text:
    GULF, C. & S. F. RY. CO. v. PICARD.
    No. 3722.
    Court of Civil Appeals of Texas. Beaumont.
    Dec. 5, 1940.
    Rehearing Denied Jan. 22, 1941.

      Terry, Cavin & Mills, of Galveston, and C. T. Duff, of Beaumont, for appellant.
    J. A. Veillon and D. F. Sanders, both of Beaumont, for appellee.
   O’QUINN, Justice.

This is an appeal from a judgment awarding damages to appellee caused by a collision between an automobile (police car) in which he was riding and a freight car of appellant standing on and over a street crossing in the City of Beaumont, Texas. The several acts of negligence charged against appellant were fully alleged. Appellant answered by general demurrer, general denial, and specially that appellee was guilty of contributory negligence that caused and contributed to his injury.

The case was tried to a jury upon special issues, in answer to which they found: (a) That appellee sustained an injury in the collision; (b) that the conditions surrounding the crossing on the occasion in question were such as to render the crossing more than ordinarily dangerous as a nighttime crossing; (c) that appellant’s employee in charge of the switching operations knew of the conditions surrounding the crossing at the time; (d) that in the exercise of ordinary care appellant would have stationed a flagman on the south side of the crossing on the occasion in question; (e) that appellant’s failure to have a flagman to flag traffic at the crossing at the time was negligence; (f) that such negligence was a proximate cause of appellee’s injury; (g) that in the exercise of ordinary care appellant would have placed a light on the south side of the gondola car standing on the crossing, on the occasion in question; (h) that the failure of appellant to have a light on the south side of the gondola car was negligence; (i) that such negligence was a proximate cause of appellee’s injury; (j) that appellant’s employee in charge of the switch engine on the night in question failed to ring the engine bell; (k) that such failure was negligence; (1) that such negligence was a proximate cause of appel-lee’s injury; (m) that the accident was not unavoidable; and (n) that appellee was entitled to damages in the sum of $2,500. In answer to special issues, they acquitted ap-pellee of all alleged acts of contributory negligence.

On the answers of the jury, judgment was rendered for appellee in the sum of $2,500. Motion for a new trial was overruled, hence this appeal.

Appellant’s first four assignments of error, in effect, urge that the court erred in refusing its motion for an instructed verdict because the evidence showed that appellee was guilty of contributory negligence, as a matter of law, which negligence caused or contributed to his injury, wherefore judgment should have been in its favor that appellee take nothing by his suit.

The assignments read:

“Proposition No. 1.
“The plaintiff having admitted that he was thoroughly familiar with the streets and highways of the city of Beaumont, and particularly North Pearl Street, that he knew of the location of the railroad track crossing said street, that when he left the police station on the night in question he knew of the existing weather conditions, fog, and limitation of vision as a result, the wet and slick condition of the street, and that the speed at which the automobile was being driven was such that the automobile could not be stopped within the range of vision, and the plaintiff having further admitted that as he approached the crossing in question he was not looking ahead, but was looking off to the side, and that when he did look ahead he immediately saw the train over the crossing, but they were then so close to same that the automobile could not be stopped, the court erred in submitting the case to the jury and in not instructing the jury to return a verdict in favor of the defendant, as requested by defendant.
“Proposition No. 2.
“Where a party approaches a known railroad crossing on a dark and foggy night, with full knowledge that said crossing may be occupied by a railroad train, the speed of his approach being such that he could not stop his automobile within his range of vision, he is guilty of negligence as a matter of law.
“Proposition No. 3.
“It being admitted in this case that the plaintiff and the driver of the automobile were on a joint mission, that they were driving down one of the streets in the city of Beaumont, approaching a known railroad crossing, that the night was foggy, and as a result the" streets were slick, and that said automobile was being driven at such a speed that same could not be stopped within the range of vision furnished by the headlights on said automobile, and there being no claim made by the plaintiff that as he 'approached the railroad crossing he anticipated any warning to be furnished him by wigwag signal device of any kind or watchman, and it being conclusively established that but for the speed of said automobile said collision would not have occurred, the court erred in failing to grant this defendant’s motion for judgment, said motion being based on the jury’s finding that the automobile in question was being driven at such a speed that it could not be stopped within the range of vision of those in said automobile.”
“Proposition No. 4.
“Where one riding in an automobile acquiesces in a speed which, under existing weather conditions, is such that the automobile could not be stopped within the range of vision, and as a result of such speed the automobile is driven into the side of a train, same constitutes negligence as a matter of law and the trial court in this instance erred in overruling this defendant’s motion for judgment, said motion being based on the jury’s finding that the automobile in which plaintiff was riding was being driven at such a speed.”

