author: CALHOUN, J.

text:
    HENDERSON v. STATE.
    No. 14481.
    Court of Criminal Appeals of Texas.
    June 3, 1931.
    Oxford & McMillan, of Stephenville, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CALHOUN, J.

Offense, murder.; penalty, twenty years in the penitentiary.

It is sufficient to say that the state’s testimony showed a deliberate plan and formed design on the part of the appellant to kill her former husband without justification under the law.

The appellant’s testimony, as well as her defense, is to the effect that the appellant and deceased were husband and wife, and lived together as such after their marriage until about two months prior to the homicide; that the deceased secured a divorce from appellant, and a settlement was made between them of the property rights. Appellant contended that the settlement had not been fair, and that she had not been fairly treated in the settlement; that she had certain articles of personal property that deceased refused to deliver to her; that for some time prior to the separation the appellant had been guilty of outrageous conduct towards her, assaulting and beating her, as well as her children; that about two days before the killing on November 18, 1930, she received information that her former husband, the deceased, had married another woman; and that this enraged her and brought to her mind the previous conduct and outrages that the deceased had been guilty of, as well as the unfair settlement of the property and the deceased’s refusal to deliver to her certain separate property. She testified that she brooded over this matter, and this brought on a period which, in conjunction with her aroused and inflamed condition of mind, caused her to go without food or sleep for about two days, and that she was in a state of temporary insanity at the time of the actual killing.

The facts upon which the insanity was predicated and the existence of the mental derangement were controverted, and the jury found against the appellant upon that issue.

Bill of exception No. 2 complains of the refusal of the court to give a special-instruction requested by appellant. Said special instruction, as presented, sought to assemble some of the facts that the appellant' had testified to, and to instruct the jury that, if they believed that said conduct on the part of the deceased or such physical condition of appellant was reasonably calculated to produce in a person of ordinary temper such a degree of anger, rage, resentment, or terror as to render the mind incapable of cool reflection, then, if they should find the appellant guilty, they would assess her punishment at confinement in the penitentiary for not less than two nor more than five years. The court charged on malice aforethought, and we find no exception to the definition as given by 'the court. Following said definition of malice aforethought, the court in his main charge charged the jury as follows: “In any murder case the punishment cannot be greater than by confinement in the State Penitentiary for more than a period of five years, unless, from all the facts and circumstances in evidence the jury believes, beyond a reásónablé doubt, that the defendant is guilty of murder, and'that, in killing the deceased, the defendant was prompted by and acted with 'malice aforethought, and in determining whether or not a defendant accused of murder acted up’on malice aforethought, it is the duty of the jury, in passing upon that issue, to take into consideration all of the facts and circumstances in evidence, the condition of the mind of the defendant at the time of the' killing, if any, all relevant facts and circumstances surrounding the killing, the previous relationship existing between the accused and the deceased, together with all relevant facts and circumstances in evidence going to show .the condition of the mind of the accused at the time of the homicide, all of which may be considered by the Jury in determining the punishment, if any, that may be assessed.’,’

The court further instructed the jury in substance that, if they had a reasonable doubt from all the facts and circumstances in evidence that appellant acted with malice aforethought, they could not assess her punishment at a longer period than five years. We are of the opinion that this was sufficient application in the charge of the term “malice aforethought” to the facts in this case. See Crutchfield v. State, 110 Tex. Cr. R. 420, 10 S.W.(2d) 119; Mercer v. State, 111 Tex. Cr. R. 657, 13 S.W.(2d) 689.

By bill of exception appellant complains of the admission in evidence of the written confession -of the appellant, and by bill of exception No. 3 of the failure of the court to submit to the jury the issue as to whether said confession was freely and voluntarily. made; the appellant claiming that a sufficient issue is shown by the evidence as to require the court to subihit this matter to the jury.

The confession on its face shows that it complied fully and completely with article 727, C. C. P., relative to the admissibility of a written confession by an accused while under arrest. The confession offered in evidence is lengthy, and the testimony pertaining to the circumstances under which it was obtained is set out in full in, question and answer form, with a certificate from the trial judge showing the necessity for it being set out in said question and answer form.

We do not deem it necessary to enter into a discussion as to whether or not said confession was properly admitted in evidence or as to whether sufficient facts were shown as to whether or not said confession was freely and voluntarily made so that it would become a fact question to be submitted to the jury under proper instruction, because in this case the appellant took the witness stand, and testified substantially to the same facts contained in said confession, and it has become, under the decisions of this court, the established law that, where the accused voluntarily takes the witness stand on his trial, and affirms under oath the truth of the matter contained in his confession, he cannot then complain to have been injured by the introduction of said confession in .evidence, even if the same was improperly admitted, and the question of whether such confession was freely and voluntarily made under such circumstances is no longer material, and the issue is not necessary to be submitted to the jury. Parker v. State, 91 Tex. Cr. R. 68, 238 S. W. 943; Scharff and Daniel v. State, 99 Tex. Cr. R. 605, 271 S. W. 83; Govance v. State, 109 Tex. Cr. R. 47, 2 S.W.(2d) 853.

Finding no reversible error in the record, the judgment is affirmed.

PER CURIAM.

The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the court.


source: Caselaw Access Project

author: HAWKINS, J.

license: Public Domain

text:
    LARREMORE v. STATE.
    No. 14517.
    Court of Criminal Appeals of Texas.
    June 10, 1931.
    J. K. Russell and A. C. Chrisman, both of Cleburne, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   HAWKINS, J.

Conviction Is for driving an automobile while intoxicated; punishment assessed being a fine of fifty dollars.

The record is here without statement of facts or bills of exception. In such condition nothing is presented for review.

The judgment is affirmed.


author: LATTIMORE, J.

text:
    ALSUP v. STATE.
    No. 14042.
    Court of Criminal Appeals of Texas.
    June 3, 1931.
    Otis Rogers, of Fort Worth, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   LATTIMORE, J.

Conviction for murder; punishment, twenty years in the penitentiary.

Appellant was convicted for the murder of a negro named Tate, the state’s theory in the trial of the case being that appellant and others induced Tate and another negro to go to the Polytechnic State Bank in the suburbs of Fort Worth and there engage, or appear to engage, in an attempt to rob said bank, in order to furnish appellant a pretext for killing said negroes, and to enable him to thus secure from certain banks a reward of $5,000 theretofore offered for the killing of any bank robber in this state. The. facts seem to indicate that appellant and certain other parties did induce Tate and a negro named Terrell to go to said bank on the occasion in question, and that appellant shot and killed said negroes, one of them appearing to have fled from the bank and to have been pursued and killed by appellant some distance away. Many questions are raised, and we have examined the record with a good deal of care and are of opinion that in none of same does there appear any serious er^or save in those hereinafter mentioned.

The court in his charge told the jury that three witnesses named therein were accomplices, and that appellant could not be convicted upon their testimony unless corroborated by other testimony which of itself tended to connect him with the commission of the offense. The court’s charge was excepted to for its failure to instruct the jury that one accomplice could not corroborate another, and a special charge embodying this principle of law was presented to the court, and he was asked to give same, but refused. It is to be regretted that the violation of a principle as well settled as this should necessitate the reversal of this case. It has been the unbroken holding of this court that in an appropriate case the judge must give to the jury the instruction referred to. Heath v. State, 7 Tex. App. 465; Harrison v. State, 17 Tex. App. 442; McConnell v. State (Tex. App.) 18 S. W.. 645; Whitlow v. State (Tex. App.) 18 S. W. 865; Eddens v. State, 47 Tex. Cr. R. 529, 84 S. W. 828; Franklin v. State, 53 Tex. Cr. R. 549, 110 S. W. 909; Guiterrez v. State, 76 Tex. Cr. R. 189, 173 S. W. 1025; Sims v. State, 95 Tex. Cr. R. 164, 253 S. W. 278. It is to be regretted that the case must be reversed for an error of this character.

After the jury had been out several hours and had been unable to agree, they were called in the courtroom by the court to ask the foreman if they had reached an agreement, to which said foreman replied that they had not. The court then asked how they stood with reference to numbers, and was informed that they stood nine to three, and that they had been so divided since the first ballot, and that the same three who first disagreed with the majority were still in disagreement. It appears from the bill of exception presenting this matter that there were a number of spectators in the courtroom at that time, and that the court said to the jury, “Let the three men who disagree with the majority hold up their hands,” and that thereupon three of the jurors held up their hands. The jury were then directed to return to their room and continue their deliberations. The bill of exception states that within an hour after this was done the jury came in with a verdict. Since this case must be reversed, we but feel constrained to say that the action of the court in requiring the jurors to identify publicly in the presence of spectators those who were in disagreement with the majority was conduct on the part of the court which should not have been indulged. The deliberations of a jury are required to be kept secret, and to compel them to disclose in the presence of spectators how they stood and who are the minority might well be considered a species of pressure which in some instances might require reversal of a case.

