author: SHORT, C. OUBETON, C. J.

text:
    JAGO et al. v. INDEMNITY INS. CO. OF NORTH AMERICA.
    No. 5352.
    Supreme Court of Texas.
    March 18, 1931.
    Rose & Johnson, of Port Arthur, for plaintiffs in error.
    Barnes & Barnes, of Beaumont, for defendant in error.
   SHORT, C.

On .February 14, 1927, Alonzo B. Walls was killed in the course of his employment with the Gulf Refining Company. This company carried insurance under the Workmen's Compensation Act with the Indemnity Insurance Company of North America, hereafter called the insurance company. Mrs. Minnie L. Jago, a sister of the deceased, claimed compensation as a dependent of Avails.

The Industrial Accident Board acted on the claim on the 18th day of August, 1927, and allowed compensation to Mrs. Jago at the rate of $29 per week for a period of 360 weeks. The order of the board also awarded to Rose & Johnson, attorneys for Mrs. Jago, the statutory amount out of the compensation as attorney’s fees, and refused payment of the compensation in a lump sum.

The insurance company, within 20 days after the making of the award, gave notice to Mrs. Jago, and to her above-named attorneys, of its refusal to abide the award, and on September 1, 1927, within the time prescribed by law, filed with the clerk of the., proper district court its petition against Mrs. Jagd and the above-named attorneys to set aside the award.

The above petition filed by the insurance company contained the following allegations as a ground for setting aside the award of the board: “That said award is wholly contrary to the terms of the law applicable to this case, and is wholly unsupported by any facts in 'that the defendant, Minnie L. Jago, is a married woman, having never been divorced from her husband, and is at this time living with her husband, and at all times since her marriage has been supported by her husband, and in no legal sense has she ever been dependent upon her brother, A. B. Walls, and at the time of the alleged injury and death she was not dependent upon him for any support whatsoever. That the said defendant, Minnie L. Jago, was not a dependent sister of deceased, or a beneficiary under any provisions of the law.”

On September 20, 1927, Mrs. Jago and her attorneys, Rose & Johnson, filed an answer to the above petition of the insurance company, which consisted of a general demurrer and general denial.

While the above suit against Mrs. Jago and her attorneys, Rose & Johnson, was pending in the district court of Jefferson county, Tex., and the husband of Mrs. Jago was not made a parity thereto, Mrs. Jago, joined by her husband, filed in the same court, and in the same case, what is termed their plea of intervention, setting up the board’s award, failure on the part of the insurance company to file suit to set the same aside within the time prescribed by law, failure to make payments as they mature, and sought to mature all payments, and recover penalties and attorney’s fees.

On December 19, 1927, after notice to all parties, Mrs. Jago .and her husband were- allowed to intervene, and an order was entered by the trial court to that effect.

On January IS, 192S, the insurance company filed its answer to the plea of intervention of Mrs. Jago- and her husband such answer of the insurance company consisting of a prayer to make Harry Jago, the husband, a party defendant, and general and special demurrers, and general denial.

On January IS, 1928, the cause'coming- on for trial in regular order, the trial court sustained the general demurrer to the insurance company’s petition, which failed1 to make Mrs. Jago’s husband a party to the suit, or to state a cause of action against her attorneys, and trial was had before the court upon the plea of intervention filed by Mrs. Jago and her husband, which resulted in maturing the board’s award and allowing 12 per cent, penalty, and $2,000 attorney’s fees.

• The cáse was duly appealed‘by t&e insurance company to the Court of Civil Appeals for the Ninth district at Beaumont, which court reversed and remanded for a new trial that part of the judgment which sustained the general demurrer to the insurance company’s petition, and refused it a hearing on its suit to set aside the award of the Industrial Accident Board, and reversed and rendered that portion of the judgment which matured the award, and granted 12 per cent, penalty and allowed $2,000 attorney’s fees. 12 S.W.(2d) 817. The case is now before the Supreme Court on writ of error granted on application of Mrs. Jago and her husband.

The interveners introduced a certified copy of the award of the Industrial Accident Board, proof of the reasonableness of the attorney’s fees claimed, the fact that Mrs. 'Jago is and was married at the time of the death of Alonzo B. Walls to Harry Jago, and the fact that no payments had been made by the company under the award. No other testimony was introduced by Mrs. Jago.

The principal legal question presented fox-decision by the application is thus stated in the second proposition under the second assignment of error: “The defendant in error’s petition lodged with the clerk on September 1, 1927, disclosing upon its face ‘that the defendant, Minnie L. Jago, is a married woman, having never been divorced from her husband, and is at this time living with her husband’ without joining him as a party defendant, did not constitute the filing of the suit against her or stop the running of limitations in her favor.”

Section 8a of article 8306, among other things, provides that the compensation, for which section 8 provides, shall be for the sole and exclusive benefit of the surviving husband, the surviving wife, the minor children, the parents, and the stepmother of the deceased employee, without regard to the question of dependency, and it further provides that this compensation is also for the benefit' of dependent grandparents, dependent children, and dependent brothers and sisters of the deceased employee. The record in this case discloses, without dispute, that the claimant for compensation became entitled to the award, which was granted her, by virtue of the fact ascertained by the Industrial Accident Board that .she was the sole .'dependent sister of the deceased employee.

Article 8309 of the Workmen’s Compensation Law, among other things, declares that the words “legal beneficiary,” as used in this law, shall mean the relative named in section Sa, art. 8306, part. 1, of this law. In Mingus v. Wadley, 115 Tex. 551, 285 S. -W. 1084, 1087, Chief Justice Cureton, among other things in that case, said, in speaking of the Workmen’s- Compensation Law and the proceedings prescribed therein: “In fact, the statute itself declares that the rights of the parties are to be determined ‘by the provisions of this law.’ * * * it ⅛ the plaintiffs cause of action, delimited by the statute, and he has no other under the law.” In that case there is quoted, with approval, the language used by Associate Justice Yaughan, of the Court of Civil Appeals at Dallas, in Hood v. Texas Employers’ Insurance Association, 260 S. W. 243, which refers to the procedure and the legal effect thereof to be followed in cases like the present one. That language is as follows: “The jurisdiction of the trial court'to hear and determine appellant’s suit depended on the following prerequisite proceedings which should have been properly alleged and supported by the requisite evidence: (a) That proper application for compensation on account of the in-, jury alleged to have been received was made to the Industrial Accident Board; (b) that final award was made thereon by said board; (c) the giving of notice of the intention not to abide by the award within 20 days from date of same, and the filing of proper suit within 20 days from the date of service of such notice — all being jurisdictional facts and essential to concur before jurisdiction would attach.”

When the proceedings, which we have outlined as having been had in this case, are gauged by the requirements set forth in the above excerpts, it is clearly shown that, up to the time the defendant in error had lodged With the clerk of the district, court the written instrument which it did, the record showed that Mrs. Jago had made proper application for compensation on account of the injuries suffered, resulting in death, by her brother, to whom she alleged she occupied the relation of a dependent sister, that final award was made thereon by said board; that the Indemnity Insurance Company of North America, in due time, gave notice of its intention not to abide by the award and thereafter, and, in due time, lodged with the clerk of the proper court a paper containing all necessary statements required by the law to be made therein, in order to give the district court of Jefferson county jurisdiction, unless the name of Harry Jago, the husband of Minnie L. Jago, the beneficiary named in the award, was essential to the legal sufficiency of the paper filed with the clerk, to give the court jurisdiction of the matter in controversy.

In Vestal v. Texas Employers’ Insurance Association, 285 S. W. 1041, 1043, this section of the commission, speaking through Judge Speer, among other things, said: “While is is referred to as an appeal, it is in truth an original proceeding in the court having jurisdiction, the determination of which is uninfluenced in any wise by the previous ruling or decision of the board, but the same is tried anew under the ordinary rules of practice and evidence applicable to that tribunal.” The uniform practice and the ordinary rules applicable to proceedings in the district court require of him, upon whom rests the burden of proof in a law suit, to plead and prove his cause of action.

This practice and these rules, which are pertinent to the proposition being discussed, are governed by article 2001 of the R. S. of 1925, wherein it is’ provided that “parties may amend their pleadings, file suggestions of death and make representatives parties, make new panties, and flip such other pleas as they may desire,” and by the Supreme Court Rule 12 for the government of district and county courts, which reads as follows; “An amendment may be made by "either party, upon leave of the court for that purpose, or in vacation, as prescribed by statute, the object of an amendment, as contradistin-guished from a supplemental petition or answer, being to add something to, or withdraw something from, that which has been previously pleaded, so as to perfect that which is or may be deficient, or to correct that which has been incorrectly stated by the party making the amendment.”

In this ease it appears that a general demurrer was sustained by the trial court to the petition filed by the defendant in error, evidently upon the ground that the husband of Mrs. Minnie L. Jago was not made a party thereto. It also appears that the defendant in error was denied the right to- file an amendment, making the husband a party, apparently for the reason that, in. the opinion of the trial judge, the petition of the defendant in error was not the subject -of amendment. The general practice is that, if a demurrer shall be sustained, the plaintiff (who is the defendant in error here), if he desires, shall have leave to amend and conform his pleadings to-the ruling of the court. The office of an amendment is to cure some defect in a pleading already filed, and, under our liberal practice to allow amendments, the refusal to grant leave to amend, at a proper time, is ground for a reversal of the judgment. Boren v. Billington, 82 Tex. 138, 18 S. W. 101. As we have seen, the district court of Jefferson county had acquired jurisdiction of the subject-matter of this suit, by the filing of the- petition by the defendant in error, Mingus v. Wadley, supra. Having acquired jurisdiction of the subject-matter, the court not only had the right, but it was its duty, under the circumstances presented by this record, to permit the defendant in error to amend its petition so as to make the husband of Mrs. Minnie L. Jago a party to the suit.