Briefly the facts are: On the night (about midnight) of January 17, 1938, ap-pellee, who was a member of the police force of the City of Beaumont, together with two other policemen, were in a police car travelling north on Pearl Street. Said street is a paved street running north and south. This street after leaving the business section on what is known as North Pearl Street crosses a switch track owned and operated by appellant at the intersection of North Pearl Street and Long Avenue. The crossing is practically at grade and at right angles. -As the crossing is approached from the south going north, the territory lying south of the railroad track and on either side of the street is vacant. Some 400 feet south of the crossing there is a brick structure which is referred to in the record as an ice cream plant. The night was foggy, described by appellee and his witnesses as very foggy, and by appellant’s witnesses as slightly foggy until some time after the accident when it became real foggy. The street was wet and slippery because of the fog. When the car in which the policemen were travelling reached the point where North Pearl Street and Long Avenue intersected (the railway switch was on Long Avenue) there was a gondola freight car standing on the switch track across North Pearl Street. ■ It was a part of a four-car section of the freight train which was switching at the time (throwing the gondola car into a junk yard at or very near to the crossing for the purpose of being loaded with junk iron for exportation). At the time of the accident the freight cars with the engine farthest removed from the street was standing still. The gondola car was a dark red color. There was no lights on or about the gondola car, nor at the street crossing other than a city light up on a light pole on the northwest corner of the crossing. This was on the side of the street opposite from the approach of the police car. There was near the crossing a railroad sign composed of a cross on an upright timber which bore the words: on one bar of the cross “Railroad Crossing,” and on the other “Look out for cars.” This, too, was on the opposite side from the police car. Appellee testified that the visibility was very poor because of the fog; that as they approached the crossing they could see lights of automobiles coming toward them from the other side; that the crossing appeared to be clear. The gondola car with which the automobile collided was an open car, that is it did not have any top, and stood some eight feet and eleven inches from the pavement of the street to the top of the car; from the pavement to the bottom of the car was some -three feet. All the space between the bottom of the gondola car to the pavement was open except that occupied by the wheels and the springs on which they were placed — some nine feet and six inches at or near the end of the car. The gondola car was forty feet long; that left twenty-one feet of open space under the car of three feet in height. The automobile lights seen by appellee and his companions shone under the gondola car, which they testified caused them to think the crossing was clear. Ap-pellee testified that as they approached the crossing he was directing his flash on- a safe to be seen in the window of the ice cream factory off to the left; that it was a part of their duty as night patrolmen to inspect doors and windows to ascertain if any depredations to the premises had occurred. They were all members of the night cruising or patrol force of policemen; that when he glanced back to the street he. discovered the gondola car standing in the street within some fifteen feet of their auomobile when he instantly called the attention of the driver of the automobile — his fellow policeman — to the freight car, and that the driver immediately slammed - on the brakes of their automobile and veered to the left in an effort to avoid striking the gondola car, but could not do so, and their automobile crashed into the side of the freight car injuring him. The automobile was travel-ling about IS or 20 miles per hour. It could, under the circumstances, have been stopped within some 25 or 30 feet. • It was testified that because of the fog they could not have seen the gondola car 25 or 30 feet away, but could have seen same within “just about 15 feet.” There was no flagman or brakeman at the crossing, and no light ■or other thing designed to call attention to the car on the street. Appellee testified that he was familiar with both streets and their crossing, and that he had travelled over the crossing almost every day for more than a year.

On these facts issues respecting contributory negligence were submitted to the jury, and all, except one, answered 'in his favor. In answer to special issue 16 the jury found that the car in which appellee was riding as it approached the railway crossing was being driven at such rate of speed that it could not have been stopped within the range of vision of its headlights, but in answer to special issue 17 they found that this was not negligence. But appellant insists that the evidence in several particulars shows appellee to have been guilty of contributory negligence, as a matter of law, contrary to the findings of the jury, and that such negligence contributed to his injury. Contributory negligence, generally, is a question of fact for the jury, and it is only where the facts are such that reasonable minds can draw but one conclusion from the facts that contributory negligence as a matter of law exists. If reasonable minds'can draw different conclusions from the facts as to negligence, then the question is one for the jury. Seinsheimer v. Burkhart, 132 Tex. 336, 122 S.W.2d 1063; Western Development Corp. v. Simmons, Tex.Civ.App., 124 S.W.2d 414, writ refused; LeMaster v. Fort Worth Transit Co., Tex.Civ.App., 142 S.W.2d 908, writ was granted with notation that the court inclined to believe that contributory negligence as a matter of law was not shown by the record; Beaumont, etc., Railroad v. Richmond, Tex.Civ.App., 78 S.W.2d 232, writ dismissed. The assignments are overruled.

Special issue No. 2 submitted to the jury reads:

“Do you find from á preponderance of the evidence that the condition surrounding the crossing in question were such as to render that crossing more than ordinarily dangerous as a night-time crossing on the occasion in question?
“In connection with the' foregoing special issue, you are instructed that by the term ‘more than ordinarily dangerous’ is meant that the crossing would not be more than ordinarily dangerous unless its condition, due to the darkness and weather conditions, was such that a reasonably prudent person could not by the exercise of ordinary care use same with safety.”

The jury answered “yes,” that is that the crossing, under the conditions surrounding the crossing at the time rendered it “more than ordinarily dangerous” as a nighttime crossing. Appellant by its fifth and sixth assignments of error challenges the sufficiency of the evidence to raise the issue, and therefore the court erred in submitting same to the jury. We overrule the assignments. The weather was very foggy, the visibility poor, the crossing was at the intersection of two much travelled streets, the gondola car was dark red in color, had a space of at least three feet by twenty-one feet open between the pavement and the bottom of the car through which lights of .automobiles approaching from the opposite side could be seen, giving the appearance, under the circumstances, of an open crossing, the fog was so heavy and close to the ground that the gondola car could be seen only when close up — some fifteen feet — it was in the nighttime, about midnight, and according to the testimony automobiles were then seeking to make the crossing. The issue was not of whether the crossing was in its nature one of more than ordinary danger, but whether under- the conditions then surrounding it made the crossing at that time more than ordinarily dangerous. In fact the explanation given the jury of the issue plainly stated that the term meant “that the crossing would not be more than ordinarily dangerous, unless its condition, due to the darkness and weather conditions, was such that a reasonably prudent person could not by the exercise of ordinary care use the same with safety.” This meant that the query went to its then use considering its surrounding condition. We think that the crossing here in question would not ordinarily generally be considered “more than ordinarily dangerous,” but under the special conditions and surroundings existing at the time of the accident, the evidence raised the issue whether it was then more than ordinarily dangerous, and these conditions being known to the employees operating the switching of the cars, whether in the exercise of ordinary care, they should have stationed a flagman or warning light at the gondola car when they left it standing across the street to give warning to any approaching travellers attempting to cross the street while the car blocked its passage. The evidence raised the issue whether the crossing under the conditions, was temporarily more than ordinarily dangerous for public use. Tisdale v. Panhandle & S. F. Ry. Co., Tex.Com.App., 228 S.W. 133, 136, 16 A.L.R. 1264. In the case cited, Judge Powell speaking for the Su.preme Court, in passing upon this question, said:

“It seems possible that the Court of Civil Appeals may entertain the view that, unless it be necessary at all times to maintain a flagman at a certain crossing, it is not ‘necessary at any time to do so. We cannot concur in any such theory. Conditions surrounding a crossing may and do change materially from time to time. A flagman might not be required under the law at a certain crossing at one time, and yet it might be negligence to fail to provide one there at another time. The sole question for determination is whether or not at the time of the accident the conditions surrounding the crossing in question rendered it more than ordinarily hazardous or unusually dangerous.”

