text:
    TEXAS & N. O. R. CO. v. GOODWIN et ux.
    No. 2087.
    Court of Civil Appeals of Texas. Beaumont.
    June 29, 1931.
    Rehearing Denied July 1, 1931.

      Davis & Davis, of Center, and Baker, Botts, Andrews & Wharton and Arterbury & Coolidge, all of Houston, for appellant.
    Jones & Jones,- of Marshall, and Maurice Short and Dallas Ivey, both of Center, for ap-pellees.
   WALKER, J.

This was an action by appellees, B. V. Goodwin and wife, against appellant, for damages for the death of their minor son, Hulon Goodwin. Appellees plead many grounds of negligence against appellant, but only the following issues of negligence were submitted to the jury: (a) The failure of the operatives of the train to keep a lookout and to observe the position of appellees’ automobile on the track in time to stop the train and avoid the collision; (b) in the alternative, if a lookout was kept, and if the operatives of the train observed the automobile stalled upon the crossing, they negligently failed to stop the train or slacken its speed in time to avoid a collision; (c) the operatives of the train negligently failed to see or observe the condition of appellees’ automobile in time to avoid the collision; (d) generally, the issue of discovered peril.

Appellant answered appellees’ petition by pleas of general and special demurrers and general denial, and the following special pleas of contributory negligence against appellee B. Y. Goodwin: (a) He failed to look for a train as he entered upon appellant’s right of way; (b) he failed to look and listen and discover the approach of appellant’s train in time to extricate himself and son from danger; (c) he was driving under the influence of intoxicating liquor, which caused the collision; (d) he was guilty of contributory negligence, as a matter of law. Appellant also pleaded that it settled with appellees for the death of their son, paying them $600 therefor, and that appellees executed a written release against the claim asserted by this suit.

Appellees answered the plea of release as follows: They were untrained farmers, unversed in methods and transactions of the business world, not highly educated, and all writings signed' by them were written and prepared by appellant’s claim agent; before signing any papers for said agent they expressly stated that they wefe not settling or releasing any claim for damages on account of the death of their son, and the claim agent falsely and fraudulently represented to ap-pellees that said writing signed by them was simply a release of their claim for damages arising out of the destruction of the automobile and the personal injuries received by appellee B. V. Goodwin; that by these false representations of the agent they were induced to sign the release specially plead by appellant. All the issues of negligence above summarized were found by the jury in ap-pellees’ favor, and appellee B. V. Goodwin was acquitted of all acts of contributory neg-li'gence. The issues arising against the written release specially plead by appellant were submitted to the jury as follows, and answered as indicated:

“Special Issue No. 1-A.
“Do you find from a preponderance of the evidence in this case that on January 16th, 1930, the date of the releases signed by B. Y. Goodwin and Tessa Goodwin, one reciting a consideration of $600.00 and the other reciting a consideration of $333.00, and the checks issued by the defendant company to correspond with each release, that it was the intention and understanding with B. Y. Goodwin and Vessa Goodwin and the defendant company to accept these payments in full and final settlement for the death of their son, Hulon Goodwin?” Answer: “No.” -
“Special Issue No. 1 — A.
“Do you find from a preponderance of the evidence in this case that at the time plaintiffs signed the release and check for $600.00 on January 16th, 1930, defendant’s claim agent represented to them that they were not settling for any injuries on account of the death of their son, Hulon G'oodwin?” Answer: “Yes.”
“Special Issue No. 1-B.
“Do you find from a preponderance of the evidence that the plaintiffs believed said representations made by said claim agent were true?” Answer: “Yes.”
“Special'Issue No. 1-0.
“Do you find from a preponderance of the evidence that plaintiff’s belief of said representations induced them to sign said instruments on January 16th, 1930?” Answer: “Yes.”

Appellees’ damages were assessed at $6,000 and judgment accordingly entered in their favor, from which appellant’s appeal has been duly prosecuted to this court.

The following are the facts relied upon by appellees to escape the effect of the written release executed by them. Their son, Hulon Goodwin, was killed by appellant’s train on the 24th of December, 1929. About three weeks after the accident appellant’s claim agent negotiated a settlement with appellees which, on its contention, adjusted- all claims for the destruction of the ear, for personal injuries received by appellee B. Y. Goodwin in the accident, and the death of Hulon Goodwin. The car was totally destroyed, and B. V. Goodwin was slightly injured. According to appellant’s contention, it was to pay appellees for this release, $1,250, of which amount $600 was for the death of Hulon Goodwin, $333 for the injuries to B. V. Goodwin and the destruction of the car, and. the balance to a finance company that held alien against the car. Two written releases were executed by appellees. One release purported to settle the injuries to appellee B. Y. Goodwin and the damages to the car,.and recited a cash consideration of $333. The other release purported to settle for the death of Hulon Goodwin, and recited in part as follows: “In consideration of the sum of six hundred dollars ($600.00) to us this day paid by the Texas & New Orleans Railroad Company, we hereby release said railroad and all lessor and connected or associated companies from all claims, demands and causes of action against it and them which have accrued and may hereinafter accrue, to us for all damages of every nature whatsoever received in and resulting from an accident at or near Joaquin, Texas, on or about December 24, 1929, in which our son, Hulon Goodwin, was injured fatally, when auto he was riding in was struck by engine 263 handling train 25.”

This release was, in fact, signed by both appellees and verified by them as follows:

“The State of Texas, County of Shelby.
“Before me, the undersigned authority, in and for said State and County, on this day personally appeared B. V. Goodwin and wife, Mrs. Vessa Goodwin, known to me to be the persons whose names are subscribed to the within instrument, and being by me first duly sworn on oath, state that they executed the same for the purposes and consideration therein expressed; that they had read it, fully understands its meaning and effect, knows it is an unconditional release in full, and that they voluntarily executed it as such.
“Given under my hand and seal of office on this, the 16th day of January, 1930.
“E. L. Ramsey,
“[Seal] Notary Public,
“Shelby County, Texas.”

Against these releases appellees testified that at the time they signed and swore to the release for the death of their son, Hulon, the claim agent told them that the two releases were identical in all respects, and that the release was only for the injuries received by B. V. Goodwin and for damages to the car; the release for appellee B. V. Goodwin’s injuries and for damages to the car was read to them, but when the notary public started to read the other release the claim agent stopped him and said to the notary, “this paper is just like the other one”; all during the negotiations appellees refused to settle with the claim agent for the death of their son, and during the negotiations, and while the claim agent was preparing the releases, he repeatedly told them that he was not negotiating a settlement for the death of their son, but only for the other claims. On this issue B. V. Goodwin testified:

“It was the understanding all the way through that we were not settling for the child and when.he spoke to my wife he said ‘Mrs. Goodwin, we are not settling for the child, we are settling for the car and for Victor being hurt — not for tbe baby at all.’ My wife was crying when he made that statement to her in my hearing. ⅜ * * Mrs. Goodwin was crying during'all of that time (the negotiations in the drug store) and the claim agent said to her, ‘You are not settling for your baby, Mrs. Goodwin — you are not settling for the baby at all.’ He told my wife that in my presence and I relied on that statement he made because he had treated me like a nice man and I did him and I took him to be a man like myself.
“In response to the question, ‘State whether or not you would have signed any of those papers if you had not believed the statement of the claim agent,’ the witness answered: ‘It was not the agreement that I was, and if it had been I would not have signed them at all because it was not the agreement that I was to sign for my baby at all. I would not have signed any of those papers if the claim agent had not told me that I was not settling for my child. I relied on that statement.’
“ * * * The reason we did not read them was that be objected to Mr. Ramsey reading it to us and he told us that it was just exactly like the other one that Mr. Ramsey did read to us. (In response to question from Mr. Jones, the witness stated that *he’ was the claim agent.)
“This was all one transaction and signing the releases and handing the drafts over— it all took place there at the same time at the drug store and all the conversation there about the releases which were made there.”

Appellee Mrs. Goodwin testified: “There was not anything said to me and my husband with reference to whether or not we were settling for the death of our child, but we were not, as the claim agent said we were not signing for the death of the child, and he said that more than once. I would not have signed any paper there at all if it had not been for the statement of the claim agent that I was not signing for the child — I was not signing for the child and that was not our agreement. I relied on the statement of the claim agent that I was not signing for the death of our child.”

Carlton Goodwin testified: “There was not anything read there (drug store) at any time that said anything about the death of my brother. I heard a statement from the claim agent with reference to a settlement for the death of my brother before my mother signed any of those instruments. My mother was crying and he called her attention and told her we were not settling for the baby.”

Against the submission of the foregoing issues relating to the release and the jury’s answers thereto, appellant makes the following contentions:

(a) Question No. 1 was duplicitous. This contention is overruled. The testimony quoted above raised the issue that it was the intention of appellees, in signing the release in question, not to release appellant for damages for the death of their son.- Also, if the testimony of appellees was to be believed, the real intention of appellant was that appel-lees were not to be released. The agent so stated to them, and upon his representation they signed the release and he accepted it. The intention, in ■ fact, of appellant, in accepting the release from appellees, must be gathered from the terms of the contract upon which it was executed and delivered. The secret, fraudulent intent on the part of the claim agent to induce appellees to sign a release against the express intention of both parties forms no part of the contract. So far as question No. 1 was material, upon the issues involved, this exception against this question becomes immaterial and should not constitute reversible error. However, we think the answers of the jury to questions 1-A, 1-B and 1-C sufficiently dispose of the release, and that question No. 1 becomes immaterial.

