author: JACKSON, Chief Justice.

text:
    MERRYMAN v. ZELENY.
    No. 5190.
    Court of Civil Appeals of Texas. Amarillo.
    Sept. 16, 1940.
    Griffin & Morehead, of Plainview, for appellant.
    Ray Cowsert, of Dimmitt, for appellee.
   JACKSON, Chief Justice.

This suit was instituted in the County Court of Castro County by the plaintiff, Frank Zeleny, against the defendant, Clyde Merryman, to recover the sum of $363 damages on account of a collision of the defendant’s truck with the truck and trailer of the plaintiff.

We shall designate the parties as in the trial court.

The plaintiff alleged thaf the collision occurred in Castro County and was occasioned by the negligence of the defendant, his servant, agent and employee who operated the truck on the left side of the highway at an excessive rate of speed and failed to keep a proper lookout.

The defendant in due time and in proper form filed his plea of privilege and sought to have the case transferred to Swisher County where he lived and maintained his. residence.

The plaintiff promptly filed his controverting affidavit in which he alleges that his suit is based on a crime, • offense or trespass committed in Castro County and the county court thereof has venue of the case under subdivision 9 of article 199S, Vernon’s Annotated Civil Statutes.

On September 13, 1939, all parties appeared 'and announced ready for trial on the plea of privilege. A jury was demanded, selected and impaneled to pass upon the venue facts, the testimony introduced and at the conclusion thereof the court 'peremptorily instructed the jury to return a verdict in behalf of plaintiff and he rendered judgment overruling the defendant’s plea of privilege, from which action of the court this appeal is prosecuted.

The defendant contends by proper assignments that the court erred in directing the jury to find a verdict against him on the venue facts and overruling his plea of privilege because he says the testimony presented fact issues which should have been determined by the jury.

The testimony is sufficient to sustain a finding by the jury that on June 19, 1939, the plaintiff owned a truck with a trailer attached which was parked in Castro County on the right of and off of Highway No. 194, which extends northwesterly, the direction the truck and trailer were going when parked by the driver of the plaintiff; that the defendant owned a truck driven by N. H. Pennington who was traveling the highway in the opposite direction, or southeasterly, on the left or wrong side of the road when he ran into and collided with the truck and trailer of plaintiff which resulted in damages thereto. Mr. -Pennington testified that he was a farm laborer and had been working for defendant about five weeks and had done a little of everything about the farm and had driven a truck, a combine and a tractor for defendant, but that his driving the truck had been inconsiderable; that a few nights previous to the collision he had been directed to watch a loading rack at night belonging to the defendant at which place he slept while performing that duty and had been carried there by the defendant or under his direction theretofore but on the night of the 19th there was no one to drive the truck and he was instructed to take it and drive over to the loading rack which he did, arriving there about 9:30 P. M.; that thereafter, the. time he does not give, he took the truck and drove over to Plart; a little town about five miles from the loading rack, and on his return from Hart to the loading rack he ran into a truck and trailer. His testimony indicates that he stayed at Plart but a short while and got some matches before starting on his return but does not say he went to Hart for matches. He says he smokes cigarettes and a lantern was used for light at the loading rack. There is no testimony that there were no matches at the loading rack or that he. needed matches in the service of his employer or that it was necessary to drive to Hart to obtain matches. There is no testimony that the defendant transacted, business at Hart or had any business at Hart or that there was any occasion for Mr. Pennington to , abandon his duty at the loading rack and drive "to Hart for his employer.

Under the law the parties, or either of them, are entitled to have a jury pass upon the venue facts when a plea of privilege is presented. 43 Tex.Jur. 837, para. 104. .

In order to maintain the venue in Castro County, the burden was on the plaintiff to prove the commission of a crime, offense or trespass; that it was committed in Castro County and that N. H. Pennington was the agent of the defendant and acting within the scope of his authority in order to fix responsibility on the defendant for any damages sustained.

In Edington v. Southern Old Line Life Ins. Co., Tex.Civ.App., 55 S.W.2d 579, 580, the late and lamented Judge Martin said: “In order to establish liability and hold venue against appellee herein, it was indispensably necessary for appellant to prove the coexistence of two facts, namely, (1) that the relation of master and servant existed between appellee and Childers at the time of the occurrence referred to above, and (2) that at such time Childers was acting within the scope of his employment in performing an act- for his master’s benefit. National Cash Register Co. v. Rider (Tex.Com.App.) 24 S.W.2d 28.”

The plaintiff contends that having shown that the collision occurred in Castro County, that it constituted a crime, offense or trespass, that the defendant was the owner of the truck and it was driven by his employee at the time the damage was inflicted, a presumption arose that the driver was the agent of the owner acting within the scope of his employment and inasmuch as such presumption was unchallenged by the testimony he had made out a prima facie case on all the facts "including liability. The presumption relied on by the plaintiff is not conclusive but may be contested or controverted by admissible facts or circumstances, and if an issue is’ raised sucli issue is to be weighed by the trier of the facts in compliance with the rules which prevail in trials generally. 43 Tex.Jur. 859, para. 116; Compton v. Elliott, 126 Tex. 232, 88 S.W.2d 91.

The presumptions arising from the facts relied on are inferences of fact and not of law. Gordon v. Texas & Pacific Mercantile & Mfg. Co., Tex.Civ.App., 190 S.W. 748.

The question before us is not whether the testimony would support a finding by the jury or a finding by the court without a jury, and we must keep in mind that the ' court directed a verdict on the venue facts and unless these facts were conclusive he committed error.

In the Cyclopedia of Automobile Law and Practice, Blashfield, Perm.Ed., Vol. 9, page 378, § 6066, it is said:

“The force of the presumption as to the status of the driver of a motor vehicle causing injury, arising from the proof or admission of ownership, is that it makes out a prima facie case upon which the plaintiff is entitled to recover unless overcome by testimony to the contrary. This makes it incumbent upon the defendant to offer rebuttable proof in opposition to the plaintiff’s case.

“As otherwise expressed, such a prima facie showing will support a verdict in favor of a person injured in a collision, in the absence of substantial proof to the contrary. However, it does not have the effect of shifting the burden to the defendant of proving by a preponderance or greater weight of the evidence that the automobile causing the injury was not being used in his business. It merely amounts to evidence for the jury’s consideration.”

This announcement of the law finds support in the 43rd Texas Jurisprudence cited supra; English v. Blackwood et ux., Tex.Civ.App., 128 S.W.2d 895; Freeman v. Texas Bread Co., Tex.Civ.App., 111 S.W.2d 307; Dennes v. Jefferson Meat Market, Inc., 228 Ky. 164, 14 S.W.2d 408.

In our opinion the venue facts should have been submitted to th~ jury for its determination.

It was incumbent upon the plaintiff to prove that the collision for which he seeks to recover damages occurred in Castro County, Texas, in order to maintain venue in said county. The only witness that testified that the collision did occur in Castro County was the plaintiff&emdash;decidedly an interested party. It is apparently settled in this state that a court is not authorized to direct a verdict on the testimony of interested witnesses.

In Simmonds et al. v. St. Louis, B. & M. Ry. Co., 127 Tex. 23, 91 S.W.2d 332, 333, Judge Smedley, speaking for the Supreme Court, citing many authorities in support of his announcement, says: “As to the testimony of interested witnesses, the general rule is that, while the jury has no right arbitrarily to disregard the positive testimony of unimpeached and uncontradicted witnesses, the mere fact that the witness is interested in the result of the suit is deemed sufficient to require the credibility of his testimony to be submitted to the jury. Stated in another form, the rule is that the uncontradicted, uncorroborated testimony of a party to a suit will not authorize or support an instructed verdict.”

The judgment is reversed and the cause remanded.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    PRODUCERS PIPE & SUPPLY CO. v. HAMMONDS et al.
    No. 5646.
    Court of Civil Appeals of Texas. Texarkana.
    Aug. 1, 1940.

      Wynne & Wynne and Philip Brin, all of Longview, for appellant.
    Abney & Caven and Hubbard Caven, all of Marshall, for appellees.
   PER CURIAM.