The Supreme Court approved this holding. In Chicago, R. I. & G. Ry. v. Zumwalt, 239 S.W. 912, 916, Judge Gallagher, speaking for the Supreme Court, said: “The duty of the plaintiff in error to exercise ordinary, care to enable the traveling public to pass over the crossing in safety was measured by the situation. Its duty to meet such situation arose when the special hazard arose and continued while such hazard continued.”

Appellant’s seventh assignment of error complains that the court erred in refusing to give its special requested issue reading: “Do you find from a preponderance of the evidence that the plaintiff, Lee Picard, failed to look ahead to see if said crossing was blocked, while at such a distance from the crossing that the automobile could have been stopped before reaching same ?”

Refusing the charge was not error. The court in his main charge properly and sufficiently submitted the question of appel-lee’s failure to keep a proper look out to see whether the crossing was obstructed. This was answered in appellee’s favor. Trochta v. M., K. & T. Ry. Co., Tex.Com.App., 218 S.W. 1038. The holding in the cited case has been followed in numerous decisions by our Supreme Court.

We sustain appellant’s assignment against the finding of the jury that it was negligence on the part of appellant to- not ring the engine bell while the car was left standing on the crossing. We do not think the statute, Vernon’s Ann.Civ.St. art. 6371, requires the bell to be rung while the train is standing still. The statute requires the ringing of the bell to advise of the approach of the train, and not of its presence when standing still. Texas & N. O. Ry. Co. v. Stratton, Tex.Civ.App., 74 S.W.2d 741, writ refused. However, we do not think the submission of the issue of failure to ring the bell was prejudicial to appellant.

The contention of appellant that the court erred in submitting to the jury the issue of whether it was negligence on the part of appellant in failing to have a flagman stationed on the south side of the crossing at the street intersection where the accident occurred, because, it says, if such duty rested on appellant it would likewise have been its duty to have a flagman on the north side of the crossing, and further, that the issue as framed was tantamount to instructing the jury that the flagman should have been placed on the south side only, leaving to them for determination the issue of the necessity of a flagman, is not well taken. Appellee was approaching the crossing from the1 south, and thus for a flagman to have signalled him, he would of necessity have to be on the south side. The purpose of the issue was to determine whether, under the circumstances, there should have been a flagman stationed at the crossing, and whether it was negligence on the part of appellant to fail to place a flagman at the crossing. The issue, under the facts, was proper, and was not calculated to mislead or confuse the jury.

By its ninth and tenth assignments of error, appellant challenges the verdict of the jury awarding appellee $2,500 as excessive. The record discloses that when the automobile in which appellee was riding collided with the gondola car of appellant he was knocked unconscious; that he was carried to a hospital; that he was in the hospital four days, and then went home, stayed in bed there two weeks; that he then went back to work, worked one night and had to lay off again for- one more night, went back to work the third night and had to lay off again for another night. (He was on the night police patrol force.) He was at work at the time of the trial. One of his little fingers (there was some conflict as to which—appellee saying it was the right, and his physician who treated him saying it was the left) was broken in a triangular shape in two places. His neck swelled up on the right side. At the time of the trial the swelling had disappeared. He suffered a soreness in his side and thought he had appendicitis. The doctors said it was from sore muscles. When layed off from work the calf of one leg got sore and this continued for two weeks. His head was skinned and his chest and leg were also bruised and skinned. He testified that his head was alright at the time of the trial. He testified that his little finger still gave him trouble when he tried to grasp his pistol; that this hand would not entirely close. At the time of the trial he was still working for the city and in the same capacity as before the accident. The city continued to pay him his salary all the time he was off duty. There is no evidence of hospital or doctor’s bills. The jury gave him $2,500. After careful consideration of all the evidence, we conclude that the judgment is excessive in the sum of one thousand dollars. If appellee will remit that sum within ten days leaving the judgment for fifteen hundred dollars, the judgment will be affirmed for that amount, but if no remittitur is filed, then the judgment will be reversed and the cause remanded for another trial. Affirmed on condition of remittitur.


source: Caselaw Access Project

author: FOLLE Y, Justice.

license: Public Domain

text:
    MOSLEY v. HARKINS.
    No. 5251.
    Court of Civil Appeals of Texas. Amarillo.
    Jan. 20, 1941.
    Carl Gilliland and W. H. Russell, both of Hereford, for appellant.
    E, O. Northcutt, of Amarillo, for appellee.
   FOLLE Y, Justice.

This is the second appeal of this case. The opinion of this court disposing of the first appeal may be found in 134 S.W.2d 706.

This is a suit for damages for malicious prosecution filed by the appellee, Darrell Harkins, against the appellant, J. R. Mosley. The appellee recovered judgment against the appellant upon a jury’s verdict for $2,000, of which amount $1,500 was actual and $500 was 'exemplary damages, as found by the jury.

The suit grew out of a criminal case in the District Court of Deaf Smith County, Texas, in which the appellee was indicted by a grand jury on a felony charge of embezzling $325 belonging to the appellant. The appellee was duly tried upon the indictment and acquitted by a jury in response to a directed verdict.

The appellant complains of the action of the trial court in this cause in overruling his general demurrer to appel-lee’s petition. It is our opinion the pleading was not subject to a general demurrer. Without going into detail as to the petition-suffice it to sáy that the allegations thereof contain substantially the essential elements of such a cause of action as are adequately expressed in 38 C.J. 386, § 5, in the following language: “(1) The commencement or continuance of an original criminal or civil judicial proceeding. (2) Its legal causation by the present defendant against plaintiff who was defendant in the original proceeding. (3) Its bona fide termination in favor of the present plaintiff. (4) The absence of probable cause for such proceeding. (5) The presence of malice therein. (6) Damage conforming to legal standards resulting to plaintiff.”

The appellant also asserts the court erred in refusing to direct a verdict in his behalf at the conclusion of the testimony. We are of the opinion there was sufficient evidence to require the submission of the case to the jury'. The issues of fact were substantially the same as the above named essential elements of a suit for malicious prosecution, all of which issues were answered favorably to the appellee and in conformity to the judgment rendered.