(b) A second contention against the jury’s verdict is that appellees, having sworn that they had read the release and fully understood it, cannot be heard to say “that they swore to an untruth” and “it is contrary to law and to public policy to allow parties who can read and have full opportunity to read an instrument, to sign the instrurhent * * * and swear before a notary public that they have read it * * * and later to come into court and say they did not know what they were signing, and that the oath they took before the notary was false.” There is no merit in this contention. Under the statement of appellees, they signed and swore to the release in question, believing that it was the release for the destruction of the car and for the injuries received by appellee B. V. Goodwin; they were induced to so believe by the fraudulent conduct and representations of appellant’s agent; and, having an opportunity to read it, they were persuaded by appellant’s agent not to do so on his statement that it was identical with the release that had been read to them. A principal cannot secure immunity from the consequences of his fraud 'by having the contract sworn to, as was done in this case, nor can he in that manner evade responsibility for-the fraud of his agent, which inures to his benefit. Threshing Machine Co. v. Webb (Tex. Civ. App.) 181 S. W. 853. Acknowledgments to deeds, secured by fraud, are set aside. Conn v. Hagan, 93 Tex. 334, 55 S. W. 323, 325. When once it is established that a person has been induced to enter into a contract by fraud, it is no answer to his claim to be relieved from the contract to say that he might have known the truth by proper inquiry. Labbe v. Corbett (Tex. Sup.) 6 S. W. 812; Western Union Telegraph Co. v. Walck (Tex. Civ. App.) 161 S. W. 902; Chatham v. Jones, 69 Tex. 744, 7 S. W. 600; Railway Co. v. Shuford, 36 Tex. Civ. App. 261, 81 S. W. 1189; Railway Co. v. Harris (Tex. Civ. App.) 65 S. W. 885; Railway Co. v. Green (Tex. Civ. App.) 135 S. W. 1031; Transportation Co. v. Winters (Tex. Civ. App.) 193 S. W. 366; Railway Co. v. Thompson (Tex. Com. App.) 12 S.W.(2d) 963.' In Conn v. Hagan, supra, it was said: “When the party is misled by the fraudulent representation of the other party, and caused, by confidence in such person and his representations, to sign the instrument without reading it, this does not constitute such negligence as will deprive the maker of the instrument of equitable relief from the consequences of the fraudulent representation.”

(c) It is also contended that the answers of the jury to the foregoing questions are against the great weight and preponderance of the evidence. This contention is overruled. Appellant made a very strong case against appellees’ contentions, but, as seen from the quotations we have made from the record, there was abundant evidence supporting their theory of the ease and, in our judgment, it would be an abuse of the prerogatives of this court to set aside the jury’s verdict on the ground that their answers were without support on these issues.

The issue of discovered peril was submitted by the following questions; answered as indicated:

“Special Issue No. 7.
“Do you find from a preponderance of the evidence in this case that the deceased, Hulon Goodwin, was placed 'in a position of peril before the collision, as alleged in plaintiffs’ petition?” Answer: “Yes.”
“Special Issue No. 8.
“Do you find from a preponderance of the evidence in this case that those operating the train of the defendant company knew of .the perilous( situation of Hulon Goodwin, deceased, in time by the exercise of ordinary care, in the use of all means at hand consistent with the safety of the train and passengers thereon, to have avoided injuries to deceased?” Answer: “Yes.”

The contention is made (a) that these issues were not raised by the evidence, and (b) the jury’s answers thereto are without support in the evidence. The facts are as follows: appellee B. V. Goodwin with his four year old son, Hulon, left his home, west of Joaquin, on the morning of December 24, 1929, in a Chevrolet coach, for the purpose of making a visit to the home of his father-in-law, Mr. John Chesshire, who lived east of Joaquin and on the north side of highway No. 35, which runs through Joaquin in a general easterly and we'sterly direction. Appellant’s railroad track runs parallel with a highway in front of the Chesshire home and is between the highway and the Chesshire home. At that point the railroad right of way is fenced, but appellant maintained a gate in the right of way in front of the Chesshire home for the use of the public, generally, in going to and from the Chesshire home, that is to say, the crossing was not merely for the private use of Mr. Chesshire, but for the public, generally, for the purpose stated. At that point the appellant’s track is straight towards the west and east on both sides of the crossing for something like three-quarters of a mile. The approach to the crossing from the highway is level for a distance of about 25 feet, then 20 feet up grade, and level about 12 feet to the center of the track. The approach of the railroad to the east toward the crossing is a little up grade, and the distance from the gate to the railway track was about 50 or 55 feet. On the morning in question a very heavy snow was on the ground, but appellant’s steel rails were not covered with snow. In attempting to drive his car up to the Ches-shire house on the morning in question, ap-pellee B. Y. Goodwin drove down the highway to the gate in front of his father-in-law’s house, then through the gate and onto the railroad track. When he drove upon the track, his car stalled. While the car was thus stalled upon the track it was struck by appellant’s west-bound passenger train and hurled to the distance of about 75 feet. The train ran its full length, and 140 feet beyond the crossing. As above stated, Hulon Goodwin was killed in the collision, B. V. Goodwin slightly injured, and the car destroyed.

In its brief appellant says “the evidence shows that the track was straight for three-quarters of a mile or more.” In its answer it alleged: “Plaintiffs admit that the right of way is straight and level for at least three-quarters of a mile on each side of the crossing in question in both directions from same * * ⅜ and that there was absolutely nothing to prevent him (meaning plaintiff) from seeing said train, and that the weather was clear.”

Further explaining the facts of the accident, we quote with approval appellees’, summary of the testimony:

“Plaintiff drove his car from the highway toward the track of defendant. When about thirty-five feet from the track, plaintiff looked to the east, which afforded him a view 500 yards up the track, and there was not any train in sight at that time. The roadway looking as though cars had been going in and out, plaintiff thought he could also navigate the crossing, but when he got to the upgrade of the crossing, his front wheels dropped in between the middle of the two rails and his back wheels began to spin, causing the car to stop with the front wheels between the rails. The condition of the track made in the road by the car near the crossing showed after the accident that the wheels liad been spinning. Plaintiff began to ‘rock’ -or ‘jump’ tbe car by throwing in tbe clutch and releasing it in an- effort to dislodge it from its position and after doing this three or four times, during which time plaintiff did not hear any train approach or any -whistle blown or bell rung, plaintiff’s son stated that a train was coming. Plaintiff had not made an effort to dislodge the car by, •putting it in reverse, but had been trying to kick it over the track; so he made one last effort to dislodge and remove the ear hy throwing it in reverse to see if it would kick back over, but the rail stopped the wheels, leaving the car on the track.
“Plaintiff then turned around and got his child and saw the train for the first time, at least 250 yards from him. Simultaneously with turning to get his child, plaintiff opened the left door with his left knee, and had gotten out on the fender with the child when the train struck the car. In order to take the child from the car it was necessary to turn the right front seat down and lean back toward the back seat, something like two or two and a half feet, to reach the child.
“Plaintiff testified that as he approached the track, he was moving at three, or maybe four, miles per hour and that with his knowledge of speed, he could have easily crossed over the track before a train could have run a distance of four hundred yards or three hundred yards travelling at a speed of 45 miles an hour, if he had not been stuck on the track between the time he looked up the track at the point 35 feet distant and before the train struck his car. That the reason plaintiff did not look after he passed the point 35 feet from the crossing where he could see east a distance of four or five hundred yards, was his knowledge of the facts just set out.
“ * ⅜ ⅜ The train approached from the east to the crossing at a speed of about 45 miles per hour. It consisted of four or five ears, and never quit working steam before the collision; the operators of the train never shut off the power Pr quit working steam before the collision, much less applied the brakes. .
“Particularly do we call attention to the testimony of John Ohesshire, who. observed the train through a window of his house, seeing it approach something like 300 yards east of the crossing and watching it until it passed out of his- view about 40 feet east of the crossing to the effect that the train never did quit working steam while it was in his sight.
“During the time the train was approaching the crossing, the automobile of the plaintiff was stalled on the track with the wheels spinning, and being jerked forward and backward in an effort to remove it from the track. It is undisputed that the operatives of the train had a straight and unobstructed view as the same approached from a point three-quarters of a mile east of the crossing.
“ * * * The car was stalled on the track and had been making efforts to get off when the train was well to the east of a point 250 yards from the crossing. Leland Smoth-erman testified he was on the Joaquin and Logansport road at the time of the accident (which runs parallel with the track) some 100 yards west of the crossing and noticed Mr. Goodwin’s car sitting up there on the track; tha£ he did not know how long it had been there at the time he first saw it, and that he saw the train when it was 100 yards east of the crossing; that the car was rocking back and forth, ‘chugging up and down’ on the track. This witness testified that he was qualified to tell whether the engine quit working steam or the brakes were applied, and that if the engine ever quit working steam or the brakes- were applied on that engine -and train from the time he saw it, 100 yards east of the crossing until" the collision, he did not see it. He also testified that he saw the automobile at the very instant the train hit it, at which time Mr. Goodwin was trying to get out of his automobile and had one leg on the fender; that at this time the car was shaking;
“Mr. W. L. Childs was on the highway going to Haslom at the time of the collision, located about 75 or 80 yards west of the crossing. He noticed the automobile and train at about the same time, observing that the fore wheels of the automobile were on the crossing. At that time the train was about the same distance from the automobile as was the witness, some 75 or 80 yards down the track toward the east. The engine worked steam from the time the witness first saw it until after the collision. To this witness, it appeared that the automobile was standing perfectly still on the track; that when this witness saw the car and saw the train, he knew if the train did not stop or the car get off, the train would hit it.
.“Julia Ohesshire, witness for the plaintiff, substantiated the testimony that the car was rocking backward and forward while up there on the track; that it had been on the track for some little bit before she saw the train.
“Although there was no snow on the rails, and the sun had been shining on them all morning, the train collided with the car and ran west of .the crossing its entire length and 140 feet more. It knocked the automobile 75 feet from the crossing and 25 feet from the rail.
“With these facts, which were not disputed by the appellant, the appellees offered in evidence the testimony of N. B. Holman, veteran railroad employee, who had had about fifteen years experience as brakeman and conductor on trains equipped with air brakes, to the effect that a train with an engine carrying five or six coaches equipped with modern air brakes ought to stop in 200 feet where application of air was made on a level dry track when the train was running at 45 miles an hour. On cross examination this witness testified that on a cold day with about fourteen inches of snow on the ground, a passenger train running 45 miles an hour with all steel coaches, ought to stop in 200 feet if the brakes were put in emergency; that the witness had seen that done.
“Although both the engineer and fireman were in Center, under the rule of the court, and brought to court by the appellant, it did not use them as witnesses.”

