as such, it is competent for the corporation to take out a license in the name of a designated agent or employee, or agents or employees, and the latter may lawfully act in pursuance of the license. Crall & Ostrander v. Commonwealth, 103 Va. 855, 49 S. E. 638. This rule has been applied to a license to peddle. Standard Oil Co. v. Commonwealth, 107 Ky. 606, 55 S. W. 8.”

In the case of Rogers v. Ramey, 198 Ky. 138, 248 S. W. 254, the Supreme Court of Kentucky, in denying a similar contention, held that a corporation, authorized to act as an insurance agent, might do so through-a person who possessed a good moral character and other qualifications necessary to -entitle him to a license.

In the case of Wm. Messer Co. v. Rothstein, cited supra, the statute of New York required each plumber to have a certificate of competency. This was held not to preclude a corporation so -authorized by its charter from carrying on the plumbing business through agents who had received the necessary certificates.

It is true relator is an artificial person incapable of establishing a moral character. It is likewise true that it cannot solicit a policy of insurance except through the action of some person, and such person may be required by respondent to possess the qualifications required by the laws of this state.

In the statute designed to prohibit rebating upon the part of agents of insurance companies '(article 5060, R. S. 1925) there is an express recognition of the right of a corporation to act as agent of a fire, marine, and casualty insurance company. Such recognition is given in the declaration that “any person, agent, firm or corporation licensed by the Commissioner to act as a fire and marine, etc., insurance agent in the State of Texas, is hereby prohibited from paying, directly or indirectly, any commission, etc.” The declaration thus made is only consistent with a policy which would permit a corporation to act as an agent for the companies named therein.

Another circumstance which we think is somewhat persuasive of the policy of the lawmaking body of this state in reference to corporations acting as agents for insurance companies other than those writing life insurance is its lack of action since the repeal of article 4955. Before this article was repealed in 1925, the Legislature knew the insurance department of this state had construed the same as preventing the issuance of a license to a corporation to act as the agent for any character of insurance company. After the repeal of such statute it was also charged with knowledge of the fact that the insurance commissioner of this state had adopted the policy of issuing licenses to corporations to act as agents for all insurance companies, except life, upon the theory that the legislative policy had been changed in this respect by the repeal of article 4955. After such construction had been placed upon its action by those charged with the enforcement of the insurance laws during the years 1928 and 1929, the Legislature met in regular session in 1929, bnt passed no act covering this subject. It is therefore reasonable to infer a conclusion upon the part of the Legislature that its intention in repealing said article had been properly interpreted by the insurance department.

Our conclusion is that, whatever may have been the status of the insurance laws prior to 1925, the statutes of this state do not now contain any prohibition against relator being licensed to act as an agent for a fire, marine, or casualty insurance company; hence respondent should have granted the license requested by the Commercial Standard Insurance Company for relator, James N. Tardy Company, to act as its agent in this state. We conclude, however, that respondent properly refused to issue to the last-named company a license to act as agent for the Tokio Eire Insurance Company because it appears from respondent’s answer that the latter company has, in writing, withdrawn its application for said company to act as such agent.

We therefore recommend that- the writ of mandamus issue requiring respondent to issue the license as applied for to James N. Tardy Company to act as agent for the Commercial Standard Insurance Company, and to such agents of said company as may possess the necessary statutory qualifications.

CURETON, C. J.

Opinion of the Commission of Appeals adopted, and mandamus awarded.


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

text:
    GREAT SOUTHERN LIFE INS. CO. v. HEAVIN.
    No. 1254—5638.
    Commission of Appeals of Texas, Section B.
    June 10, 1931.
    Vinson, Elkins, Sweeton & Weems and Ered R. Switzer, all of Houston, for plaintiff in error.
    David E. Coffman, of Dallas, for defendant in error.
   SHORT, P. J.

The nature and result of this ease, having been fully stated by the Court of Civil Appeals in its opinion, 21 S.W.(2d) 1086, it will only be necessary to briefly state the material facts in order. to dispose of the only law question involved.

The plaintiff in error, on March 1, 1927, issued a life insurance policy to James M. Heavin, contracting to pay to Clara Roberta Heavin, his wife, the sum of $3,000 at his death, the consideration therefor being the payment of a premium for the first year amounting to $35.10. James M. Heavin died on May 4, 1927, and on May 19, 1927, the beneficiary, the defendant in error here, submitted proof of the death of the said James M.. Heavin and demanded payment of the $3,-000. This was refused by the plaiptiff in error, and this suit was instituted, the trial being to a jury who answered certain special issues upon which the district court rendered judgment in favor of the defendant in error for the $3,000, accrued interest, 12 per cent, penalty, and $600 attorney’s fees.