In this connection we think the testimony adequately supports such findings. The controversy had its inception in 1937 by virtue of an agreement between the appellant and the appellee concerning some plowing done for others under the direction of the appellee with the machinery of the appellant. Although the terms of this agreement were in sharp controversy the jury apparently adopted the appellee’s version of the same. It appears from his testimony that it was agreed the appellant would furnish the tractors and plows to do plowing at a price of about 5(⅜ per acre; that appellee was to oversee and superintend the work, hire the employees and pay them out of the proceeds received from the plowing and pay such other necessary, and incidental expenses as might accrue from time to time; and that after all such expenses were paid the remainder of the proceeds were to be divided equally between the appellant and the appellee. The appellant’s testimony was to the effect that the appellee was hired only as an employee at $3 per day and that he was to have no interest in the proceeds from the plowing.

At any rate the work began with one tractor and plow about June 14, 1937. About July 7th, following, an additional tractor and plow were added to the work. From then until August 12, 1937, both tractors and both plows were used in the plowing. The machines were kept running day and night, there being two men employed on each tractor at wages of $3 per day. The appellee testified that these employees were constantly drawing wages all during the operations up until August 12, 1937. It will therefore be seen that the expenses for labor alone for the first twenty-three days, or until July 7th, was $138 for the two employees at $3 each per day upon the first tractor, and that for the next thirty-seven days such labor bill would have amounted to $444 for the four employees up to August 12th, or a total labor expenditure of $582. In addition to this there were other expenses for repairs upon the machinery from time to time, the exact amount thereof not having been shown by the evidence. The appellant admitted that he did not pay any of such expenses after July 8, 1937. According to appellee’s version all of such bills were paid by him after the first week of the plowing.

From June 14th to August 12th about 2,983 acres of land were plowed, some of it at 5O5S per acre and some of it at 40⅜⅞ per acre. The total amount earned in such period for the plowing amounted to the sum of $1,272.80. Of this amount the ap-pellee collected from the landowners $649, leaving a balance due for the plowing in the sum of $623.80. No showing- was made in the testimony as to whether or not the appellant collected this balance. However, it was shown that $649 was all of the money collected by the appellee. The appellee testified that he expended over $500 of the amount he collected in payment of the expenses incidental to the plowing and checks were introduced by him showing a total expenditure of $483.45. He further testified without contradiction that a considerable number of checks other than these had been given by him but had been lost after their introduction into evidence in the trial of the criminal case.

Notwithstanding the above facts, at the January, 1938, term of the District Court of Deaf Smith County the appellant voluntarily appeared before the grand jury of such county and testified that the appellee had collected $649 of appellant’s money which the appellee was -to have used in paying certain bills but that he had left the state with the money and without paying any of the bills. It was sufficiently shown that it was -upon this testimony that the grand jury indicted the appellee for embezzling one item in the sum of $325 collected by him from a Dr. West whose land the appellee had plowed during the summer of 1937. This $325 was a portion of the $649 collected by the appellee. The appellant admitted in his testimony in the present record that he did not tell the grand jury about the bills the appellee had paid with the money collected from the plowing. The only excuse offered for not divulging such facts to the grand jury was, as expressed in his own language, “I don’t see why I would”.

The testimony further shows that the appellee was indicted and thereupon arrested in the State of Arizona under process issued in the criminal case. He was placed in jail in Phoenix, Arizona, where he remained four days. He was fingerprinted and photographed by the officers at Phoenix and returned under arrest to Hereford, Texas, by the sheriff of Deaf Smith County. He was escorted about the town of Hereford among his friends and acquaintances in the custody of a deputy sheriff in an effort to make bond. He made bond and was released to appear later for his trial. At. his trial, which resulted in his acquittal, the appellant appeared against him as a witness.

We think the evidence conclusively shows that the appellant had no probable cause -to institute a criminal proceeding against the appellee. The presence of malice is admitted by the appellant in his brief and notwithstanding such admission we think it was clearly shown. The resultant damages, both actual and exemplary, were also sufficiently established. We therefore hold there was no error in the refusal of the court to peremptorily direct a verdict for the appellant.

The appellant assigns as error the action of the court in overruling his objections to the introduction of evidence to the effect that in the summer of 1937 the appellee offered to compromise or arbitrate his differences with the appellant and that the appellant refused to do so. While we recognize the general rule that offers of compromise are inadmissible in the trial of a case (17 Tex.Jur. 561, para. 233), such rule has no application to the situation here presented. The purported offer of compromise was not in connection with the liability or asserted claims involved in this suit but concerned a prior controversy for which the appellee is seeking no recovery herein. In other words, the appellee is not attempting to recover for the debt which was in controversy between the parties in 1937 but in this suit seeks only to recover damages arising from the alleged malicious prosecution. Under such circumstances we think the testimony was admissible in this suit as bearing upon the issues of malice and probable cause.

The appellant further complains of the introduction in evidence of finger prints and photographs of the appellee taken at the time of his arrest in Phoenix. No objection was made to the testimony offered by the appellee to the effect that he was photographed and finger-printed when he was arrested in Arizona but the only objection was as to the introduction of such exhibits themselves in evidence. We think it is reasonable to assume that the conduct of the Arizona officers in securing the photographs and finger prints of the appellee was the direct and proximate result of the criminal prosecution in Texas and that the same would naturally follow such a prosecution, just as much so as that the appellee would be arrested, placed in jail and thereafter tried upon the charge. Moreover, after -the introduction without objection of the testimony concerning the taking of the photographs and the finger prints, we fail to discern any resulting harm to the appellant by the introduction of the exhibits themselves.

The appellant’s next complaint is with reference to special issue No. 4 of the court’s charge. This issue inquired of the jury as to whether the jury found by a preponderance of the evidence that the appellant did not submit to the grand jury a full, fair and correct statement of the material facts relative to the transactions between him and the appellee. The appellant objected to such charge on the ground that such issue assumed that it was the duty of the appellant to submit to the. grand jury a full, fair and correct statement of the material facts relative to his transactions with the appellee even though some of the facts relative thereto may not have been known to the appellant. We think the issue was not subject to such criticism. The interrogation could reasonably be construed as inquiring only about matters within the knowledge of the appellant. Furthermore, under appellant’s own admissions in the testimony of this case, it is our opinion this issue became immaterial. As above stated, he testified that he did not tell the grand jury that the ap-pellee had paid any bills for labor. On the contrary his testimony before the grand jury was that the appellee had not paid any of the bills. His testimony in the present suit shows that his evidence before the grand jury in this respect was not true. It therefore becomes an uncontroverted fact that the appellant did not submit to the grand jury a full, fair and correct statement of the true and material facts about which the record reveals the appellant was fully cognizant.