The undisputed facts in this case show that the operatives of the train had a clear view .of the' crossing and of the dangerous position occupied by appellee, with facts sufficient to advise them that his car was stalled on the track. If the operatives saw appellee’s car, they must have known that an accident would result unless he drove his car, off the track, or the train was stopped. Apparently, appellant contends that it cannot be convicted of discovered peril in this case, because there was no direct testimony that its operatives knew of appellee’s danger ; that their engineer and fireman were in attendance on court and were available to appellees as witnesses-; that, not having used them as witnesses, the presumption must be that their testimony would have been unfavorable to appellees’ contention. Appellant’s contentions in this respect are not sound. ,It has long been the law of this state that discovered peril may be established by circumstantial evidence, even against the direct testimony of the operatives of the train. Thus, in Brown v. Griffin, 71 Tex. 654, 9 S. W. 546, 547, the Supreme Court said: “tip-on the theory that the jury were found to believe the fireman who swore he did not see plaintiff, this may be true. But the proof is that he was upon the engine, operating it, and that there was nothing in front of it to obstruct his view of the track. The jury might1 have presumed from this that he did see the plaintiff.”

Again, in Hines v. Arrant (Tex. Civ. App.) 225 S. W. 767, 769, the evidence was, as in this ease, that the operatives of the train had a clear view of the track for a long distance and of the place of the accident. Discussing the issue of discovered peril, the court said: “It has been decided by the Supreme Court and by this court that under circumstances similar to this the denial of the engineer that he saw a party in danger is not conclusive of that question. Brown v. Griffin, 71 Tex. 654, 9. S. W. 546; Ry. Co. v. Finn [Tex. Civ. App.] 107 S. W. 94; T. & N. O. R. Co. v. House [Tex. Civ. App.] 208 8. W. 358; Trochta v. Ry. Co. [Tex. Com. App.] 218 8. W. 1038.”

The court also said: “While the engineer testified that he did not see the appellee’s danger until the 'latter was on the" track, there were circumstances- which indicated that he did.”

The inferences to be drawn from the facts and circumstances in this ease supporting the theory of discovered peril, instead of being weakened by the failure of appellees to .offer as. witnesses appellant’s operatives of the train, were strengthened by the fact that appellant itself failed to offer these witnesses. Northern Texas Traction Co. v. Weed (Tex. Com. App.) 300 S. W. 41. Thus in Railway Co. v. Stovall, 272 S. W. 594, 596, speaking for the San Antonio Court of Civil Appeals, Judge Ely said:

“The appellant could have placed the engineer and fireman on the stand and have proved the train brakes were applied if it had been done. Neither was made a witness, and that fact is significant in tending to show that the train air brakes were not applied. The presumption would prevail that the engineer and fireman would have sworn that the aii brakes were not applied to the train. They knew and were not called by the party whose interest it was to have shown the brakes were applied. The witnesses were the employees of appellant. As said in Railway v. Day, 104 Tex. 237, 136 S. W. 435, 34 L. R. A. (N. 8.) 111;
“ ‘Since this was a fact peculiarly within the knowledge of the railway company, its failure to produce such evidence, when, if inquiry had been made, the proof was, not only readily accessible, but of value to it, might well justify the jury in concluding no such inquiry had been made.’
“We add that it is further presumable that, if the inquiry was made as to the testimony of the engineer, it was ascertained that he would swear that he only applied the air to his engine and not to the train. The engineer and fireman were present at and during the trial and could have been used by their employer had it so desired. They were not used, and, as said in Farmers’ Bank v. Burrus Mill Co. (Tex. Civ. App.) 207 S. W. 400:
“ ‘The failure to produce evidence within a party’s control raises the presumption that, if produced, it would operate against him; and every intendment will be in favor of the opposite party.’ ”
In Railway Co. v. Blair (Tex. Civ. App.) 184 8. W. 566, 568 (writ of. error refused), the court said:
“The fact that appellant, although it had its witnesses present, failed and refused to place them on the stand is another pregnant circumstance tending to establish the truth of appellee’s testimony. The presumption is that the evidence of their witnesses would not have shaken the evidence of appellee’s witnesses, nor strengthened the case of ap-. pellant. Welsh v. Morris, 81 Tex. 159, 16 S. W. 744, 26 Am. St. Rep. 801. As said in . Mitchell v. Napier, 22 Tex. 120:
“ ‘Where a party is thus afforded the opportunity to explain, and fails or refuses to do so, the rational and legal presumption is, that a disclosure of the truth would make against him. * * * ’
“It was said by Lord Mansfield:
“ ‘It is certainly a maxim that all evidence is to he weighed according to the proof which it was in the power of one side to have produced and in the power of the other to have contradicted.’
“This is a Quotation from an English case found by this court in Jones on Evidence, § 19.”

We are thordughly convinced that the issue of discovered peril was raised by the evidence, and that the jury’s verdict has full support thereon.

Appellant has attacked, as being without support and as being against the great weight and preponderance of the evidence, the answers of the jury to the issues submitting its negligence, and the answers of the jury excusing appellees from contributory negligence. We think the statement made above fully sustains the jury’s verdict convicting appellant of negligence on all issues submitted, and acquitting appellee of contributory negligence. Also, there was evidence to support the finding that appellee was not drunk at the time of the accident. We do not discuss these issues further, nor appellant’s assignments that the court erred in refusing to submit certain special groupings of fact on the issue of contributory negligence, because the jury’s verdict on the issue of discovered peril fully sustains the judgment, and we have merely referred to the jury’s findings on the other issues in order that appellant may have the benefit of our rulings thereon in any further proceeding it may desire to take in this case.

For the reasons stated, the judgment of the lower court is in all things affirmed.


source: Caselaw Access Project

author: JACKSON, J.

license: Public Domain

text:
    ACUFF v. FORT WORTH & D. S. P. RY. CO.
    No. 3505.
    Court of Civil Appeals of Texas. Amarillo.
    April 29, 1931.
    Rehearing Denied May 27, 1931.
    Nordyke & Pardue, of Lubbock, and Kinder & McMath, of Plainview, for plaintiff in error.
    Bean & Klett, of Lubbock, and Thompson' & Barwise, of Fort Worth, for defendant in error.
   JACKSON, J.

The plaintiff, M. S. Acuff, instituted this suit in the district court of Lubbock county, Tex., against the defendant, Fort Worth & Denver South Plains Railway Company, to enforce the specific performance of a contract made by the defendant with the plaintiff for the purchase of a certain tract of land, and in the alternative to recover damages for the failure of the defendant to specifically perform its contract.

The plaintiff alleges that on or about’November 8, 1929, he and the defendant entered into a valid contract, by the terms of which the defendant agreed to buy, for the sum of $1,650 from plaintiff, the tract of land described as follows: Beginning at the southeast corner of lot 13 in block 231 of the original town of Lubbock, Lubbock county, Tex.; thence south about 86 feet to the south line of survey No. 1, block O; thence west* 125 feet; thence north about 86 feet to the southwest corner of said lot No. 13, block No. 231; thence east 125 feet to the place of beginning.

- That plaintiff performed all the terms and conditions imposed upon him by said contract, including furnishing a perfect abstract showing good and merchantable title to the tract of land, tendering defendant a proper warranty deed therefor. That the*defendant has gone upon, taken possession of, and appropriated said tract of land to its own use and benefit, but has failed to accept a deed from plaintiff and pay him the consideration provided in the contract for said tract of land.

The plaintiff asked, in the alternative, if he is not entitled to specific performance, that he recover damages in the sum of $1,650 against the defendant, which he alleges is the reasonable value of the land in controversy.