This is an appeal from an order of the District Court of Marion County overruling a plea of privilege. On December 16, 1938, appellees instituted suit against appellant in Marion County for damages due them as a result of delivery to them by appellant at their oil lease in Marion County of allegedly inferior oil well casing. It was alleged that the casing was cemented in appellees’ well and was condemned by the State Railroad Commission as being inferior in quality and strength when subjected to the test required by said Commission. Plea of privilege and controverting affidavit were filed in due time joining the issue as to venue. It is a contention of appellant that the evidence in the record is insufficient to establish that it was a foreign corporation incorporated under the laws of Oklahoma. Appellees introduced certified copy of appellant’s charter issued to it by the State of Oklahoma. This certificate purports o be under the seal of the State of Okla-ioma. Judge Fred Branson, a witness for appellees, testified: “I personally know Mr. F. C. Carter, whose name appears on the document, and know that he was the Secretary of State of the State of Oklahoma on the 5th day of December, A. D. 1938. I personally know the said F. C. Carter, and have known him for thirty years. I know Katherine Mantón, Assistant Secretary of State, and know her signature attached to the document. I am familiar with the Seal of State of the State of Oklahoma, and know that the Seal attached to the document is the Seal of the State of Oklahoma. I was in the Secretary of State’s office in the Capitol Building in Oklahoma City, and made personal application for this certified copy of the Articles of Incorporation of the Producers Pipe & Supply Company, Tulsa, Oklahoma. After the document was made, I assisted Katherine Mantón, the Assistant Secretary of State, in comparing it with the original on file, she reading the copy, I checking it with the original on file- in that office; and I personally know that the Articles introduced in evidence is a true, exact, and correct copy of the Original Articles of Incorporation filed in the office of the Secretary of State, whose office is in the Capitol Building in Oklahoma City.”

In addition to this testimony appellees introduced in evidence without objection certified copy of appellant’s permit to do business in Texas which shows it to be incorporated under the laws of the State of Oklahoma. We think that the above proof satisfies the requirement of the law. Abeel v. Weil, 115 Tex. 490, 283 S.W. 769. 28 U.S.C.A. § 688, has no application to the facts in this case.

Appellees in their controverting affidavit allege that this case comes under subdivisions 5, 23, and 27 of Article 1995, R.C.S.,' Vernon’s Ann.Civ.St. art. 1995, subds. 5, 23, 27, and the venue, therefore, is maintainable in Marion County under one or all of these sections. Under proof made by appellees on the trial of this plea of privilege it is clear to us that this case comes under Section 27 of Article 1995. The evidence shows that the cause of action, or a part thereof, arose in Marion County. Appellees alleged in their petition in the main suit, and their proof sufficiently established, as pertaining''to the question of venue, that their damages were brought about by the delivery to them in Marion County by appellant of inferior oil well casing instead of new electric weld grade C casing ordered by appellees, and agreed by appellant in its telegram of confirmation to be delivered; that said casing when placed in the well did not stand the test required by the Railroad Commission of Texas; and that as a result they had to move their location and drill another well to their damage in the amount sued for. Certainly a part of the cause of action for the alleged damages to appellees arose in Marion County where their oil well was located, where the casing was placed in said well, and where the casing was delivered by appellant. Under this section of the venue statute we think the trial court very properly overruled appellant’s plea of privilege.

Therefore the judgment is in all things affirmed.


author: YOUNG, Justice.

text:
    ROSENFIELD v. BEVILL.
    No. 12899.
    Court of Civil Appeals of Texas. Dallas.
    July 13, 1940.
    Rehearing Denied Oct. 5, 1940.
    Charles S. McCombs and Elihu E. Ber-wald, both of Dallas, for appellant.
    Alexander D. McNabb, of Dallas, for ap-pellee.
   YOUNG, Justice.

This is a second appeal, the sufficiency of appellee’s pleading as a bill of review having been determined in Bevill v. Rosenfield, Tex.Civ.App., 113 S.W.2d 340, to which we refer for nature of the case and law points involved. Plaintiff, Frank Bev-ill, again stood for trial upon the same pleading (second amended original petition), to which special exceptions were urged and sustained to all allegations of fraud-and for recovery of the $800 fee in question. This left in the case no issue save the validity vel non of the probate court order, appointing appellant as attorney for Frank Bevill, “a missing heir”; and the subsequent order allowing the sum of $800 for services rendered on behalf of appellee in original probate cause No. 15,494. Our former opinion fully set forth the facts surrounding the entry of these two orders, and further detail thereof is unnecessary. Plaintiff, in many allegations of fact, reiterated that, at the time of said two orders, he had not entered any appearance in the probate proceedings involving his father’s will; that he was then a nonresident • of the State, and not cognizant of above probate transactions until more than one year later; further, that said court appointment and allowance were each “arbitrary, oppressive, unjust and confiscatory”; also unnecessary and of no benefit to him. Defendant’s answer, in turn, alleged the history of his connection with the entire litigation, his appointment by the probate judge, the extent of his services on behalf of plaintiff; pleading estoppel by reason of Frank Bevill’s subsequent participation in the affairs of the estate; making appearance therein, and accepting his pro rata part of the family settlement, thus precluding him from setting up defendant’s lack of authority as attorney; also alleging ratification and approval of defendant’s services by receiving the benefit thereof. Defendant also asserted the orders and decrees of the probate court under review were just and fair, and that said court, under the circumstances, was duty bound to make said appointment in the interest of said heir; pleading in the alternative that said legal services were reasonably worth the sum of $800, in view of benefitá accruing to plaintiff Frank Bevill.

At the conclusion of the trial, the jury were given peremptory instruction to find the aforesaid probate court orders void, which became their verdict, and judgment was rendered accordingly.

On this appeal, defendant’s many assignments of error may be thus summarized: (1) That plaintiff, in his bill of review, offered proof merely of no service upon, or appearance by him in the probate cause, prior to' said appointment and allowance, and by failing to prove his further allegations touching such orders, a prima facie case was not established; (2) the essentials of a bill of review required an affirmative showing of meritorious reasons therefor, additional to proof of no jurisdiction over appellee’s person; (3) the court further erred in excluding appellant’s offer of evidence detailing the legal services rendered, their necessity, and the reasonableness of his fee, under which he, and not appellee, was entitled to an instructed verdict; (4) a situation of estoppel and ratification was presented by the undisputed testimony, whereby appellant should have had a peremptory instruction in his favor.

Appellant admitted in the trial court that no character of service was had upon appellee, prior to said appointment and allowance, other than the posting of notice at the time the application for administration upon the estate of Paul Henry Bevill, deceased, was filed; such fact also being reflected by the probate records in evidence at the hearing. It would follow that, as held in our former opinion, the orders under attack were without legal authority and void. Plaintiff’s diligence in filing and prosecuting his bill of review beng unquestioned, the admitted lack of service established his cause of action; and petitioner’s additional allegations concerning such fee were unnecessary. A judgment void on its face may be enjoined without a showing of meritorious defense thereto. August Kern Barber Supply Co. v. Freeze, 96 Tex. 513, 74 S.W. 303; Empire Gas & Fuel Co. v. Noble, Tex.Com.App., 36 S.W.2d 451; Perez v. E. P. Lipscomb & Co., Tex.Civ.App., 267 S.W. 748; San Bernardo Townsite Co. v. Hocker, Tex.Civ.App., 176 S.W. 644; Levy v. Roper, 113 Tex. 356, 256 S.W. 251.

Appellant’s defensive issues regarding the fee and of estoppel and ratification were likewise irrelevant; being affirmative matters to be asserted if and when appellee should seek a money judgment in a court of proper jurisdiction. Needless to say, the Dallas County Probate Court did not have that jurisdiction, Vernon’s Ann.Civ.St. Arts. 1970—1, 1970—4, Legrand v. Stubblefield, Tex.Civ.App., 63 S.W.2d 399; for which reason, the trial judge eliminated from the cause any attempt to recover the fund, and all issues tendered by defendant in such connection.

But appellant earnestly argues that our opinion upon the prior appeal contemplated that the defensive matters urged by him would be heard upon trial of the instant case on its merits; and that the refusal by the trial court to hear the proffered evidence on the reasonableness of the fee, character of his services, necessity for the appointment and benefits resulting therefrom, was contrary to the mandate of this court. Bevill v. Rosenfield, Tex.Civ.App., 113 S.W.2d 340. Of course, only the sufficiency of plaintiff’s petition as against a general demurrer was there involved; the limited extent to which the Dallas. County Court, sitting in probate, could take cog-nizánce of the bill of review not being before us for consideration. It had not occurred to us that the probate court was not authorized to render a money judgment, as first prayed for, or to hear the particular defenses interposed to such relief. Aside from this, however, the issue on the present appeal has been narrowed by special exception to the validity, or not, of these probate orders; and want of jurisdiction over ap-pellee appearing on the face of the record renders all other issues immaterial. In view of the foregoing, it would be premature to discuss appellant’s 4th, Sth and 6th propositions relative to estoppel, ratification and acceptance of benefits, until such defenses become pertinent to subsequent litigation between the parties.