■ Upon appeal to the Court of Civil Appeals at Dallas the judgment of the district court was affirmed. The policy of insurance provided, among other .things, the following: “In case of the death of the insured by his own hand, or hands, either sane or insane, within two years from the date of this policy, the company’s liability shall be limited to the amount of the premium paid thereon.” It was the contention of the plaintiff in error, upon. the trial of the case, that James M. Heavin came to his death by his own hand by voluntarily taking carbolic acid. The jury foun,d that he did not so die. The plaintiff in error contended, that, notwithstanding this answer to this issue, the defendant in error had agreed that he did so die, and introduced in evidence the written statement of the-defendant in error in this language:

“Houston, Texas, May 21, 1927.
“Received of the Great Southern Life Insurance Company the sum of Thirty-Five and 10/100 dollars which is hereby acknowledged to be in full payment of the claims and demands under Policy Number 158302 issued on the life of James M. Heavin, deceased. “[Signed] Mrs. Clara P. Heavin, Beneficiary.
“Witness:
“A. G. Raines,
“E. M. Paulk.”

The beneficiary alleged that she was induced to execute this paper through the false statements and fraudulent misrepresentations of the said E. M. Paulk, who seems to have posed as her confidential friend and adviser in settling the affairs of her husband, including this particular matter. However, the jury found that this written instrument was not executed by reason of any of the alleged false statements and fraudulent misrepresentations of E. M. Paulk, though the jury did also find that the beneficiary did not know that the instrument she signed was. a release of her claim to the $3,000.

The Court of Civil Appeals, in affirming the judgment of the district court, reached the conclusion that the written release, introduced in evidence, was without consideration, and in support of its conclusion cited Fidelity & Casualty Co. of New York v. Mountcastle (Tex. Civ. App.) 200 S. W. 862; First Texas Prudential Ins. Co. v. Connor (Tex.'Civ. App.) 209 S. W. 417; Woodall v. Pacific Mutual Life Ins. Co. (Tex. Civ. App.) 79 S. W. 1090, which cases are authority for the principle that, where a creditor’s demand is made up of certain- specific items, and the debtor pays one item ’ of such claim, about which there is no dispute, and takes a release for the items which are in dispute, such release executed under such conditions is not binding upon the creditor as to the disputed items. The Court of Civil Appeals also holds that the contention of the plaintiff in error, based on the rule of law that, even though a claim rests on a liquidated demand, yet if there is a bona fide dispute of the validity of the claim by the debtor, either in whole or in part, and the creditor accepts a smaller sum than the amount of the claim, in complete discharge of the claim, the creditor is bound thereby, and cannot be heard in a court to claim the remainder, while supported by the opinions in Buford v. Construction Co. (Tex. Civ. App.) 279 S. W. 513, 515; Cristler v. Williams, 62 Tex. Civ. App. 169, 130 S. W. 608; Bergman Produce Co. v. Brown (Tex. Civ. App.) 156 S. W. 1102, and the authorities cited by these cases, is not applicable to the facts of this case. It therefore reached the conclusion that under the facts of this case there was no consideration for the execution of the release.

The plaintiff in error presents this holding of the Court of Civil Appeals as error by several assignments. We think all of these assignments presenting this question should be sustained. Under the theory of the plaintiff in error it owed the defendant in error $35.10, and that the payment of this ■amount relieved it from any further liability under the terms of the policy. Having paid this amount to the defendant in error, which she accepted, and which she did not offer to return, this situation presented a complete defense to the demand of the defendant in error, since this defense was evidenced by an instrument in writing constituting a complete release of the claim of the defendant in error. It is true she attempted to avoid the force and effect of this written instrument by pleading and attempting to prove that its execution was procured by fraud, but the jury found against her contention, and this left this written instrument standing as though it had never been assailed. A party to a written settlement may not contend that there was no dispute to compromise, when the instrument itself clearly states the grounds for the settlement and he deliberately signs and acknowledges it. Texas Jurisprudence, par. 29, p. 269, and par. 30, p. 271, and authorities there cited. This is the situation of the defendant in error in this case. It is true that the jury found that the insured did not commit suicide, but, in determining whether there was a consideration for the agreement, the situation as it was presented at the time the agreement was made can only be considered. A subsequent change in the relation of the parties and of the facts of the case can have no bearing upon the question whether there was a consideration for the substituted contract.