The last complaint of the appellant is with reference to the court’s refusal to give his specially requested instructions to the jury that the testimony of appellee’s acquittal should not be considered by the jury for the purpose of showing malice or want of probable cause and further that it could not be considered in determining whether the appellee was innocent of the criminal charge but could be considered only for the purpose of showing that the prosecution had ended favorably to the ap-pellee. Apparently in response to such request the trial court in a supplemental charge instructed the jury that the evidence in regard to appellee’s acquittal might be considered by the jury for one purpose only and that was as to showing the outcome and disposition of the criminal case and for no other purpose whatever. If there was any necessity for the giving of the above requested instructions we think they were amply covered by the instruction actually given by the trial court.

The judgment is affirmed.


author: McClendon, chief justice.

text:
    MILLS et al. v. BAIRD.
    No. 8979.
    Court of Civil Appeals of Texas. Austin.
    Jan. 15, 1941.
    Rehearing Denied Feb. 5, 1941.

      Malone, Lipscomb, White & Seay, of Dallas, for appellant United States Fidelity & Guaranty Co.
    Wallace & Wallace, of Cameron, for appellants other than surety company.
    Parker V. Lucas, of Dallas, and W. Á. Morrison, of Cameron, for appellee.
   McClendon, chief justice.

This is a bill of review proceeding brought in the County Court of Milam County to set aside the final account of the administratrix of the estate of Wilford McKay Mills, on the ground of fraud. The suit was brought by Mrs. Mary Baird, ap-pellee here (the surviving wife of deceased, but since married again and divorced), against the administratrix, Mrs. Bell Mills, mother of the deceased and one of the appellants here. The County Court sustained a plea in abatement to the suit and dismissed it, whereupon Mrs. Baird seasonably appealed to the District Court. In that court Mrs. Baird was permitted to make Mrs. Mills’ surety on her bond as ad-ministratrix (United States Fidelity and Guaranty Company) and her four children parties respondent. These and Mrs. Mills constitute all the appellants here. The trial was to the court without a jury, and judgment was rendered disapproving the final account, restating it, and ordering the administratrix to pay over to appellee the s.um of $5,109.74, \.ith 6 per cent, interest per annum thereon from September 7, 1934, the date the petition for review was filed in the County Court. The appeal is from this, judgment by the administratrix, her surety, and four children.

The controversy grew out of the following facts: Wilford McKay Mills, a World War veteran, died in 1921, leaving surviving hig wife, appellee, and his mother, appellant Mrs. Mills, and his father. He had a $10,000 War Risk Insurance policy, payable to his father, who, upon his (the son’s) death, collected $57.50 per month thereon until his (the father’s) death, in March, 1930. -Thereafter Mrs. Mills was appointed administratrix of her son’s estate, and collected from the Federal Government as such administratrix the then balance owing on the policy, $6,087.50. February 25, 1931, appellee signed r„i agreement whereby she relinquished her interest in the policy for $500. The estate was then closed. April 4, 1935, appellee filed suit in the District Court of Milam County against Mrs. Mills and her four children to set aside this agreement, on the ground of fraud. The resulting judgment was for defendants. Appellee appealed to this court which reversed the judgment and rendered judgment in her favor, adjudging her to be the owner of the policy and cancelling the agreement on the ground that the record showed as a matter of law that it was procured by fraud, and that appellee’s cause of action to set it aside did not accrue until April, 1932, when she first discovered the fraud or was put upon inquiry concerning it. Except in one respect as regards the surety, noted hereafter, there is no material difference between the two cases in respect to allegations and proof upon the subject of limitation. Hence, with this exception, we pre-termit discussion of the points here urged thereon; overrule them upon the authority of the former decision; and refer to the opinion in that case for a full statement and consideration of the facts and issues presented on this branch of the case. 119 S.W.2d 889.

The other issues raised in the appeal relate in the main to jurisdiction and limita-, tion.

First, it is contended that since the surety was not made a party, the proceeding constituted a collateral attack on the order approving the final account and closing the estate; that its character as a collateral attack could not he changed by amendment making new parties in the District Court; and that, since the order was not absolutely void, but merely voidable, its invalidity could only be questioned in a direct attack.

The first proposition in this contention is correct. It is a well established doctrine that a judgment may not be set aside on direct attack unless all persons at interest are made parties to the proceeding. This is predicated upon the general proposition that defective direct proceedings are held to be governed by the principles applicable to collateral proceedings. See 25 Tex.Jur., p. 754. The same principle has been applied to probate proceedings. Pure Oil Co. v. Reece, 124 Tex. 476, 78 S.W.2d 932.

On the other hand, it has been recognized from the earliest times that the jurisdiction of the District Court on appeal from the County Court in probate proceedings is as broad and comprehensive as that of the County Court; save only that new issues or causes of action may not be set up for the first time in the District Court. Expressly has this principle been uniformly held to authorize the making of new, although necessary, parties in the District Court. Phelps v. Ashton, 30 Tex. 344, 345; Vance v. Upson, 64 Tex. 266; Ramon v. Worsham, Tex.Com.App., 42 S.W.2d 1010; Marshall v. Stubbs, 48 Tex.Civ.App. 158, 106 S.W. 435; Pipkin v. Turner, Tex.Civ.App., 277 S.W. 221. The opinion in Ramon v. Worsham was by Judge Leddy of the Commission of Appeals. Involved was an appeal by a contestant from an order of the County Court admitting a will to probate. In the District Court proponents impleaded another party who had filed an independent suit in the County Court contesting the probate. It is interesting to note that in the original opinion of Judge Leddy (Tex.Com.App., 35 S.W.2d 699), it was held that new parties could not be made in the County Court. This holding was set aside on rehearing and it was held: “The jurisdiction of the district court upon a trial de novo was as comprehensive as that possessed by the county court; hence any person interested.' in. the proceeding had the same right to intervene or be made a party in the cause upon appeal in the district court as when the cause was pending in the county court.”