It follows that the court’s peremptory instruction was correct, and'the judgment predicated thereon must be affirmed.

Affirmed.


author: LOONEY, Justice.

text:
    SIMPSON v. DALLAS RY. & TERMINAL CO.
    No. 12902.
    Court of Civil Appeals of Texas. Dallas.
    July 20, 1940.
    Rehearing Denied Oct. 5, 1940.
    Currie McCutcheon and Bruce Graham, both of Dallas, for appellant.
    Burford, Ryburn, Hinclcs & Charlton and Logan Ford, all of Dallas, for appel-lees.
   LOONEY, Justice.

Stone Simpson sued Dallas Railway & Terminal Company to recover damages for alleged personal injuries to his wife, Daisy Simpson, received while a passenger on one of defendant’s street cars, as she was preparing to alight at. a regular stop, by the sudden closing upon her of the rear (treadle) door of the car, catching and holding her between the door and the door facing, fracturing her collar bone, and inflicting other injuries. At the con-elusion of the evidence, the court instructed a verdict for the defendant and, • judgment having followed accordingly, plaintiff appealed.

The only question presented for our decision is whether, in view of the facts, the case should have been submitted to the jury under the doctrine of res ipsa loq-uitur. The facts bearing upon the question, most favorable to the plaintiff, substantially are these: The street car in question was of the one-man type, the operator and the controls located in the front end; having a treadle or folding door for the exit of passengers in' the rear vestibule, that opened toward the rear, its motive power being compressed air, and was controlled as follows: The operator would place the air key or lever in what he called the “treadle-door notch”, the passenger desiring to alight would step upon the treadle (about 18 inches wide and 2 feet long) in the floor of the vestibule immediately in front of the folding door, the pressure applied depressing the treadle about an inch, caused the door automatically to open and a step on the outside of the car to fold outward and down. The passenger would pass from the vestibule onto the outer step and then to the ground. The only control the operator had over the opening and closing of the door was to shift the key or lever to the treadle-door position, thus making it possible for the passenger, by stepping upon the treadle, to cause the door automatically to open. The door would not open unless the passenger stood upon, or put pressure upon the treadle, and would only close when the treadle and outer step were relieved of pressure. Once the door was opened in the manner described, there was nothing the operator could do to keep it from closing. Testifying, the operator, among other things, said: “The treadle-door was put on the street car by the street car company for the purpose of letting people get off at that back door. As far as I know, those treadle-doors never get out of fix unless they are involved in an accident and those rods get bent or sprung. I have nothing to do with reference to inspection of the cars; I only operate them. They have an inspector and he is a specialist on treadle-doors. The door will not close with a passenger standing on the step or treadle, unless there is something wrong with the door.”

That plaintiff’s wife was injured by the closing of the treadle-door upon her, as she was in the act of alighting from the street car, is not questioned. She testified, in part, as follows: “ * * * we were just all jammed up together touching each other getting off. A big woman about my size had just gotten off in front of me. * * * I was about five or six inches behind the lady in front of me. When I stepped up on the treadle for the purpose of alighting, this colored woman ahead of me was stepping off the street car step. * * * The door came to on me when I was standing right in the door trying to step out on the step to get off the street car. There is an iron rod that goes straight up and down to hold to so you won’t fall and I had hold of that with my left hand and just as I went to take my right foot and step down on the step the door came to; one foot was on the treadle and my right foot was out to step down on the step but it hadn’t touched the step; my weight was on my left foot.”

Daisy Simpson was corroborated by the witness Elmo Walton, another passenger, who testified: MI was on the street car when Daisy Simpson was on it. When that street car reached the intersection of Main and Hawkins I saw Daisy Simpson as she attempted to get off the car at the back at the treadle-door. Three or four got off ahead of her and as she started to get off she stepped on that treadle and the door closed and caught her between the shoulder and the other side where it comes together. I don’t recall how close she was to the person in front of her, but another mam was getting off behind her.”

The evidence, in our opinion, would warrant the conclusion that, while the passenger was leaving the car, passing through the door just behind other passengers, left foot upon the treadle and right poised to step upon the outer step, she was struck by the door shutter, suddenly, erratically and out. of time, closing upon and injuring her. Why the door behaved in this manner was not explained, nor did the defendant make any attempt at an explanation. Although we do not think it can be said that the operator was at fault,- or that an imputation of negligence can be drawn from his conduct, yet that is no answer to the unanswered question— what caused the treadle-door to clpse upon the passenger at a time and under conditions when; according to its mechanically planned operation, it should have remained open?

That it was the duty of the defendant carrier to exercise a high degree of care in respect to keeping in repair and in a safe condition its cars and operating apparatus is well-settled by the authorities ; and the failure on its part to perform that duty would be negligence. The operator testified that the defendant Company had an inspector, a specialist on treadle-doors, and, further, that a door would not close with a passenger standing upon the treadle or step, unless there was something wrong with the door.

As before shown, the testimony is to -the effect that, while plaintiff’s wife was preparing to alight from the car, the treadle-door closed upon her while, according to her testimony and that of another witness, she was standing with left foot upon the treadle, in the act of placing her right upon the outer step. This testimony, in our opinion, would warrant the conclusion that the controls of the treadle-door were out of order, and that the closing of the door under the circumstances, unexplained, would warrant the inference of negligence.

As stated in 30 Tex.Jur. § 132, pp. 807, 808: “Res ipsa loquitur means that the facts of the occurrence warrant the inference of negligence, not that they compel such an inference; that they furnish circumstantial evidence of negligence where direct evidence of it may be lacking, but it is evidence to be weighed, not necessarily to be accepted as sufficient; that they call for explanation or rebuttal, not néces-sarily that they require it; that they make a case to be decided by the jury, not that they forestall the verdict. Res ipsa loq-uitur, where it applies, does not convert the defendant’s general issue into an affirmative defense. When all the evidence is in, the question for the jury is whether the preponderance is with the plaintiff. Such, we think, is the view generally taken of the matter in well-considered judicial -opinions.’’

Many Gases are cited by the parties, involving the doctrine of res ipsa loquitur that, beyond announcing general principles — in regard to which there can be no controversy — are of no particular value as authorities. The facts show, we think, that the defendant had exclusive control and management of its street cars and all appliances and equipment used in their operation, including the machinery and appliances controlling the treadle-door which, under certain conditions, opened and closed automatically. We think the doctrine, as applied to the facts of this case, implies that the closing of the door upon and injury to plaintiff’s wife, at the time and under the circumstances revealed by the evidence, was due to some act or omission incident to the defendant’s control of its own appliances, as the accident was of a nature that, ordinarily, would not have occurred if the treadle-door controls had been in good working order.

But, the defendant contends that: “The material facts are uncontroverted. Viewing the evidence in its most favorable light to plaintiff, the conclusion remains that the rear treadle-door of defendant’s street car, the instrument causing injury to plaintiff’s wife, if not wholly, was at least partially, under her control at the time of the accident. Under such circumstances, the doctrine of res ipsa loquitur is not applicable. Before the doctrine can be invoked it must be established as a fact that the thing which caused the injury complained of is wholly and exclusively under the management and control of the defendant.” See p. 27, defendant’s brief.

The vice in the proposition contended for by the defendant, in our opinion, is that it finds no proper basis in the facts. The only control exercised by the passenger over the movement of the treadle-door was to cause it to open by stepping upon the treadle; otherwise, she had no control over its movement, as it automatically closed when the passenger alighted from the step on the outside of the car. There was no connection between anything she did, omitted, or was required to do, that caused the door abruptly to close at a time and under conditions when it should have remained open.

For the reasons stated, we are of opinion that the court below erred in refusing to submit the case to the jury. Therefore, the judgment below is reversed and the cause is remanded for further proceedings.