The defendant answered by general demurrer, general denial, and admitted that it entered into a contract with plaintiff to buy said tract of land and agreed to pay him therefor the sum of $1,650, provided the plaintiff owned and could and would convey to tlie defendant a clear, fee-simple title to said tract of land, and furnisli an abstract showing such title to be perfect and merchantable. The defendant specially alleges that the plaintiff did not tender and could not convey a perfect, merchantable title to said land, and did not and could not furnish an abstract showing such title. That long prior to the contract between the plaintiff and the defendant, the tract of land involved in this controversy had been expressly and also impliedly dedicated to the public as a part of a public street in the city of Lubbock, and is and constitutes a part of Nineteenth street in said city. That the plaintiff and those under whom he claims have ratified the dedication of said tract of land for public use as a street, and the plaintiff is estopped from asserting title thereto. That inasmuch as the plaintiff failed and was unable to furnish an abstract and convey to the defendant good and merchantable title, it refused to accept a deed from plaintiff and pay him for said land.

The defendant urges, and plaintiff admits, certain other defects in the title, but, in the view we take of the case, they are immaterial to a disposition of this appeal.

The trial court at the conclusion of the evidence peremptorily instructed the jury to return a verdict for the defendant, and, on such directed verdict, entered judgment that plaintiff take nothing by his suit.

The plaintiff, hereinafter called appellant, by writ of error prosecutes this appeal, challenging as error, by proper assignments, the action of the trial court in directing a verdict against him.

The record discloses that on December 19, 189Cf, E. E. Wheelock and associates owned section 7 in Lubbock county, and had laid out a town thereon known as Lubbock. That W. E. Rainer et ai. owned section 20 in said county, and had laid out a town thereon known as Monterey. That E. E. Wheelock and associates, as first parties, and W. E. Rainer et al., as second parties, entered into a written contract by the terms of which it was agreed that the1 first parties would abandon the location of Lubbock on section 7 and second parties would abandon the location of Monterey on section 20, select another section, consolidate the two towns, and locate on the selected section one town to be called Lubbock. That the map and plat theretofore made and used for the town of Monterey should constitute the map and plat for the subdivision of the section selected on which the two consolidated towns "called Lubbock should be located. That said plat should be used for the new town of Lubbock, which should be laid off exactly according to said plat, a copy of which plat was attached to and made a part of the contract. The said contract provided that after the selection of a section on which to locate the new town of Lubbock, and the map and plat theretofore made for Monterey had been filed and recorded, that first parties should convey to second parties certain lots in certain specified-blocks, and that second parties should convey to first parties certain specified lots designated on said-plat. In pursuance to the provisions of such contract, section 1, block O in Lubbock county was purchased and conveyed to Wheelock and Rainer and said plat was marked Lubbock, and filed and recorded as the plat of the town of Lubbock, subdividing said section 1 into lots, blocks, streets, and alleys. The plat shows that certain streets are 100 feet wide, and all others 75 feet wide. That certain alleys are 15 feet wide, and all others 20 feet wide. ■ *

On January 15, 1891, a deed was executed by W. E. Rainer and E. E. Wheelock, conveying to the public for public use a public square and all the streets and alleys on said plat within four blocks of said square, so long as the public used them as such. This dedication deed and the plat were filed for record on January 16, 1891, and recorded in volume 5, pages 884, 885, and 386 of the Deed Records of said county. On January 26, 1891, W. E. Rainer conveyed to F. E. Wheelock the certain lots and blocks stipulated in the contract and designated on the plat according to the recorded plat of the town of Lubbock. On January 31, 1891, F. E._ Wheelock conveyed to W. E. Rainer the certain lots and blocks specified in said contract designated on the plat according to the recorded plat of the town of Lubbock.

All streets running north and south are named on the plat, and the seven streets running east and west on the north of the public square, and the seven streets running east and west on the south of the public square are named on the plat. There appears on the recorded plat a strip of land on the north, and on the south thereof, hut such strips were not named as streets. The tract of land in controversy is located in the strip of land on the south of the plat and adja-. cent to and south of lot 13 in block 231. All streets and alleys on the plat running north and south open into the strip of land on the north, and also open into the strip of'land on the south of the plat.

On April 18, 1906, W. E. Rainer and wife conveyed to J. W. Winn, R. M. Clayton, and W. A. Carlisle, several hundred lots, including eleven lots in block 231, according to the recorded plat of the town of Lubbock. On May 11th, thereafter, Winn, Clayton, and Carlisle conveyed to the Lubbock Townsite Company, something over eleven hundred lots, including the eleven lots above mentioned in block 231, according to the recorded plat of the town of Lubbock. Also, their interest in all strips not laid out and platted in town lots on said section 1. On May 27, 1907, by quitclaim deed, the same grantors conveyed tbe same lots to the same grantee, according to the recorded town plat of Lubbock, and also the streets and strips not laid off and platted.

On March 26, 1907, F. E. Wheelock and the Lubbock Townsite Company, by a dedication deed, conveyed to the public the streets and alleys shown by the recorded plat of the town of Lubbock, except such streets and alleys as had theretofore been conveyed to the public.

On February 18, 1921, the city of Lubbock, by ordinance adopted and had recorded in the deed records an official map of the city, which included the original plat of said section 1, and designated on said official map the strip, a part of which is in controversy, as Nineteenth street.

On October 13, 1902, F. E. Wheelock' and W. E. Rainer, by their respective conveyance, conveyed to each other the strips of land on the north, east, south, and west of the platted blocks, and F. E. Wheelock was deeded the strip of land on the south of the east half of- said plat, a part of which is in controversy. Both of these deeds refer to the recorded plat of the town of Lubbock.

The appellant acquired the title asserted by him to the land in controversy by a regular chain of title from F. E. Wheelock, who conveyed it to S. J. MeLin on October 14, 1919. Taxes have been paid on the tract claimed by appellant to the city, state, and county, for fourteen years prior to 1929. At some time, the date of which is not shown, a small house was built immediately west of the tract in controversy. The city of Lubbock was located on section 1, block O, patented as 640 acres, and the strip on the south of the original town plat is commonly known as Nineteenth street. This strip is paved for a mile and a half west of the center of section 1. The town of Lubbock, from 1891 to 1907 or 1908, made very little growth, except on the original town section, and there has been little building in the part of the town where the land in controversy is situated, and very few streets graded or opened up in that part of the town.

This record shows that the plat was intended to cover a section of land. That section No. 1, block O, is described in the patent as 1,900.8 varas square. That the strip of land on the south lies between the south boundary line of the plat and the south boundary line of the most southerly blocks. That each street and alley running north and south opens into this strip. That west from the center of section 1, this strip has been paved as a street. These facts, together with the plat and the two dedication deeds, the various conveyances of lots and blocks according to said plat, in our opinion, constitute an irrevocable dedication of the strip of land, a part of which is in controversy, to the use of the public. If there had been written on this strip indicated on the plat a name for a street, no one would question the absolute dedication.

In Martinez v. City of Dallas, 109 S. W. 287, 289, the Court of Civil Appeals, speaking through Chief Justice Rainey, says: “There is no controversy but what Ervin made a map of Ervin’s addition to the city of Dallas, signed and acknowledged it, and had it recorded in the county records of Dallas county. This map indicated the subdivisions by blocks, lots, streets, and alleys, the streets being named, but the alleys were not named. The strip in controversy was not named on the map. ,It shows a strip wider than the alleys, but not quite as wide as the streets named. To one buying property in Ervin’s addition to the city of Dallas the recorded map clearly indicated that the strip was intended as a street or an open way reserved for public use. This being the condition when Loeb and Brozius bought, we think the court properly construed the map as a dedication, and there was no error in the charge in the respect complained of. Oswald v. Grenet, 22 Tex. 99.”

The Supreme Court, in an opinion reported in 102 Tex. 54, 113 S. W. 1167, says that the Court of Civil Appeals was right in the case, supra, in holding that the recorded plat “showed on its face a legal dedication of the land in controversy fór a public way, and justified the trial court in so instructing the jury,” citing authorities.

In the same opinion the Supreme Court also approved the holding of the Court of Civil Appeals that the deeds “made before the conveyance to Over and to Ervin’s addition, must be taken as referring to the map of his addition, which he had shortly before caused to be recorded, and that this justified the further holding that it was not thereafter in his power to revoke the dedication by the last-named conveyance,” citing authorities.

S.ee, also, City of Corsicana v. Zorn, 97 Tex. 317, 78 S. W. 924; Town of Refugio v. Strauch (Tex. Com. App.) 29 S.W.(2d) 1041, 1045.

The law announced in the opinions cited, supra, in view of this record, in our opinion is conclusive against appellant’s contentions, and, if we are correct in so holding, the assignments complaining of the exclusion of oral testimony are immaterial.

It will be noted that appellant’s suit was for specific performance, and in the alternative for. damages. Under the facts of this record he was not entitled to specific performance, and no testimony was offered to show that he sustained any damages. The record shows without dispute that appellant does not own any property north or south of the strip in which the land to which he asserts title is situated.

The judgment is affirmed.


author: RANDOLPH, J.

text:
    NAYLOR-COLLINS CO. et al. v. LEAVERTON.
    No. 3594.
    Court of Civil Appeals of Texas. Amarillo.
    May 27, 1931.
    Rehearing Denied June 17, 1931.
    Pardue & Harrelson, of Lubbock, for appellant Naylor-Collins Co.
    Bledsoe, Crenshaw & D.upree, of Lubbock, for appellant American Window Co.
    Bonner, Bonner & Childress, of Wichita Falls, for appellant City Nat. Bank.
    Wilson, Randal & Kilpatrick, of Lubbock, for appellee.
   RANDOLPH, J.