Marshall v. Stubbs was decided by this court, Chief Justice Fisher writing. .That was an appeal from an order of the County Court setting aside a prior order probating a will. The District Court remanded the proceeding to the County Court in order to make the sole legatee in the will a party. This judgment was reversed, this court holding that the trial being de novo, the District Court had no power to remand the proceeding, but had all the powers of the County Court even to making the sole legatee (a necessary party) a party to the proceeding.

We are not impressed with the soundness of the argument that the jurisdiction to make new parties was wanting in the District Court since the effect of making such new parties was to change the character of the proceeding from a collateral to a direct attack upon the order. It is true that so long as necessary parties were wanting the proceeding maintained the nature of a collateral attack. But this was due solely to a defect in necessary parties. All other elements constituting a direct attack were present, — the same court and the'same subject matter. The pleadings which framed the issues were the same in the County Court as in the District Court. No new issue was injected in the District Court. The amendment merely included necessary parties not brought in in the County Court. The object of the proceeding was the same in both courts, — to set aside an order approving a final account. The bases for the relief sought were the same — fraud in the same respects in both courts. Manifestly, the power inhered in the County Court to add new parties to the proceeding; and it follows from the above holdings that the District Court on appeal had the same power, there being no effort thereby to add new issues or new grounds of recovery to those asserted in the County Court.

The limitation question above adverted to follows: the surety contends that since it was not a party to or cognizant of the fraud, limitation was not tolled thereby as to it, and the action was barred as to it since four years had elapsed since order approving the final account (April 7, 1931) and prior to the amendment in the District Court making it a party to the proceeding (May 8, 1935). The only citation in supp9rt of this proposition is Martinez v. Gutierrez’s Heirs, Tex.Civ.App., 172 S.W. 766, 770, by the San Antonio court, Judge Carl writing. The point was not necessary to the decision, since the court held that the statute was not tolled as to the principal. The opinion reads: “The evidence in this case is totally insufficient to prevent -the running of the statute.” The additional holding that the sureties, not being parties to the fraud, limitation was not tolled as to them was predicated upon the statute (Art. 5528) which provides that “all suits on the bond of any * * * administrator * * * shall be commenced and prosecuted within four years next after the * * * discharge of such * * * administrator * * *, and not thereafter.” It is stated that the object of such statutes is “to fix a time certain for the benefit of sureties, so that they may know definitely when th-eir obligations as sureties will terminate.” In so far as this particular statute is concerned the following quotation from page 68 of the surety’s brief, in which we fully concur, demonstrates that it has no application to this proceeding: “This suit is not one to recover upon the bond of the admin-istratrix, but is one to set aside the order closing the estate and asking that the court order the administratrix to pay the money belonging to the estate over to appellee.”

And this is all the judgment awarded.

The applicable statute, as conceded by the surety and as held in the former opinion, is Art. 5529, which provides that the action “shall be brought within four years next after the right to bring the same shall have accrued and not afterward.” As held in the former opinion, the right to bring the action did not accrue as to the principal until she discovered or should have discovered the fraud. And since the surety was only secondarily liable and could not be sued without its principal, it would seem logically to follow that the cause of action as to it did not accrue until that against its principal accrued. The undertaking of the surety is to make good any breach of official duty of its principal, whether or not tainted with fraud- — not because of anything the surety may have done or failed to do, but because the surety has so bound itself by its undertaking. Fraud of its principal, with all its consequences, is a risk it assumes to compensate by virtue of its obligation of suretyship. As already stated, it was adjudicated in the prior decision, upon substantially the same pleading and evidence as here, that the cause of action did not accrue until April, 1932, less than four years prior to im-pleading the surety in the District Court. Ruling Case Law, vol. 21, p. 1080, § 121, states the applicable general rule, without qualification, to be: “The liability of the principal is that of the surety, and, where the statute of limitation does’ not begin to run because of the concealed fraud of the principal, the surety can not invoke the aid of the statute on the ground that he was innocent of the fraud.” Three leading cases are cited in support of the text. They are each well considered, and carefully review the adjudicated cases upon the subject. It would serve no useful purpose to quote from them here. They are listed under Note 17 to the above-quoted text.

The next point urged by appellants is that the fraud pleaded and proved was of the class designated in the decisions as “intrinsic fraud” which can not be availed of to set aside a judgment in a bill of review or other direct proceeding instituted as a separate action after the expiration of the term at which the judgment was rendered. The_ doctrine that a judgment may not be set aside for “intrinsic’.’ fraud is quite generally accepted and has been repeatedly recognized in this state. The following quotation from a very recent (1940) standard text embodies the generally accepted elements which mark the distinction between “intrinsic” fraud, on the one hand, and “extrinsic” or “collateral” fraud on the other: “The acts for which a court of equity will, on account of fraud, grant relief from a judgment have relation to extrinsic or collateral fraud; intrinsic fraud is not sufficient for equitable relief. Fraud has been regarded as intrinsic, within the meaning of this rul-e, where the fraudulent acts pertain to an issue involved in the original action, or where the acts constituting the fraud were, or could have been litigated therein. Accordingly, fraud cannot properly be said to be extrinsic, so as to warrant relief from a judgment based thereon, where the court rendering the judgment had before it the same issue of fraud on the same essential facts. On the other hand, fraud has been regarded as extrinsic or collateral, within the meaning of the rule here under consideration, where it is one the effect of which prevents a party from having a trial or from presenting all of his case to the court, or where it operates upon matters pertaining, not to the judgment itself, but to the manner in which it is procured, so that there is not a fair submission of the controversy.” 31 Am.Jur. pp. 230-232, § 654.