Reversed and remanded.


author: WALTHALL, Justice. PRICE, Chief Justice PRICE, Chief Justice.

text:
    PERSON et al. v. LEVENSON.
    No. 3962.
    Court of Civil Appeals of Texas. El Paso.
    July 5, 1940.
    Rehearing Denied Sept. 26, 1940.
    J. M. Deaver and Fred C. Knollenberg, both of El Paso, for appellants.
    Joseph L. Dunigan, of El Paso (Potash & Cameron, of El Paso, on the brief), for appellee.
   WALTHALL, Justice.

This suit was brought by Mary Leven-son, joined pro forma by. her husband, Wolf Levenson, as plaintiffs, against Sophie Person and her husband, Jacob Person, as defendants, to recover on a series of promissory notes of date February 20, 1931, due on or before five years after date, the notes executed by Jacob Person, and payable to Mary Levenson, or order, each of said notes in the principal sum of $500, and bearing interest at the rate of eight per cent per annum from date, with interest from maturity at the rate of ten per cent per annum, and providing for the payment of attorney’s fees in the event of suit on the notes.

The consideration, in part, for said notes was the conveyance by said Wolf Levenson of .all of his right, title and interest in and to Lots 8 and 9 and east ten feet of Lot 7, in Block 1, of Franklin Heights Addition to the City of El Paso, El Paso County, Texas, which property theretofore had been jointly owned by plaintiffs and defendants.

Thereafter, on March 10, 1931, both defendants executed and delivered to M. V. Ward, trustee, a deed of trust to secure said notes, giving in said deed of trust a deed of trust lien on the property above described. The above deed of trust lien was made inferior to certain other liens on said property, among which we note $25,000 lien held by the City Mortgage Company; $5,000 held by J. C. Worthington & Sons, and transferred to the City Mortgage Company, and a lien of the Pronto Plumbers of $3,655. The above liens, to which the Levenson lien was made -inferior, were given by the Persons and Levensons to secure the indebtedness by them, and which indebtedness and liens were assigned to and held by the City Mortgage Company.

The above deed of trust to the Leven-sons contained and expressed a general warranty of title to the premises conveyed unto the trustee in the deed of trust to secure the payment of the notes to Mrs. Levenson.

No payment of interest or principal was made on the Levenson notes.

The City Mortgage Company brought' suit in the District Court of El Paso County, Texas, on the above mentioned indebtedness of the Persons and Leven-sons and to foreclose the liens securing sáme. Service was had and judgment rendered foreclosing the liens on the property; a sale of the property was duly made, the Levensons notified, and the City Mortgage Company became the purchaser at the foreclosure sale. The property did not bring enough to liquidate the indebtedness due the City Mortgage Company judgment.

On January 22, 1937, the City Mortgage Company, by warranty deed, conveyed the property to Sophie Person, the deed reciting “as her sole and separate” estate, and for a stated consideration of ten dollars cash and notes totaling $6,-700, due on or before ten years, retaining a lien on the property to secure the payment of the notes, the lien retained made subject to a first lien in favor of the R. F. C. Mortgage Company in the expressed sum of $20,250.00.

Mrs. Sophie Person went into possession of the premises, an apartment house, and has operated and managed same since February, 1931; she and her husband occupied one of the apartments as their home and place of residence, neither having any other place of residence. The property is an apartment house consisting of thirty-six apartments.

Twenty-six hundred dollars was paid by the Persons on existing liens other than those sued on here, from rents of the apartments.

Opinion.

Appellants submit that the deed of trust given by them to the trustee, M. V. Ward, to secure the Levenson notes in 1931, sued on here, was void for the reason that prior to and at the time of the execution of the deed of trust the property was appellants’ homestead.

The trial court gave judgment in favor of Mary Levenson and against Jacob Person for the amount due on the notes, and in the judgment established a lien against the property herein described, subject, however, to a first lien in favor of the R. F. C. Mortgage Company, and subject to a second lien in favor of the City Mortgage Company, as the same- appears of record, and that Mary Levenson have foreclosure of her lien, subject to the first and second liens as above.

The first question presented, then, is the validity of the Mary Levenson lien. If the property on which the lien was given was the home of the Persons, it was not a valid lien.

The Persons, on March 10, 1931, gave the deed of trust to M. V. Ward, trustee, on the property to secure the notes sued on, and with a warranty of their title to the apartment property.

In 1936, in cause No. 43839, when the City Mortgage Company . foreclosed its liens, the Levensons were made parties as junior lien holders, and in the judgment rendered in that proceeding the trial court held, “that the property above described was on March 10, 1931, the homestead of Jacob Person and Sophie Person, and is now their homestead.”

In cause No. 45136, the Levensons versus the Persons, tried in the District Court of El Paso County, in a suit on the notes involved here and to foreclose the deed of trust lien on the property involved here, the trial court found that Mrs. Person went into possession of the apartment house consisting of thirty-six apartments and operated and managed same with the assistance of her husband; that since February, 1931, the Persons occupied one of the apartments as their home and place of residence, and had no other home and place of residence; and neither had any other occupation than the operation of this apartment house; that Mrs. Person collected the rents from the apartments, paid the expenses, and from the rents applied $2,600 to the lien of the R. F. C. Mortgage Company, and the interest on the debt due the City Mortgage Company.

On the above findings the trial court concluded as matters of law that the property was not the business homestead of the Persons, because the business therein was carried on by Mrs. Person, who was not the head of the family, and that the residence homestead in the property is limited to the apartment occupied by the Persons as their home, and made other conclusions which we will notice later.

The judgment was based on the above findings and conclusions from which there was no appeal.

We have sufficiently stated the facts found by the court from which the court concluded that the apartment house was neither the business place nor the residence place of the Persons.

The question of whether the apartment house was the homestead of the Persons must be determined by the facts as they existed at the time of the execution of the deed of trust. The facts as stated above are not in any manner disputed or controverted. The only business of the Persons, or either of them, was renting the apartments, collecting the rents and otherwise caring for the property generally. We have not found the value of the property stated in the record, but the value does not enter into the definition of a homestead — it is merely a limitation upon the exemption when established. Hargadine v. Whitfield, 71 Tex. 482, 9 S.W. 475. Nor is there any exception that the value is not alleged and shown. Gallagher v. Keller, 4 Tex.Civ.App. 454, 23 S.W. 296.

The property involved is one piece of property. Both of the Persons were equally in possession and making use of the entire building. It is the place of the homestead that gives character to it, not the business of the head of the family. The property may be homestead of the family whether the title be the separate property of either the husband or the wife, or community property. Wheatly v. Griffin, 60 Tex. 209, 211.

Without discussing the homestead feature of the property further, we might say, in conclusion, that the business or calling of Person was that of using the property as an apartment house; the building was erected and adapted to such use; the property.was occupied by the-Persons and used by them for such purpose.

We have concluded that the property was the homestead of the Persons at the time of the making of the deed of trust. White v. Hebberd, Tex.Civ.App., 89 S.W.2d 482; Postal Savings & Loan Ass’n v. Powell, Tex.Civ.App., 47 S.W.2d 343.

Appellee does not discuss the homestead feature of the property. The City Mortgage Company having foreclosed its liens and sold the property under its judgment, bought the property at such sale, and thereafter conveyed the property to Mrs. Person, the appellee now asserts the proposition that, the Persons having conveyed the property to M. V. Ward, trustee, by deed of trust to secure the notes sued on, and in such conveyance warranted the title to the trustee, appellants, by reason of such warranty, received not only the title the grantor had at that time, but received any after acquired title of the Persons, regardless of how their title is acquired. We now consider that question.

We think that in considering this part of the case it is well to refer to such portions of an agreement between Jacob Person and Wolf Levenson executed by them on March 10, 1931, the day on which the deed of trust was executed, as may be pertinent to the question to be discussed.

The parties agreed in writing (briefly stated) : Wolf Levenson “shall convey by good and sufficient deed to the said Jacob Person his interest in the above described property (the apartment property) subject to the outstanding liens as .more fully hereinafter set forth.” Jacob Person agrees to execute to Mrs. Mary Levenson the five notes sued on herein; agreed to have a lien-of Celia Sabsay released; then, continuing, “which lien (apparently, and we think, the deed of trust lien) is to be inferior to the $25,000.00 lien held by the City Mortgage Company” (then mentions and describes the liens held by the City Mortgage Company). The agreement refers to the settlement of other matters not necessary to state, and concludes the agreement with the statement that “upon the final execution and delivery of the papers, deeds, contracts and notes herein mentioned,” Levenson “agrees to vacate said premises, and all income from the property from this date shall belong to said Jacob Person.”