■ There is a hill of exception complaining of the fact that the trial court declined to instruct the jury that the witness Watkins was an accomplice. Unless we have overlooked something in the record, there was no request that the issue as to the complicity of this witness be submitted to the jury. It is made to' appear in the record that Watkins was to some extent associated with appellant and the other three who are named in the charge as accomplices under the law, and that Watkins let the others have the car which was used by them to convey the two negroes who were killed by appellant from Fort Worth out to the scene of the alleged bank robbery on the day of the killing. It also appears that, after one of said parties had conveyed said negroes to the vicinity of the bank, he returned with the car in question to the home of Watkins, who then and there asked him “If they had done the job,” and was informed by said accomplice witness that he did not know, that he saw the ambulance going toward Polytechnic as he came away. It would be manifest that, if Watkins furnished the car to appellant and his confederates, and loaned them money on another occasion and under circumstances seemingly in pursuance of the alleged conspiracy between appellant and his said confederates, with knowledge on the part of Watkins that the car referred to or the money mentioned were to be used in carrying out the conspiracy to bring about the death of said negroes, said Watkins might be deemed by the jury an accomplice. It is suggested that, if this proposition be raised upon another trial, this issue should be submitted to the jury.

For the error mentioned the judgment will be reversed, and the cause remanded.


author: . BARCOS, J.

text:
    HALL v. MORTON et al.
    No. 1047.
    Court of Civil Appeals of Texas. Waco.
    April 23, 1931.
    Rehearing Denied June 11, 1931.

      Carter & Berwald, of Dallas, for appellant.
    • Tom Whipple, of Waxahachie, and Clyde F. Winn, of Gladwater, for appellees.
   . BARCOS, J.

Appellant, as the alleged assignee of R. H. Morton & Co., instituted this suit against Ó. A. Morton as administrator of the estate of R. H. Morton, deceased, and the nine children of said R. H. Morton, to recover title and possession of a tract of land 45 x 80 feet on which was located a brick store building in the city of Midlothian.

The record shows that about 1907, R. H. Morton and W. H. Page were engaged in the mercantile business under the firm name of R. H. Morton & Co., and so continued until R. H. Morton died in 1929. In 1912, they purchased the land in controversy, the deed reciting that it was conveyed to R. H. Morton & Co., a partnership, consisting of R. H. Morton and W. H. Page and that R. H. Morton owned seven-eighths interest in the property and W. H. Page one-eighth interest. At said time, R. H. Morton & Co. were occupying the property as tenants, conducting their mercantile business, and they continued thereafter to occupy said property as a place to conduct their mercantile business until R. H. Morton’s death. R. I-I. Morton and W. II. Page were each married and the heads of families, and said property was the only business homestead either of them had. The mercantile business of Morton & Co. prospered, and, under the court’s findings, was solvent until about 1926. In 1921, Mrs. R. H. Morton died, leaving her husband and children, four of whom were minors. On February 17, 1929, R. H. Morton died, leaving surviving him his children, one of whom was an unmarried daughter and two were minors. C. A. Morton was appointed administrator of the estate of ■ R. H. Morton, deceased. On March 19, .,1929, W. H. Page, as the surviving member of the partnership of R. H. Morton & Co., executed a deed of assignment attempting to convey to appellant as trustee for all of the creditors of R. H. Morton & Co., all of his, W. H. Page, individual property and all of the partnership property of R. H. Morton & Co. subject to execution, including the property in question. At the time W. H. Page executed the deed of assignment he informed the creditors of R. H. Morton & Co., who had the instrument executed, that seven-eighths of the real estate belonged to the children of R. R. Morton. It was shown without controversy that appellees as children of R. H. Morton did not agree to or ratify the assignment made by W. H. Page.

The trial court found that the property was not firm assets, but was the individual property of R. H. Morton and W. H. Page, and found that same was their business homestead, and that appellant was not entitled to the title or possession of the property by virtue of the deed of assignment. R. H. Morton and wife were married about 1880. Mrs. Morton died in 1921. The property was purchased in 1907 and is presumed to be community property. Immediately upon the death of Mrs. Morton, an undivided one-half of the seven-eighths interest conveyed to R. H. Morton vested in her children. • Upon the death of R. I-I. Morton in 1929, all of his interest in said property vested in his children, subject, of course, unless same is exempt as a business homestead, to the payment of his debts.

The cause was tried to the court and resulted in judgment being entered for appel-lees for seven-eighths of said property and seven-eighths of its rental value.

Appellees contend that the property in question was the business homestead of their father, R. H. Morton, and is not therefore subject to the payment of his debts. They further contend that W. I-I. Pa&e had no authority to execute the deed of assignment and that same was executed over their protest and that appellant did not, by virtue of said assignment, obtain any title to the seven-eighths interest in said property, which belonged to their father and mother. They further claim that appellant had been in possession of the property since the 19th of March, 1929, and had refused to pay any rents, and they'asked for $60 per month rental.

Appellant’s main contention is that the property was a part of the firm assets of R. II. Morton & Co., and as such was primarily liable for the debts of said company. Our courts have uniformly held that, upon the death of a member of a partnership, same is thereby automatically dissolved and the surviving partner, as well as the creditors of the partnership, have a right to have all partner-sMp assets applied first to the payment of partnership debts. Sherk v. First National Bank (Tex. Com. App.) 206 S. W. 507. The deed of assignment executed by W. H. Page, the surviving partner in this case, recites in effect that he for himself and as the surviving partner of R. H. Morton & Co., assigns to the trustee all of the property which belonged to the grantors not exempt by law from execution. Whether the deed of assignment is sufficient to convey the property of R. H. Morton, deceased, not exempt from execution, is not necessary for us to and we do not determine. W. H. Page did not purport to convey any property belonging to the Morton children, or that which was exempt to R. H. Morton at the time of his death.

It seems to be the unquestioned holding of our courts that a member of a firm or partnership can acquire a business homestead in firm or partnership property. Especially is this true if, at the time same is so appropriated or becomes such business homestead, the firm or partnership is solvent. Swearingen v. Bassett, 65 Tex. 267; St. Louis Foundry v.. International Live-Stock, Printing & Publishing Co., 74 Tex. 651, 12 S. W. 842, 15 Am. St. Rep. 870; Griffie v. Maxey, 58 Tex. 210; Williams v. Meyer (Tex. Civ. App.) 64 S. W. 66 (error refused); Gordon v. McCall, 20 Tex. Civ. App. 283, 48 S. W. 1111.

Since it appears from the record that when the property in controversy was purchased R. H. Morton was the head of a family, and that said property was used by R. H. Morton as a business homestead, and that, at the time he purchased and paid for same and began using it as a"husiness homestead, both he and the partnership were solvent, and it further appearing that, at the time of his death, R. H. Morton left surviving him at least two minor children as constituent members of his family and at the time of the death of Mrs. Morton she left surviving her her husband and four minor children, said property at the death of R. II. Morton was exempt as a business homestead and was not subject to either his firm pr individual debts. Zwernemann v. Von Rosenberg, 76 Tex. 522, 13 S. W. 485; Hoefling v. Hoefling, 106 Tex. 350,167 S. W. 210; Ward v. Hinkle (Tex. Civ. App.) 252 S. W. 236, 239, reversed on other grounds, 117 Tex. 566, 8 iS.W.(2d) 641; Robinson v. Seales (Tex. Civ. App.) 242 S. W. 754.

In Zwernemann v. Rosenberg, supra, our Supreme Court specifically held that a man’s homestead, where he left minor children surviving him, was not subject to the payment of his debts. This holding has been cited with approval many times.,

In Ward v. Hinkle, supra, the court stated: “It is well settled by the decisions of our Supreme Court that upon the .death of insolvent parents, or either of them, the homestead and exempt property of the community are not liable for the ordinary debts of the deceased; provided there survives a constituent member of their family.”

Appellant contends that the evidence does not support the finding of the trial court that he had been in possession of the property and had withheld same from appellees, and contends that the judgment for rents is therefore without support in the evidence. Appellant alleged that he took possession of the property under and by virtue, of the deed of assignment made on March 19, 1929. He further alleged that the rental value of the property was $600 a year.

C. A. Morton, the administrator of the estate of R. H. Morton, deceased, testified that he had not been able to get possession of the property; that he had demanded possession and had demanded rent and had attempted to collect rents, but had failed. He testified that the reasonable rental value of the property was $60 per month. We think the testimony taken in connection with the admissions contained in appellant’s pleadings are sufficient to support the trial court’s judgment for seven-eighths of the rental value'of the property.

The appellant further contends that the judgment of the trial court on appellees’ cross-action for rents was not authorized, because appellees did not serve appellant with any notice that they had filed said cross-action. This contention is without merit. The •record shows that appellant appeared and answered said cross-action.