The plaintiff in error contended from the first that the insured died from carbolic acid, self-administered. Apparently, at the time she executed the release, the defendant in error contended that he did not so die. The policy expressly provided that, if the insured died from his own hands, the beneficiary would be entitled to $35.10. She accepted this $35.10 in full satisfaction of her claim, by virtue of the policy, and executed a release to this effect, without having been induced to do so by any fraud on the part of the plaintiff in error. Such being the situation, the defendant in error received all she is entitled to receive, under the terms of the policy. ■

We are, however, impressed, after a careful reading of the whole record in this case, that, while the judgment of the Court of Civil Appeals and that of the district court must be reversed, the defendant in error at least, and possibly also the plaintiff in error, upon another trial of the case, may be able to develop other testimony in support of their respective contentions. Moreover, it appears that the answer to one of the material issues, presented to-the jury, wherein the jury found against the contention of the defendant in' error, is not only not supported by any testimony, but that it is in direct opposition to the uncontroverted facts. Besides it appears that the plaintiff in error, as her theory was presented in her petition, did not support this theory by even sufficient testimony to justify its submission to the jury, since the trial court did not submit it and the defendant in error did not complain of its failure to do so. For these and other reasons, indicating that the case has not been fully developed, we think the cause should be remanded for another trial.

We therefore recommend that the judgments of the Court of Civil Appeals and of the district court he reversed, and that the cause be remanded to the district court for another trial.

CURETON, C. J.

Judgments of the district court and Court of Civil Appeals are both reversed, and the cause remanded to the district court, as recommended by the Commission of Appeals.

We approve the holdings of the Commission of Appeals on the questions discussed in its opinion.


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

text:
    POLLACK v. POLLACK.
    No. 1471—5709.
    Commission of Appeals of Texas, Section A.
    June 10, 1931.
    Harry P. Lawther, of Dallas, for plaintiff in error.
    Coke & Coke and Thomas G. Murnane, all of Dallas, for defendant in error. ⅝
   CRITZ, J.

The opinion of the Court of Civil Appeals is reported at 23 S.W.(2d) 890. In the interest of brevity, we refer to and adopt the statement made by that court. However, in order that this opinion be as nearly complete as possible, we make the following statement of the nature and result of the suit:

It seems that on and prior to January 21, 1911, Henry and Charles Pollack, who are brothers, were partners in a trunk factory and certain other properties. On said date they entered into the following contract in writing:

“ ‘Whereas, Henry Pollack and Charles Pollack, of the County and State aforesaid, are jointly seized and possessed of certain property, both real and personal, in the City and County of Dallas, and State of Texas, and are desirous of adjusting and separating their said interests so that the title to said proper-, ty may be held in severalty by the said Henry Pollack.
“ ‘Now, therefore,' this agreement entered into this the twenty first day of January, 1911, between the said Henry Pollack, of the one part, and Charles Pollack, of the other part, witnesseth:
“ ‘That the said Henry Pollack, for himself and his heirs, for the consideration hereinafter named, doth covenant and agree with the said Charles Pollack that he, the, said Henry Pollack, during his natural life, shall and will pay to the said Charles Pollack, for the period of the said Charles Pollack’s natural life, the sum of Five Thousand ($5,000.-00) Dollars yearly; said sum to be paid to him in monthly payments of $410.06%; the* first payment to be made to him on the day of the date hereof, and the remainder on the first of each and every month hereafter during the life of the said Charles Pollack.
“ ‘It is expressly understood and’ .agreed that upon the death of the said Charles Pollack, the said Henry Pollack surviving, the obligation herein assumed on the part of the said Henry Pollack is to terminate and the said payments are to cease and the heirs, dev-isees, legatees or personal representatives of the said Charles Pollack are to have no claim against the said Henry Pollack, or upon his property or estate. In the event the said Henry Pollack should die before the death of the said Charles Pollack, the said payments of $416.06% each month are to cease, and the said Jlenry, Pollack, for himself and his heirs, covenants and agrees with the said Charles Pollack that in lieu, thereof, he, the said Henry Pollack, will bequeath and devise free of all claims and incumbrances to the said Charles Pollack property, real or personal or both, to the value of One Hundred Thousand ($100,000.00) Dollars to take effect upon the death of the said Henry Pollack, and to be ' valued at its market value as of the date of the death of the said Henry Pollack, and if the said Charles Pollack and the personal representatives or devisees and legatees of the said Henry Pollack cannot agree upon a division of the estate of the said I-Ienry Pollack so that the property to the value of $100,000.00 may be set aside in' kind and in severalty to the said Charles Pollack, then so much of the real or personal property belonging to the estate of Henry Pollack, is to be sold as that the proceeds or a portion thereof will be sufficient, ' either of itself or together with the monies and personal property which the said Charles Pollack is willing to accept to make up said value of $100,000.00.
“ ‘And the said Charles Pollack, in consideration of the covenants and agreements here-inbefore contained on the part of the said Henry Pollack, and which on his part are to be done and performed, doth hereby, bargain, sell, transfer and convey to the said Henry Pollack all of his right, title and interest in and to all of the property, both real and personal, wherever situated, in which the said Charles Pollack and Henry Pollack are now jointly interested, embracing all the said Charles Pollack’s interest in the Henry Pollack Trunk Company, the Harris Millinery Company, The Donovan Undertaking Company, and all real estate now and jointly owned by the said Henry and Charles Pollack.’ ”