The above agreement and the deed of trust were executed the same day, refer to the same subject matter, fully express the intention of the parties on the issue now under consideration, and we think must be taken and considered as one instrument in determining just what the contracting parties had in mind in executing the deed of trust and the covenants therein contained.

The principle sought to be applied by ap-pellee to the facts in this cáse is expressed in their proposition as follows: “When a grantor conveys land with warranty of title, the grantee' not only receives the title of the grantor at the time of the transfer but any title subsequently acquired by the grantor, regardless of how that title is acquired.”

The doctrine of after acquired title, whether by statutory provision or by contract lien, may be invoked in the absence of express warranty, based on implied cpvenants in the grant, or by express covenants by contract to the effect that previous to the execution of the conveyance the grantor has not conveyed the same estate, nor any right, title or interest therein to any person other than the grantee, as provided by Art. 1297, R.C.S.1925.

There are many exceptions to the rule that a grantor may not be estopped to set up an after acquired title. We need not discuss them, but will refer, as applicable here, to covenants in the contract which, we think, make applicable the rule of after acquired title.

There were a number of enforceable and established liens on the apartment property prior to the execution of the agreement and deed of trust in this • case. The parties expressly contracted with reference, thereto, and agreed that such liens were prior to the deed of trust lien in this case. The prior liens were specifically mentioned with the several amounts secured by the prior liens, and the parties in writing covenanted that the deed of trust contract expressing the lien sought here to be enforced was subsequent thereto.

The question that confronts us is: What l was the effect of the foreclosure sale to satisfy the prior liens on the second or subsequent lien? Did the sale have the effect to destroy the subsequent lien under the facts stated, and especially, as here, where both Jacob Person and Wolf Leven-son were jointly liable for the debt for which the prior lien was given to secure? The record does not show that Levenson had paid any part of that debt or judgment.

We have concluded that Levenson had no lien to foreclose; that the legal and regular sale of the property granted the owner of the prior lien extinguished the junior or inferior lien of Levenson. It seems to us the conveyance by the City Mortgage Company to Mrs. Person, at most, was a contract of reconveyance. Roach v. Grant, 134 Tex. 10, 130 S.W.2d 1019.

The case is reversed and here rendered that plaintiffs take no judgment of foreclosure by reason of their suit, but a judgment for the amount of their debt only.

PRICE, Chief Justice

(concurring).

While I agree that this case should be reversed and rendered insofar as same establishes and forecloses a lien, I do not base my decision upon the same ground as Justice WALTHALL.

I do not agree with the holding that the deed of trust of March 10, 1931, was entirely void. Plaintiff pleaded: “The consideration in part for said notes was the conveyance by Wolf Levenson of all his right, title and interest in and to the property.” However, under the facts as developed, it seems that the said notes were part of the consideration given for the property, and the conveyance, if made, was partly made for these notes. Conceded that the property was the homestead of defendants at the time of the giving’of the deed of trust, I think on the interest conveyed by Levenson to Person it constituted a lien. If the property was a homestead, in my opinion, it did not create a lien on the undivided interest held by the Persons before the conveyance.

Under the facts found by the trial court, this undivided interest, prior to the execution of the deed of trust, was the homestead of defendants.' The finding of use and occupancy as a homestead constituted it such, although it was found by the trial court as a conclusion that it was not a homestead.

The building, although constituting thirty-six apartments, was a unitary structure. The occupation of any part of same as a homestead extended the exemption to the land on which it -was situated and the structure. Ford v. Forsgard, 87 Tex. 185, 27 S.W. 57, 25 L.R.A. 155; Postal Savings & Loan Ass’n v. Powell, Tex.Civ.App., 47 S.W.2d 343, writ refused, and authorities cited; Thomas v. Tyler, Tex.Com.App., 6 S.W.2d 350.

Under the facts found the.property was likewise the business homestead of defendant. Shamburger Lbr. Co. v. Delavan, Tex.Civ.App., 106 S.W.2d 351, writ refused, and authorities cited.

It is elementary that a homestead exemption attaches to an undivided interest in property.

This homestead right of defendants continued until the foreclosure by the City Mortgage Company. The foreclosure of its lien was to cut off and destroy this homestead right. During the interim between the foreclosure sale and the deed from the City Mortgage Company to Mrs. Person, the Persons had no title or estate in and to the premises to which the homestead exemption could attach. But on the execution and delivery of that deed the property eo instante became the homestead of defendants. Thjs is true, even though defendants are estopped by the mortgage here sought to be foreclosed. Under the issues as made here, unless the notes represent purchase money, or the defendants were each estopped to plead the defense of homestead, or the lien existed before the dedication of a homestead, these notes are not enforceable as a lien on the property. Art. 16, Sec. 50, Constitution, Vernon’s Ann. St.

In my opinion, Sec. 50 of Article 16, making a homestead liable for purchase money, applies to a debt by which a then created homestead is acquired. It does not apply to any other debt. A newly dedicated homestead is not liable for a debt against the former homestead, even though the new homestead is on the identical property as the old. Of.course, the homestead is liable for a lien which exists prior to the dedication of such homestead. Further, the husband and wife, or either, may estop themselves from claiming a homestead.

When the City Mortgage Company purchased the property, all title of the Persons and the rights of the Levensons therein vested in it. When it conveyed to Mrs. Person that title vested in her, unless there is an estoppel to assert that title against Mrs. Levenson.

In my opinion this property is community property. Community obligations were given for the entire consideration. The evidence fails to show that at the time the title passed it was the intention that such obligations be paid from the separate estate of Mrs. Person. In fact, the evidence seems to negative any such reasonable expectation.

Under a liberal construction of plaintiffs’ pleading it may be alleged the notes represent purchase money. The literal allegation is: “The consideration, in part, for said notes was the conveyance by Wolf Levenson,” etc. Further, it was alleged that the foreclosure by the City Mortgage Company was a collusive proceeding between the Persons and the Mortgage Company — the intent of the foreclosure was to cut off and extinguish the lien of plaintiffs, and then to have the property conveyed by the Mortgage Company to the Persons. Defendants pleaded the homestead exemption. Plaintiffs did not plead by supplemental petition any reply to this defense. If estoppel is pleaded against defendants it must be found in the allegations of plaintiffs’ petition.

The findings are against plaintiffs on the issue of a collusive foreclosure. Estop-pel, then, must be predicated alone on the deed of trust. No covenants of warranty contained in that instrument are invoked by plaintiffs’ pleading, although it is urged by counter proposition here that the judgment is sustainable on the theory of estop-pel by covenants in the deed of trust. A copy of that instrument is neither set forth in nor attached to plaintiffs’ petition as an exhibit. It is shown that Sophie Person joined with her husband in executing the deed of trust. No duty of defendants is averred in plaintiffs’ petition as to the obligations which were the foundation of the liens foreclosed by the City Mortgage Company against the Persons and Levensons; it is not averred that defendants were liable on them or had ever assumed the liability of such obligations.

Under the findings of the trial court these obligations were jointly created by plaintiffs and defendants. , Defendants in their plea of estoppel plead the joint liability on the obligations secured by the lien foreclosed. The contract of March 10th, executed contemporaneously, we presume, with the deed of trust, provided that on a compliance by Person with the conditions thereof Levenson would convey his right, title and interest subject to such liens. If conveyance there was from Lev-enson to Person, it is fair to assume that it was in accordance with this contract, under which such obligations were not assumed.

Further, plaintiffs not having pleaded the covenants of warranty in the deed, cannot, in my opinion, rely on same in this proceeding as an estoppel. Mrs. Person, a married woman, was not .bound by such covenant. Wadkins v. Watson, 86 Tex. 194, 24 S.W. 385, 22 L.R.A. 779. This may be unimportant, as the husband has the privilege of selecting the homestead.

It appears from the defendants’ answer herein that the liens foreclosed were the joint obligations of plaintiffs and defendants here. Let us, then, .consider it from that point of view.

Judge Neill, in the case of Beitel v. Dobbin, Tex.Civ.App., 44 S.W. 299, 301, enunciated this proposition: “It is elementary that a purchaser of property, who agrees, as a part of the consideration, to pay off two mortgages upon it, cannot suffer a sale to take place under the prior one, and, without discharging the junior mortgage, claim title against it.”