Appellant contends that the judgment of the' trial court is erroneous in that the court in said judgment found that appellees w$re entitled to only seven-eighths interest in the property, and the judgment awards appellees the entire property. The wording of the judgment of the trial court is vagué and perhaps capable of the construction placed thereon by appellant. The clear intention of the judgment as shown by the findings contained therein, and the findings of fact and conclusions of law as filed by the court on the request of appellant, shows that the court only intended to render judgment for appellees for seven-eighths interest in said property. In order that there may be no misconstruction of the judgment of the trial court, that portion of the judgment which reads: “It is therefore ordered, adjudged.and decreed by the court that the plaintiff take nothing by reason of this suit, and that the defendants, O. A. Morton, E. Morton, Obera Morton, R. E. Morton, Mrs. Cora Caldwell, L. A. Morton, J. P. Morton, Mrs. Ada Byrd, and Mrs. Susie Rape, do Have and recover of and from the plaintiff, Vernor Hall, assignee, all right, title and interest of every kind that said plaintiff had or has or may have in and ■to the following described lands and premises situated in Ellis County, Texas, * * *” be changed to read: “It is therefore ordered, adjudged and decreed by the court that the plaintiff take nothing against the defendants by reason of this suit and that the defendants, O. A. Morton, E. Morton, Ohera Morton, R. E. Morton, Mrs. Oora Caldwell, L. A. Morton, J. P. Morton, Mrs. Ada Byrd, and Mrs. Susie Rape, do have and recover of and from the plaintiff, Vernor Hall, assignee, an undivided %ths interest in and to the following described iands and premises situated in Ellis County, Texas. * * *»

The apparent discrepancy in the judgment of the trial court not having been called to the attention of said court, and it appearing to be clearly a misrecital, the costs of appeal are taxed against appellant.

All of appellant’s assignments of error are overruled. The judgment of the trial court, as reformed, is affirmed.


author: COBBS, J.

text:
    EMBRY v. FEDERAL CREDIT BUREAU.
    No. 8581.
    Court of Civil Appeals of Texas. San Antonio.
    March 25, 1931.
    Rehearing Granted and Cause Reversed and Remanded May 6, 1931.
    Rehearing Overruled June 10, 1931.
    Mark Hance, of San Antonio, for appellant.
    A. E. Hammonds, of San Antonio, for ap-pellee.
   COBBS, J.

This suit was brought by appellee to re-eover on an alleged promissory note against appellant. Appellee alleged that on or about August 20, 1927, the appellant, J. T. Embry, made, executed, and delivered to Neal Bros. Hardware, Inc., his certain promissory note in the principal sum of $368.75, payable at the Guaranty State Bank, in installments of $38.75 on October 1, 1927, and $30 on the first day of each succeeding month, together with interest at the rate of 8 per cent, per annum from maturity until paid, and that the note was given for a certain “milker outfit,” and that before maturity, for value, said note was sold and transferred to De Laval Separator Company and thereafter to Credit Alliance Corporation, and thereafter to the plaintiff, appellee herein, who became the owner and holder for value, and that default having been made in the payment of the installments, the entire note was declared due and that said note was placed in the hands of the attorney bringing the suit, under a contract to pay him a reasonable attorney’s fee for his services^ alleged to be $150.

Judgment was prayed for the note, interest, and attorney’s fees. The answer was by general denial and by special answer to the effect that the several holders of said note were not innocent purchasers, and denied that $150 was a reasonable fee, and denied that plaintiff Was the owner of the note for value in due course without notice, and pleading specially that the note was given for a certain “milker outfit” and that at the time of the sale thereof, and the execution of the note and as a part of the consideration, Neal Bros. Hardware, Inc., , warranted the outfit and agreed that the defendant was to give the same a trial, and that thereafter on or about November 1, 1927, he returned said outfit to Neal Bros. Hardware, Inc., in full satisfaction of the note, and that at such, time he had never received notice from De Laval Company that they were the owner and holder of the note, though according to the provisions of the note he was to be advised if same was assigned to said company, and that relying upon such failure to receive such notice, he returned the outfit to the payee, who agreed to get the note from, the bank and give it to appellant.

The case was tried before the court without a jury, and the court made and filed his findings of fact and conclusions of law, which were in favor of appellee. The findings are supported by the evidence.

The note sued upon was negotiable and was transferred before its maturity, for value, in due course, so that the maker was not discharged from his obligation by having made settlement with the payee, Neal Bros. Hardware, Inc.

The court found that:

“The plaintiff should recover the following judgment: Principal, $199.45; Interest, $50.64; Attys. fees, $40.00.
“That the principal and interest should bear interest at the rate of 8% from June 6, 1930, and the amount of attorney fee at the rate of 6% per annum from June 6, 1930, and that plaintiff should have judgment for its costs laid out and expended.”

This is a county court case and has heen fairly tried and justice administered, so that the judgment of the trial court will not be disturbed, but be in all things affirmed.

Affirmed.

On Motion for Rehearing.

Considering appellant’s excellent motion for a rehearing and examining the cases therein cited, we have reached the conclusion that we erred in our opinion in affirming the judgment. In other words, we do not believe the note to be a negotiable instrument under the statute and decisions, and this leads us to reverse the judgment and remand the case.


author: JACKSON, J.

text:
    NATIONAL STOCK YARDS NAT. BANK v. VALENTINE et al.
    No. 3563.
    Court of Civil Appeals of Texas. Amarillo.
    May 27, 1931.
    Carl Gilliland, of Hereford, and Bryan Stone, Wade & Agerton, of Fort Worth, for plaintiff in error.
    W. H. Russell, of Hereford, for defendants in error.
   JACKSON, J.

The plaintiff, the National Stock Yards National Bank, a banking corporation, instituted this suit in the district court of Deaf Smith county, Tex., on October 10, 1929, against the defendants W. I. Valentine and J. R. Mosley. The plaintiff alleged that on July 6, 1928, it recovered a judgment in the district court of Tarrant county, Tex., against W. I. Valentine and Henry Wilkinson for the sum of $74,617.92, with interest, etc! That on October 5, 1929, the plaintiff caused an abstract of such judgment to be filed, recorded, and indexed in the judgment records of Deaf Smith county, Tex. That W. I. Valentine purchased certain lands, fully described in 'the petition, and took title thereto in the name of the defendant J. R. Mosley, and that said land, or some interest therein, belonged to the defendant W. I. Valentine.

The plaintiff sought a judgment against the defendant Valentine and to establish and foreclose its judgment lien against the land , as to both defendants; that the interest of Valentine in the land be soM under execution and the proceeds thereof applied to the satisfaction of the plaintiff’s judgment.

The defendants answered by general demurrer and general denial.

The defendant J. R. Mosley specifically denied that W. I. Valentine ever purchased the land or had any interest therein, and alleged that the land was purchased by and the fee-simple title thereto vested in J. R. Mosley. That by reason of the institution of plaintiff’s suit and the filing of a lis pendens notice in Deaf Smith county, Tex., a cloud had been placed upon the title of the defendant Mps-ley and he was unable to dispose of said land; that the defendant Mosley purchased said land for the purpose of sale at a profit; that he paid approximately $15 per acre and thereafter contracted to sell said land for the sum of $22.50 per acre; .that he could and would sell said land for said profit, but for the fact that ho cannot deliver title on ¿ccount of plaintiff’s suit and the lis pendens notice filed by the plaintiff; that defendant is damaged in- the sum of $7,200. That he had notified the plaintiff that he had purchased the land for sale and profit.

The defendant J. R. Mosley sought judgment against plaintiff in his cross-action for his damages and for interest and costs of suit.

On March 12, 1930, the court entered judgment to the effect that the cause was regularly reached and called for trial. That the defendants appeared in person and by attorney, but the plaintiff came not and made-no further presentation or prosecution of its cause of action; that plaintiff’s cause of action be dismissed. - That the defendant J. R. Mosley announced ready for trial upon his cross-action, and it appeared to the court that said cross-action had been filed in due time and that plaintiff had due notice thereof and had made its appearance in court since the filing of- the cross-action; that a jury was waived and all matters of law as well as of fact submitted to the court, and after hearing the evidence and the pleading, the court rendered judgment in behalf of the defendant J. R. Mosley and against the plaintiff for the sum of $6,960 on his cross-action, with 6-.pgr cent, interest per annum thereon and for all post? of suit, from which judgment .the plaintiff, hereinafter called appellant, by .writ of errqr prosecutes this appeal.

' The appellant presents'as error the Action of the trial court in rendering judgment against it because it made no appearance on the cross-action filed by appellée, no citation or notice was issued or served upon 'it of-the filing of the cross-action, and no .Wivé'r thereof was made by appellant.

⅞' The record fails to show that appellant madee. any appearance on . the cross-action; that it was cited to answer such cross-action, waived such service, or had any notice thereof ; but it affirmatively appears that no citation was issued on the cross-action, no answer filed thereto, no appearance made, and no waiver of the issuance and service of citation by the appellant on the cross-action filed by appellee, though the judgment recites that plaintiff had due notice of the cross-action and made its appearance in court since the filing of said cross-action.

The appellee obtained his judgment by default.