For convenience we shall hereafter refer to Henry Pollack as Henry and to Charles Pollack as Charles.

The record shows that Henry paid the monthly payments of $416.66% as they became due to Charles from the time the contract was made, up to January 1, 1912, when he reduced such payments to very small sums. It seems that Charles made no demand for full payment during this time. In 1919 Henry began paying Charles $250 per month and rkept this up until May, 1926, when he ceased | paying the $250 per month because Charles ré- ) fused to accept such montiily payments in full : satisfaction of the amount due on the con-/htract. Henry then wholly repudiated the con-i' tract, and the suit followed. The pleadings of .both parties are very voluminous^ but we hold them sufficient to raise the issues discussed by us. We here pause to remark that the-. jury, in response to appropriate issues, found that the $250 monthly payments ceased in May, 1926, and that no new agreement was made between Henry and Charles by the terms of which the original contract was altered. The verdict contained other findings not necessary to mention here.

The trial court rendered judgment denying Charles any interest in the real and personal property described in his petition, but gave him judgment against Henry for $58,601.22, being the unpaid balance due upon the contract from' January 1, 1912, to date of judgment ; also for $31,177.31, accrued interest on such above sum; also Charles was awarded judgment against Henry for $52,600 as the present value of the $5,000 agreed to be paid during each year in monthly installments of $416.66% each, under the terms of the written contract, such value being computed on the basis of 4 per cent, on the life expectancy of Charles. No judgment was awarded based on the value of the $100,000 due Charles in the .event he should outlive Henry.

From the above judgment Henry appealed to the Court of Civil Appeals at Dallas, but,, on equalization of the dockets of the several Courts of Civil Appeals, the cause was transferred to the Court of Civil Appeals ¿at El Paso, which court affirmed the judgment of the trial court, except it held that all of Charles’ claim against Henry based on monthly payments which matured more than four-years prior to the filing of the suit was barred by the four-year statute of limitation, and reversed and rendered that part of the judgment of the trial court which was in conflict with such holding. Both parties were dissatisfied with the rulings and judgment of the Court of Civil Appeals and prosecuted writs-of error to the Supreme Court. Both writs were granted. The record, briefs, and arguments are very voluminous, but we shall content ourselves with a general discussion of those matters which, in our opinion, settle the-litigation.

Opinion.

We agree with the Court of Civil Appeals. that the only material questions presented by-this appeal are: (a) The question of limita^ tion; and (b) the measure of damages for the ■ breach of the above contract. In this connection we think the verdict of the jury and’ the evidence conclusively establish a complete breach -which occurred May, 1926. In other-words, the complete repudiation by Henry occurred at that time.

With reference to the issue of limitation we agree with the holding of the Court', of Civil Appeals to the effect that all payments due by Henry to Charles which matured more than four years prior to. August 5,1926, when the suit was filed, are barred by the four-year statute of limitation (Rev. St.. 1925, art. 5527). Under the contract these payments were due and payable each month, and limitátion would begin to run on .each payment due from its'due date. We find nothing in the record that would prevent the application of the statute to these sums.

The evidence in the case conclusively shows that Henry has not made the full payments due Charles since January, 1912, and in Slay, 1926, absolutely repudiated his obligation under the contract. The verdict of the jury 'establishes the fact that Henry had no legal excuse for failing to meet the monthly payment provided in the contract, and no legal excuse for his repudiation of the contract. Furthermore we think that, in the absence of any jury finding, the evidence absolutely establishes the fact that Henry has failed to meet the payments due under the contract without legal excuse, and that he, without just eauSS, has repudiated his obligation to carry out the contract as written. We therefore now come to decide the rights of the parties at the time of trial in the district court, treating the contract as breached and completely repudiated. This brings us to the question of the measure of damages due by Henry to Charles.