The Supreme Court gave sanction to the proposition by refusing a writ of error. The principle has received recognition in the following cases: Kerr v. Henderson, Tex.Civ.App., 1 S.W.2d 1100; Kerr v. Henderson, Tex.Civ.App., 13 S.W.2d 227; Kerr v. Erickson, Tex.Com.App., 24 S.W.2d 21; Milford v. Culpepper, Tex.Civ.App., 40 S.W.2d 163; Buckner v. Buckner, Tex.Civ.App., 51 S.W.2d 769; Levy v. Winfree, Tex.Civ.App., 99 S.W.2d 1043.

To attempt to state the proposition in another way: A mortgagor, by his own default, cannot build up against his mortgagee a title founded on a superior lien which the mortgagor has the undivided duty to discharge. But such is not the case here. At all times the liability of Person and Levenson was equal as to the obligations. They wqre co-makers of the obligations and the property was jointly hypothecated to secure the obligations. The property was sold to satisfy the obligation of Levenson just as much as the obligation of Person. The liens were jointly created by plaintiffs and defendants. With reference to personal liability on the City Mortgage Company obligations there is no evidence that the situation was changed at the -time of the execution of the deed of trust in question. The fact the contract was that the property was to be conveyed subj ect to these liens negatives any assumption by Person of the liability of Levenson thereon.

Now the case of Kerr v. Erickson, supra, has many things in common with the instant case. There, as here, there was no collusion in the conduct of the sale; there, as here, a party other than the mortgagor bought the property in and conveyed same to the mortgagor; there, as here, if we are correct in our construction of the pleadings, no question of warranty of title was. involved. However, I think the distinguishing feature is that here the property was sold to satisfy a debt of one in privity with the one pleading estoppel. This was not true in Kerr v. Erickson. Likewise, in that case there was no question of homestead involved.

As has been before stated, the moment this property was conveyed to Mrs. Person, it became a homestead. Freiberg, Klein & Co. v. Walzem, 85 Tex. 264, 20 S.W. 60, 34 Am.St.Rep. 808. In this case it was held that, although a judgment was duly abstracted, same did not attach to a subsequently acquired homestead, the homestead being dedicated simultaneously with the conveyance of the property to the husband. This case has been followed and frequently cited since its rendition.

It is conceded here that the City Mortgage Company has a lien in the sum of $6,700 superior to that of the lien here asserted by plaintiffs. It is superior, because same represents purchase money of the new homestead. The fact that Person owed money and may have been insolvent did not prevent him from acquiring a new home. Although Person was vested with the right of selecting this home, his wife had the right to acquire a homestead in connection with her husband. In my opinion, this mortgage does not estop her. The covenants and warranties do not bind her. If, in truth and in fact, the notes represent purchase money, her joining in the mortgage was not necessary to its validity.

The courts have at all times given our homestead laws a liberal construction to protect the right conferred by the Constitution.

On Rehearing.

PRICE, Chief Justice.

Beyond any question, under the findings of the court, aside from the conclusions, on the date of the giving of the deed of trust in question, the property involved herein, to the extent of their interest, was the business and residence homestead of defendants, appellants here. This interest was less than the whole interest in the property, plaintiffs holding, likewise, an undivided interest in the property. The undivided interest of defendants in the property was, of course, not subject to the homestead of plaintiffs. After the conveyance the entire property was the homestead of Person and wife.

Insofar as the validity of the deed of trust is concerned, the question, abstractly stated, may be formulated as follows: May a husband and wife having a homestead in an undivided interest mortgage that interest to acquire the undivided interest in the property not then subject to their homestead right? What the plaintiff acquired was the undivided interest theretofore held by the defendants in the property. In order to obtain this outstanding interest defendants mortgaged the interest acquired and their pre-existing homestead interest. It is our conclusion that the deed of trust was valid as to the interest conveyed by the Levensons and void as to the interest held by defendants before such conveyance.

We have carefully re-examined our conclusions on the question of estoppel, and still adhere to the views before expressed.

It might be added that the lien of plaintiffs on the undivided interest conveyed to them by defendants was completely extinguished by the foreclosure on behalf of the Mortgage Company. The only theory on which a lien can be asserted is its reattachment when the property was reacquired by Mrs. Person. This property was acquired as a homestead, and simultaneously with the acquisition dedicated as such. In our opinion the homestead right prevents the reattachment of the lien.

In the case of Freiberg, Klein & Co. v. Walzem, 85 Tex. 264, 20 S.W. 60, 34 Am. St. Rep. 808, it was held that an abstracted judgment did not create a lien on the homestead subsequently acquired if the homestead was dedicated at the moment of its acquisition. It was likewise so held in Thompson & Sons Lbr. Co. v. Clifton, 132 Tex. 366, 124 S.W.2d 106. By analogy we think these two cases support our holding.

There is absent from the instant case the equities existing in Beitel v. Dobbin, Tex.Civ.App., 44 S.W. 299, cited in concurring opinion, and that line of cases following same. Here, Levenson was equally bound with Person on the obligation foreclosed by the Mortgage Company. The property was sold in order to pay a debt of Levenson and Person.

In compliance with the request of defendants, we find that the notes sued on were part of the purchase price of the undivided interest of Levenson and wife.

The motion for rehearing is in all things overruled.


author: PRICE, Chief Justice.

text:
    DE MILLER et al. v. YZAGUIRRE.
    No. 4050.
    Court of Civil Appeals of Texas. El Paso.
    July 13, 1940.
    Rehearing Denied Sept. 19, 1940.

      Birkhead, Beckmann, Stanard & Vance, of San Antonio, on rehearing for certain appellants.
    F. G. Garza, of Falfurrias, and Albert W. Searcy, of- Corpus Christi, for appellants.

      Raymond, Algee & Alvarado, of Laredo, for appellee.
   PRICE, Chief Justice.

Appellee has moved to dismiss this appeal on the ground that appellants failed to file an appeal bond within twenty days after the expiration of the term at which the case was tried. Judgment was entered in the District Court of Duval County on the .- ■■■- day of February, 1940, and on the 8th day of that month the motion of appellants for a new trial was overruled. In the order was embodied an exception and notice of appeal.' The case was tried before a jury at the January term, which opened on January 1, 1940, and expired by operation of law on the 10th day of February, 1940.

The term not continuing more than eight weeks, it was incumbent on appellants to file appeal bond, or affidavit in lieu thereof, within twenty days after the expiration of the term. Article 2253, R.S.1925, Vernon’s Ann.Civ.St. art. 2253. A compliance with the statute is held requisite to confer jurisdiction over the appeal. Frier v. Krohn, Tex.Civ.App., 104 S.W.2d 537, and cases cited.

On February 28, 1940, Honorable Albert W. Search, as attorney of record for appellants, filed on their behalf his affidavit setting forth their inability to give an appeal bond. This affidavit was in regular form, and sworn to before the District Clerk of Duval County.

On the 9th day of March', 1940, the Honorable L. Broeter, Judge of the District Court of Duval County, filed with the Clerk a signed order reciting that on the 9th day of March, 1940, there had been presented to him the affidavits of Salvador Yzaguirre, appellee, H. P. Rogers, District Clerk, and B. E. Alexander, court reporter, contesting the affidavit of inability to pay or give security for costs filed on behalf of appellants, and on account of other business, being unable to hear same, requested the Honorable Dan Tobin, County Judge of Duval County, to hear. same. The District Court was not in session on the 9th day of March.

On March 23, 1940, the Honorable Dan Tobin, the County Judge, heard the contest and entered an order denying to appellants the right to appeal as persons unable to give an appeal bond. His order recites that appellants at the hearing announced that they had procured and would forthwith file an appeal bond. The appeal bond was filed on March 23, 1940, and approved by the Clerk on .the same day.

The affidavit filed by appellants seeking to prosecute the appeal without the giving of security or paying costs is in the transcript, but the affidavits contesting same do not appear therein. The only evidence of the date of filing same is found in the order of the District Judge of March 9, 1940, wherein it is recited that on such date the contesting affidavits had been presented to him.