The judgments of the Court of Civil Appeals and of the district court are reversed, and tlie cause is remanded to the district court of Jefferson county for further proceedings, not inconsistent with this opinion.

OUBETON, C. J.

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


source: Caselaw Access Project

author: PEB CUBIAM.

license: Public Domain

text:
    STATE ex rel. REA et al. v. ETHERIDGE et al.
    Motion No. 9429; 5592.
    Supreme Court of Texas.
    March 18, 1931.
    For former opinion, see 32 S.W.(2d) 828, which reversed 20 S.W.(2d) 808.
    Edward J. Hamner and P. Edward Ponder, both of Sweetwater, for plaintiffs in error.
    John E. Sentell and J. M. Harris, both of Snyder, for defendants in error.
   PEB CUBIAM.

We have carefully considered the motion for leave to file a motion for rehearing in this cause, but have concluded, in view of the contest, that we are not authorized to permit the motion for rehearing to be filed. However, we have carefully read the motion for rehearing, and are convinced that we have heretofore made a correct disposition of the case.

The motion for leave to file the motion for rehearing is accordingly overruled.


author: HABYEY, C. CURETON, C. J.

text:
    HOUSTON, E. & W. T. RY. CO. v. ANDERSON et ux.
    No. 5326.
    Supreme Court of Texas.
    March 18, 1931.
    Baker, Botts, Parker & Garwood, Garrison & Watson, and Arterbury & Coolidge, all of Houston, and Davis & Davis, of Center, for plaintiff in error.
    S. P. Jones and Franklin Jones, both of Marshall, and Anderson & Lewis, of Center, for defendants in error.
   HABYEY, C.

This suit was brought by the defendants in error, C. H. Anderson', and his wife, Laura Anderson, against the plaintiff in error, the Houston, East & West Texas Bail way Company, to recover damages resulting from personal injury to Laura Anderson as hereinafter shown.

The plaintiff in error is a Texas corporation, and prior to March 1, 1927, owned and operated a line of railroad extending from Houston, Tex., to Shreveport, La. Goods and passengers were transported, both interstate and intrastate, over said railroad. On the date named, the plaintiff in error delivered the possession and control of all its properties, including its railroad and equipment, to the Texas & New Orleans Bailroad Company, under a lease duly executed to the latter company by the plaintiff in error, which lease had theretofore been duly authorized by the Interstate Commerce Commission. Neither the lease nor the order of the Commission authorizing it specifically provides for the exemption of the lessor from responsibility for the further operation of the leased properties. The Texas & New Orleans Railroad Company, under the terms of the lease, took exclusive possession and control of the railroad, and has exclusive control of all matters pertaining to its operation. In May, 1927, Laura Anderson, while traveling from Houston to Shreveport, as a passenger on the train of the last-named company, was caused to suffer great mental anguish as a result of insulting and threatening language addressed to her by the conductor of the train, who was an employee of the lessee. Damages for this injury are sought to be recovered from the plaintiff in error. The trial court rendered judgment in favor of the defendants in error against the plaintiff in error for damages in the sum of $2,000. The Court of Civil Appeals has affirmed that judgment. 10 S.W.(2d) 767.

The only question before us goes . to the liability of the plaintiff in error for the wrong done Laura Anderson. An examination of this question requires a consideration of the legal effect of the above-mentioned lease, with reference to the liability to which the plaintiff in error is sought to be held.

The power to authorize the lease of the railroad of a state chartered corporation, which railroad is being operated in interstate commerce, and to exempt the lessor from responsibility for the performance of charter obligations during the lease term, is possessed by the Congress of the United States; and this power, when exercised, predominates. The obligations arising under the charter are subject to this paramount authority, which inheres in the federal government as an incident to its power over interstate commerce. Colorado v. U. S., 271 U. S. 153, 46 S. Ct. 452, 70 L. Ed. 878.

Authority in this respect has been delegated by Congress to the Interstate Commerce Commission. 44 U S. Stat. at Large, part 1, title 49, § 5 (49 USCA § 5). The action of the latter body in approving the lease in question hero has the force of legal authority. Colorado v. U. S., supra.

It is contended, however, that, unless a lease which is authorized by the Commission, or the order granting authority to make the lease, specifically provides for exemption of the lessor from such liability, the latter becomes liable for the torts subsequently committed by the lessee in operating the leased properties. Judicial expressions in this state touching the question are not entirely satisfactory. In Missouri Pac. R. Co. v. Watts, 63 Tex. 549, there is a general holding to the effect that, where the lease of a railroad is authorized by law, the lessor is discharged from responsibility for the lessee’s torts. As to the decisive effect of that holding on this particular question, we shall not undertake to determine. In the cases of International & G. N. R. Co. v. Underwood, 67 Tex. 589, 4 S. W. 216, and Central & M. R. Co. v. Morris, 68 Tex. 49, 3 S. W. 457, there are expressions relating to this question, which appear to be conflicting, but since in each of those cases an unauthorized lease was •involved, such expressions are not authoritative. With regard to the lessor remaining liable, in the respects mentioned, where no exemption is expressed, the decisions of other courts are not in accord. But most, if not all, of those decisions occur in cases where the owner company held general statutory authority to lease its railroad. The view that, in such a case, the lessor is not liable for the lessee’s torts, is maintained by the following authorities: Arrowsmith v. Nashville & D. R. Co. (C. C.) 57 F. 165; Hayes v. Northern Pac. R. Co. (C. C. A.) 74 P. 279; Mahoney v. Atlantic & St. L. R. Co., 63 Me. 68; Pinkerton v. Traction Co., 193 Pa. 229, 44 A. 284; Miller v. New York, L. & W. R. Co., 125 N. Y. 119, 26 N. E. 35; Heron v. St. Paul, M. & M. Ry. Co., 68 Minn. 542, 71 N. W. 706; Caruthers v. Kansas City, Ft. S. & M. R. Co., 59 Kan. 629, 54 P. 673, 44 L. R. A. 737; St. Louis, W. & W. Ry. Co. v. Curl, 28 Kan. 622; Moorshead v. United Rys. Co. of St. Louis, 203 Mo. 121, 96 S. W. 261, affirmed in 203 Mo. 121, 100 S. W. 611.

Regardless, however, of what may be the true rule where the lease is made in pursuance of general authority in the matter, we believe that, where the Interstate Commerce Commission, in the exercise of the powers confided to it, has specifically authorized the owner company to lease its railroad to a particular lessee for the purposes of operation, and there is no language in the order or the lease implying a reservation of the former company’s liability, the presumption should be indulged that a transfer of responsibility for the performance of the charter obligations respecting matters of operation was intended by all parties concerned. For in such a case the commission, as representative of the public, is afforded the opportunity to determine as to the trustworthiness of the proposed" lessee, and to safeguard the interest of the public. The very fact that the commission approved the lease in question here strongly implies the consent of the Commission to the operation of the railroad by the Texas & New Orleans Railroad Company upon that company’s responsibility exclusively. Exemption of the plaintiff in error from liability in matters pertaining to operation of the road sufficiently appears.

The judgment of the trial court and that of the Court of Civil Appeals should be reversed, and judgment should be here rendered for the plaintiff in error.

CURETON, C. J.

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


author: SHARP, C. CURETON, C. J.'

text:
    GALVESTON, H. & S. A. RY. CO. et al. v. AMERICAN GROCERY CO. et al.
    No. 5423.
    Supreme Court of Texas.
    March 18, 1931.

      Eor previous opinion see 25 S.W.(2d) 588, which reversed judgment of Court of Civil Appeals in 13 S.W.(2d) 983, and affirmed judgment of trial court.
    Kemp & Nagle, of El Paso, and Baker, Botts, Parker & Garwood, of Houston, for plaintiffs in error.
    A. H. Culwell, Turney, Burges, Culwell & Pollard, and Fryer & Cunningham, all of El Paso, and George S. Wright and Thompson, Knight, Baker & Harris, all of Dallas, for defendants in error.
   SHARP, C.

This is a suit by the American Grocery Company and others against the Mallory Steamship Company, Galveston, Harrisburg & San Antonio Railway Company, And the Galveston Wharf Company, for the value of a carload of sardines destroyed by fire while the same was in transit to that company as consignee. The shipment originated in Seaport, Me.; the initial carrier being the Seaport Navigation Company, 'which issued a through bill of lading, shipper’s order, notify American Grocery Company, El Paso, Tex. Under the bill of lading; this merchandise was routed: Seaport Navigation Company, Mallory Steamship, and Galveston, Harrisburg & San Antonio Railway Company — the Galveston Wharf Company not being a party to the bill of lading.

The case was tried before the court without a jury, and the-trial court rendered judgment in favor of the American Grocery Company and others against the Galveston Wharf Company for the value of the shipment and in favor of the Galveston, Harrisburg & San Antonio Railway Company and the Mallory Steamship Company. An appeal was made to the Court of Civil Appeals, and the judgment of the trial court was reversed as to the wharf company and judgment rendered in favor of the American Grocery Company against the Galveston, • Harrisburg & San Antonio Railway Company, 13 S.W.(2d) 983. Writs of error were granted by the Supreme Court to review the judgment of the Court of Civil Appeals.

The case was referred to Section B of the Commission of Appeals, and the Commission, through Judge Ryan, in its original opinion reversed the opinion of the Court of Civil Appeals and affirmed the judgment of the trial court. 25 S.W.(2d) 588.

Upon motion for rehearing, the Supreme Oourt withdrew the case from Section B, set aside the judgment rendered therein, and retained same for its decision.

We refer to the opinions of the Oourt of Civil Appeals and Commission of Appeals for a more detailed statement of the nature of the case.

For convenience, the companies involved will be designated as the steamship company, the railway company, and the wharf company.