The contract is rather unique, but very plain. Its performance would have been very simple. However, the contract was not performed, but breached, and this suit is for damages for the breach.

In this connection we hold that Henry, having not only failed and refused to meet the monthly payments due on the contract, but, on the other hand, having absolutely repudiated the obligation, all without just exedSS, I has breached the contract, and therefore Charles is entitled to maintain his action in S damages at once for the entire breach, and is 'entitled in one suit to receive in damages the ’.present value of all that he would have received if the contract had been performed, and he is not compelled to resort to repeated suits to recover the monthly payments. Pierce v. Tenn. C. I. & R. Co., 173 U. S. 1, 19 S. Ct. 335, 339, 43 L. Ed. 591 (cited by Court of Civil Appeals); Roehm v. Horst, 178 U. S. 1, 20 S. Ct. 780, 788, 44 L. Ed. 953; Greenwall, etc., v. Markowitz, 97 Tex. 479, 79 S. W. 1069, 1071, 65 L. R. A. 302; Moore v. Jenkins, 109 Tex. 461, 211 S. W. 975, 976; 13 C. J. page 651, par. 725; 6 E. C. L. p. 1023, par. 384.

In the Pierce Case, supra, it is shown that one Pierce, while in the employ of Tennessee - Coal, Iron & Eailroad Company, was injured. Pierce claimed damages against the company. The company made a contract of settlement with Pierce, the principal provision of which; required the company to pay Pierce $65 perl month for the term of his life. Pierce was to* continue to perform such services for the company as his crippled condition would permit. The company breached the contract by discharging Pierce, refusing to pay the monthly wages, and repudiating its liability on the contract. The gupreme Court of the United States, speaking through Justice Gray, upheld the right of Pierce to recover, as damages for the breach of the contract, the present value thereof at the time of- trial based upon his life expectancy. We quote the following from this opinion:

“Upon this point the authorities are somewhat conflicting; and there is little to be found in the decisions of this court having any bearing upon it, beyond the affirmance of the general propositions that'in an action for a personal injury,the plaintiff is entitled to recover compensation, so far as it is susceptible of an.estimate in money, for the loss and damage caused to him by the defendant’s negligence, including, not only expenses incurred for medical attendance, and a reasonable sum v for his pain and suffering, but also a fair recompense for the loss of what he would otherwise have earned, in his trade or profession, and has been deprived of the capacity of earning by the wrongful act of the defendant,’ and, ‘in order to assist the jury in making such an estimate, standard life and annuity tables, showing at any age the probable duration of life, and the present value of a life annuity, are competent evidence’ (Vicksburg & M. Railroad Co. v. Putnam, 118 U. S. 545, 554, 7 S. Ct. 2, 30 L. Ed. 257, 258); and that in an action for breach of contract ‘the amount which would have been received, if the contract had been kept, is the measure of ¡ damages if the contract is broken’ (Benjamin v. Hillard, 23 How. 149, 167, 16 L. Ed. 518. 522).
“But the recent tendency of judicial decision’s in this country, in actions of contract as well as in actions of tort, has been towards allowing entire damages to be recovered, once for all, in a single action, and thus avoiding the embarrassment and annoyance of repeated litigation. This especially appears by well-considered opinions in cases of agreements to furnish support or to pay wages, a few only of which need be referred to.
“In Parker v. Bussell, 133 Mass. 74, the declaration alleged that, in consideration of a conveyance by the plaintiff to the defendant of certain real estate, the defendant agreed to support him during his natural life, and that the defendant accepted the conveyance, and occupied the real estate, but neglected and refused to perform the agreement. The plaintiff proved the contract, and introduced evidence that the defendant did supL port him in the defendant’s house for five years, and until the house was destroyed by fire, and has since furnished him no aid or ' support. The jury were instructed that ‘if the defendant for a period of about two years neglected to furnish aid or support to the plaintiff, without any fault of the plaintiff, the plaintiff might treat the contract as at an end, and recover damages for the breach of the contract as a whole, and that the plaintiff would be entitled to recover compensation for the past failure of the defendant to furnish him'aid and support, and full indemnity for his future support.’ 'Exceptions taken by the defendant to this instruction were overruled by the supreme judicial court of Massachusetts. Mr. Justice Field, in delivering judgment, said: ‘In an action for the breach of a contract to support the plaintiff during his life, if the contract is regarded as still subsisting, the damages are assessed up to the date of the writ, and not up to the time when the verdict is rendered. But if the breach has been such that the plaintiff has the right to treat the contract as absolutely and finally broken by the defendant, and he so elects to treat it, the damages are assessed as of a fo-ntal breach of an entire contract. Such dam- . ages are not special or prospective damages, but are the damages naturally resulting from a total breach of the .contract, and are suffered when the contract is broken, and aré assessed as of that time. From the nature of the contract, they include damages for not performing the contract in the future as well as in the past. The value of the contract to the plaintiff at the time it is broken may be somewhat indefinite, because the duration of the life of the plaintiff is uncertain; but uncertainty in the duration of a life has not, since the adoption of life tables, been regarded as a reason why full relief in damages should not be afforded for a failure to perform a contract which by its terms-was to continue during life. When the defendant, for example, absolutely refuses to perform such a contract, after the time for entering upon the performance has begun, it would be a great hardship to compel the plaintiff to be ready, at all times during his life to be supported by the defendant, if the defendant should at any time change his mind, and to hold that he must resort to successive actions from' time to time to obtain his damages piecemeal, or else leave them to be recovered as an entirety by his personal representatives after his death.’ ”