If appeal has been properly effected, it was either by the giving of the bond on March 23, 1940, or the filing of the affidavit on February 28, 1940. Either of the two methods may be used, but one or the other .perfects the appeal. Each is exclusive of the other. Under Article 2266,. Vernon’s Civil Statutes, where an affidavit is filed an ascertainment of the facts stated in the affidavit is provided in case a contest is filed within the ten-day period. If the court trying the case is in session, it is before that court; if’in vacation, the judge of that court or the County Judge hears same. Here, the court trying the case was not in session. The decision of the County Judge .sustained the contest. In our opinion, the admission, at the hearing, of appellants’ ability to give the bond was an abandonment of the appeal by affidavit as to inability. Under the law the County Judge had the power to hear and determine as to whether appellants had the right to so appeal or were without that right.

In our opinion, we should not assume that' the contesting affidavits were insufficient to raise the issue.

But for the contest, the right of appellants to so appeal would be clear. Said Article 2266 provides that, unless contested within ten days, the affidavit is conclusive. Adams v. Courson, Tex.Civ.App., 99 S.W.2d 686, and cases cited.

Here the affidavit was contested within the ten days. In such a case,- to sustain the right to so appeal, it is necessary that the finding certifying to the right appear ' in the 1 record. Hugle v. Motor Company, 117 Tex. 411, 6 S.W.2d 84.

In our opinion the appeal was not perfected under Article 2266.

Appeal bond was not filed within twenty days after the six-weeks term expired by operation of law. This requirement of Article 2253 is mandatory. Frier v. Krohn, supra.

The statute makes no ' exception as to those required to give bond to perfect an appeal; it conditions the right of appeal as to such as file the bond within the twenty days limited.

There is one other feature that demands consideration. One of the appellants is J. D. Moore, of Los Angeles, California, described as “Executor of the Estate of Avelino Yzaguirre, deceased.” If sued in an official capacity, there would be a right to appeal from an adverse judgment without giving bond. This right, we think, is confined to executors or administrators appointed -by Texas courts. It does not appear that J. D. Moore, describing himself as an executor, ever appeared in that capacity. The judgment sought to be appealed from, as applied to J. D. Moore, simply describes him as executor. In the transcript it is nowhere alleged as to how or in what manner he became such executor. In our opinion the record is insufficient to show that J. D. Moore is entitled to appeal as executor.

We regret exceedingly the necessity of dismissing this appeal. Bond has been given, but not within the. time prescribed by law. There is no showing in the record that between the filing of the affidavit and the hearing of the contest there was any change of conditions as to the ability to give bond for the appeal. The frankness of appellants on the hearing of the contest is to be commended; on the other hand, the mere making of an affidavit of inability to give bond, when not sustained by the facts, should not extend the time within which the requisite bond is to be filed. One electing to appeal by resort to the provisions of Article 2266, in case of a contest, has not the right to so appeal in the event it is established, that there is the ability to give bond, unless the bond is filed within the time specified by Article 2253. Our power to review on appeal is conditioned on a compliance with ' the applicable statutes regulating the perfection of such appeal.

Appeal is dismissed.


author: SPEER, Justice.

text:
    WICHITA FALLS & S. R. CO. v. LINDLEY.
    No. 14108.
    Court of Civil Appeals of Texas. Fort Worth.
    June 28, 1940.
    Rehearing Denied Oct. 11, 1940.

      Fred T. Arnold, of Graham, G'. C. Mc-Dermett and Bullington, Humphrey & Humphrey, all of Wichita Falls, and John B. King, of Dallas, for appellant.
    McFarlane & McFarlane, of Graham, for appellee.
   SPEER, Justice.

This is an appeal by appellant, Wichita Falls & Southern Railroad Company, from an adverse judgment in which D. L. Lind-ley, appellee, recovered for damages alleged to have been sustained by him while working as a section hand on the appellant’s tracks.

Appellee’s pleadings disclose that he had been employed by appellant for some months to perform the labor of a section hand on a ten-mile section of the company’s tracks; that appellant is a Texas corporation and owns trackage exclusively inside the state and none in any other state. That on about May 2, 1938, appellant decreased the number of employees on the section from two to one man, aside from the foreman; that appellee and another worked on alternate days; that to cover the trackage it was necessary to use a motor car upon which they rode and carried their tools and equipment; that when they started out in the morning and returned in the evening, it was necessary to lift the motor car on and off the tracks, one end at a time, and thus clear the tracks for passing trains; likewise, while on duty it was often necessary to remove the motor car from the tracks while workIng on the line; that on June 21, 1938, appellee and the foreman attempted to place the motor car back on the track to continue their work at another place, and while lifting the heavy motor car, appel-lee sustained an injury, resulting in a hernia. It is alleged that appellee’s injuries were the direct and proximate result of appellant’s negligence in, (a) not driving the motor car to a switch in order to remove it from the main line; (b) reducing the section crew from two to one man who, with the foreman, was expected to remove the motor car and replace it on the track; (c) failing to warn the appellee against lifting too much, and (d) in directing appellee to remove and replace the motor car with no one to help him except the foreman, who was not physically able to lift his part of the load.

Appellant answered with general denial and specially that it was a common carrier operating trains for the transportation of passengers and freight in Texas and Oklahoma and that said conditions existed prior to and at the time appellee claims to have been injured. That ap-pellee was likewise engaged as an employee of appellant in the furtherance of said interstate commerce transportation at the time he claims to have received a'n injury. That his employment was such that he was assisting in maintaining the roadbed of appellant to enable it to .carry on said interstate business, and that the rights of both parties are governed and "controlled by the U. S. Federal Employers’ Liability Act, 45 U.S.C.A. § 51 et seq. That appel-lee was an experienced man in the line of work being performed by him, and had full knowledge of the hazards incident thereto; that he assumed the risk of being injured while in the performance of the tasks contracted by him to be done, and Was guilty of contributory, negligence in the manner in which he attempted to perform those duties.

A jury verdict on special issues was returned and judgment was entered in ap-pellee’s favor for $2,000. New triál was denied; hence this appeal.

Grounds of reversal urged by appellant are (a) the trial court erred in construing the amendment effective August 11, 1939, to the Federal Employers’ Liability Act, which abolished the previous provisions of assumed risk, to be retroactive so- as; to cover the period when. appellee claims to ■ have been injured; and (b) there was reversible error in the manner Special Issue No. One was submitted. (Other propositions are presented, to which we shall later refer.

Based upon the record before us, it is evident that the trial court construed the amendment above referred to as being retroactive in its nature, and removed the previously existing rule of assumed risk of the employee, appellee in this case.

The record indisputably shows that appellant was a common carrier, transporting interstate passengers and freight, at the time appellee was engaged in assisting to keep the roadbed in proper condition for those purposes, when the injuries complained of were received. Under the Act, prior to the amendment, an employee, such as appellee, assumed the risk of dangers which were necessarily incident to the work being performed by him, and which were known to him or by the exercise of ordinary care could have been known. The effect of the amendment passed by Congress on August 11, 1939, was to relieve an employee of the risk so assumed resulting “in whole or in part from the negligence of any of the officers, agents, or employees of such carrier.” U.S.C.A. Title 45, § 54. It is a well recognized rule of law in this State, as well as in other States, and so held by the United States Supreme Court, that a law will not Ée considered retrospective in its nature and operation, unless an intention to have it so operate is clearly manifested by its- terms. 9 Tex.Jur., sect. 12, p. 422, and the authorities there collated. In other jurisdictions see Pignaz v. Burnett, 119 Cal. 157, 51 P. 48; Lewis v. Pennsylvania Railway Co., 220 Pa. 317, 69 A. 821, 18 L.R.A.,N.S., 279, 13 Ann.Cas. 1142; White v. United States, 191 U.S. 545, 24 S.Ct. 171, 48 L.Ed. 295; Shwab v. Doyle, 258 U.S. 529, 42 S.Ct. 391, 66 L.Ed. 747, 26 A.L.R. 1454; Brewster v. Gage, 280 U.S. 327, 50 S.Ct. 115, 74 L.Ed. 457; Miller v. United States, 294 U.S. 435, 55 S.Ct. 440, 79 L.Ed. 977; Hassett v. Welch, 303 U.S. 303, 58 S.Ct. 559, 82 L.Ed. 858.