The following statement of the nature and result of suit is taken in the main from ap-pellee’s brief:

• On April 11,1929, Naylor-Collins Company, alleging itself to be a Texas' corporation of Wichita Falls, Tex., filed in the district court of Lubbock county, Tex., its original petition against the appellee, basing its suit on only an open account with an alleged balance of $1,967.41. No mention is made in this petition of any contract and the statement of the alleged account is attached to the original petition.

On June 25, 1929, the City National Bank of Wichita Falls, Tex., as intervener, filed in this suit a pleading which is called an “inter-pleader,” in which it is alleged that before the commencement of this suit the plaintiff had assigned its alleged open account to the bank and at the time of its interpleading the bank was the owner of the account. It further alleged that the suit filed by Naylor-Collins Company against Leaverton had been collusively instituted and prosecuted by Nay-lor-Collins Company, at the request of the defendant Leaverton, with the intent to defraud the creditors of Leaverton and especially the bank, and that at the time of the filing of the suit, the said account was not the account of Naylor-Collins Company, and at the time of the. filing of the interpleader,' was not its property, but that the bank was the owner of the account by reason of the assignment. The Naylor-Collins Company and the bank were represented by the same attorney in the filing of these pleadings and throughout the suit.

On March 5, 1930, the Naylor-Collins Company and the Wichita bank joined in a pleading which is indorsed “Plaintiffs’ Amended Petition,” but which does not appear in the body of the petition to be an amendment of any sort proceeding as an original petition. In this pleading the open account in favor of Naylor-Collins Company against Leaverton for a balance of $1,967.41 was again alleged. The pleading then alleges that on September 22, 1928, the account was assigned by Naylor-Collins Company to the Wichita bank. The petition further alleges that on January 21, 1929, the Wichita bank reassigned the account to Naylor-Collins Company, and that at the .time of the filing of this pleading the bank was not claiming any interest in the account because of said assignment. It proceeds further, however, to allege that on April 30, 1929, which was after the original petition of Naylor-Collins Company had been filed, and before the original interpleader of the bank had been filed, the Naylor-Collins Company, by a deed, had transferred and conveyed to the bank all the assets of the Naylor-Collins Company, including the good will, franchise, planing-mill, real estate, choses in action, and other tangible assets then belonging to the Naylor-Collins Company,, and that at the time of the filing of this joint petition the bank was the holder and owner of all such assets, including the account sued upon. It further alleged that by reason of such conveyances and by virtue of its ownership of the assets of the Naylor-Collins Company, the bank was entitled to recover from Leaverton judgment for the alleged balance due on same. This document went on to state that in the event the court should find that by the transfer of all of its assets, the Naylor-Collins Company had ceased to retain its corporate identity, then .the plaintiff bank, being the owner and holder of all of said assets, was entitled to maintain this action and entitled to a judgment against Leaverton. It alleged that the account referred to was the outgrowth of a contract between Leaverton and Naylor-Collins Company, a copy of which was attached to this joint pleading. A copy of the deed of conveyance from Naylor-Collins Company to the bank was also attached to this joint pleading.

. Just two days before this joint pleading had been filed, Leaverton, on March 2, 1930, filed his first amended answer' in response to plaintiff’s original petition, the original plea of intervention or interpleader filed by the bank and the pleading of the American Window Company, which had in the meantime been interpleaded by Leaverton and had answered in the suit. Leaverton denied the account under oath and alleged his contract with Naylor-Collins Company, by which contract Naylor-Collins Company had agreed to furnish all millwork for the Texas Technological College Chemistry Building, said mill-work to he furnished according to the plans and as described in specifications under the heading of “millwork,” prepared by the architect of the building. He alleged that the plans and specifications under the heading of “millwork,” as referred to, provided that the windows were to be equipped with American Window Company hardware. The defendant Leaverton further alleged that the Naylor-Collins Company had violated many provisions of its contract with reference to properly manufacturing the material, and that Naylor-Collins Company 'had failed and refused to deliver some of the material and had delivered wrong kinds of material, and that Leaverton had been required, by reason of .such failures on the part of the Naylor-Collins Company, to furnish material and labor, the value of which more than offset the balance claimed to be due on the account; he also alleged that by reason of the contract, the Naylor-Collins Company was liable for the debt alleged to be due to the American Window Company; he denied under oath any debt due by 'him to the American Window Company, and asked that his damages incurred by reason of Naylor-Collins Company’s default be offset against the debt alleged'by Naylor-Collins Company; he also alleged that Waples-Platter Company was claiming an assignment of the account sued upon and made that company a party to the suit.

This company later disclaimed any interest in the subject-matter .and no further mention need be made of it.

On March 5, 1930, the American Window Company filed an answer in response to the pleadings of Leaverton, Naylor-Collins Company, and the bank, in which pleading it alleged a debt of $1,054 to be owing it by Lea-verton by reason only of a sale of its merchandise to Leaverton at his special instance and request. It alleged that it had furnished Leaverton its prices on its material, and that thereafter Leaverton had ordered goods from it, and that the goods had been sold and delivered to Leaverton on this order of Leaver-ton. There is an attempt in this pleading to allege an implied obligation on the part of Leaverton to pay it the sum sued for.

After all of these pleadings had been filed in this ease, Leaverton, in response to all of them, filed on October 13, 1930, his second amended original answer, denying under oath any account in favor of any of the parties. He again alleged his contract with Naylor-Collins Company. He alleged in detail each item of expense which he had necessarily incurred in performing work and furnishing material, which Naylor-Collins Company had contracted to perform and furnish, alleging the actual cost and the reasonable and customary market value. He also alleged delays which damaged him and the amount in which he was damaged. He also alleged that Naylor-Collins Company, by its contract, had agreed to furnish the hardware which the American Window Company, alleged that it had sold to Leaverton; he expressly denied any liability for the hardware, denying that he agreed to pay for same; and alleged that he would not have agreed to pay for same under any circumstances and that he would not have allowed the hardware to be delivered and installed if he had known that the American Window Company would contend that he was liable for same or that Naylor-Collins Company did not expect to pay for same. He also alleged that if the court should find that he was liable for sam'e, then that said sum should be added to his other offsets and that he should recover from Naylor-Collins Company such additional sum. He also alleged that the plaintiffs were liable to him for all of the items pleaded as damages; pleaded them as off-sets for the debt sued upon, and alleged a liability on the part of the plaintiffs for the amount by which his damages exceeded the debt sued for by plaintiff.

Leaverton further alleged in this answer that by reason of the transfer of all corporate property and franchise by Naylor-Collins Company to the hank, as pleaded by both of the plaintiffs, the City National Bank of Wichita Falls occupied the same position in said suit and was in reality the same corporation as the Naylor-Collins Company, and that by reason of the allegations of the plaintiffs and the offsets and damages claimed by the defendant, both of the plaintiffs were liable to him in the same manner. He also alleged that by reason of said transfer pleaded by the plaintiffs, the City National Bank had become, under the law, a trustee and receiver for the benefit of any and all creditors of the Naylor-Collins Company and that the said bank was therefore liable to the defendant as stated. He also alleged that such hank was liable to him on an implied promise to pay such debt.

The case was tried before a jury, beginning October 17, 1930. The court submitted to the jury twenty special issues, some of which were requested by the plaintiffs and some by the defendant and some by the American Window Company. After the verdict was returned, Beaverton filed a motion for a judgment in his favor, and on October 23, 1930, judgment was rendered, in substance, that the parties take nothing against Leaverton; for the American Window Company in the sum of $1,054 as against Naylor-Collins Company and the Wichita bank and in favor of Beaver-ton and against the Wichita bank and Naylor-Collins Company in the sum of,$24.81.'

The American Window Company has appealed from the judgment of the court denying it a recovery against Beaverton; the Wichita bank and the Naylor-Collins Company have appealed from the judgment allowing the American Window Company a recovery against them; the Wichita bank has appealed from the judgment allowing Beavei'-ton a recovery of $24.81 against it. The Nay-lor-Collins Company filed its appeal bond, but in its brief admits that the judgment so far as it and Beaverton are concerned is proper.

The bank does not complain of the judgment in favor of Beaverton denying the plaintiffs a recovery of the debt sued for, which is the main cause of action.

The appellant American Window Company’s first proposition is as follows: “The letter from the American Window Company to Beaverton, dated April 9,1928, and Beaver-ton’s letter to the American Window Company of October 25, 1928, construed in connection with the other correspondence and followed by shipment and delivery of the hardware to Beaverton, and its reception and use by him, constituted a complete contract of bargain and sale as between the American Window Company and Beaverton.”

The cross-action of the defendant American Window Company declares first upon an express order and promise of the defendant Beaverton to pay it for the millwork furnished for his contract for the erection of a college chemistry building, and in the alternative that by the use of said material by him in the building which he was erecting, there was an implied promise, to pay for same.

The issues stated as between the American Window Company and Beaverton were not submitted to the jury, but in the court’s judgment, he finds that the window company is not entitled to recover judgment against the defendant Beaverton, but that it is entitled to recover against the plaintiffs, the Wichita Bank and Naylor-Collins Company, for the sum of $1,054.

The American Window Company tendered its special charge to the court in which the court is asked to instruct the jury to return a verdict for it against the defendant Beaver-ton for the sum sued for by it. This peremptory instruction the trial court refused to give. The question for us to determine, therefore, is: Was there any evidence before the court and jury which sustains the window company’s pleqding that defendant Beaver-ton had contracted and promised to pay for the goods furnished by that company? Second, do the facts in evidence show an implied promise on the part of the defendant Beaver-ton to pay for such millwork which went into the chemistry building, to the American Window Company?.