Further in the same opinion the court holds:

“The complaint alleged, and the plaintiff at the trial introduced evidence tending to prove, that by those injuries he was permanently disabled; that he was always ready and offered to do for the defendant such work as he was able to do, and labored at that work for such reasonable time as he was able to work and bound to work under the contract; and that the defendant, without any reasonable ground therefor, denied its obligation to pay the plaintiff the stipulated wages longer than suited its pleasure, and, for six months before the commencement of the action, disregarded the contract, and refused to abide by it, and entirely abandoned the contract, and dismissed the plaintiff from its service.
“If these facts were proved to the satisfaction of the jury, the ease would stand thus: The defendant committed an absolute breach of the contract at a time when the plaintiff was entitled to require performance. The j plaintiff was not bound to wait to see if the / defendant would changé its decision and take / him back into its service, or to resort to j successive actions for damages from time to time, or to leave the whole of his damages to be recovered by his personal representative ' after his death. But he had the right to elect V to treat the contract as absolutely and finally broken by the defendant; to maintain this ¶ action, once for all, as for a total breach of / the entire contract; and to recover all that i he would have received in the future, as well l as in the past, if the contract had been kept. ] In so doing, he would si&ply recover the ! value of the contract to him at the time of the ; breach, including all the damages, past or j future, resulting from the total breach of the contract. The difficulty and uncertainty of estimating damages that the plaintiff may suffer in the future is no greater in this action of contract than they would have been if he had sued the defendant, in an action of tort, to recover damages for the personal injuries sustained in its service, instead of settling and releasing those damages by the contract now sued on.”

In the Pierce Case, Justice Gray reviews at great length the authorities on the question, and cites and discusses, among others, Parker v. Russell, 133 Mass. 74; Schell v. Plumb, 55 N. Y. 592; East Tenn., V. & G. R. Co. v. Staub, 7 Lea (Tenn.) 397. All of these cases announce the same doctrine announced by Justice Gray in the Pierce Case, both as to the right to recover damages for the breach of the entire contract and the power of the court to ascertain the life expectancy.

In the Roehm Case, supra, the Supreme Court of the United States, speaking through Chief Justice Fuller, again affirmed the rule in the Pierce Case, and held thatjiB-«»quaIt^_ fled and positive refusal to nerform — a-jnn- . tract, though the entire performance thereof is not yet due, may, if the renunciation goes to the entire contract, be treated as a complete breach, and will entitle the injured party to at once bring his action. The court then proceeds to hold that the measure of damages in such a case is that the injured party “is entitled to compensation based, as far as possible, on the ascertainment of what he would • have suffered by the continued breach of the other party down to the time of complete performance, less any abatement by reason of circumstances of which he ought reasonably to . have availed himself.” This ease cites with approval the opinion in the Pierce Case, supra.