At the very threshhold of this case we are met with this question: In whose possession was the shipment of goods at the time of the fire ? Let us briefly review the testimony bearing upon this phase of the case. The evidence is undisputed that the shipment arrived at Galveston on the morning of January 13, 1926, in the steamship Concho. At Galveston the steamship company leased from the wharf company certain piers which the steamship company used in its freight business. Pier 24 was used as the pier on which the steamship company unloaded inbound shipments coming to Galveston. Other piers were used by the steamship company for loading outbound shipments.

At the time in question, the railway company, named in the bill of lading as the delivering carrier, had no tracks which connected with the unloading depot of the steamship company at Pier 24. The wharf company had tracks which made connection with the railway line at a point removed from Pier 24. The wharf company filed tariffs with- the Interstate Commerce Commission, which fixed a charge for two services to be rendered to the carrier in two respects: (1) The wharf company would check with the clerks of the steamship company and pick up the shipments from Pier 24 destined to inland points in Texas, truck these shipments to the cars adjacent to Pier 24, load the ears; and (2) switch the cars to the respective rail carriers named as delivering carriers in the bill of lading.

During the day of January 13, 1926, the steamship company unloaded a very large number of shipments from the steamship Concho and placed them on Pier 24. Among these was the shipment to the grocery company. During that day the wharf company picked up from Pier 24 sixty-six cars of freight which had been unloaded by the steamship company from the steamship Con-cho and placed these sixty-six cars of merchandise in cars for various railroads, but at 7 o’clock on the evening of January 13, 1926, - when the wharf company closed its operation for the day, the shipment involved in this suit with other shipments was still on Pier 24, where it had been placed by the steamship company- and where it was destroyed by fire on the night of January 13, 1926.

On the day of the 13th this shipment needed reeoopering, because of some damaged packages. This recoopering was completed somewhere around 4 o’clock in the afternoon of the 13th day of January, 1926. The unloading began at 8:30 a.' m. on said date, and was completed by the Mallory Line at about 5:30 p. m. of the same day.

Some of the witnesses for the steamship company testified, in effect, that, so far as the steamship line was concerned, it toad completed the delivery of the shipment. Witnesses for the wharf company testified, in substance, that the steamship company unloaded the shipment on the pier, and it was taken possession of by the wharf company when the shipments were lifted from the floor of the pier and deposited in the cars by the wharf company forces for account of the Galveston Bay Lines; that the local freight is held on the pier and delivery is made to the consignees by the steamship company forces from these piers. That is the only place where it transacts the business of receiving freight and discharging freight on the piers rented from the wharf company.

Mr. Gossreau, general manager of the wharf company, testified: “There is no receipt given-for any freight handled for the Mallory Line until such a service has been actually performed.”

Again he says: “Our forces are at liberty to begin the loading a's soon as the freight is "put on the wharf but the practice is to wait until there is a sufficient amount deposited there to keep the labor busy. Otherwise it is not a paying investment. It is our privilege to begin loading as soon as it is put on the wharf, unless a hold order is put on some specific shipment, which happens only occasionally. So that as soon as freights were deposited on the wharf by the forces of the Mallory there was nothing to prevent our forces from immediately picking it up and trucking it to the ears. That was all left to the judgment- and discretion of the Galveston Wharf Company Stipervisor of forces on the docks. It was not a matter within the control of the Mallory Line.”

He further says: “The Mallory Line never has required so far as that boat is concerned for us to give them a receipt for what we picked up before we loaded it.”

Again he says: “It gets its receipts the following day or as soon thereafter as possible. In the meantime the freights are absolutely gone so far as the Mallory is concerned and I think they depend upon the well known integrity of the Wharf Company to see that the receipts are forth coming. It is just a matter of confidence but in the meantime the possession of the stuff is away from them and out of them. It has left their possession.”

More testimony along this line could be quoted, -but we think the.-above sufficient to illustrate our views.

The trial court in its findings of fact, among other things, found: (1) That the shipment in question was in the exclusive possession of the wharf company; and (2) • that it was not in possession of either the railway company or the steamship company.

The wharf company contends that it should be held under the evidence introduced that, as a matter -ctf law, no delivery of the shipment in controversy was made by the steamship company to the wharf company. To this contention we cannot agree. We think the evidence raises a fact issue to be determined, and the trial court found that a delivery had been made by the steamship company to the wharf company.

Under the state of the record, we do not think it can be said, as a matter of! law, that there was no evidence of any probative force to sustain the findings of the trial court. It can 'only become a question of law when the facts and circumstances are such that but one reasonable conclusion can be drawn therefrom. Wininger v. Ry. Co., 105 Tex. 56, 143 S. W. 1150; Radley v. Knepfly, 104 Tex. 130, 135 S. W. 111; Cartwright v. Canode, 106 Tex. 507, 171 S. W. 696.

This brings us to the consideration of another question: Was the wharf company a common carrier as defined by law, and liable for the shipment destroyed by fire?

It is the contention of the wharf company that the service performed by it is such that it does not come under the definition of a common carrier, that it was not mentioned in the through bill of lading, and, by reason of the nature of its services and compensation paid therefor, it is merely an agent of the railroad lines.

The trial court found:

“That the Galveston Wharf Company is a chartered transportation Company, owning, in addition to the piers located on the Galveston Bay side of the island, about fifty-one (51) miles of railroad trackage, extending from said piers along and through its yards in Galveston to connections with the lines of railroad operating out of Galveston, including the Galveston, Harrisburg & San Antonio Railway Company. That said Galveston Wharf Company owns and operates eight (8) switch engines, providing therefor the necessary yard and engine forces. ■
“That it had on file with the Interstate Commerce Commission and with the Texas Railroad Commission, duly promulgated tariffs covering its charges for the various services performed and to be performed by it. That it makes the regular reports to the Interstate Commerce Commission that are ordinarily made and required of all common carriers by railroads. That it has a general manager superintendent of terminals, treasurer and the usual other officers as required and necessary in the conduct of that character of business.
“That its railroad tracks extend to and along the Pier 24, where the shipment in question had been unloaded from the steamship.”

Mr. Gossreau testified as follows: “I think the Galveston Wharf Company is recognized as a common carrier. I believe it has been declared so by the Interstate Commerce Commission.”

We think the finding of the tidal court finds ample support in the evidence as shown by •the record.

That the wharf company is a common carrier as defined by the acts of Congress of the United States, the statutes of this state, tind by both federal and state decisions, is fully settled. Interstate Commerce Act, title 49 USCA § 1, par. 3, and section 6, par. 13; article 10, § 2, . Constitution of Texas; articles 1491, and article 905, R. S. 1925; Washington et al. v. Kuykendall, 275 U. S. 207, 48 S. Ct. 41, 72 L. Ed. 241; United States v. Union Stock Yard Co., 226 U. S. 286, 33 S. Ct. 83, 57 L. Ed. 226; Batchelder & Snyder Co. v. Union Freight R. Co., 259 Mass. 368, 156 N. E. 698, 54 A. L. R. 616, petition for writ of certiorari denied by United States Supreme Court, November 21, 1927, 275 U. S. 556, 48 S. Ct. 117, 72 L. Ed. 424; M., K. & T. Ry. Co. v. Ward, 244 U. S. 383, 37 S. Ct. 617, 61 L. Ed. 1213; Union Stockyards Co. v. U. S. (C. C. A.) 169 F. 404; U. S. v. Northern Pacific Terminal Co. (C. C.) 181 F. 879; Ft. Worth Belt Ry. Co. v. U. S. (C. C. A.) 22 F.(2d) 795; Tap Line Cases, 234 U. S. 1, 34 S. Ct. 741, 58 L. Ed. 1185; U. S. v. Ramsey (C. C. A.) 197 F. 144, 42 L. R. A. (N. S.) 1031; S. P. Term. Co. v. Interstate Commerce Com., 219 U. S. 498, 31 S. Ct. 279, 55 L. Ed. 310; Texarkana & Ft. S. R. Co. v. Rosebrook-Josey Grain Co., 52 Tex. Civ. App. 156, 114 S. W. 436; G., C. & S. F. Ry. Co. v. Hines (Tex. Civ. App.) 4 S.W.(2d) 641; Mo. Pac. Ry. Co. v. Wichita Groc. Co., 55 Kan. 525, 40 P. 899; People et al. v. Public Service Co., 198 App. Div. 436, 191 N. Y. S. 636, affirmed 232 N. Y. 606, 134 N. E. 590, and certiorari denied by U. S. Sup. Ct., 258 U. S. 621, 42 S. Ct. 314, 66 L. Ed. 795; Nation v. San Antonio S. Ry. Co., 115 Tex. 431, 283 S. W. 157; Burd v. San Antonio S. Ry. Co. (Tex. Com. App.) 261 S. W. 1021. Many others could be cited.