“On hn appeal from a default judgment, the record must show an appearance by the defendant or due service of citation, independent of the recitals in the judgment, especially when any such recitals are shown by the other parts of the record to be false.” 3 Tex. Jur. p. 407.

“The law seems to be well settled that, on appeal from a judgment by default prosecuted in the suit in which the same was rendered, the judgment will be reversed for fundamental error, unless the rgcord contains a citation showing due service thereof, even though the judgment contains a recital that defendant was duly served with citation.” De Proy v. Progakis (Tex. Com. App.) 269 S. W. 78, 79.

The law is settled in this state that a cross-action is an independent suit brought by the defendant against the plaintiff, and it is essential that plaintiff answer the cross-action, make his appearance, or have citation thereof served upon him in order to authorize the court to render judgment against him on the cross-action. Scarborough v. Bradley (Tex. Civ. App.) 256 S. W. 349; Southern Equipment Co. v. Hallman Elec. Co. et al. (Tex. Civ. App.) 10 S.W.(2d) 261.

This assignment is sustained.

Appellant, by proper assignments, contends that the pleading of appellee on his cross-action was insufficient to authorize a judgment. This contention we think is cor'rect.. Trawick v. Martin-Brown Co., 79 Tex. 460,14 S. W. 564, 565. “The rule is firmly established in Texas which denies an award of damages for the prosecution of civil suits, with malice and without probable cause, unless the party sued suffers some interference, by reason' of the suits, with his person or property.” Pye v. Cardwell, 110 Tex. 572, 222 S. W. 153. See, also, Panhandle Lumber Go. v. Fairey (Tex. Civ. App.) 3 S.W.(2d) 941.

We are not to be understood as holding that the appellee cannot allege such facts as would authorize him to recover on his cross-action.

In Trawick v. Martin-Brown Co., supra, the Supreme Court says: “However, we do not wish to be understood as holding that in no case can a levy of an attachment upon real estate cause damages recoverable in law. An advantageous bargain already agreed upon might be defeated by tbe wrongful levy of an attachment, and direct loss might result to the owner from subsequent depreciation in the value of the property. We are not prepared to hold that in such a ease the loss might not be recovered.”

Inasmuch as the other assignments presented by appellant will in all probability not arise on another trial, it is unnecessary to discuss them.

The judgment is reversed, and the cause remanded.


author: WALKER, JJ

text:
    WHITE v. TAYLOR et al.
    No. 1755.
    Court of Civil Appeals of Texas. Beaumont.
    May 28, 1931.
    Kitehing & Kenna, of Beaumont, and Bred A. White, of Port Arthur, for plaintiff in error.
    J. M. Sanders, of Center, for defendants in error.
   WALKER, JJ

Our judgment’in this case, 11 S.W.(2d) 374, was reversed by the Commission of Appeals, 36 S.W.(2d) 181, with instructions that we determine the merits of the case with reference to the statement of facts. Plaintiff in error will be designated as appellant, and defendants in error as appellees.

The trial court’s conclusions of fact and law are given in full in our original opinion reported as above indicated. While appellant’s assignments are directed, against these several conclusions, in substance they present the contention that, on the undisputed evidence, judgment should have been entered in his favor for the relief prayed for.

The facts are as follows: The two Smith boys and the two White boys named in the trial court’s conclusions were the only children of Mrs. N. M. White, and as she died intestate they inherited her separate estate under the statutes of descent and distribution. However, she and her husband, W. D. White, the father of the two White boys, made advancements to B. B. White, in full satisfaction of his interest in their separate estates, as well as in their community estate. The facts of the record fully support the trial court’s conclusion that B. B. White, though he joined in the deed to Boyer Taylor and afterwards conveyed his interest in the land in question to appellant Bred A. White, had, in fact, no interest in the land. On this conclusion this land was owned by the two Smith boys and appellant, each owning 'a one-third interest, arid that only appellant’s interest is in controversy herein.

On the night of the 22nd of November, after joining in the execution pf the deed to Mr. Taylor on the 21st, appellant talked .over the phone with Mr. Taylor at Teneha, Texas, for the purpose of telling him when the deed was delivered to him hy the Smith hoys tó.páy his interest in the money and B. B. White’s interest in the money into Mr. Motley’s bank in Teneha. Mr. Taylor testified that he did not hear appellant give him' this instruction but he testified further that he understood appellant was talking about this trade and he told appellant, to quote his' language, “our deal was all off — that I didn’t get'íhe'mónéy and that is all the conversation I bad, with him.” Though Mr. Taylor told appellant the “deal was all off,” when the Smith 'boys brought him the deed, not being able to pay them the $25.00 per acre called for in the trade with appellant, he made a new trade with them to the following effect: they agreed with him to take $15.00 per acre and to deliver him the deed at that price; he was then to deed the land to Mr. Motley, who was to advance to the Smith boys the $15.00 per acre and Mr. Motley was to sell the land back to him at $20.00 per acre. This general trade was fully consummated and the Smith hoys were paid the $15.00 per acre, which they appropriated to their own use. Neither appellant nor B. B. White was consulted about this trade and knew nothing about it until several days after it was consummated. When appellant was advised of the trade in question he instituted this suit to recover his interest in the land. ,

The deed was delivered to Mr. Taylor as appellant had signed it. The deed from Mr. Taylor to Mr'. Motley contained the following recitations:

“The State of Texas
“County -of Shelby
“Know all men by these presents; That I, Boyer Taylor, of the County of Shelby, state of Texas, for and in consideration of the sum of Seven Hundred Dollars, to me in hand paid by Luke Motley, as follows: I having bought this 34 acres from H. L. Smith and W. W. Smith and Ben B. White and Fred A. White, and finding myself unable to pay for the same have together with the above named parties by this deed conveyed title to the same stating that I have paid nothing on same and that Luke Motley is making full payment on said land.”

The following excerpts from the testimony of Mr. Motley show how and why the deed was delivered to Mr. Taylor without appel- ■ lant’s knowledge or consent.

“Yes I say they wanted to borrow $25.00 an acre to pay for the land, Boyer did. We never reached any agreement on that line at all. I knew according to the deed that Boyer Taylor had agreed to pay $25.00 an acre as the purchase price. I knew that also from Boyer Taylor’s statement at the time, that he had agreed to pay $25.00 an acre for it. They suggested that we find some way to negotiate without going to Port Arthur. I began to have negotiations with the boys, not to see how I could get title to the land without going to Port Arthur, but to see how Boyer would get it. They suggested that and we discussed it among ourselves. Those gentlemen lived at different places. One at Port Arthur and the other at Nacogdoches, and they were trying to simplify the matter and get the cash too.

“There was a deed there for a certain consideration they had agreed on. Taylor told me they had agreed on the consideration in that deed .they had there. No they didn’t want to get title into someone else for a less consideration, but so he could get a lien on the land. The idea was not how to negotiate it in a way to get it done at a new consideration without going to Port Arthur to see Ben and Fred White, but how will we get the land to you, Boyer, at the price for the land that they had agreed to take — $15.00 an acre. The two Smiths had agreed to that, they had the deed. No. Boyer did not agree to pay them $15.00 an acre for the land, Boyer agreed to pay me $20.00 an acre for the land conditioned that I was to pay them $15.00. I was to sell it to Boyer for $20.00 and buy it from Smiths at $15.00, making $5.00 an ácre on the land. As to whether or not I knew that Fred White and Ben B. White had not agreed to this proposition at the time I will say that they had two representatives that did. I didn’t know personally that they had not agreed to take $15.00 an acre for the land. Their representatives said they would.

“In the first place it would have been expensive for them to go back down to Port Arthur and have those boys sign again and they wanted the cash right now and so I did not know there was a family row or anything like that on or would occur about the matter and when they agreed to take $15.00 an acre, I said ‘Give me a deed’ arid I said ‘Boyer, you understand the price and if you are going to be satisfied say so, and if not say so. I won’t pay that price for it unless I can sell it to you on credit for $20.00’. They explained to me that it would be expensive to go down.to see Fred and Ben White. They explained that and I didn’t care. I can’t swear that one of the Smith boys was an engineer on the railroad. I don’t know. I understood at that time that he was out of employment.

“Henry Smith, Boyer Taylor, or W. W. Smith did not exhibit any power of attorney to me showing they had a right to act for Ben B. White or Fred White. Nothing but just being a brother and they had the deed in their hands. I relied on the relationship and he had the deed. Because they had, a deed showing a $25.00 consideration and I knew of the relationship, that gave them the right to sej.1 it for $15.00, and I protected myself by saying ‘Boyer, don’t take it unless you are going to be satisfied with that — if you are not sure it is all right and that the boys will be satisfied, don’t take it.’ No. There was no doubt in my mind as to whether Fred White and Ben White would be satisfied about it. I cautioned Boyer Taylor to be sure he was right about it because I was giving him a quit claim title and I wanted him to be sure, and I was carrying tiie vendor’s lien and I wanted him to he satisfied about the title and I suggested to Mm to go to a lawyer, but I do not know whether he did or not. He said he knew it all his life.