While a statement of the general rule defining intrinsic and extrinsic fraud is quite clear in the abstract, as applied to particular situations, the distinction has been characterized as “quite nebulous,” by the California Supreme Court in the well-considered case of Caldwell v. Taylor, 218 Cal. 471, 23 P.2d 758, 88 A.L.R. 1194, to which is appended an extensive note beginning at page 1201. The facts of that case are clearly illustrative of the two classes of fraud. The suit was one to set aside the probate of a will on the ground of fraud practiced upon the testator. This was held to be intrinsic and not available alone to sustain the action. However, there was fraud, held to be extrinsic consisting of “that practiced upon an heir of testator in deliberately misrepresenting, in answer to direct questions on the point, her (the legatee’s) true name and past life, thereby preventing the heir from discovering the true facts in time for a contest of the will, and depriving him of an opportunity of properly presenting the real issues.”

It is quite generally held that perjured testimony falls within the category of intrinsic fraud. The leading case upon the subject is United States v. Throckmorton, 98 U.S. 61, 25 L.Ed. 93. That case was followed in Reed v. Bryant, Tex.Civ.App., 291 S.W. 605, and State v. Wright, Tex.Civ.App., 56 S.W.2d 950. On the other hand, perjured testimony of the husband in a divorce proceeding, coupled with concealment from the wife of the true nature and extent of the community property, was, in a suit by the wife to set aside the decree partitioning the property, held to be extrinsic, in McMurray v. McMurray, 67 Tex. 665, 4 S.W. 357, Associate Justice Stayton writing. In the well-considered case of Ralls v. Ralls, Tex.Civ.App., 256 S.W. 688, error dismissed, opinion by Judge Boyce of the Amarillo court, it was held that fraud of the husband in procuring a separation agreement made prior to divorce proceedings, which was subsequently carried into the divorce decree, was extrinsic, and would warrant setting aside that portion of the decree. We do not think a further review of the authorities necessary at this time. It seems quite clear that the fraud here perpetrated upon ap-pellee, which is fully set out in the original opinion, was extrinsic or collateral, and had the direct effect of preventing her from presenting her claim in the County Court. We refer to that opinion for a comprehensive statement of - the pertinent facts, which were not essentially different in the instant case.

It is further contended by appellants that the District Court was without jurisdiction to order the administratrix to pay over the net balance of the insurance money to appellee, since the administratrix was claiming the fund in her own right, and the County Court originally, and therefore the District Court on- appeal, had no jurisdiction to adjudicate the title to the fund. There is no merit in this contention for two reasons. First, there was no question but that the fund belonged to the estate of ap-pellee’s deceased husband, and that she was entitled to it as his sole heir at law. See authorities in former opinion. Moreover, it was collected by the administratrix, in her-representative capacity, from the Government as such asset, and was so listed and treated by her. There was no bona fide dispute as to the ownership of the fund; and no substantial litigable issue was presented regarding it. The claim of the administratrix, set up for the first time in this proceeding, was manifestly an afterthought.

In the second place, the title to the f-und was necessarily involved in the former suit to set aside the “family agreement,” and it was there held to belong to appellee. The judgment in that case was against the administratrix and her children, and was clearly res judicata as to them.

Finally, it is contended that the trial court erred in requiring the adminis-tratrix to pay interest on the fund. This contention is likewise without merit. The administratrix occupied the relation of a trustee and was clearly chargeable with interest on the fund wrongfully withheld from appellee, at least from the date of its demand, as was adjudged by the trial court. Thomas v. Hawpe, 35 Tex.Civ.App. 311, 80 S.W. 129, error denied, where the highest legal rate was approved. Here the court only allowed the lowest legal rate.

The trial court’s judgment is affirmed.

Affirmed.


author: McCLENDON, Chief Justice.

text:
    SOUTHWESTERN GREYHOUND LINES, Inc., v. RAILROAD COMMISSION et al.
    No. 9081.
    Court of Civil Appeals of Texas. Austin.
    Dec. 31, 1940.
    Rehearing Denied Jan. 29, 1941.

      Samuels, Foster, Brown & McGee, of Fort Worth, for appellant.
    W. E. Lea, of Orange, R. A. Shivers, of Port Arthur, and Williams, Lee, Sears & Kennedy, of Houston, for appellee Sabine-Neches Stages, Inc.
    Gerald C. Mann, Atty. Gen., and Glenn R. Lewis and Geo. W. B arcus, Asst. Attys. Gen., for appellee Railroad Commission.
   McCLENDON, Chief Justice.

Suit by the Greyhound (Southwestern Greyhound Lines, Inc.) in the nature of an appeal from an order of the Commission (Railroad Commission of Texas) granting to the Sabine (Sabine-Neches Stages, Inc.) an intrastate certificate of convenience and necessity to operate bus lines between Dew-eyville and Houston over two routes, one via Orange and Port Arthur, and the other via Beaumont and Fannett. The certificate was mainly over projected but uncon-structed highways. Meanwhile the certificate granted permission for temporary operation between the termini over an elaborate system of detours, in large measure consisting of undesignated county roads. The trial was to the court and the judgment denied recovery, thereby in effect upholding the certificate. The Greyhound has appealed.

The controlling question in the case is whether the Commission has jurisdiction to grant a certificate to operate over un-constructed proj ected highways.

The application was filed November 16, 1936, by the Sabine, a corporation, created' ostensibly for the purpose of acquiring the certificate, with capital stock of $5,000, half of which was paid up ½ cash and the other half subscribed. This constituted its sole asset. Hearing was had on the application April 29 and June 7, 1938; and it was granted October 25, 1938. The routes over which the certificate was granted are thus delineated in the order: “Deweyville to Houston via Orange and Port Arthur over State highway No. 87 from Deweyville to Port Arthur and State highway No. 228 from Port Arthur to Houston. Deweyville to Stowell via Beaumont over State Highway No. 235 from Deweyville to Beaumont, and State Highway No. 125 from Beaumont to Stowell. On a schedule of two round trips daily. Detour route authorized until completion of State highways Nos. 87, 228. and 235 as follows:

“Deweyville to Orange over State highway No. 87; Orange to. Port'Arthur over Round Bunch Road to Port Arthur-Orange Bridge; thence over State highway No. 87 to Port Arthur; Port Arthur to Fannett over County roads; Fannett to Stowell over State highway No. 125; Stowell to Anahuac over State highways Nos. 125 and 61; Ana-huac to Liberty over County roads; Liberty to Dayton over State highway No. 3; Dayton to Plouston via Barbours Hill over State Highway No. 146 to Barbours Hill, thence over Barbours Hill-Crosby Road to Lynch-burg Cut off, thence over Lynchburg Cut Off to Market Street into Houston. Dewey-ville to Beaumont via Vidor over County roads and State highway No. 3 from Vidor into Beaumont; Beaumont to Stowell via Fannett over State Highway No. 125.”