In the case of United States v. Union Stock Yard & Transit Company, 226 U. S. 286, 33 S. Ct. 83, 88, 57 L. Ed. 226, it was contended there, as here, that, by reason of the peculiar service rendered by the Union Stock Yard & Transit Company, it was not a common carrier and controlled by the provisions of the Interstate Commerce Act. In passing upon this question, the Supreme Court of the United States said:

“Together, • these companies, as to freight which is being carried in interstate commerce, engage in transportation within the meaning of the act, and perform services as a railroad when they take the freight delivered at the sboek yards, load it upon cars, and transport it for a substantial distance upon its journey in interstate commerce, under a through rate and bill furnished by the trunk line carrier, or receive it while it is still in progress in interstate commerce upon a through rate which includes the terminal services rendered by the two companies, and complete its delivery to the consignee. They are common carriers because they are made such by the terms of their charters, hold themselves out as such, and constantly act in that capacity, and because they are so treated by the great railroad systems which use them. In Union Stock Yards Co. v. United States, 94 C. C. A. 626, 169 F. 404, Mr. Justice Van Devanter (while a circuit judge); speaking for the court of appeals, said:
. “ ‘Its (the Stock Yards Company’s) operations ⅜ * * include the maintenahce and use of railroad tracks and locomotives, the employment of a corps of operatives in'that connection, and the carriage for hire over its tracks of all live stock destined to or from the sheds-or pens, which, in effect, are the depot of the railroad companies for foe delivery and receipt of shipments of live stock at South Omaha. The carriage of these shipments from the transfer track to the sheds or pens, and vice versa, is no less a part of their transit between their points of origin and destination than is their carriage over any other portion of the route. True, there is a temporary stoppage of the loaded cars at the -transfer track, but that is merely incidental, and does not break the continuity of the transit any more than does the usual transfer of such cars from one carrier to another at ta connecting point. And it is of little significance that the stock yards company does not hold itself out as ready or willing generally to carry live stock for the public, for all the railroad, companies at South Omaha do so hold themselves out, and it stands ready and willing to conduct, and actually does conduct, for hire, a part of the transportation of every live stock shipment which they accept for carriage to or from that point, including such shipments as are interstate.’ ’’

Article 10, § 2, of the Constitution of the state of Texas, provides that “railroads heretofore constructed, or which may hereafter he constructed, in this state are hereby declared public highways, and railroad companies common carriers.”

We are referred to the ease of T. & P. Ry. Co. v. Henson, 103 Tex. 598, 132 S. W. 118, and other, decisions as controlling in this ease. It must be kept in mind that this is a federal question, and a determination thereof must be governed by federal decisions. In that case Chief Justice Gaines did not directly pass upon the question as to whether or not the Port Worth Belt Railway Company was a common carrier. Recently in the case of Fort Worth Belt Ry. Co. v. United States, 22 F.(2d) page 795, the Circuit Court of Appeals passed directly upon the question and held that the Port Worth Belt Railway, Company was a common carrier under the provisions of the Safety Appliance-Act, as follows: “By section 1 of the Act of March 2, 1903 [45 USCA § 8], the provisions of the Safety Appliance Act were so extended as to apply to ‘all * * ⅝ cars * * * used on any railroad engaged in interstate commerce.’ As the defendant uses its tracks to haul over them interstate shipments to and from their destination, it cannot plausibly be questioned that the defendant’s lines constitute a ‘railroad engaged in interstate commerce.’ In behalf of the defendant it was contended that the prescribed penalty was not incurred by the movement in question, because no interstate traffic was involved in that movement. This contention is not sustainable, as it has been settled by authoritative decisions that the penalty is incurred by moving on a railroad engaged in interstate commerce a car defectively equipped as the one in question, though at the time of such movement that car and others in connection with which it is moved are engaged exclusively in intrastate commerce. Southern Ry. Co. v. United States, 222 U. S. 20, 32 S. Ct. 2, 56 L. Ed. 72; Southern Ry. Co. v. Railroad Commission of Indiana, 236 U. S. 439, 35 S. Ct. 304, 59 L. Ed. 661.”

It is earnestly contended, and the Court of Civil Appeals held, that the wharf company was merely an agent of the railway company, and therefore was not liable for the value of the shipment, and the loss should be paid by the railway company. Let us briefly review the facts upon this issue:

Mr. Gossreau, general manager for the wharf company, testified: “At the time the fire occurred on January 13th the Galveston Wharf Company absolutely had done nothing to take possession of the shipment of sardines. They had not handled it in any wiay. At the time of the fire they had not begun to start the service they were going to be paid for by the G. H. & S. A.”

The tariffs introduced show wharf tariffs chargeable to the steamship company and loading and switching charges chargeable to the railroad carrier. Mr. Gossreau further testified: “Outside of the $5,000 a year the Blallory Steamship Company pays us for the rental of Pier No. 24 and others. We receive compensation for' one service from the Bay Lines, and we receive compensation for another service from the Mallory. When the boat comes in, the Mallory, in addition to the - rental, in accordance with Local Tariff No. 18, under Section 3, would be assessed as follows: ‘Rates and rules governing the handling of traffic over the wharves and piers of the Galveston Wharf Company,’ wharfage rates in cents per hundred pounds, except as otherwise-provided, applying on import and coastwise traffic inward.”

He further testified: “As to the understanding at the time of this fire as to when the Galveston Wharf Company took possession, the general understanding was that the shipments are taken possession of when they are lifted from the floor of the pier and deposited in the cars by the Galveston Wharf Company’s forces for account of the Galveston Bay Lines.”

He further testified: “The. local freight is held on the pier and delivery is made to the consignees by the Mallory Line’s forces from these same piers.- That is the only place where they transact their business of receiving freight and discharging freight, on these piers that they rent from us.”

He further testified: “At the time this fire occurred on January 13, 3926, the Mallory Line was exclusively using Pier No. 24.”

He further testified: “It contains also wharfage charges covering freight passing over piers, which charge is assessed against the vessel or its owners.”

Albert J. Schulte, chief dock clerk and wit-mess for the steamship Company, testified that “it is a fact that the Wharf Company’s clerks enter a record of these shipments in that billing on the books, just like the Mallory Line. As to whether, after they do that on carload lots, whenever the Galveston Wharf Company gets re#dy to pick up a carload lot at Pier No. 24, and put it on a car, they take a copy of the billing, accompanied by a clerk of the Mallory, and check those carload lots as they pick them up and take them over to the*car.”

The steamship company claimed the right, .under proper orders, to divert the shipment at any time prior to the actual loading by the wharf company into the cars of the railway company.

Mr. Bertram, a witness for tlie steamship company, stated that, “if we had been confronted with a diversion or reconsignment of that shipment of sardines to some dealer in Greenville, Texas, if the American Grocery Company had filed a diversion or reconsignment, we would have endeavored to have a diversion. We would have reconsigned it for the accommodation of the consignee. After the goods had actually been loaded in the freight cars, and we had received the diversion or reconsignment order, the shipment would have been beyond our control.”

The contract between the wharf company and the steamship company leasing to the latter the pier in question, provided that such pier would be leased by it, and the evidence shows that on the night in question, at the time of the fire, this shipment of goods was being policed by the steamship company. It is undisputed that no part of the shipment had been loaded on the cars of the railway company.'.

Another cogent reason why the shipment of goods, had not'been delivered to the railway company is reflected in the fact, as shown by the uncontroverted evidence, that after the fire whatever remained of the cargo was salvaged by the steamship company.

The trial court further found that the goods had not been delivered to. the railway company at the time of the fire. This finding, in our judgment, is fully sustained by the evidence.

The Court of Civil Appeals reversed that part of the judgment rendered by the trial court in favor of the American Grocery Company and others against the wharf company and rendered judgment in favor of the American Grocery Company and .others against the railway company upon the theory that the wharf company was the agent of the railway company.

If the Court of Civil Appeals undertook to substitute its findings of fact for the findings of fact made by the trial court and render final judgment thereon, it would not be authorized to do so, if there was any evidence in the record to sustain the finding made by the trial court. Patrick v. Smith, 90 Tex. 267, 38 S. W. 17; H. & T. C. Ry. Co. v. Strycharski, 92 Tex. 1, 37 S. W. 415; Choate v. S. A. & A. P. Ry. Co., 91 Tex. 406, 44 S. W. 69.

However, as we construe the opinion of the Court of Civil Appeals, that court does not undertake to substitute its findings of fact for the findings of the trial court, but merely construed the legal effect of the evidence, considered as a whole, and held, as a matter of law, that the wharf company was the agent of the railway company and not liable for the shipment of goods destroyed by fire, and therefore reversed and rendered the cause. This ruling gives the Supreme Court . the power to review the evidence. Marshburn v. Stewart, 113 Tex. 518, 254 S. W. 942, 260 S. W. 565; Tweed v. Western Union Tel. Co., 107 Tex. 247, 166 S. W. 696, 177 S. W. 957; Beck v. Texas Co., 105 Tex. 303, 148 S. W. 295.

The case of Missouri Pacific Railroad Company v. Reynolds-Davis Grocery Company, 265 U. S. 577, 44 S. Ct. 636, 69 L. Ed. 1188, is cited as controlling in this case. That case was an action brought' by Reynolds-Davis Grocery Company against the Missouri Pacific Railroad Company to recover for the loss of part of a carload of sugar shipped from Raceland, Da., to Ft. Smith, Ark., on a through bill of lading. The loss occurred within the city of Ft. Smith while the car was in the possession of the St. Louis-San Francisco Railroad.

The joint through rate covered delivery at the warehouse of the consignee. The bill of lading named Morgan’s Louisiana & Texas Railroad & Steamship Company as the initial carrier, and the Missouri Pacific as the last of the connecting carriers. Its lines enter Ft. Smith, but do not extend to the consignee’s warehouse. It employed the St. Louis-San Francisco to perform the necessary switching service and paid it for such service. Under these facts, the Supreme Court of the United States held that the St. Louis-San Francisco Railroad was merely the agent of the Missouri Pacific.

The Supreme Court of Arkansas, in its opinion rendered in the foregoing case, 161 Ark. 579, 257 S. W. 70, 72, states the facts more fully as follows: “The bill of lading evidencing the special contract under which the shipment in controversy was made, shows that the appellant was the last connecting carrier operating under that bill of lading. This was a through bill of lading from the nonagency station at Mathews, La., to Ft. Smith, Ark., in which the appellant undertook to make the delivery to the consignee at Ft. Smith. The Frisco Railroad Company was not named in this bill of lading as a connecting carrier, and the services it performed in the premises under its switching arrangements with the appellant were not as a connecting carrier, but purely and simply at the instance, and as the agent, of appellant. The terms of the bill of lading control here. Under those terms the appellant is undoubtedly the terminal carrier, and bound itself under the terms of the contract to make the delivery, and it cannot shift its liability upon the shoulders of some other carrier or agency which was not in the contemplation of the parties to the contract.”