There is no evidence to warrant a .verdict in favor of the American Window Company under its pleading that the defendant Beaver-ton himself ordered and contracted with the window company for the millwork. We will now digest the facts in the evidence to see whether or not there was an implied promise on the part of Beaverton to pay for such material the reasonable value of same, which was used by him in the said building.

The American Window Company knew that the hardware which it delivered to the defendant Beaverton was specified as a part of the millwork; that it had mailed to Beaver-ton a request to be informed of the name of the contractor who secured the millwoi’k contract under him; that it later learned and knew that Naylor-Collins Company had secured such subcontract and were bound to furnish same. It also co-operated with Nay-lor-Collins Company on the preparation and installation of the windows and hardware, and the only correspondence it had with Bea-verton was as to the progress of the building so that it might know when the material should be furnished. No evidence was introduced to show directly or by implication that it was selling its bill of materials to Beaver-ton. In its correspondence with Beaverton, the window company, on April 9, 1928, wrote him:

“We attach hereto data covering the information you may need in connection with window specifications on chemistry building for Texas Tech at Lubbock. We are informed that your firm is submitting bid for the erection of this building.”
“Special Request: In the event your firm is awarded the general contract for the erection of this building, kindly notify us as soon as possible what concern will furnish the mill-work.”

The following letter making proposition by Naylor-Collins Company to Leaverton to furnish the millwork for the chemistry building and the acceptance of same by Leaverton is here quoted as the contract between Naylor-Collins Company and Leaverton for said mill-work:

“H. J. Naylor C. B. Bailey
“Naylor-Collins Co., Lumber-Millwork 8000 Grant Street,
“Phone 9159.
“Wichita Palls, Texas, May 3,1928.
“Mr. D. N. Leaverton,
“Lubbock, Texas.
“Dear Sir:
“We propose to furnish the Millwork for the Chemistry Building, Texas Technological College, located at Lubbock, Texas, according to the plans and as described in specifications under the heading of Millwork, prepared by the architect, Wyatt C. Hedrick, for the sum of Eight Thousand and Ten Dollars ($8,010.-00). Price P. O. B. Wichita Palls, Texas, full freight allowed to Lubbock, Texas.
“Millwork as follows:
“All exterior doors and window frames nailed up, pulleys installed.
“All exterior panel doors. All sash doors and transoms glazed.
“All windows glazed. (DSA Libbey Owens).
“All inside door and sash frames K. D.
“All interior paneled doors. All sash doors glazed.
“All transoms and sash glazed.
“All interior door and sash trim cut to rough lengths.
“All base, picture mould and hanging strips. All risers for platforms in rooms #100 and ¡#204. All blackboard trim.
“All beams for Lecture Rooms built up. All stair rail.
“All bulletin Boards complete with cork hack. All wood shutters.
“All material belt sanded for painters finish.
“Por priming all window frames and sash, staining and shellacing and back painting all interior trim and doors for-the sum of One Thousand Three hundred Forty ($1,340.00) Dollars.
“Deduct for all door frames, doors, window) and door trim, blackboard trim, picture mould and handing strip and shutters for ground floor, the sum of Nine Hundred Sixty-Pour (964.00) Dollars.
“Deduct for priming and painting interior trim for Basement Three Hundred Forty-Seven ($347.00) Dollars.
“We do not include sash cord or weights, bucks or grounds.
“Yours very truly,
“Naylor-Collins Co.,
“By J. G. Bennett.”
“Accepted:. D. N. Leaverton.”

The window company addressed a letter to Leaverton dated August 7, 1928, in which Leaverton was asked the approximate date that he would be ready to have the window sash installed in the chemistry building and for a list of the finishes for hardware. Not receiving a reply to this, the window company again wrote him, calling his attention to the matter. On August 29,1928, Leaverton wrote the window company the following reply:

“Lubbock, Texas, Aug. 29, 1928.
“American Window Co.,
“Houston, Texas.
“Gentlemen: Re: Chemistry Building, Tech
College, Lubbock.
“Acknowledging your letter of the 23rd, at the state the work is in now it is hard to estimate just when will be ready for installation< of windows, however an approximate date would be sixty days from now.
“It may be that we will be ready a little earlier, or possibly a little later than the above date, just depends upon the progress made on the brick and plaster work.
“Will endeavor to let you have more definite information as soon as we can give it, however, the above will give you a basis to figure on.
“Regarding the hardware, same will be the Russell & Erwin finish 11-0, no lac., all hardware in above finish except in Toilets, and that in nickel.
“If the above information not sufficient on the hardware would ask that you write the Myrick Hardware Co., Lubbock, Texas, who have the contract for furnishing the hardware, and they will be glad to give you any additional information.
“Yours truly,. D. N. Leaverton, w.”

Leaverton wrote the window company on October 9,1928, asking it at what stage of the work was'it preferable to install the windows, in which he informs the company that he has the promise of shipment of the windows “next week” and would like for it to advise him if it would be profitable to “jump” the windows in and set after the plaster was applied. This was answered by the company October 11, 1928.

The other correspondence to and from Leav-erton and the company related to just such matters as are indicated in the letters given above, and it is not necessary to cite them, as they do not contain any instruction that in our view implies that Leaverton was to contract direct with the window company or that he had contracted with it.

These letters are just such letters as a general contractor would write to a subcontractor who was under a contract through Naylor-Collins Company to furnish the millwork to Leaverton under his general contract.

There are various circumstances in evidence indicating that the American Window Company knew that Naylor-Collins Company were the subcontractors for the millwork and that question is definitely settled by the letter introduced from the files of the window company, from Naylor-Collins Company to the window company, dated May 5,1928, in which Naylor-Collins Company informed the window company that that company had secured the contract for the chemistry building at Lubbock, Tex., and asked the window company to send the Naylor-Collins Company details of the operations of the windows, using the American Window Company hardware and stating that it would prefer that the window-company send it a set of hardware for one window.

On the 31st day of May, 1928, the following letter was written by Naylor-Collins Company which shows to have been received by the window company: “In reply to your request, we will send you approved details and schedule covering the frames of the AWCO type for the chemistry building at Lubbock just as soon as we receive same from the architect.”

Again, on June 9,1928, Naylor-Collins Company notified the window company that it was sending the details and schedule to the window company indicated in previous letter.

The following copy of letter from the window company to Naylor-Collins Company was introduced in evidence as coming from the correspondence file of the window company:

“May 7th, 1928.
“Naylor-Collins Co.,
“3000 Grant Street,
“Wichita Palls, Texas.
“Gentlemen:
“Replying to your letter of the 5th, we are glad indeed to learn that you have the mill-work contract for the Chemistry Building for Texas Tech at Lubbock.
“Mr. O. C. Winston who is the head of our Architectural and Engineering Department will be in your city Wednesday of this week, and will give you all information you may need in regard to frames, sash, etc. for this job.
“Thanking you in advance for any courtesy you may extend Mr. Winston, and with the writer’s kindest regards to your Mr. Naylor, wo are,
“Yours Truly,
“O. H. Shepherd, Vice President.
“CC Mr. Winston.”

Prom these letters it will be seen that the window company was fully aware of the fact that Leaverton was the general contractor for the erection of the Chemistry Building and that Naylor-Collins Company were subcontractors for millwork under Leaverton. Purther, it is apparent that whatever connection the window company had with the building contract must have come through Naylor-Collins Company. As stated above, there is nothing in the facts and circumstances in evidence to show expressly or impliedly that Leaverton was liable to the American Window Company for the millwork that was used in the Chemistry Building.

This holding not only covers the appellee the American Window Company’s first proposition, but also concludes and answers all its assignments of error.

Appellant Naylor-Collins Company in its brief concedes the correctness of the judgment for $24.81 rendered in favor of Leaver-ton against it, but contests the judgment of the American Window Company against it.

The judgment iecites that the parties in open court admitted on the trial of this case that the reasonable value of the merchandise furnished by the American Window Company was $1,054, and that same had not been paid.

It is apparent from the statement heretofore made and from the findings of the jury that Naylor-Collins Company contracted to furnish tthe hardware so purchased from the American Window Company for use in the Chemistry Building; that same was furnished by said window company to Naylor-Collins Company as a subcontractor under Leaverton, and it can serve no useful purpose to cite the facts establishing this for the second time. We therefore overrule appellant Naylor-Collins Company’s assignments of error and approve the trial court’s judgment in favor of the American Window Company against it.

There remains for our consideration the appeal of the City National Bank of Wichita Falls.