There is nothing in the amended Act of August 11, 1939, which indicates, even remotely, that the Congress intended the amended provision which removed the assumed risk theretofore existing should be- retroactive and cover transactions and contracts theretofore entered into between parties. Nor should it be so construed as to deprive one party of a right of action, or the other of a defense that existed prior to the amendment. Lewis v. Pennsylvania Railway Co., supra. Such an Act or amendment thereto will not be considered as applying to cases which arose before their enactment unless that intent be clearly declared. Shwab v. Doyle, supra. The deliberate use of the language used in the amendment which relieves an employee of assumed risk when injured as a result of the carrier’s negligence, when no such expression was found in the Act so amended, should be construed as an expression by the Legislative Body that a change of law was intended. Brewster v. Gage, supra.

We are of opinion that there is yet another very good reason why Congress did not intend, by the amendment, to affect contracts that had already been made, and causes of action that had previously accrued. The law as it existed at the time appellee was employed and continued effective up to and including the date of his injury, was a part of the contract of employment and controlled the rights of the parties. Each is presumed to have conducted himself in accordance with the contract which included the law as it then existed. Subsequent laws may affect remedies but will not contravene the vested rights that have accrued to the parties. We can conceive of no rule of construction which would require a court to read into the amendment of August 11, 1939, absent a definite expression by the Legislative Body requiring it, that Congress intended, by the amendment, to enlarge the rights of one situated as was appellee, so that he could recover upon a theory that he did not have before, nor to take away from one situated as was appellant, a valuable defense which existed at the time of the wrongs complained of.

In Winfree v. Northern Pacific Railway Co., 227 U.S. 296, 33 S.Ct. 273, 274, 57 L.Ed. 518, the court had under consideration whether or not the amendment of Federal Employers’ Liability Act of 1908, pertaining to Safety Appliances by rail-roáds, was retroactive. It was held such construction would not be given to the amendment and thereby permit a recovery for a death caused prior to the passage of the Act, when no recovery could have been had prior to its passage. The (court said, in last column of the opinion: ‘It is a statute which permits recovery in cases where recovery could not be had before, and takes away from the defendant defenses which formerly were * available,— defenses which, in this- instance, existed at the time when the contract of service was entered into and at the time when the accident occurred.’ Such a statute, under the rule of the cases, should not be construed as retrospective. It introduced a new policy and quite radically changed the existing law'.” Appellant’s first and second propositions raise the point discussed and they are sustained.

The third proposition urges that since appellee assumed the risk out of which his injuries grew, the trial court should have instructed a verdict in its favor. We do not think under the facts and circumstances in the case before us that it. necessarily follows, as a matter of law as well as of fact, appellee did assume the risk of sustaining the injury of which he complains.

What is known as the Safety Appliance Act was effective at the time of appellee’s employment and when he was injured. Under 45 U.S.C.A.,. Chapter 1, Section 51, if the appellant had violated that Act and appellee’s injuries had resulted from its violation, the risk was not assumed by him; but there is nothing in this record to indicate that there was an infraction of that Act; hence what we shall say in regard to the rights of both parties is based upon the assumption that the foregoing statement is correct.

As we understand the rule, based upon assumed risk by an employee, it is, substantially, this: A servant entering into employment which is hazardous assumes the risks which are apparent to ordinary observation, and, when he- accepts or continues in the service, with knowledge of the character of structures from which injury may be apprehended, he also assumes the hazards incident to the situation. Tex. & Pac. Ry. Co. v. Archibald, 170 U.S. 665, 18 S.Ct. 777, 42 L.Ed. 1188; Hough v. Texas, etc., Railway Co., 100 U.S. 213, 25 L.Ed. 612; Northern Pac. Railway Co. v. Herbert, 116 U.S. 642, 6 S.Ct. 590, 29 L.Ed. 755; Galveston, H. & S. A. R. Co. v. Lempe, 59 Tex. 19; Tex. & Pac. Ry. Co. v. French, 86. Tex. 96, 23 S.W. 642.

The reasons for the rule most commonly assigned are that when the contract of employment is entered into, it is presumed that the servant’s wages are fixed in contemplation of the fact that he has assumed the risks incident to the work to be performed. Tuttle v. Detroit, Grand Haven, Etc., Ry. Co., 122 U.S. 189, 7 S.Ct. 1166, 30 L.Ed. 1114; Northern Pac. Railway Co. v. Herbert, supra.

There is some testimony in the record to the effect that appellee did not know that there was any danger or hazard incident to lifting the motor car on and off the track. The nature of the injuries alleged to have been sustained (was such that we cannot say that, as a matter of law, he was aware of the consequences that might follow from lifting the car, nor were those dangers such as could be said to he so open and obvious that a man of ordinary care and prudence would be charged with notice of such consequences. Where there is any testimony of a substantial nature, about which reasonable minds may differ, then it becomes a question for jury determination. Gulf, W. T. & P. R. Co. v. Smith, 37 Tex.Civ.App. 188, 83 S.W. 719, writ refused; Houston & T. C. Ry. Co. v. Scott, Tex.Civ.App., 62 S.W. 1077; Missouri, K. & T. Ry. Co. v. Hudson, 71 Okl. 157, 175 P. 743, 9 A.L.R. 223, and notes thereunder. We overrule the third proposition, since no instructed verdict should have been rendered.

We are npt to be understood, from what has been said, as holding that an employee always assumes the risk of being injured proximately resulting from a negligent act of the employer. This is not the rule in this State. It would be against public policy to uphold a contract in which one of the parties contracts in a way that would hold him immune from liability in such event. In Missouri, K. & T. Ry. Co. v. Hannig, 91 Tex. 347, 43 S.W. 508, page 510, this was said: “He [the servant] does not assume the risks arising from the failure of the master to do his duty, unless he knows of the failure and the attendant risks, or, in the ordinary discharge of his own duty, must necessarily have acquired the knowledge. Bonnet v. Galveston, etc., Railway Co., 89 Tex. 72, 33 S.W. 334; [Texas & N. O.] Railroad Co. v. Bingle [91 Tex. 287], 42 S.W. 971.” See also Hough v. Texas, etc., Railway Co., U.S., supra; Wabash Railroad Co. v. McDaniels, 107 U.S. 454, 2 S.Ct. 932, 27 L.Ed. 605.

The fourth and sixth propositions must be sustained. They complain of the first special issue submitted by the court, because it is duplicitous and multifarious. The offending issue reads: “Do you find from a preponderance of the evidence that on about June 21, 1938, while assisting defendant’s foreman to place a motor car on defendant’s track, plaintiff sustained an, unusual strain in his left side and back,, '(jo'r) a hernia on his left side and (or) sustained a stretching and tearing of the-ligaments of his back? Answer ‘Yes’ or ‘No’.” The answer was “Yes.”

No analysis of the inquiry is necessary to disclose the error. It violates both the spirit and letter -of Article 2189, R.C.S., which requires that special issues be submitted distinctly and separately. See also Gulf States Utilities Co. v. Wooldridge, Tex.Civ.App., 90 S.W.2d 325; Theobalt v. Wiemann, Tex.Civ.App., 104 S.W.2d 589, writ dismissed; Meinecke v. Fidelity Inv. Co., Tex.Civ.App., 62 S.W.2d 623, writ refused; Brammer & Wilder v. Limestone County, Tex.Civ.App., 24 S.W.2d 99, writ dismissed; Metropolitan Life Ins. Co. v. Greene, Tex.Civ.App., 75 S.W.2d 703;. Missouri, K. & T. Ry. Co. v. Long, Tex.Com.App, 299 S.W. 854; C. V. Hill & Co. v. Fricke, Tex.Civ.App, 135 S.W.2d 582, writ dismissed, judgment correct; and. 20 Tex.Jur, sect. 126, pp. 179-181.

Fifth proposition complains because ap-pellee alleged that he had sustained an-unusual strain in his left side and back- and a hernia in his left side, and the evidence disclosed that he was suffering from-varicocele, a specific injury not pleaded, and therefore a directed verdict should have been returned for defendant.

The eighth proposition is bottomed on-special issue 8, which inquired if appellee sustained an injury while lifting the motorcar from the track, when the testimony indisputably shows that if he received an, injury at all, it was from lifting the car back onto the track. In view of the fact that the case must be reversed for the-reasons herein shown, the matters raised by fifth and eighth propositions will not likely occur again, and it becomes unnecessary to further discuss them.

For the errors pointed out, the judgment of the trial court is reversed and the cause remanded for another trial.