What are the facts of this case? It is undisputed that the steamship company hady leased certain piers from the wharf company for the purpose of unloading its freight; that the wharf company handled its cargoes and loaded it on the cars of the various railroad lines and then switched them from the wharf company to the railroad line receiving same. The testimony shows that, if the steamship company should desire to divert the shipment before delivered to the railroad, it is authorized to do so. The trial court held that the delivery had not been made to the railroad, and the testimony shows that it had not issued a receipt therefor. It is also shown that no part of this shipment had been loaded on the cars of the railroad. The general manager for the wharf company testified that at the time of the fire it had done nothing to take possession of the shipment of sardines. At the time of the fire they had not begun to start the services they were going to be paid for by the railroad, and he further testified that the general understanding was that the shipments are taken possession of when they are lifted from the floor of the pier and deposited in the cars by the wharf company’s forces for account of the Galveston Bay Lines.

In the case of M., K. & T. R. Co. v. Ward, 24.4: U. S. 383, 37 S. Ct. 617, 619, 61 L. Ed. 1213, the Supreme Court of the United States held that “the purpose of the Carmack Amendment has been frequently considered by this court. It was to create in the initial carrier unity of responsibility for the transportation to destination. Atlantic Coast Line R. Co. v. Riverside Mills, 219 U. S. 186, 55 L. Ed. 167, 31 L. R. A. (N. S.) 7, 31 S. Ct. 164; Northern P. R. Co. v. Wall, 241 U. S. 87, 92, 60 L. Ed. 905, 907, 36 S. Ct. 493. And provisions in the bill of lading inconsistent with that liability are void. Norfolk & W. R. Co. v. Dixie Tobacco Co., 228 U. S. 593, 57 L. Ed. 980, 33 S. Ct. 609. While the receiving carrier is thus responsible for the whole carriage, each connecting road may stili be sued for damages occurring on its line; and the liability of such participating carrier is fixed by the applicable valid terms of the original bill of lading. The bill of lading required to be issued by the initial carrier upon an interstate shipment governs the entire transportation.”

The court in the same case further held as follows: “Eor the purpose of fixing the liability, the several carriers must be treated, not as independent contracting parties, but as one system; and the connecting lines become in effect mere agents, whose duty it is to forward the goods under the terms of the contract made by their principal, the initial carrier. Atlantic Coast Line R. Co. v. Riverside Mills, 219 U. S. 186, 206, 55 L. Ed. 167, 182, 31 L. R. A. (N, S.) 7, 31 S. Ct. 164; Galveston, H. & S. A. R. Co. v. Wallace, 223 U. S. 481, 491, 56 L. Ed. 516, 523, 32 S. Ct. 205.”

See T. & P. Ry. Co. v. Leatherwood, 250 U. S. 478, 39 S. Ct. 517, 63 L. Ed. 1096; Burd v. S. A. S. Ry. Co. (Tex. Com. App.) 261 S. W. 1021.

The case of Batchelder & Snyder Co. v. Union Freight R. Co., 259 Mass. 368, 156 N. E. 698, 700, 54 A. L. R. 616, involved the liability of a company engaged in delivering cars between freight .terminals and private sidings, and it was contended there, as here, that the company engaged in such switching services was not a common carrier. In that ease Batehelder & Snyder Company sued the Union Freight Railroad Company for damages to a shipment which was delivered to the defendant by one of the carriers and while in possession of the defendant, Union Freight Railroad Company, the goods became injured or damaged, and to recover the value thereof plaintiffs sued that company. This shipment consisted of a carload of pickled hams shipped by Hately Brothers Company from Chicago on a uniform order bill of lading, consigned to “Hately Brothers Company, Boston, notify Batehelder & Snyder Company, Boston,” routed by New York Central and Boston & Albany railroads. The Union Freight Railroad Company was not mentioned in the through bill of lading. When the shipment reached Boston, the Boston & Albany Railroad placed the car in possession of the defendant for delivery to the consignee. As stated, while in the possession of the defendant, the alleged injury to the shipment occurred. The trial court held that the interstate transit ended with the acceptance of the car by the defendant on May 13th, that no contract between these parties existed upon the bill of lading, and therefore denied plaintiff a recovery against the defendant. The Massachusetts Supreme Judicial Court, in passing upon this question, held: “The defendant is a common carrier. See Union Freight R. Co. v. Winkley, 159 Mass. 133, 38 Am. St. Rep. 398, 34 N. E. 91; United States v. Union Stock Yard & Transit Co., 226 U. S. 286, 57 L. Ed. 226, 33 S. Ct. 83. It received the car for transit on its line in Boston from the yards of the Boston A Albany Railroad to the plaintiff’s unloading platform at Constitution Wharf. Transit began when the car was received, and ended when it was ‘set’ at the specified- place of delivery. Rice v. Hart, 118 Mass. 201, 19 Am. Rep. 433, and cases citqfl. New York, N. H. & H. R. Co. v. Porter, 220 Mass. 547, 108 N. E. 499. There was no intermediate' point when and where the car was unloaded or when and where it was accessible to the plaintiff for any purpose. The defendant occupied throughout this period the position of a common carrier in control of the car and its contents. South Deerfield Onion Storage Co. v. New York, N. H. & H. R. Co., 222 Mass. 535, 111 N. E. 367; P. Garvan v. New York, C. & H. R. R. Co., 210 Mass. 275, 06 N. E. 717; Michigan C. R. co. v. Mark Owen & Co., 256 U. S. 427, 65 L. Ed. 1032, 41 S. Ct. 554; McNeill v. Southern R. Co., 202 U. S. 543, 50 L. Ed. 1142, 26 S. Ct. 722. It was, therefore, an insurer. Norway Plains Co. v. Boston & M. R. Co., 1 Gray, 263, 61 Am. Dec. 423; Chicago & N. W. R. Co. v. C. C. Whitnack Produce Co., 258 U. S. 369, 372, 66 L. Ed. 665, 667, 42 S. Ct. 328, and cases cited.”

The underlying principle of the Car-mack Amendment and the amendments thereto (40 USCA § 20) is one of agency. When the initial carrier accepts goods for shipment, it is treated as a through contract, and all connecting carriers are agents of the initial carrier, and it is their duty to forward shipments under the terms of the contract made by the initial carrier. Each connecting carrier is the agent of all of the others. Eor the purpose of fixing liability, the several carriers are treated, not as independent contracting parties, but as one system. It is well settled that each connecting carrier is responsible for loss or injury inflicted during the transportation while the property is on its particular line. This statute gives the shipper any remedy he may have under the common law as recognized by the federal courts. He is not confined either to the initial carrier or to the connecting carriers for his satisfaction, and he may join all the carriers in one suit for damages. Furthermore, he is not required to elect which one he will hold liable. In the suit of Missouri Pacific Railroad v. Reynolds-Davis Grocery Company, supra, the plaintiffs sued the Missouri Pacific Railroad, the terminal carrier, for the damages sustained. This the law gave them the right to do. In this case plaintiffs sued the steamship company as well as the wharf company as connecting carriers, and the railway company as the delivering carrier. Under the law plaintiff could sue all of them, as was done in this case, and the trial court could render judgment against the carrier liable for the loss or damages to the shipment of goods.

In the face of this record and the foregoing authorities, it would be illogical to hold that the wharf company was merely the agent of the railway company and therefore, not liable for the value of the shipment of goods destroyed by fire while in its possession. Logically it follows that the wharf 'company would be liable for the value of the shipment destroyed by fire.

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

CURETON, C. J.'

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


author: LEDDX, C. CURETON, C. X

text:
    MILNER v. McDANIEL et al.
    No. 5573.
    Supreme Court of Texas.
    March 18, 1931.
    , Loftin & Hall and W. G. Eustis, all of Henrietta, for plaintiff in error.
    G. B. Smedley, of Fort Worth, and Donald & Donald, of Bowie, for defendants in error.
   LEDDX, C.

G. W. McDaniel, Sr., and his wife, Josephine, used and occupied 160 acres of land as a rural homestead. The wife died in 1918, leaving surviving her husband, one minor son eighteen years of age, and several adult children. The father and minor son continued to use and occupy the homestead until in June, 1926, when the same was partitioned between the father and children, 80 acres being set aside to the father and the same amount to the children. Thereafter the father, for a valuable consideration, sold the SO acres set apart to him in the partition to his son G. W. McDaniel, Jr.

Plaintiff in error brought this suit to foreclose upon the premises aforesaid a judgment lien, which he averred was created by the abstracting of a judgment obtained by him in 1910 against G. W. McDaniel, Sr., and T. L. McDaniel, his son.

The case whs tried before the court, without the intervention of a jury, and judgment rendered foreclosing plaintiff in error’s judgment lien upon the 80 acres owned by the children of G. W. McDaniel. Upon appeal the Court of Oivil Appeals, 19 S.W.(2d) 426, reformed the judgment so as to decree a foreclosure only as against T. L. McDaniel on his one-fourteenth interest in the 80-acre' tract of land.

The legal question arising under the facts may be thus stated: Since the property upon which the lien was sought to be foreclosed was the homestead of G. W. McDaniel, Sr., and Josephine McDaniel, did such homestead, upon the death of Josephine McDaniel, pass to the surviving husband and her heirs free from community debts?