After pleading its indebtedness against Leaverton, the American Window Company, by its trial amendment, then pleaded in the alternative as follows:

“Cross-plaintiff would show to the court that it has developed on the trial of this case that the Naylor-Collins Company has heretofore transferred, assigned, conveyed and delivered to the City National Bank of Wichita Falls, all of its properties, real and personal, tangible and intangible, of every character and description, and that said hank is now the owner and holder of all of said properties, including the .rights, claims, debts and demands which may he due and owing by the Naylor-Collins 'Company on account of its contract with the said D. N. Leaverton.
“That in the event it should he held and decreed by the court that the contract between the Naylor-Collins Company and the said D. N. Leaverton covered and included the window hardware to he furnished by the American Window Company, and that the American Window Company is not entitled to judgment against the said I>. N. Leaverton for the value of said hardware, that then and in that event this cross-plaintiff avers that it furnished and delivered to the said D. N. Leaverton the said hardware and that the same was of the reasonable value of the amount set forth in its original answer and cross-action. in this case. That if the said hardware was included in the contract of the said Naylor-Collins Company with said D. N. ■Leaverton that then and in that event there is and was an implied obligation on the part of the said Naylor-Collins Company to pay the American Window Company the reasonable value thereof. That the City National Bank, having, as above alleged, taken over all of the properties and assets of the said Nay-lor-Collins Company, became, under the law, a trustee and receiver for the benefit of any creditors of the Naylor-Collins Company having debts, claims or demands due and owing by the Naylor-Collins Co., and that by reason of the premises this cross-plaintiff is entitled to judgment against the said Naylor-Collins Co., and the City National Bank in the sum of $1,054.00 with interest thereon at the rate of sis per cent, per annum from the 29th day of January, 1929.
“Wherefore, this cross-plaintiff prays, as in its original answer and cross-action, and in the alternative and in the event it be held that the said contract between the Naylor-Collins Company and D. N. Leaverton obligated the said Naylor-Collins Company to furnish the hardware ‘ delivered by this cross-plaintiff to the said D. N. Leaverton, that then and in that event it have judgment against the Naylor-Collins Company and the City National Bank of Wichita Falls, Texas, in said sum of $1,054.00, with interest thereon at the rate of six per cent, from the 29th day of January, 1929, and for such other and further relief, general and special, legal and equitable, to which it may show itself entitled.”

The jury found that the reasonable cash market value of the assets transferred by the Naylor-Collins Company to the City National Bank on April 1, 1928, was $60,000, and that after the composition of Naylor-Collins Company with its creditors, the indebtedness claimed by the City-National Bank of Wichita Falls, Tex., against Naylor-Collins Company amounted to $29,500. According to these findings, the City National Bank had in its hands, by virtue of the transfer from the Naylor-Collins Company, property of the reasonable cash value in excess of the amount owing to it by that company. It appears from the record that this was a general composition by Naylor-Collins Company with' its creditors, and the inference is that all creditors were satisfied except the bank and that it took over the property of the Naylor-Col-lins Company. As a consequence of this taking over such assets, the bank had taken into its hands property largely in excess of the judgment of the window company against it.

The finding of the jury that the Naylorr Collins Company was not insolvent is not binding on us and was so evidently erroneous that we cannot account for it, as the evidence without contradiction shows a legal insolvency on the part of Naylor-Collins Company. This, however, is immaterial.

In the transaction between the Naylor-Col-lins Company and the Wichita hank, it is apparent that the bank became a trustee for Naylor-Collins Company’s creditors for the excess amount over their debt and as such it must account to the American Window Company for its debt in the form of the judgment.

In the case of Lyons-Thomas Hardware Co. v. Perry Stove Manufacturing Co., 89 Tex. 143, 157, 24 S. W. 16, 21, 22 L. R. A. 802, Judge Stayton, discussing article 65i (or article 61i), Sayles’ Civil Statutes, says:

“This statute further illustrates the fact that the property of ah' insolvent corporation is deemed in this state a trust fund, and emphasizes the right of all of its creditors to equality in distribution of its assets, as against all other creditors who had not acquired superior right prior to known insolvency.” Clevenger v. Galloway & Garrison (Tex. Civ. App.) 104 S. W. 914, writ denied; Jackson v. Chapman (Tex. Civ. App.) 263 S. W. 958; Panhandle National Bank v. Emery, 78 Tex. 498, 15 S. W. 23; First National Bank of Littlefield v. Neel (Tex. Civ. App.) 10 S.W.(2d) 408; Curran v. State of Arkansas, 15 How. 304, 14 L. Ed. 705.

We have considered all assignments and are of the opinion that the law and the facts sustain the trial court’s judgment.

Consequently, we overrule all assignments of error, and affirm the judgment of the trial court.


author: WACKER, J.

text:
    MARYLAND CASUALTY CO. v. DUHON et al.
    No. 2061.
    Court of Civil Appeals of Texas. Beaumont.
    June 15, 1931.
    Rehearing Denied July 1, 1931.
    Chas. D. Smith, of Beaumont, for appellant.
    Tom C. Stephenson and Jas. A. Harrison, both of Beaumont, for appellees.
   WACKER, J.

This was a compensation case tried in the district court on appeal from an adverse award of the Industrial Accident Board, with appellees as plaintiffs and appellant as defendant. Appellees are the wife and surviving children of Tobe Duhon. Appellant pleaded' the nature of Tobe Dubon’s injuries as follows:

“That on or about the 12th day of November, A. D. 1927, while Tobe Duhon was engaged in the course of his employment with the said Uvalde Rock Asphalt Company, on a bridge job on what is known as Cake Pontchartrain, in Louisiana, the said Tobe Duhon, sustained personal injuries, in the manner and to the extent hereinafter hnore specifically set out:

“On or about the 12th day of November, A. D. 1927, at about two (2) o’clock P. M. while working on said bridge job, as aforesaid, and over said lake as aforesaid, a fire broke out on or near said bridge by reason of some tar being ignited and while the said Tobe Duhon was fighting said fire, and rolling a barrel of gasoline out of said fire, he fell -over another barrel of gasoline, severely bruising and injuring his side, stomach, back, ribs, and kidneys; also receiving internal bruises, injuries and lacerations to such extent that an abscess developed from said bruises and injuries which later resulted in the death of the said Tobe Duhon, on or about the 2nd day of October, A. D. 1929, in Beaumont, Jefferson County, Texas, which city and county had been his home and place of residence ¡for more than five (5) years.”

Among other defense's, appellant answered by general and special demurrers and general denial. Answering special issues, the jury found that Tobe Duhon received (1) personal injuries on the 12th day of N°vember> 1927, (2) in the course of his employment, 13) which resulted in his death, (4) facts entitling appel-lees to a lump sum settlement, (5) upon a discount of 6 per cent. Judgment was accordingly entered in appellees’ favor.

It was shown without controversy that Tobe Duhon was, at the time of his death, and for five or six years continuously prior thereto, an employee of Uvalde Rock Asphalt Company, which company was a subscriber under the Workmen’s Compensation Act, and carried its compensation insurance with appellant ; that Tobe Duhon gave due notice of his claimed injuries, claim was duly filed before the Industrial Accident Board, the claim adjudicated adversely to the contention of ap-pellees, who gave due notice of their dissatisfaction with the award of the board and duly filed this suit as an appeal from the award.

Appellant has many assignments of error, but it is necessary to discuss only the assignment, which we sustain, that the verdict of the jury to the effect that Tobe Duhon received personal injuries in the course of his employment, which resulted in his death, was wholly without support in the evidence. The facts on this issue are as follows:

Philip Pápelo testified:

“Yes, sir. I was right there on the bridge on the 12th day of November. Well, on that date we had a kettle heating asphalt in it and it got too hot and it caught fire. It made a great big fire. It set tbe bridge on fire. Up until tbe time of tbe fire Tobe was healthy then. ' Tobe tools part or helped to put out tbe fire and moved tbe gasoline. Tobe is.the only one that worked in that fire. I did not belp Tobe. I wasn’t helping in that fire. It was too much fire for me. Tobe Duhon just moved tbe barrels: And the company bad a lot of tools and things around there and be moved it all out of tbe way. To move those barrels be had to go in tbe fire and smoke.
“Well, after that day, to my appearance be didn’t look to be the same man. I couldn’t tell bow be felt though. No sir, be didn’t look like tbe same man. Right about tbe time of tbe fire or about tbe time it was over Tobe Duhon did not make any statement to me.”

' J. D. Clifford, superintendent of Uvalde Rock Asphalt Company, testified:

“I remember when be went down to Louisiana on this construction job on Lake Pont-cbartrain; be went down there tbe early part of November. We sent him down there on that job: Tbe Uvalde Rock Asphalt Company sent him down there. Tbe immediate foreman over him over there on that work was a man by tbe name of Nolan. I believe Nolan was in charge of tbe work. A big fellow they called Jim Nolan. Mr. Allen was over there in charge when be was over there. He was immediately over him when be was over there. He was tbe foreman immediately over him. Tobe was an asphalt raker. That was his regular job. That requires skill and ability. He was very good at that kind of work. Something happened over there on or about the 12th day of November to tbe bridge that they were working on. We had an . asphalt fire. The asphalt caught fire. Well, on that particular occasion I happened •to be on the bridge when they had the fire. They were using straight asphalt, that is number 35. We put the asphalt in the pot or kettle and melt or break it up and we cut it with gasolene. We put the asphalt in the pot and heat it up and cut it with gasolene and melt it up into a liquid. We have to melt it to 150 or 200 degrees Fahrenheit, and then they apply gasolene to finish so they could apply it. On that day they were melting this asphalt in the pot. We had a lot of gasolene drums on the bridge which we were using to cut this ¿sphalt. If I remember correctly, I am not positive, but there were several drums of it on the opposite side from the kettle. That gasolene had to be moved out of the way. Anybody* that was there was supposed to move it out of the way. Anybody that is there it is a part of their duties to go in and remove it. I am positive 'that this man Trahon or Duhon assisted. I said I was positive that he did help to roll those barrels out, becau’se I happened to be standing there at that particular time and was helping myself. I was over there that one particular day. I did not see Tobe D'uhon any more after that fire until he was relieved down there and he came back to Beaumont, which was the latter part of January, 1928. At that time he was sickly, that is, he appeared sick. When he came back he didn’t report to me immediately. As a 'matter of fact he didn’t report until the 4th or 5th of February. I went to.see him in the meantime in January or February. The first time I saw him was February the 4th or 5th. He reported at the office. At that time he was weak that is all. He was complaining. He did not go to work.^ He attempted to work one day after that. *He just worked the one day. I went to his house after that to see him. I would find him in bed when I would go there. I found him in bed every time that I went there. I think I went there three or four times — three or four different times. I did not see him after he died. On the day of the fire and almost immediately after the fire I did not hear Tobe Trahon' ask Mr, Nolan to give him a bottle of liniment. Mr. Nolan is located in Houston at this time. Houston is his headquarters.
“* * ⅜ The bridge was about 20 feet wide. The container took up about five or six feet of it, just about five or six or seven feet of space between the container itself and the barrel's of gasolene and other materials that they had on there. They had other things on there, materials, tools and stuff like that. They had a lot of tools and other material laying all around there. I would guess off hand that they had eight or ten barrels of gasolene on that bridge. Those eight or ten barrels of gasolene were within a few feet of that fire. All of the hands took hold and removed the combustibles and inflam-mables that were close to the fire. The fire did not spread but remained in the vicinity of the container. It over-flowed across the top of the container and we kept it in the vicinity of the kettle.. It over-flowed and we held it just in the immediate vicinity of the kettle. It was in flames. I suppose the flames were eight or ten feet high in the air and there was a tremendous amount of smoke. The smoke went up above the flames. There was not a great cloud of smoke down on the ground. It was very similar to any other oil fire. It is a heavy black smoke. The smoke was up above the flames. The flames went up I suppose eight or ten feet high in the air and then the smoke was up above the flames. I don’t know all of the gang that helped to move that gasolene. I just know a few of our men that were there. I was there, yes sir. I don’t know how many men were around there. No, I don’t exactly know who all was at that fire.
“ * * * Tobe Duhon first gave me or the company notice of this injury in February, the early part of February. Yes, that was the first notice. Yes sir, after be came back— when be reported to me at tbe plant. The notice that be gave me was that be told me that be had been injured on the job. I am superintendent of tbe company and was at that time.”

Mr. 1>. J. Allen, an employee of Uvalde Rock Asphalt Company, testified:

“Q. I believe you stated while ago that be worked a while over there after the fire on the 12th? A. Yes, sir.
“Q. During the time that be worked was be well or complaining during the time that be worked?
‘‘By Mr. Smith: I object to that your Hon.
“By tbe Court: Overrule tbe objection.
“By Mr. Smith: Note my exception.
“By Judge Harrison: Go ahead and answer the question.
“By Mr. Smith: Will the court permit me to enlarge my bill, or shall I state them all right now?
“By tbe Court: Yes sir. Ob, yes sir. Just a minute. Judge Harrison, is it all right for Mr. Smith to enlarge on bis bill later on, or shall be state it right now?
“By Judge Harrison: Ob, no sir, be can have a full bill.
“By Mr. Smith: Then note my exception. And I have tbe privilege of enlarging my bill.
“A. Well, he would be feeling bad, and I told him I thought it was caused by 6im smoking too much. I told him, I said ‘Tobe, if you don’t quit smoking that pipe you are going to die’ and be said ‘no, be- thought it was from inhaling that smoke’ and he finally quit smoking the pipe.
“Q. What smoke was be talking about? A. They bad a fire over there' on tbe job I suppose before I got there.
“By Mr. Smith: I object to that because there is no pleading to sustain the testimony. I object to it further because it is not responsive to the question. It is also hearsay and self serving.
“By tbe Court: I think probably I will sustain tbe objection. I sustain tbe objection.
“By Mr. Smith: I should think so. And we ask that tbe court exclude tbe testimony and instruct tbe jury not to consider it.
“By tbe Court: Tbe testimony is not responsive, and the jury is instructed, or I will instruct them not to consider what Mr. Allen said with reference to that question.
“At the time, or along about tbe time when I saw him at work over there — I don’t think there was any question but what be was sick.”
« * * ⅜ j was not at tbe fire myself; I was in Beaumont. I don’t know anything about that particular fire except by hearsay.
“ * * * I told Tobe that be was smoking' that old pipe too much and be bad better stop smoking or it was going to kill him.”

Tbe wife of Tobe Dubon testified:

“During my husband's illness and before bis death I had occasion to rub him with liniments and feel of his side. I felt something in bis left side; be had a big lump in bis left side; it appeared to .be about that large (indicating) right there, and as it went up here it looked like it went to a sharp edge. Tbe whole side was swollen and a kind of sharp point on this side right there. I could see that it was swollen through his stomach, and be suffered awfully with it. I observed that swelling when he first came home. It was there when be first came home. It just grew all the time. It got larger and larger all the time. When he died his stom-‘ acb was swollen like that (indicating).
“ * » * Just as soon as he got in about 5:00 o’clock be went to bed and I called the doctor about 7:00 o’clock. I called Doctor McMicken. I will name all the doctors that ever attended him. Doctor McMicken, Doctor Grimes and D'octor Darwin. I know a doctor by the name of Doctor Tyler. Yes, Doctor Tyler also come to see him. Ob, yes sir, after be come back here in January I remember that Doctor Barr looked at him; Doctor McMicken bad Doctor Barr to come and look at him. That was the old Doctor Barr that come to see him. Doctor Darwin treated him continually from May up until his death. He died on tbe 3rd day of October, 1929. It was tbe 2nd, yes sir, instead of tbe 3rd.”

Lewis Finney, an undertaker who-qualified by a correspondence course, testified:

“I embalmed Tobe Dubon’s body after bis death._ There was no autopsy performed on him by any doctor or doctors before I embalmed him that I know of. I examined him closely. I didn’t see where his stomach bad been cut open. As an embalmer I did not cut into him, I only punctured bis spleen with a trocar.
“ * ⅜ * I embalmed bis body immediately after he died. I embalmed bis body the same day he died. Immediately after be died I embalmed him. I drew something out of tbe spleen with tbe trocar. I only pulled out some clogged dark like blood; it was ropey like.
“ ⅞ * * x drew out some clogged like black blood, ropey blood. That clogged like black ropey blood came from the spleen. In my experience as an undertaker and embalmer I have witnessed and observed spleens that have had abscesses on them. I would say that I have observed some four other cases. Well, I will state tbe condition of tbe spleen: It was a kind of _ tumor like. It was hard. It seemed like it was tough and I bad trouble in puncturing it.”

Appellant offered no testimony. As we construe the evidence, appellees wholly failed to raise the issue that the injury received by Tobe Duhon on the 12th of November, 1927, contributed in the least to his death, almost two years thereafter. The evidence affirmatively excludes any possibility that he fell or stumbled over barrels, or any other object, because he was in plain view of the other employees all during the fire and no one testified to the injury. The record shows that he was treated by some of the most eminent physicians in the city of Beaumont, but yet no doctor was called to testify as to the cause of his death. There was no evidence that the smoke or the heat or the extra exertion in moving the barrels contributed in any way to the enlarged spleen or to the condition of the spleen testified to by the undertaker. It is a reasonable conclusion that appellees would have offered their doctors as witnesses if the doctors could have testified to any favorable fact or circumstance. We say this, not to detract in the least from the probative force of all the circumstances in evidence, but only to show that appellees have fully developed their case and that there is no reasonable probability that it could be strengthened upon another trial. Prom what has been said it follows that the judgment of the lower court must be reversed and the cause here rendered in favor of appellant.

Appellees have suggested in their brief that we cannot consider appellant’s assignments of error complaining of the refusal of the trial court to instruct a verdict in their behalf and that the verdict of the jury has no support because they say these assignments were waived by appellant in the lower court. The facts under this suggestion are as follows: On the 3d of July, 1930, appellant filed its original motion for new trial, raising the assignments of error just discussed. On the 23d day of July, 1930, appellant filed an amendment or addition to the original motion for new trial, as follows: “Comes now Maryland Casualty Company, defendant, in the above styled and numbered cause, and, pursuant to the order of the Court duly made and entered on the docket of the said Court, hereby amends its original motion for a new trial duly filed herein, by adding to the said motion for a new trial the following added reasons, grounds and assignments of error numbered consecutively after No. 13, the last numbered assignment of error in the said motion for a new trial, viz.” The original motion for new trial contained, thirteen assignments of error. The new assignments added by the amendment to the original motion were numbered 14,15, and 16, and the amendment was filed under due authority of court. The order overruling the motion for new trial contained the following recitation: “This day came on to be heard defendant’s original motion for new trial filed herein on July 3,1930, and the additional grounds for motion for new trial added thereto by way of amendment filed herein July 23, 1930, and said motion and amendment are hereby in all things overruled as one instrument, constituting defendant’s motion for new trial. * * * ”

We think the statement made shows clearly that it was not the intention of appellant, in filing the amendment to its original motiop for new trial, to abandon the-original motion, but only to add thereto the three additional grounds. It is also clearly, appears from the order of the court that in the judgment of the court the original motion continued before it for adjudication was never withdrawn or superseded, but that the amendment was treated only as presenting additional assignments of error.

Reversed and rendered.