“Both the Smiths were in there when I paid the cash for the land. I think I paid it to H. L. Smith. I paid him $15.00 an acre. I did not pay any money to Fred White, nor' to Ben White. At the time I paid the $15.00 an acre to H. L. Smith I knew that the only deed that Fred White or Ben White signed to this property was a deed reciting a cash consideration of $25.00. In regard to whether I had any notice or authority from Fred White or Ben White, individually, or an agreemeni from them at all that they would take anything less than $25.00 an acre for this land, I was buying the land from Boyer — I was not buying it from those boys. No I didn’t buy from them. I bought from Boyer Taylor. I bought from Boyer for the purpose of him buying it from the Whites. In other words I was helping him buy the land. No. He and I were not negotiating some way so he could pay $15.00 instead of $25.00 for the land, he was trying to get the land and I was helping him. I don’t know that I was helping him get it for $15.00 when I knew he had agreed to pay $25.00. I didn’t say he told me he had paid $25.00 for it, I said the deed recited that. I didn’t say he said he had given $25.00. I said he proposed to borrow $25.00 to pay for it and that is where the argument came up.”

“ * * * The only diligence I used about finding out about whether or not it was a bona fide transaction, was whether or not Boyer Taylor was satisfied. I knew at the time he was the vendee, or transferee in the deed to me. He was the transferee in the deed from H. L. Smith, W. W. Smith, Fred A. White and Ben B. White and then to me, and me back to him. As to whether or not I knew at the time I told him that I would be satisfied if he was satisfied that his interest in this matter was adverse to H. L. and W. -W. Smith and the other two grantors, that whatever he had to pay would inure to their benefit, I left it to his judgment about the title, but the price of the land was between he and I. I talked with the two Smiths, his brothers, and they said it was satisfactory to get possession of the land for $15.00 an acre without having to go to the expense of going to Port Arthur to get their signatures, and I assumed that they knew what they were talking about, and I went into the deal.”

“ * * * I knew at the time I bought this land that the deed stated that Fred White and Ben B. White had received their half of the consideration. As to whether or not I knew they had not received it, the deed said they had. I am telling you what the deed says. I’ll sw.ear that I don’t know whether they did or not. I reconcile this testimony and my testimony that Boyer Taylor told me that he had not paid for the land. Boyer told me he had not paid for it, but Smiths may have paid Fred. I didn’t know. . They said •they had paid a lot of funeral expenses. I don’t know whether they did or not- — he says they didn’t but I took the brothers’ word for it. I relied on representations made by others. They both said they were going to sell it today and Boyer was willing to buy it. I never said that they told me that they had paid for it.”

On the statement made, the conclusions that appellant constituted H. L. Smith his agent to deliver the deed to Boyer Taylor and to receive therefor a consideration, to be agreed upon between Smith and Taylor, and that “Boyer Taylor and Luke Motley, defendants herein, purchased the land involved in this suit from H. L. and W. W. Smith, without any notice whatever that the plaintiff, Fred A. White, and his brother, B. B. White, had any notice or claim to said land; that both the said Boyer Taylor and Luke Motley paid a valuable consideration for said land and without any notice of any of the facts as alleged by plaintiff relating to any fraud of H. L. Smith and W. W. Smith, or either of them, and without any notice of any fact or facts that would place either of them upon an inquiry,” and the conclusions of law, based upon these conclusions of fact, are wholly without support.

Under all the facts, H. L. Smith was nothing more than the special agent of appellant to deliver the deed to Mr. Taylor upon the agreed'price of $25 per acre. The inquiry then is whether or not appellees are innocent holders of appellant’s title. To sustain this conclusion they make the following contentions:

(a) H. L. Smith was appellant’s half-brother and, therefore, his agent or representative. The mére circumstance of blood relationship was not sufficient, on these facts, to raise the issue of agency in H. L. Smith to represent appellant in the new trade.

(b) Appellees did not know that the Smith boys had not paid appellant for his interest in the land when he delivered the deed to H. L. Smith in Port Arthui. Appel-lees strongly argued on oral submission that appellant rested Tinder the burden of proving that they did not know that appellant had not been paid by the Smith boys, and as that proof was not made, they were, as a matter of law, innocent purchasers. We do not think this proposition is sound. But if the proposition be conceded, the burden was fully discharged by appellant. Admittedly, all parties knew that Mr. Taylor had not paid the consideration. But appellees stress the point that since appellant’s deed to Mr. Taylor recited that the consideration had been paid, they had the right to act upon the presumption that someone had paid it and, therefore, appellant had no further interest in the land. That is not a proper construction of the deed. The effect of the whole deed, as construed by all parties, and as the law would construe it, was, not that the consideration had 'been paid, but that it would be paid by Mr. Taylor, and that the delivery of the deed and its possession by him would constitute evidence of payment. There is hothing in the deed to suggest that the Smith boys had paid appellant. They were not buying, they were selling the land. Why should any prudent ■man assume that one grantor has voluntarily paid for the grantee the consideration due his cograntor?

. (c) Having delivered his deed to H. L. Smith, to be delivered by him to Mr. Taylor at $25 per acre, the law made Smith appellant’s agent for the purpose of delivering the deed to Mr.- Taylor either upon the agreed consideration or upon a new consideration, to be agreed upon between Mr. Taylor and Smith, and upon such terms as they might agree upon. In its ultimate analysis appel-lees’ case must rest upon, this proposition. But the proposition is not sound. Appellees knew the actual scope of the agency of the Smith boys, which was merely to deliver appellant’s deed to Mr. Taylor and to receive from him the agreed consideration, and every circumstance in the record precludes and forbids any finding that they could have been misled or deceived as to the actual powers possessed by the Smith boys.

■ It is the law that one dealing with an agent, with actual knowledge of the scope of the agent’s power, can acquire no right against the principal not within his grant of power to his agent. Thus, where one buys from an agent with knowledge that the agent hds no power to sell upon the terms agreed Upon between the buyer and the agent, the principal is not divested of his title unless he subsequently' ratifies the transaction. Case v. Jennings, 17 Tex. 661, is directly in point upon this proposition. Thus the court said: “If he [the purchaser] was advised of the nature of the agency, he must have known that the authority, simply to sell for money tp pay debts, did not authorize the sale to himself on a credit. If he was advised only of the authority of the agent to sell generally1, he must have known that the attempt of the agent to run off the property and conceal it from his principal, was a violation of his duty to the latter, which put an end to the confidential relations between them, and necessarily determined the agency.” Corpus Juris, vol. 2, p. 608, subject “Agency,” says:

“The sale completes the transaction,' and there is no presumption, from the mere authority to sell, that the agency continues so as to * * * make another contract for the sale of the property or to offer the purchaser further inducements to carry out its terms.”

The court erred in rendering judgment in favor of appellees against appellant, which judgment is here reversed and judgment rendered in favor of appellant against appellees, with writ of possession for his one-third interest in the land in controversy.

Reversed and rendered.


author: LESLIE, J.

text:
    TEXAS PACIFIC COAL & OIL CO. v. ROBERTSON et al.
    No. 867.
    Court of Civil Appeals of Texas. Eastland.
    May 22, 1931.
    Rehearing Denied June 19, 1931.

      John Hancock and Clarence Wightman, both of Fort Worth, for appellant.
    Turner, Rodgers & Winn, of Dallas, and L. H. Elewellen, of Ranger, for appellees.
   LESLIE, J.

This suit was brought by Mrs. Beulah W. Robertson, surviving widow of George W. Robertson, Jr., individually, and as next friend of Beulah E. Robertson and George W. Robertson, 3d, minor children and heirs of George W. Robertson, Jr., as well as for George W. Robertson, Sr., and Julia Robertson, father and mother of George W. Robertson, Jr. It was alleged: That George W. Robertson, Jr., died intestate at Strawn, Palo Pinto county, Tex., and that no administration was had upon his estate, and .none necessary. On December 9, 1929, he was employed by the Texas Pacific Coal & Oil Company as a laborer on the J. N. Stewart lease, and, while laboring on well No. 163, he received injuries resulting in his death. That on or about 12 o’clock of said day appellant caused an oil and gas well to be brought in which produced a large amount of' gas and some oil, and that there was located by appellant a gasoline pump engine near the flow tank on said lease. That on said day Frank Sporer, an employee of the appellant, cranked said engine, and in so cranking up said gasoline pump engine in its condition and under the circumstances surrounding, — the air1 being permeated with gas' from the well and flow tank,- — he ignited said gas, setting Are to George W. Robertson, Jr., from which he was so badly burned that he died on December 10, 1929, — all of such acts alleged to constitute gross negligence upon the part of the defendant and its employees, acting within the scope of their employment, thereby rendering the defendant liable for the damages sued for.

The defendant entered a general denial, and specially pleaded that it carried workmen’s compensation insurance in a certain company, and that by virtue thereof the plaintiffs had received an award for the injuries alleged and accepted such award, and therefore were entitled to no recovery in this suit.