Plaintiff in error invokes the doctrine announced by the Supreme Court in Givens v. Hudson, 64 Tex. 471, to sustain his contention that the property in question was subject to the payment of community 'debts. The rule announced in that case cannot assist the plaintiff in error in maintaining the proposition that the homestead in this case was subject to the payment of the community debts of G. W. McDaniel, Sr. For such decision only goes to the extent of declaring that, upon the death of the husband or wife, if there is no remaining constituent of the family entitled to occupy the homestead as such, it descends and vests in the adult heirs subject to the payment of community debts.

Here it is shown that upon the death of the wife the husband and minor son were entitled, under the express provisions of the Constitution (article 16, § 52), as constituent members of the family remaining, to occupy the property as a homestead free from interference by creditors. It did not become subject to sale for community debts, even when the minor became of age and the property ceased to be used for homestead purposes.

It has often been determined by the Supreme Court of this state that, upon the death of an owner using and occupying property as a homestead, when there remains a constituent member of the family (wife, husband, minor child, or unmarried daughter), the title passes bo all of the heirs and is subject only to the right of use by those entitled to occupy it as a homestead; the estate thus taken by the héirs to the property is unburdened by the claims of creditors of the community estate. Childers v. Henderson, 79 Tex. 664, 13 S. W. 481; Cameron v. Morris, 83 Tex. 14, 18 S. W. 422; Zwernemann v. Von Rosenberg, 76 Tex. 522, 13 S. W. 485; Lacy v. Lockett, 82 Tex. 190, 17 S. W. 916, 918; Roots v. Robertson, 93 Tex. 365, 55 S. W. 308.

In the case of Lacy v. Lockett, above cited, the situation was practically identical with that here involved, and the holding is decisive of the proposition that even the adult heirs of Mrs. McDaniel took the homestead free from community debts. This conclusion is clear from the following language used by the court: “Upon the death of N. H. Cook his wife and daughter inherited or took the title to the land composing the homestead in equal portions, and upon the decease of Mrs. Cook the title to the whole property (except that part already sold) vested in the appellant Mrs. Annie G. Lacy. As the exemption from forced sale continued from the time it was set apart to her mother, and as it was thereafter not liable for the debts of 'the deceased -father, as we have seen, it follows that she inherited the property absolutely, and free from the claims of the creditors or the administrator.”

At the death of Mrs. McDaniel the homestead property descended and vested in her husband and children in equal portions with the right of occupancy of the entire tract by the father and minor son. Since there remained constituent members of the family, the premises retained the homestead character and therefore passed free from liability for community debts. When the property descended free from such obligations, the exemption wias a -continuing one; hence a creditor holding a community debt by recording his judgment could lawfully acquire'ño lien thereon.

This principle was reaffirmed in Childers v. Henderson, 76 Tex. 664, 13 S. W. 481, 482. Judge Henry, speaking for the court in discussing the question, said: “The constitution takes it for granted that the protection from forced sale of the homestead ‘of a family’ will enure to the benefit of every surviving constituent of the family, without express mention, as is shown by its providing against its being partitioned contrary to the right of -occupancy of the surviving husband, wife, and minor children, without mention of creditors.”

In the above case Chief Justice Stayton dissented, stating that it seemed contrary to the spirit as well as the letter of the law to exempt the adult heirs’ portion of the.homestead from sale for the ancestor’s debts because the interest -of the unmarried daughter was not subject to sale. -The doctrine announced by the majority, however, has been continuously followed and reaffirmed in numerous cases, so that it may now be said to be the settled law of this state.

In Cameron v. Morris, 83 Tex. 14, 18 S. W. 422, it was decided that upon the death of the husband the surviving wife took the homestead free from community debts, and that it remained free from such debts when at her death it descended and vested in her children. The holding was based upon the theory that, since the wife took the estate free from liability for community debts, it was unconditionally and unalterably so -protected and could not later be subjected to the husband’s debts at her death. In other words, there vested in her children such a title to the property as she obtained, which was one not charged with liability for community debts.

■ In Zwernemann v. Von Rosenberg, 76 Tex. 522, 13 S. W. 485, the trial court adjudicated the rights of the parties in accord with the action of the lower court in this case. The conclusion was reached that the homestead was subject to sale for community debts, but ■ that the purchaser thereunder should be postponed in his possession until the minors, who were entitled to occupy it during minority, had reached their majority. The Supreme Court, however, declined to accept this interpretation of the homestead provisions of the Constitution and statutes. Judge Gaines, in rendering the opinion for the court, held that, upon the death of the parents, since there were constituent members of the family entitled to the use of the premises for a homestead, it descended and vested in all the heirs free from community debts.

The foregoing authorities firmly establish ■ the principle that a homestead cannot be subjected to the payment of community debts when there remains any constituent member of a family, as designated by the Constitution and statutes of this state, to take and occupy it as such. Under such circumstances it descends and vests in all the heirs free from community debts, even though some of the heirs may be adults and not entitled to any homestead interest in the property.

The Court of Civil Appeals properly reformed the judgment of the trial court so as to deny plaintiff in error a foreclosure. against any interest in this property for the debts of the father. It was also correct in decreeing foreclosure against the one-fourteenth interest inherited from his mother by T. E. McDaniel; for in this instance the judgment, was rendered against him for his individual debt. Such judgment was properly abstracted, and therefore a lien was created against his interest in the land.

The judgment of the Court of Civil Appeals is affirmed.

CURETON, C. X

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


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

text:
    CAMP v. DALLAS NAT. BANK OF DALLAS et al.
    No. 1430-5635.
    Commission of Appeals of Texas, Section A.
    April 1, 1931.

      McCormick, Bromberg, Leftwich & Car-rington and J. N. Townsend, all of Dallas, for plaintiff in error.
    Cockrell, McBride, O’Donnell & Hamilton, and Goggans & Allison, and B. O. Baker, all of Dallas, for defendants in error.
   CRITZ, J.

This suit was begun in the district court of Dallas county, Tex., toy one Carnes as plaintiff, who was later displaced as such by Dallas National Bank, against G. B. Foster, J. L. Davisson, T. L. Camp, M. F. Spillers, John F. Bruce, and Automatic Inn Company, a corporation. The case was tried with a jury, but upon the ■ conclusion of the evidence the court peremptorily instructed the jury to return a verdict for the plaintiff, Dallas National Bank, against Automatic Inn Company, T. L. Camp, M. F. Spillers, and John Bruce, for the sum of $22,632.06, with interest, and that the bank take nothing against G. B. Foster and J. L. Davisson. The verdict was returned in accordance with the instruction, and judgment entered in conformity thereto. Camp and the bank both appealed. None of the other defendants appealed or' in any manner complained of the judgment of the district court. Of course Foster and Davisson had nothing to complain of. The Court of Civil Appeals in all things affirmed the judgment of the district court; Justice Looney dissenting as to that portion which affirms the judgment of the district court refusing the bank a judgment against Foster and Davisson. 21 S.W.(2d) 104, 105. The bank and Camp have both prosecuted applications for writs of error to the Supreme Court, and both applications have been granted.

. The Court of Civil Appeals has made a very full and fair statement of the facts and issues of the case, and we refer to and adopt the statement of that court, but, in order that this opinion may be as nearly complete within itself as practicable, we .make the following státement, using the opinion of the Court of Civil Appeals in so doing:

It seems that Automatic Inn Company was a manufacturer of slot machines designed to sell sandwiches to the public. On September 30, 1926, after various negotiations and transactions between Automatic Inn Company, acting through its officers and agents on the one hand, and T. L. Camp and one Louis Lipsitz, who is dead and not sued, on the other, the following written contract was entered into between Automatic Inn Company and defendants, Foster and Davis-son.

“This memorandum of contract made between Automatic Inn Company, Incorporated, of Dallas, Texas, party of the first part, and G. B. Foster, and J. L. Davisson, parties of the second part, witnesseth:
“The party of the first part has sold to parties of the second part one hundred (100) Automatic Inns, numbers 5146 to 5245, both inclusive, and in payment therefor parties of the second part have executed to party of the first part their promissory note in the sum of twenty thousand and no/100 ($20,000.-00) dollars, due ninety days after date to be renewed in keeping with the terms of this contract.
“The party of the first part has executed to parties of the second part a bill of sale and service contract to which reference is here made.
“Now in consideration of this purchase and. as an endorsement therefor, party of the first part obligates and bind itself that upon ten days notice from parties of the second part after all of said one hundred Automatic Inns have been installed and in operation for a period of ninety days, to the effect that they are not satisfied with their purchase, said party of the first part will within ten days after receipt of such notice sell said machines for the account of parties of the second part and refund to them their entire. purchase money if said note has been paid'by them or has been discounted and sold by party of the first part. If said note is in the hands of the party of the. first part at said time they agree to cancel and return same to parties of the second part. If said party of the first part should fail to resell such machines within said ten days period and have negotiated or sold said note then in that event party of the first part obligates and binds itself to return to party of the second part the entire purchase money.
“During the ninety days period in which these machines are to be in operation before parties of the second part are called upon to exercise their option under this contract, the dividends paid thereon shall belong to parties of the second part.”

At the same time this contract was signed Poster and Davisson executed to the Automatic Inn Company the $20,000 nóte provided for in the contract. This' note is in the regular form of a negotiable promissory 'note, and is the instrument here sued on.

It is shown that Poster and Davisson were merely 'bookkeepers for Dipsitz and Camp, respectively. It is further conclusively shown that Poster and Davisson had no interest in the contract or note which they signed, but that Poster .-joined in the execution of the instrument at the instance of Dipsitz, and Davisson at the instance of Camp.

At the same time the above contract and note were executed and delivered to Automatic Inn Company, T. D. Camp executed and delivered to such company the following written instrument:

“September 30-, 1926.
“The Automatic Inn Company, Dallas, Texas. Gentlemen: Referring to contract this day made between your company and G. B. Poster and J. D. Davisson, wherein Poster and Davisson have executed to you a note for twenty thousand ($20,000.00) Dollars;
“This is to advise that this contract is made for the benefit of Douis Dipsitz and myself, and I hereby guarantee the payment of said note, or any renewal thereof.
“Yours truly, [Signed] T. D. Camp.”