In the Greenwall Case, supra, our Supreme Court, speaking through Associate Justice Wii-Hams, in effect announced the same rule in the following language:

“ ‘The law with reference to a contract to be performed at a future time, where the party bound to performance announces prior to the time his intention not to perform it, as established by the cases of Hochster v. De la Tour [2 E. & B. 678, 22 L. J. (Q. B.) 455], and the Danube and Black Sea Co. v. Xenos [13 C. B. (N. S.) 825, 31 L. J. (C. P.) 284], on the one hand, and Avery v. Bowden [5 E. & B. 714, 26 L. J. (Q. B.) 3], Reid v. Hoskins [6 E. & B. 953, 26 L. J. (Q. B.) 5], and Barwick v. Buba [2 C. B. (N. S.) 563, 26 L. J. (C. P.) 280], on the other, may be thus stated: The prom-isee, if he pleases, may treat the notice of intention as inoperative, and await the time when the contract is to be executed, and then hold the other party responsible for all the consequences of nonperformance; but in that case he keeps the contract alive for the benefit of the other party as well as his own. He remains subject to all his own obligations and liabilities under it, and enables the other party not only to complete the contract, if so advised, notwithstanding his previous repudiation of it, but also to take advantage of any supervening circumstance which would justify him in declining to complete it.
“ ‘On the other hand, the promisee may, if he thinks proper, treat the repudiation of the other party as a wrongful putting an end to the contract, and may at once bring an action as on a breach of it; and in such action he will be entitled to such damages as would have arisen from the nonperformance of the contract at the appointed time, subject, however, to abatement in respect of any circumstances which may have afforded him the means of mitigating his loss.’
“When the promisee adopts the latter course, treating the contract as broken, and himself as discharged from his obligations under it, he resolves his right into a mere cause of action for damages. He is no longer concerned with the disposition which the promissor may make of the subject-matter of the contract. Kadish v. Young 108 Ill. 170, 43 Am. Rep. 548; Johnstone v. Milling, 16 Q. B. Div. 467; Roper v. Johnson L. R 8 C. P. 167; Roehm v. Horet 178 U. S. 1, 20 S. Ct. 780, 44 L. Ed. 953; Anson on Const. 368 et seq., and authorities cited; Cyclopedia Law and Procedure, 635-637, and authorities cited.”

In Moore v. Jenkins, supra, our own Supreme Court speaking through Judge Greenwood, again announced the same doctrine in the following language: “The effect of an express and unconditional renunciation of his contract, by defendant in error, was to entitle plaintiffs in error to treat the contract as terminated if they so desired.”

Judge Greenwood then proceeds to quote the following from the -opinion of Judge Brown in Kilgore v. Baptist Educational Association, 90 Tex. 139, see page 142, 37 S. W. 598: “The intention to abandon the contract at some future date is no breach of it, but, when that intention is declared in positive terms and unconditionally, it has the effect, in so far as the promisor is able to do so, to repudiate the contract itself and to terminate the contractual relations between the parties. This affords to the other party the opportunity to accept the declarations, if he chooses to do so, and thus make effective the declarations of intention not to perform, rendering the contract thereby one that ,is broken on the part of the promisor himself. But to have this effect the declaration of an intention not to perform the contract in the future must be unconditional in its terms. Benj. Sales, § 568; U. S. v. Smoot, 15 Wall, 36 [21 L. Ed; 107]; Dingley v. Oler, 117 U. S. 490, 6 S. Ct. 850 [29 L. Ed. 984]. In his work on Sales, Mr. Benjamin, in the section cited above, says: ‘But a mere assertion that the party will be unable or will refuse to perform his contract is not sufficient. It must be a distinct and unequivocal absolute refusal to perform the promise, and must be treated and acted upon as such by the party to whom the promise was made •„ for, if he afterwards continue to urge or demand compliance with the contract, it is plain that he does not understand it to be at an end.’ This language was approved by the supreme court of the United States in the case of U. S. v. Smoot, supra."

In 13 O. J. p. 651, supra, the rule is thus announced : “Where a party bound by an ex-ecutory contract repudiates- his obligation before the time for performance, the promisee has according to the great weight of authority, an option to treat the contract as ended so far as further 'performance is concerned, and to maintain an action at once for the damages occasioned by such anticipatory breach. The rule is the same whether the contract is wholly executory or has been partially executed.”

In 6 B. O. L. p. 1023, supra, the same rule is announced as in the other authorities above cited and quoted from.

Having determined that Henry has completely breached his contract by absolutely repudiating his obligation and duty to carry it out, and having determined that Charles is entitled to maintain his action in damages for the entire breach, and having announced the measure of such damages to be the present value at the time of trial of all that he would have received if the contract had been performed, we shall now proceed to define such damages by applying the rule announced to the facts of this case.

Simply stated, the contract, as above shown, obligates Henry to pay Charles $5,009 per year in monthly installments of $416.66% each, as long as Charles lives, provided Henry outlives Charles, and in such event these monthly payments fully satisfy the contract. However, in the event Charles outlives Henry, Henry must pay to Charles the $5,000 per year, in the same monthly installments until the death of Henry, and in addition thereto Henry’s estate will owe Charles $100,000. As stated by the Court of Civil Appeals, it is impossible to actually tell, with certainty, which of these parties will die first, but such fact does not prevent the court from ascertaining such fact.