The cause was submitted to the jury on special issues, upon the answers to which a judgment was rendered in favor of plaintiffs, and the defendant appeals.

The judgment of the trial court is sought to be reversed upon seven 'propositions of law. In the outset we dispose of a certain fundamental proposition involved in the appeal. We find that the act of Frank Sporer, the defendant’s employee, in cranking, or attempting to crank, -the gasoline pump engine at the time of the injury, was within the scope of his duties and employment at the time, and he, in cranking said engine, .and his superior officer, in directing it to be cranked, were, at such time and under the circumstances, the alter ego of the defendant company under the law as declared in Chronister Lbr. Co. v. Williams, (Tex. Civ. App.) 28 S.W.(2d) 844; Id., 116 Tex. 207, 288 S. W. 402.

Consideration will now be given each proposition urged as a ground for the reversal of the judgment. Propositions 1 and 2 will be considered together. They in substance raise but a single question; that is, that the deceased, Robertson, at the time of receiving ■his injuries, was not pursuing his duties to the defendant company, but out of mere curiosity had left his work and line of duty on the floor of the derrick and climbed upon the flow tank, where his duties did not call him, and in violation of express orders, and while there received the injuries alleged; that in so doing he was a mere licensee, and obliged to accept the premises as he found them; that no duty rested on the defendant to make said place safe for the deceased. On this line of reasoning appellant further seeks to relieve itself of the liability for gross negligence by showing it was not even guilty of ordinary negligence, and in support of this, and especially the first contention, the following authorities are cited by appellant : Wimberly v. Gulf Production Co. (Tex. Civ. App.) 274 S. W. 986; Kruse v. Railway Co. (Tex. Civ. App.) 253 S. W. 623; St. Louis Southwestern Ry. Co. v. Spivey, 97 Tex. 143, 76 S. W. 748; St. Louis Southwestern Ry. Co. v. Hynson, 101 Tex. 543, 109 S. W. 929; Houston Belt & Terminal Ry. Co. v. Stephens (Tex. Civ. App.) 155 S. W. 703; Galveston Oil Co. v. Morton, 70 Tex. 400, 7 S. W. 756, 8 Am. St. Rep. 611; Bustillos v. Southwestern Portland Cement Co. (Tex. Com. App.) 211 S. W. 929; Kirby Lbr. Co. v. Gresham (Tex. Civ. App.) 151 S. W. 847.

None of these authorities involve recovery for gross negligence, but abstractly they correctly state the rule with reference to the duty of the master or owner of premises to make them safe for a mere licensee. We do not see that the authorities have any application to the questions, raised by this record.

Conceding that the deceased, as a driller, temporarily stepped aside from his regular duties at the well, and inspected the contents of the flow tank at the time of his injuries, under the record such contention would amount to no more than one involving assumed risk or contributory negligence, if any, on the part of Robertson, at the time of the injury, and, if such appeared as a matter of law, they would be available as defenses only in the event assumed risk and contributory negligence were defenses in this character of suit for damages based upon gross negligence. In the case of Magnolia Petroleum Co. v. Ford, 14 S.W.(2d) 97, this court held that they were not. That authority has been followed in Fort Worth Elevator Co. v. Russell (Tex. Oiv. App.) 28 S.W.(2d) 320.

However, if our holding in the Ford Case be error, and finally so held (since our Supreme C-ourt has apparently granted a writ of error on that particular point in the case of Fort Worth Elevator Oo. v. Russell [Tex. Civ. App.] 28 S.W.(2d) 320), and assumed risk and contributory negligence be declared defenses available to the defendant in this character of suit, then, if it appears or be conceded that the testimony raised such issues in the trial court, they were not submitted to- the jury, and no request for their submission was made by appellant, and therefore must be held to be waived. Ormsby v. Ratcliffe, 117 Tex. 242, 1 S.W.(2d) 1084.

We are convinced, and so hold that the testimony does not, as a matter of law, convict Robertson of contributory negligence at the time of his injury. Further, the defendant did not affirmatively allege the deceased was guilty of contributory negligence, and, while it is ordinarily true that such negligence, as an affirmative defense, must be pleaded by him who would avail himself of it, nevertheless such pleading is not necessary when it appears from the plaintiff’s own showing, either in his pleadings or his proof, that his own negligence contributed to his injury. Jones et al. v. Sunshine Grocery & Market (Tex. Civ. App.) 236 S. W. 614; 14 C. J. p. 1117, § 694. Such a situation is not presented by the plaintiffs’ pleadings or proof in this case.

The conclusion is that, granting the validity of said defenses in this suit (Ford and Russell Oases to the contrary), no issue was made on the same in the trial court, and they become immaterial on this record. Propositions 1 and 2 are overruled.

Proposition 3 complains that the court erred in not instructing a verdict for' the defendant, “because the proof does' not show that the fire which fatally burned the deceased Robertson was started by a backfire of the gasoline engine, as specifically alleged by the plaintiffs.” The plaintiffs alleged negligence in general terms and then particularly in four respects, the third of which was: “In the act of the agent, servant and employee Frank Sporer in cranking up the gasoline pump engine in its condition and under the circumstances so surrounding him as hereinbefore alleged, at a time when he knew that the air was filled with natural gas, which he knew was easily and could be ignited by sparks .from the exhaust from said gasoline pump' engine at a time when the deceased George W. Robertson, Jr. was located within the sphere of said natural gas, if and when it became and did become ignited.”

This ground of negligence was evidently the basis of the sole issue submitted on that phase of the case, and the proposition under consideration involves merely an evi-dentiary matter. Under the testimony, the court did submit an ultimate issue, embodying an alleged ground of negligence, and that is all it was required to do. Houston Belt & Terminal Ry. Co. v. Barger (Tex. Civ. App.) 176 S. W. 870; Wichita Falls & S. R. Co. v. Tucker (Tex. Civ. App.) 261 S. W. 518.

The plaintiffs’ ground of negligence did not rest exclusively upon a circumstance that a- backfire caused the fatal fire. The specific acts of negligence evidenced by the above excerpt from the pleadings and submitted to the jury did not directly mention this evi-dentiary matter. It is difficult to see how the defendant could claim an instructed verdict on the point, and, believing it without merit, it is overruled.

By proposition 4, the defendant asserts that the court erred in overruling the defendant’s motion for an instructed verdict, “because the testimony is insufficient to raise an issue of fact as to gross negligence on the part of the defendant by merely locating the engine within close proximity of the flow tank.” Negligence in so locating the engine is alleged by the plaintiffs in their second specifically alleged ground of negligence, and possibly in their first, but no issue based upon that ground of negligence was submitted to the jury, although the evidence apparently would have justified the same, and the plaintiffs are not here complaining of such omission. The issue simply passed out of the case, and the defendant is not injured thereby. Further, if the proposition be considered a correct one, it would not demonstrate that the judgment does not rest on sufficient grounds, to wit, the answer of the jury in response to issue No. 1, which in itself was the submission of an ultimate issue.. The proposition deals with a theory of recovery that was waived, and which in no way affects the validity of the theory of recovery approved by the trial court. It does not even contend that there was no evidence on the issue actually submitted.

Proposition 5 is: “The court erred in submitting and rendering judgment on the answer of the jury thereto, Question No. 1, wherein the jury is asked if the cranking of the gasoline engine at the time and place, and under the circumstances, was the proximate cause of the death of George W. Robertson, Jr., because it was specifically alleged by the plaintiffs that the cause of the injury to the said Robertson was a backfire of the gas engine, and said issue as to whether a backfire caused the fire and resulting injury to Robertson should have been submitted to the jury and not the above mentioned issue as set forth in said Question No. 1.”

The meaning of this proposition is not clear. We are inclined to think the author of the proposition had in mind “Question No. 2” (inquiring whether or not the gross negligence found in answer to “Issue No. 1” was the proximate cause of Robertson’s death) rather than “Question No. 1,” which inquired if the defendant was guilty of gross negligence in attempting to crank up the gasoline engine at the time and place and under the circumstances.

If the language is the language intended, it would appear to complain that, since “it was specifically alleged by the plaintiffs that the cause of the injury to the said Robertson was a backfire of the gas engine, and said issue as to whether a backfire caused the fire and resulting injury to Robertson should have been submitted to the jury,” instead of “Issue No. 1.” Such a conclusion is not warranted by the record. We do not regard this as any showing that some other ultimate issue, and especially the one submitted, should not have been given at all. The proposition itself suggests no sufficient reason why it should have been substituted for issue No. 1, based upon pleadings and testimony peculiar to itself. As before noted, different grounds of negligence were specifically alleged, and the one submitted does not expressly mention any “backfire of a gasoline engine,” though it was broad enough to embrace this and other such evidentiary matters entering directly into a situation charged to evidence the fact of gross negligence.