Also at this time the Automatic Inn Company. executed and delivered the following instrument:

“This agreement, made and entered into this 30 day of September, 1926, by and between the Automatic Inn Company, Inc., of Dallas, Texas, as party of the first part, and G. B. Poster and J. D. Davisson, of the city of Dallas, county of Dallas, state of Texas, as party of the second part, witnesseth:
“That in consideration of twenty thousand dollars ($20,000.00) cash in hand paid, receipt of which is hereby acknowledged, the first party 'hereby sells to second party ICO Automatic Inns machines, numbered respectively 5146-5245 inc., in consideration whereof first party does hereby convey and sell unto second party, all of said machines above described, and further agrees that within 90 days from date hereof the same will be manufactured and delivered to the said second party at the factory of said seller in the City of Dallas, county of Dallas, state of Texas.”

Further at the same time a five-year service agreement was executed by the same parties. All of the above agreements and written instruments were executed and delivered at the same time as a part of the same transaction and in pursuance of the same common end to be attained.

On October 29, 1926, the $20,000 note and guaranty here sued upon were duly transferred by the Inn Company to the Dallas National Bank, and it is the legal owner and holder thereof in due course. Spiller and Bruce guaranteed the payment of the note to the bank.

It is conclusively shown that neither Poster nor Davisson had any interest whatever, direct or indirect, in the transaction. They took no part in any of the negotiations connected with such transactions and never at any time asserted any ownership or control over the properties or other matters here involved. They were not consulted prior to the time they were called on to sign the note, and other written instruments here involved, and, had the venture proved successful, would not have profited in any manner thereby, but all such profits and benefits would: have gone to Camp and Dipsitz. Also while the properties and rights provided in the contract on the face thereof accrued to Foster and Davisson, the real true ownership was in Camp and Dipsitz, for whose benefits the contracts were made.

The record further shows that Camp and Dipsitz did not in person execute the papers and notes here involved because they did not want their names connected with the transaction for various personal and business reasons.

About November 1, 1926, Camp obtained certain information about Bruce, president of; the Inn Company, which caused him to feel that he could not afford to be connected with him in a business way. This information was obtained prior to the installation of any of the sandwich machines purchased under the contract were installed or put in operation. As soon as Camp obtained this information, he informed Bruce, president of the company, that he would not proceed' further with the contract, and demanded a return and cancellation of the contract and note. This demand was refused, or at least not complied with. Some but not all of the sandwich vending machines were actually installed by the Inn Company after the demand by Camp for a return of the contract and notes, and Camp did actually receive profits therefrom. It is shown, however, that he has tendered the return of these profits.

The Dallas National Bank sought recovery of the amount due on the note. It sued Foster and Davisson as makers; it sued Camp as a maker, and on his written contract of guaranty; and it sued the other parties on their written contract of guaranty of payment to the bank.

Gamp defended on the ground that he did not sign the note; that, since the written guaranty signed by him was neither attached to nor made a part of the note; under the Negotiable Instrument Law of Texas, recovery could not be had against him in a suit on the note; that the written guaranty signed by him showed by its terms that it was special and personal to the Automatic Inn Company and could not be transferred; that the reference in the instrument of guaranty to the contract for the purchase of the machines destroyed the negotiability of the guaranty contract and also the negotiability of the note, if the guaranty should be considered as a part of the note; and that, by reason of these facts, the bank was not the holder of the note or the guaranty contract in due course, and therefore all of the defenses that he (Camp) had against the Inn Company are available to him against the bank.

After pleading as above, Camp pleaded fraud and misrepresentation as a defense. His pleadings and evidence will be treated as fully sufficient to establish such defenses, if they are available to him here.

The bank by its reply denied the allegations of Camp, and pleaded waiver and es-toppel. The bank also pleaded that it was a purchaser in due course.

Poster and Davisson defended on the ground- that the obligation was the real obligation of Camp and Lipsitz and so understood by all of the parties, and that the bank knew the facts surrounding the matter at the time they purchased the note. Poster and Davisson pleaded that, before they executed this note and the other instruments connected therewith, they were promised by Camp that he would execute the instrument of guaranty; that such instrument was executed and shows that the sole responsibility for the payment of the note was on Camp, and this was recognized by all parties to the various instruments; and that the bank purchased this note with full knowledge of this fact. The other guarantors made no defense to this action.

We treat the pleadings of all parties as sufficient to raise questions discussed by the Court of Civil Appeals and which we shall discuss.

As we understand the holding of the Court of Civil Appeals, it is to the effect that Poster and Davisson are not in law signers of the note except in a representative capacity as agents of Camp and Lipsitz, and that therefore Camp is treated as the real signer and Poster and Davisson not treated as signers at all, except in a. disclosed capacity as agents. The Court of Civil Appeals bases its conclusion on the construction they give to section 20 of article 5982, and section 29 of article 5933, R. C. S. of Texas, 1925 (Texas Negotiable Instruments Act). The two sections read as follows:

Article 5932, § 29. “Where the instrument contains or a person adds to his signature words indicating that he signs for or on behalf of a principal, or in a representative capacity, he is not liable on the instrument if 'he was duly authorized; but the mere addition of words describing him as an agent, or as filling a representative character, without disclosing his principal, does not exempt him from personal liability.”

Article 5933, § 29. “An accommodation party is one who has signed the instrument as maker, drawer, acceptor,’ or indorser, without receiving value therefor, and for the purpose of lending his name to some other person. Such a person is liable on the instrument to a holder for value, notwithstanding such holder at the time of taking the instrument knew him to be only an accommodation party.”

A careful reading of section 20, supra, discloses that it applies to an instrument signed by an agent, and that it is therein provided that, where the instrument itself contains, or where words are added to the signature indicating that the signer signs as an agent for and on behalf of his principal, or in a representative capacity, he is not liable on the instrument if he is duly authorized. These provisions are qualified’ by the last clause in the section, “but the mere addition of words describing him as an agent, or filling a representative character, without disclosing his principal, does not exempt him from personal liability.” We think this section of the act means to exempt agents who sign a negotiable instrument for their principal when they disclose in the body 'Of the instrument or words are added to the signature showing who the principal is, and showing that the instrument is intended to bind the principal and that the agent is only a means used to create the instrument. The language of the section is susceptible of no other construction. When we test the instrument in the instant case, and in doing so we treat the guaranty as a part of the note, by the above construction of section 20, supra, there is absolutely nothing in the instrument to suggest that Foster and Davis-son signed or intended to sign as agents of Camp and Lipsitz within the meaning of such section. In other words, there is absolutely nothing in the two instruments considered as one to indicate that Foster and Davisson did not intend to be personally bound by tbe note.

We are further of the opinion that, when this transaction is considered as a whole and the note and guaranty construed as one, Foster and Davisson signed the note as accommodation makers for Camp and Lip-sitz, and therefore their liability must be controlled by section 29, supra.

It is in effect provided by this section. that an accommodation party is one who has signed the instrument as maker, drawer,, etc., without receiving value, and for the purpose of lending his name to some other person. Under the statute such a person is liable to the holder for value, even if such holder knew, at the time of taking, the accommodation character of the person signing. We think further that the facts of this case and ■ the instruments themselves show absolutely and conclusively that Foster and Davisson signed this note, not as agents for Camp and Lipsitz, but to accommodate Camp and Lip-sitz, and to lend Camp and Lipsitz their names.

It is evident from what we have said that we held that the guaranty and the note constitute one instrument, and that the instrument is a negotiable promissory note. Also under the facts Camp is a principal signer and Foster and Davis are accommodation signers.

Gamp contends that his defense of fraud should have been submitted to the jury. As we understand his contention in this regard, they are based on two propositions: <a) That the guaranty- is not a part of the note, but a separate contract that does not constitute a negotiable instrument, and therefore he can assert the same defense against the bank that he could have assented against the Inn Company; and (b) that, if the guaranty is a part of the note, it renders the note nonnegotiable.

The, contention that the guaranty is not a part of the note has already been disposed of by us.

As to the contention that the guaranty renders the note nonnegotiable, our statute, article 5932, sec. 3 subd. 2, R.' C. S. of Texas 1925 (Negotiable'Instruments Act), provides:

“Sec. 3. An .unqualified order or promise to pay ⅛ unconditional within the meaning of this Act, though coupled with:
“2. A statement of the transaction which gives rise to the instrument,” etc.

In the case of Arrington v. Mercantile Protective Bureau, 24 S.W.(2d) 383, 384, section B of the Commission, speaking through Judge Leddy, construed the above statute in the following language: “In order to render an instrument nonnegotiable by reference to some extrinsic agreement, it must appear therefrom that the paper is to be burdened with the conditions of the agreement. There is nothing in the language used' indicating anything more than a mere reference to the transaction out of which the obligation arose. It is in effect a recital that the obligation disclosed by the instrument is one given for the purchase of goods from the drawer by the acceptor.”

When we come to examine the instrument here sued on, that is, the note and guaranty contract a® one, there is nothing to indicate that the note is burdened with any extrinsic contract or agreement.

We recommend that the judgments of the Court of Civil Appeals and the district court •be both reformed, and in part affirmed, and in part reversed and rendered, as follows:

(a) That the part of said judgments which award the bank a recovery against T. L. Camp be affirmed.

(b) That the part of said judgments which deny the bank a recovery against Foster and Davisson be reversed, and judgment here rendered against them, jointly and severally, in favor of the bank.

(c) That execution issue against Camp before it issue against Foster and Davisson or either of them.

(d) That the bank have judgment against Camp, Foster, and Davisson jointly and severally for all costs of appeal.