Under the authorities above cited, we think the event of which will die first is, in law, no more uncertain than the expected length of time that each will live. Also, as above stated, the fact that the time of death is uncertain does not prevent the court from ascertaining such , event and awarding damages based upon such ascertainment. According to the findings of the Court of Civil Appeals, and the uncontradicted evidence, the life expectancy of Charles at the time of trial was 14.74 years and that of Henry 11.67 years. It follows that, in so far as this litigation is concerned, it is determined that Charles will outlive Henry. Pierce v. Company, supra. Henry having wrongfully breached the contract, Charles is entitled' to recover such amount in damages, based upon the conclusion that Henry will die first, which if paid at the time of trial, will fully compensate Charles for what he would have received had the contract been performed according to its terms.

The Court of Civil Appeals holds that it is absolutely impossible to determine the present value of the $100,000.00 payable by Henry’s estate to Charles in the event Henry should die first, because it is wholly uncertain who will die first. The Court of Civil Appeals cites in support of this .holding the case of Dunbar v. Dunbar, 190 U. S. 340, 23 S. Ct. 757, 47 L. Ed. 1084. We think this case not only does not’support the holding, but is authority to the contrary. The Dunbar Case involved a contract by the terms of which a man agreed to pay his divorced wife the sum of $500 yearly so long as she remained unmarried. The Supreme Court of the United States held that it was impossible to estimate or value this contract because of the provision that it ended on the termination of widowhood, and this could be accomplished either by death or remarriage. The court then proceeded to expressly hold that, if the contract terminated by death, it could be valued by reference to the mortality tables, but no such tables or statistics existed by which the time or event of remarriage could be estimated. We have no such case here. The life expectancies of bQth Henry and Charles are fully established, and, according to such expectancies, Henry will precede Charles in death. We can see no consistency, in applying the rule of expectancy to ascertain the length of time Charles will live and refusing to do so to ascertain the length of Henry’s life. In other words, when the rule is once applied, it should be carried throughout the case, and, when this is done, no trouble is encountered in determining, for the purposes of the case, who will die first.

Erom what we have said, it follows that the district court should have rendered the following judgment:

(a) Charles should have recovered against Henry for the balance unpaid on all monthly payments maturing under the contract within four years prior to the filing of the suit and up to the date of judgment, with interest thereon from the due date of each,payment to the date of judgment, which was June 5, 1928, at the rate of 6 per cent, per annum.

(b) Charles should have recovered judgment against Henry for the present worth of all monthly payments to become due on the contract after the date of judgment, June 5, 1928, to the date of Henry’s expected death, which date is 11.67 years from the date of judgment. In computing the present worth of such future payments, same should have been discounted to their present worth at the date of judgment at 6 per cent, interest per annum.

(c) Charles should have recovered judgment against Henry for the present worth at the time of judgment, June 5, 1928, of the $100,000 which Henry’s estate will owe Charles at the time of Henry’ death, which time is 11.67 years from the date of judgment. In computing the present worth at the time of judgment of such $100,000, same should have been discounted to its present worth at the time of judgment at 6 per cent, interest per annum.

(d) When the net amount of the above three sums has been arrived at, judgment should have been entered in favor of Charles and 'against Henry for such amount, and such net total sum should bear 6 per cent, interest from June 5, 1928, until paid.

(e) The judgment denying Charles any interest in the properties described in his petition is correct.

We therefore recommend as follows:

(1) That the judgments of the Court of Civil Appeals and district court in so far as they deny Charles any recovery of the properties described in his petition be affirmed.

(2) That the judgments of both of such lower courts be reversed and set aside in all other respects.

(3) That judgment be here rendered in favor of Charles against Henry as of date June 5, 1928, for the total net sum produced by (a), (b), and (c), above, with 6 per cent, interest from June 5, 1928. ,

(4) That judgment be here rendered in favor of Charles against Henry for all costs in. all courts. (5) That this cause be remanded to the district court with instructions to that court to make the proper calculations to ascertain the amount of Charles’ money recovery against Henry as above rendered, and then to enter judgment in that court for the amount produced by such calculations, all as of date June 5,1928.

CURETON, C. J.

Judgments of the district court and Court of Civil Appeals both reversed, and cause remanded to the district court, with instructions, as recommended by the Commission of Appeals.

We approve the holdings of the Commission of Appeals on the questions discussed in its opinion.