If it were intended to refer to “Question No. 2” in the proposition, it is also believed to be without merit. In that case it would seem to argue that the court (in asking the jury if the gross negligence found by it was the proximate cause of Robertson’s death) erred in so doing, because in another part of the pleadings the plaintiffs alleged “that the cause of the injury to said Robertson was a backfire of the gasoline engine, and that said issue as to whether a backfire caused the fire and resulting injury to Robertson, should have been submitted to the jury, and not the above mentioned Issue No. 1.” This reasoning is not logical, and it does not establish that the court erred in submitting the issue of proximate cause in question No. 2 and rendering a judgment upon it and its allied issue No. 1.

Further, proposition 5 may well be regarded as a contention that the court erred in not submitting as an issue to the jury a matter regarded by us as strictly evi-dentiary and not an ultimate issue of fact.

In proposition 6 it is complained that the court erred in refusing to define in his charge to the jury the meaning of the word “punitive.” No such word or term is found in the charge. The term “exemplary damages" was used and is correctly defined.

By proposition 7 appellant complains that the court erred in overruling its motion to set aside the answer'of the jury to question No. 1, whereby the jury found that defendant was guilty of gross negligence in attempting to ‘crank the gasoline engine at the time and place and under the circumstances, “because said answer is contrary to and against the weight and preponderance of the evidence.” If this proposition be deemed sufficient to raise the question of the sufficiency of the testimony to support a finding of gross negligence on the issue submitted, it is nevertheless found in the brief, unaccompanied by any statement whatever from the testimony adduced in the trial bellow, and constituting a statement of fact's containing many pages. Issue No. 1 only is set out and no character of statement reflecting the vice asserted by the proposition. In this situation the proposition must be regarded as waived or abandoned, as discussed and held by this court in Goodwin v. Hedrick et al., 7 S.W.(2d) 596. Numerous authorities, in addition to those cited in the instant case, and to the same effect, may be found in 3 Tex. Jur. §§ 620-622.

However, a careful Consideration of the testimony by each member of this court leaves us with the common view that the evidence is sufficient to support the verdict, according to the definition of gross negligence, as we understand it, and as defined by our Supreme Court in the authorities cited by us in the case of Magnolia Petroleum Co. v. Ford, supra.

For the reasons assigned, the judgment of the trial court is affirmed.


author: LANE, J.

text:
    HOUSTON LOAN & INVESTMENT CO. v. NORWOOD et al.
    No. 9554.
    Court of Civil Appeals of Texas. Galveston.
    May 19, 1931.
    Rehearing Denied June 18, 1931.
    , Jno. T. Garrison and Sam R. Fisher, both of Houston, for appellant. *
    W. M. Cleaves, of Houston, for appellee Port City Lumber Co.
    Winfree & Weglow and’ F. F. Beadle, all of Houston, for appellee Eternit, Inc., and T. J. Invinson.
    T. P. Buffington, of Anderson, for appellee Norwood.
   LANE, J.

Prior to February 23, 1929, Hamman Nor-wood placed in the hands of one N. B. Judd $4,500, with the understanding that Judd was to loan the same to one Earl C. Doty and to take a lien on property in Broadmoor adr dition to the city of Houston, Tex. Judd negotiated a loan of said $4,500 to Doty. In his effort to prepare or to have prepared .the papers evidencing such loan and fixing a lien on lot 35, block 2, of Broadmoor addition to secure payment of the loan, Doty gave Mrs. Warrendorff, his stenographer, a memorandum, telling her to prepare a note for the sum of $4,500 to be executed by Earl C. Doty to Hamman Norwood, wherein there was to be recited that: “This note is secured by deed of trust of even date herewith on the following described property, to-wit: Lot No. Thirty-five (35) in Block No. Two (2) of Broadmoor, an addition to the City of Houston S. S. B. B. in Houston, Harris County, Texas, according to the plat of said subdivision which is recorded in Vol. 6, page 42, of the Map Records of Harris County, Texas, to which reference is here made.” She was also directed to prepare a deed of trust upon the lot so described, which would secure payment of said note.

Mrs. Warrendorff prepared the note in manner and form as directed, but by mistake she prepared a deed of trust in which she described lot 4 in block 16 of the Broadmoor addition, instead of lot 35, block 2, as she was told to do.

Earl Doty signed such note and deed of trust and acknowledged the deed of trust on the 23d day of February, 1929, and delivered them to Judd. This deed of trust was filed for record March 8, 1929.

On the 28th day of January, about one month prior to the execution of the note and deed of trust above mentioned, for and in consideration of $5,450, to be paid to him by Sam Houston Mills, a part of which was then and there paid in cash and a part thereof being later evidenced by two promissory vendor’s lien notes, one for $3,750 and the other for $850, executed and delivered to him by Mills, Doty agreed in writing to erect a dwelling house and garage on lot No. 4 in block 16, Broadmoor addition, and to deliver such premises to Sam Houston Mills, retaining, however, the vendor’s lien to secure payment of the two notes. Mills’ contract for the purchase of the property described was for the purpose and intent to make it his home, he being at the time the head of a family. In addition to the • improvements placed on the lot by Doty, Mills had also made some improvements thereon and was engaged in making such improvements at and before the time Norwood got his deed of trust.

Judd, who negotiated the loan to Doty for Norwood, knew at the time the deed of trust was given by Doty to Norwood that Doty had contracted to sell lot 4, block 16, to Mills and wife. He testified in this suit as follows: “At the time I was making up this note and deed of trust for Mr. Norwood to give him a lien on lot 35 in block 2, I knew that Mr. Doty has sold or contracted to sell to Mr. Mills and wife lot 4 in Block 16.”

Work in making the improvements mentioned by both Doty and Mills began in the early part of February, 1929, and before the 15th of said month.

On the 1st of April, 1929, Doty formally, by his warranty deed, conveyed to Mills said lot 4 in block 16, together with all improvements thereon, retaining in such deed the vendor’s lien to secure payment of the two notes aboive mentioned. Such deed was filed for record on the 11th day of May, 1929.

On the 1st day of April, 1929, Doty, for a valuable consideration, transferred the $3,-750 note executed by Mills to Houston Loan & Investment Company.

It is conceded that prior to the time the deed of trust in which lot 4 in block 16 was described such lot had been conditionally sold to Mills and wife and that it was at such time their homestead, and the court so found in the trial of this case.

Some time after the deed of trust mentioned had been executed, delivered, and filed for record, Judd, who was charged by Norwood with the duty of making the loan to Doty and of preparing all necessary papers relative thereto, was informed by parties who furnished the material and labor to build a house on lot 35, block 2, that they had liens on such lot and improvements thereon; whereupon Judd, for the first time, discovered that lot 35, block 2, was not described in the deed of trust mentioned and that lot ¾, block 16, had been by mistake described in such deed of trust. After such mistake had been discovered, Norwood, contending that notwithstanding such mistake he had an equitable lien on lot 4, block 16, by virtue of his deed of trust superior to rights of Houston Investment Company, the owner and holder of the vendor’s lien note executed by Sam Houston Mills; that if he was not entitled to a foreclosure of his lien on the property as against Mills and wife, he was entitled to an equity in the note superior to the claim thereto of Houston Investment Company, brought this suit against Earl C. Doty to recover upon the §4,500 note executed by Doty to him, against Sam Houston Mills and wife, Genevieve Mills, who were asserting homestead rights in said lot 4, block 16, and against Houston Investment Company, to whom the §3,750 vendor’s lien note executed by Mills had been transferred, to foreclose his asserted deed of trust lien on said lot 4, block 16. Several other parties were made parties defendant, but as they are not parties to this appeal no further notice or mention of them is necessary here.

Plaintiff alleged the execution and delivery of the §4,500 note and deed of trust above mentioned by Doty to him. He alleged that on the face of the note a lien is provided securing same on lot 35 in block 2, Broadmoor addition to the city of Houston. He prayed for judgment upon his note against Doty, and for judgment decreeing the lien, right, title, and interest of plaintiff in' lot 4, block 16, superior to that of each and all of the defendants ; that he have judgment for a foreclosure of. his lien on said lot 4, block 16; for an order of sale, etc.; for costs of suit; and for ■ such other relief to which he may be entitled in law or equity.

1 ■ -Houston Loan & Investment Company answered by alleging that prior to the execution of the deed of trust held by the plaintiff in which lot 4 in block 16 is described, Doty, the then owner of said lot, entered into a contract with Sam Houston Mills and wife to build a house for them on such lot and to convey the house and lot to Mills and wife in consideration of §5,450; it alleged the execution of the §3,750 vendor’s lien note by Mills, which had been transferred to it by Doty; it alleged the execution and delivery of a deed by Doty to Mills and wife, conveying to-them said lot 4, in block 16; it alleged the loan made by the plaintiff to Doty on the 23d day of February, 1929, the execution of the §4,500 note by Doty to plaintiff, and the fact that in said note a lien was expressly given on lot 35, block 2, Broadmoor addition, to secure payment of the note; it alleged the mistake made in inserting a description ■ of lot 4, block 16, in the deed of trust given by Doty to the plaintiff where the intention was to describe lot 35, block 2; it prayed for a cancellation of the deed of trust in which lot 4 in block 16 is described, and for such other and further relief to which it may be entitled in law or in equity.