(e) That Foster and Davisson, and each of them, have judgment over against Camp for any sum or sums of money they may be compelled to pay on this judgment.

(f) That in ail other respects the judgments of the two lower courts remain undisturbed.

OURETON, C. J.

Judgment of the Court of Civil Appeals in part reversed and rendered, in part reformed, and, as reformed, affirmed, and in part af-. firmed, as recommended by the Commission of Appeals.


author: CRITZ, J. CURETON, O. J.

text:
    THOMPSON v. CALDWELL et al.
    No. 1437-5649.
    Commission of Appeals of Texas, Section A.
    April 1, 1931.
    Fuller & Leaverton, of Marfa, and Ben H. Powell and Ocie Speer, both of Austin, for plaintiff in error.
    Thomas B. Ridgell, of Breckenridge, for defendants in error.
   CRITZ, J.

This is a suit by Joe J. Caldwell and A. R. Flowers against J. J. Thompson for commissions alleged to be due by Thompson to Caldwell and Flowers for the sale of certain stock owned by Thompson in the Lone Star Stage Company, a corporation. It is contended by Caldwell and Flowers that Thompson listed the stock with them for sale, and that they procured a purchaser therefor. The case was submitted to the jury in the trial court on special issues, and on the answers of the jury to such issues judgment was entered for Caldwell and Flowers for $3,125, being 5 per cent, of the sale price of the stock. Thompson appealed to the Court of Civil Appeals at East-land, which court affirmed the judgment of the trial court. 22 S.W.(2d) 720. The case is in the Supreme Court on writ of error granted on application of Thompson. For convenience we will hereafter refer to Caldwell and Flowers as the plaintiffs and to Thompson as the defendant.

Defendant’s first assignment of error, and propositions thereunder, as contained in the application for the writ of error in the Supreme Court, reads as follows:

“1. The Court of Civil Appeals erred in overruling appellant’s 19th Assignment of Error, which assignment was as follows:
“ ‘The court erred in instructing the jury after they had retired for the consideration of their verdict and without submitting such charge to the defendant, as follows:
“ ‘ “The court has just received your written request to send to you in the jury room the deposition of Mr. Bowen. In reply the Court will state to you that under the law you are not permitted to take depositions to the jury room and I cannot, therefore, send it to you.
“ ‘ “Any testimony you want read you may have by stating in writing what part it is you want and then coming into open court for that purpose.” Because such was not the law, was prejudicial, ambiguous and misleading.’
“First Proposition: The action of the trial court herein complained of was a communication between the jury and the court in violation of Article 2197 of the Revised Statutes, the same not being in open court through the jury’s foreman as therein required.
“Second Proposition: The action of the trial court herein complained of was an instruction of the court touching matters of law pertaining to the case in violation of Article 2198 of the Revised Statutes, in this that the court then and there instructed the jury not in open court, and further more upon questions of law as to which the jury made.no inquiry.”

The nineteenth assignment of error, as contained in the motion for a new trial presented to the district court, and as presented to the Court of Civil Appeals, is in words and figures the same as the first assignment of error in this court, hereinabove quoted, except the first and second propositions under the assignment in this court were not contained in the assignment as presented to the trial court, or to the Court of Civil Appeals.

It is contended by the plaintiffs that the first assignment of error, as presented in the Supreme Court under first and second propositions thereunder, do not present the reasons for sustaining the assignment that were presented to the trial court and Court of Civil Appeals, but present for the first time in the Supreme Court, under the guise of propositions, new assignments of error, not assigned in either the trial court or the Court of Civil Appeals. We sustain this contention.

It is the rule that, unless the error is fundamental, it must be assigned in a motion for a new trial in the district court. This means that the ruling, act, or conduct complained of must be pointed out or stated in the motion for a new trial in such a manner as to apprise the trial court of the error complained of.

By his two propositions above quoted, and argument thereunder in this court, the defendant attempts to assign error because of the violation of articles 2197 and 2198, R. C. S. of Texas 192:5. In this connection, it is now here contended by the defendant that the error of the trial court consisted in his giving instructions to, and having a communication with, the jury at a place not in open court. If the office of an assignment of error-in the motion for a new trial in the trial court is to point out to the court the error complained of, and it is conceded'by the defendant that such is its office, then we must hold that the assignment as presented to the trial court presented no such issue as is here attempted to be presented. The assignment in that court, as above shown, did not contain the two jiropositions contained thereunder in this court, but expressly states^that the charge was error “because such was not the law, was prejudicial, ambiguous and misleading.” The locus of the transaction, that is, the place where it occurred, is not even remotely hinted at in the assignment. Furthermore, we have carefully examined the briefs filed by the defendant in the Court of C&vil Appeals, and it is not presented or argued therein that the error attempted to he presented under the nineteenth assignment of error in the motion for a new trial was misconduct of the trial judge in charging the jury out of the courtroom. In fact, the first time the matter here presented seems to have been alluded to is when the Court of Civil Appeals, in its opinion, called attention to the fact that the assignment did not charge misconduct on the part of the trial judge in delivering a charge lo the jury at a place not in open court.

For the reasons stated, this assignment of error as presented in this court will not be considered.

We think the Court of Civil Appeals has correctly decided the other issues presented.

We therefore recommend that the judgment of the Court of Civil Appeals, which affirms the judgment of the district court, be affirmed.

CURETON, O. J.

The judgments of the district court and Court of Civil Appeals’ are both affirmed, as recommended by the Commission of Appeals.


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

text:
    PATTON v. NEW AMSTERDAM CASUALTY CO.
    No. 1433-5641.
    Commission of Appeals of Texas, Section A.
    April 1, 1931.

      Cole, Cole, ■ Patterson & Kemper, W. L. Kemper, and Robert L. Cole, all of Houston, for plaintiff in error.
    Andrews, Streetman, Logue & Mobley, of Houston, for defendant in error.
   HARVEY, P. J.

On November 2, 1926, the plaintiff in error, R. R. Patton, who was an employee of Horton & Horton, sustained a personal injury in the course of his employment. The defendant in error, New Amsterdam Casualty Company, was the insurer under the Workmen’s Compensation Law. Patton, in due time, presented his claim for compensation to the State Industrial Accident Board, and, on March 28, 1928, that board duly made its final decision awarding Patton compensation at the rate of $20 per week for 401 weeks, less payments already made. The casualty company, within twenty days after entry of said decision of the board, filed with the board notice of the refusal of the company to abide by said decision. No such notice was given to Patton. Thereafter, on May 4, 1928, the casualty company filed this suit in district court of Harris county, to set aside said decision of the board. The trial court sustained Patton’s plea to the jurisdiction of the court, and dismissed the case. The plea was predicated on the failure of the company to give Patton notice of the company’s refusal to abide by said decision of the board, within twenty days from the date of said decision. The Court of Civil Appeals reversed the judgment of the trial court, and remanded the cause for trial on the merits. 22 S.W. (2d) 540.

Prior to the year 1927, section 5 of article ’ S307, of the Workmen’s Compensation Law (Rev. St. 1925), provided that: “Any interested party who is not willing and does not consent to abide by the final ruling and decision of said board shall within twenty days after the rendition of said final ruling and decision by said board give notice to the adverse party and to the board that he will not abide by said final ruling and decision.”

By an act passed in 1927, which became effective June 10, 1927 (Act 40th Leg. c. 223, § 1. [Vernon’s Ann. Civ. St. art. 8307, § 5]), the above provision of the statute was so amended as to require only the filing of said notice with the Industrial Accident Board. The sole question presented for decision is whether or not the mode of giving notice by the casualty company, of its refusal to abide by said decision of the board awarding compensation to Patton, is controlled by this statutory provision as so amended. A decision of this question involves the further question as to whether the provision, as amended, if given controlling force in this instance, will impair the obligation of a contract. If it will, then it cannot be applied here, for the reason that the Legislature is prohibited, by section 16, article 1, of the state Constitution, as well as by a similar provision of the federal Constitution (art. 1, § 10), from impairing the obligation of contracts.

The legal relation which arises between the employee, the employer, and the insurer, who bring themselves within the scope of operation of the Workmen’s Compensation Statutes, is contractual. Southern Casualty Company v. Morgan (Tex. Com. App.) 12 S.W. (2d) 200; Lumbermen’s Reciprocal Ass’n v. Henderson (Tex. Com. App.) 15 S.W.(2d) 565; Oilmen’s Reciprocal Ass’n v. Franklin, 116 Tex. 59, 286 S. W. 195. By implication, the statutes then existing become part of the contract. This, in a sense, includes the provisions of the statutes (Which deal with the matter of remedy. . The law, however, does not imply a purpose on the part of the parties to make such remedial provisions a part of the “obligation” of the contract. In presuming that the parties entered into the contractual relation in contemplation of the remedies afforded by the statutes, the law further presumes that the power of the Legislature to substitute other remedies was contemplated. Consequently, subsequent legislation, which effects a change in this respect, is not rendered invalid, as to said parties, by the constitutional provision against the impairment of the obligations of contracts, if an adequate remedy is left available. Farmers Life Insurance Co., v. Wolters (Tex. Com. App.) 10 S.W.(2d) 698.

The statutory provision involved in this controversy, as it existed prior to the 1927 amendment, related merely to the mode of procedure by which the decision of the Industrial Accident Board might be vacated; and the remedy in this respect, which the statute afforded after it was amended, is adequate for this purpose. The' casualty company having fulfilled the requirements of the statute, as amended, the trial court erred in refusing to take jurisdiction of the suit.

We recommend that the judgment of the Court of Civil Appeals, reversing the trial court’s judgment, be affirmed.

CURETON, C. J.

The judgment of the Court of Civil Appeals is affirmed, as recommended by the Commission of Appeals. .