Mills and wife answered by general denial, and specially alleged that on the 28th day of January, 1929, they selected lot 4 in block 16, Broadmoor addition, upon which to build their homestead; that in pursuance of fixing and establishing said lot as their homestead they entered into a written contract with Doty by which Doty agreed to erect for them a house upon said lot; that Doty began the erection of such house on the lot on about the 1st day of February, 1929; that under terms of said contract they did on the date of its execution pay to Doty the sum of $509 of the purchase price of the premises, and obligated' themselves to paint, paper, and canvass all of the improvements, placed on said lot; that in pursuance of said contract, Doty did on the 1st day of April, 1929, convey said premises to them; and that they have at all times since said contract was entered into on January 28, 1929, claimed and asserted title to said lot and house thereon as their homestead. They denied that the plaintiff had a lien on their homestead by virtue of said deed of trust. They further alleged that the deed of trust, by virtue of which only plaintiff is asserting a lien upon their homestead, should be canceled as a cloud upon' their. title, in that said deed of trust was executed and placed of record wrongfully by plaintiff, he knowing at such time that it, by mutual mistake of the parties thereto, described lot 4 in block 16, instead of lot 35 'in block 2, in Broadmoor addition, which they intended io have described in the deed of trust.' They prayed for the removal of the cloud'cast upon their homestead by reason of said deed Of trust.

By his first supplemental petition plaintiff denies generally the allegations of defendants’ cross-action. He alleged that he had' an equity in the vendor’s lien note executed by Mills to Doty, which Doty transferred to Houston Investment Company, superior to the rights of the investment company.

The investment company, pleading further by supplement, alleges as follows:

“That the contract entered into by and between Earl C. Doty and defendants Sam Houston Mills and wife, to sell Lot 4 in Bloch: 16, Broadmoor Addition, and to erect a house thereon, was for the purpose of making it the homestead of the defendants Mills and wife; that in pursuance of said original contract of date January 28, 1929, Sam Houston Mills and wife paid to the defendant Earl C. Doty the sum of Five Hundred ($500.00) Dollars. That after said house was completed, and in pursuance and completion of the original contract, a deed was executed by Earl C. Doty to Sam Houston Mills and wife, retaining a vendor’s lien upon said house and lot, in the sum of Thirty Seven Hundred Fifty ($3750.00) Dollars; that in order for the said Earl C. Doty to execute a deed to Mills and wife in pursuance with the original contract, the defendant Houston Loan & Investment Company advanced to Earl C. Doty for the defendant Mills and wife, the said sum of Thirty Seven Hundred Fifty ($3750.00) Dollars, which amount was used in liquidation and payment of all materialmen’s liens created in the erection and building of said house and that the money advanced by the defendant Houston Loan & Investment Company was used in paying off all liens existing against the house and lot conveyed by Doty to Mills and wife, and that the defendant Houston Loan & Investment Company not only has a lien against the house and lot as evidenced by said vendor’s lien but they are subrogated to the rights of the original lien holders who furnished labor and material in the construction and building- of said house.
“Thai; the Thirty Seven Hundred Fifty ($3750.00) Dollars advanced and paid to Earl C. Doty by said defendant, Houston Loan & Investment Company, was for the use and benefit of the defendant Mills and wife, and that said money was used by the defendant Earl C. Doty to pay off all labor and material-men’s liens created in the construction of said house. That the defendant Earl C. Doty, as original contractor, had a superior lien against said house and lot and the acceptance of the money by Doty from the defendant, Houston Loan & Investment Company, and the use by said Doty for liquidation and payment of any and all liens against the said house and lot, including his own, the defendant Houston Loan & Investment Company was subrogated to the lien of the original contractor, Earl C. Doty.
“Wherefore, defendant Houston Loan & Investment Company prays as in its first amended original petition.”

Earl O. Doty made no answer nor appearance in the suit of Norwood.

The court found that the $4,500 note executed by Doty to plaintiff was secured by a lien executed by Doty on lot 35 in block 2, Broadmoor addition to the city of Houston: that said note and the deed of trust Doty gave to the plaintiffs were intended to create a lien on one lot only, that is, on said lot 85, block 2, and not on lot 4, block 16, described in such deed of trust; that the deed of trust" describing lot 4 in Mock 16 does not create a lien on said lot and the same should be can-celled, but that the plaintiff by reason of such deed of trust had an equitable lien on the vendor’s lien notes executed by Mills and wife to Doty, one of which had been for a valuable consideration transferred to the investment company; that plaintiff should be required to make such part of his debt as he can out of a sale of lot 35, block 2, before resorting to the said vendor’s lien notes.

The case being tried before the court without a jury, judgment was rendered upon the facts found by the court that the plaintiff recover from Earl O. Doty the sum due upon said $4,500 note, including principal, interest, and attorney’s fees; that the deed of trust in which lot 4 in block 16 is described be canceled and thát the cloud resting upon the title of Mills and wife to lot 4 in block 16 by reason thereof be removed; that the plaintiff has an equitable lien on the $3,750 and $850 vendor’s lien notes held by the investment company and one Wright, respectively, which lien is “decreed in lieu of the purported contract lien on said lot ⅛ in hloclc 16” (italics ours); that such lien be foreclosed and the notes seized and sold; and that out of the proceeds of such sale any balance of the decree in favor of the plaintiff remaining unpaid after first exhausting his lien on lot 35, block 2, shall be paid, and then out of any balance of the" proceeds of the sale of the $3,750 note shall be paid to the investment company.

From so much of the judgment as decreed an equitable lien in favor of plaintiff on the $3,750 note held by the Houston Investment Company and foreclosure and sale thereunder, such company has appealed.

The effect of the sixteen assignments filed by appellant when reduced to their ultimate is to assert that the court erred in finding and adjudging that the plaintiff Norwood had an equitable lien on the vendor’s lien note owned and held by it, and in foreclosing such asserted lien.

It is true that appellant contends by his assignments that the court erred in refusing to set aside and cancel the deed of trust in which lot 4 in block 16 is described. The court made no such refusal, but to the contrary, in paragraph 10 of the judgment rendered, we find the following: “That the deed of trust dated February 23, 1929, * * * as a lien on said lot 4 in bloels 16 and improvements thereon, is cancelled.”

We sustain appellant’s contention that the court erred in finding and adjudging that the plaintiff Norwood had an equitable lien on the vendor’s lien note held and owned by appellant and in decreeing a foreclosure of such asserted lien.

The undisputed evidence shows that N. B. Judd was intrusted by plaintiff Norwood with $4,500 with the understanding that he was to lend it to some one who would secure its repayment by giving a deed of trust upon property situated in Broadmoor addition to the city of 'Houston; that Judd, acting for Norwood, negotiated a loan of said money to Earl O. Doty with the understanding that Doty would secure payment thereof by a deed of trust on lot 35 in block 2 of said Broad-moor addition; that in pursuance of such understanding Doty executed and delivered to Judd, on the 23d day of February, 1929, his promissory note for the sum of $4,500 wherein it was recited that payment of such note was to be secured by a deed of trust on lot 35, block 2, of Broadmoor addition. On the same day, in undertaking to comply with the terms and conditions of said loan, Judd had a deed of trust prepared, intending that it should cover lot 35 in block 2, but by mutual mistake lot 4 in block 16 of said addition was described in the deed of trust instead of lot 35, block 2; at an prior to the 23d day of [February, the day on which the deed of trust was executed, Sam Houston Mills and wife had entered into a written contract with Doty for the purchase of lot 4, block 16, at which time they paid $500 of the purchase money and agreed to make certain improvements on the lot, which agreement was being complied with at and before the aforesaid deed of trust was executed; in other words, it is shown, and the court so found, that at the time of the execution of the deed of trust lot 4 in block 16 with the improvements thereon was the homestead of Mills and wife, and that Norwood got no lien thereon by reason of such deed of trust.

It is apparent that Judd, who alone acted for Norwood in making the loan to Doty, at no time intended that the deed of trust should constitute a lien on lot 4 in block 16; that as a fact it did not constitute such lien. In other words, it conclusively appears that Nor-wood had no valid enforceable lien on lot 4, block 16, at any time. It is therefore inconceivable why he was entitled to an equitable lien on such lot.

It is not shown by any evidence that any part of the $4,500 loaned by Norwood was expended by Doty in constructing the improvements on lot 4 in block 16. However, if he had, such expenditures would not create a lien. on the homestead of Mills and wife under the facts shown.

' We hold that Norwood had no lien either equitable or legal on the $3,750 vendor’s lien note held and owned by Houston Loan & Investment Company.

Having so held, so much of the judgment as awarded to Norwood an equitable lien on said $3,750 note owned by the investment company -is reversed, and as to the same judgment is here rendered for the investment company. In all other respects the judgment is undisturbed and is affirmed.

Reversed and rendered in part; affirmed in part.