The Commission made the following finding regarding the status of the projected highways over which the certificate was granted: “The Commission further finds from the evidence introduced at the hearing that new State highway No. 87 between Deweyville and Port Arthur, State highway No. 228 between Port Arthur and Houston and new State highway No. 235 between Deweyville and Beaumont are highways which have been designated by the State Highway Department to be constructed, but all of such highways are not completed and open to traffic at the present time. That part of State highway No. 87 is under construction at the present time, and rights of way for such highways have already been acquired. Rights of way for State highway No. 228 between Port Arthur and Houston have been acquired in part along the route proposed but rights of way for such highway in Harris County have not yet been acquired.”

Substantially the same situation existed with reference to projected highways 228 and 235 at the time of the trial in March, 1940.

The particular question thus presented is one of first impression in this state. Ap-pellees advert to the case of North Texas Coach Co. v. Morten, Tex.Civ.App., 92 S.W.2d 263, 268. The sole issue in that case arose upon a plea in abatement predicated upon pendency of a former suit. The trial court sustained the plea and dismissed the suit. This court upheld the trial court in sustaining the plea, but reversed the judgment of dismissal, abated the suit, and remanded the cause to i the trial court with instructions to retain the suit suspended upon the docket until the prior suit was determined, “and thereupon to proceed in accordance with the final result of that suit.” The instant question was not even adverted to; and it only appeared incidentally that the certificate involved was in part over a highway not yet completed.

We have reached the conclusion that the “Motor Bus Act” (Art. 911a, Vernon’s Ann.Civ.St.), which alone confers upon the Commission authority to regulate motor bus- traffic, limits the jurisdiction of the Commission in granting original certificates, to highways actually constructed and open to public traffic.

Throughout the act “highway” and “public highway” are used without modification. In Sec. 1, “Public Highway” as used in the act is defined to mean “every street, road, or highway in this State.” Many definitions of “highway” are given in the authorities according to the context, but generally the term is held, to mean “a way open to all the people without distinction for passage and repassage at their pleasure.” 29 C.J. p. 364. Art. 6771, R.C.S., defines “public roads” as “all public roads and highways that have been or may be laid out and established.” The word “established” could only mean in this connection completed and open to public travel. The Supreme Court of South Dakota in Allen v. Jones, 47 S.D. 603, 201 N.W. 353, 354, held that highway “does not mean a mere right of way upon which a road can be or is being constructed.” To the same effect is the Wisconsin case of State v. Paine Lumber Co., 84 Wis. 205, 54 N.W. 503.

There is nothing in the act which intimates that the term “highway”, as used therein, refers other than to those which have actually been constructed and are open to public use. On the contrary, the duties imposed upon the Commission in the exercise of its jurisdiction to grant certificates clearly contemplate the existence of constructed and open highways at the time the certificates are granted. For example, Sec. 7 of the act provides: “The Commission shall also ascertain and determine if a particular highway or highways designated in said application are of such type of construction or in such state of repair, or subject to such use as to permit of the use sought to be made by the applicant, without unreasonable interference with the use of such highway or highways by the general public for highway purposes.”

These facts could not be ascertained as to non-existent highways. Yet this is a mandatory provision of the act.

Appellees refer to express authority of the act to grant temporary certificates to meet emergencies. The provision, which is the concluding paragraph of Sec. 7, Art. 911a, reads: “The Commission shall have the power and authority to grant temporary certificates to meet emergencies and shall have the power to make special rules and regulations to meet special conditions in different localities and for such time as in its judgment may ,be deemed expedient and best for the public welfare.”

This provision clearly relates to situations which have suddenly arisen, are temporary in character, and urgent in immediate demand. The provision has no application here. The certificate was not requested nor granted under it.

It may be conceded that, within the general purposes of the act, the Commission is given broad administrative powers. But there is no expressed or implied purpose in the act to provide by certificates of convenience and necessity for transportation over non-existent highways, large portions of which have not even progressed to the stage of an established survey route, and no right of way for which has been acquired or provided for. In the instant case, the trial was had over three years after the application was filed, and yet the situation regarding 228, forming a most important link in both routes, appeared not to be substantially improved. It was still without an established route, or acquired right of way.

There is no express power granted the Commission to deal with merely projected highways; and unless such power were essential to a proper exercise of its delegated functions, it cannot be inferred. The foresight which the Commission may employ in exercising its jurisdiction is a practical, reasonable one, and relates to situations which in all reasonable probability will arise in connection with existing highways, and not with those which are merely projected. As to these latter the prospective situations are problematical, conjectural, and lie wholly within the realm of speculation. The Commission’s jurisdiction is limited, we think, to the highways that are in actual existence and1 open to public use at the time the certificates are granted.

The Greyhound operated a line of buses between Houston, Beaumont and Orange over State Highway No. 3 (U. S. No. 90); and another line between Orange and Port Arthur. Operation by the Sabine under the certificate would bring it in direct competition with the Greyhound between those points. Clearly the Greyhound was an interested party and could maintain the-action, involving as it does the jurisdiction of the Commission to grant the certificate.

The trial court’s judgment is reversed, the certificate is cancelled, and the cause is remanded to the trial court with instructions to grant to appellant such ancillary relief as it may show itself entitled to.

Reversed and remanded with instructions.

Upon Appellees’ Motions for Rehearing.

It is urged in both motions that since portions of the route were over constructed highways, the entire certificate should not be cancelled; but only those portions of it covering unconstructed highways. We do not believe it is the function of the court thus to deal with applications for certificates of this nature. That, we believe, is the function of the Commission, charged by law with the administration of the statute. If the Sabine desires, it may apply to the Commission for a certificate to operate over the highways or portions thereof which are within the jurisdiction of the Commission. Our judgment is not a bar to such application.

Our views upon the other questions presented in the motions and supporting arguments are sufficiently expressed in our original opinion.

The motions are overruled.

Motions overruled.


text:
    NEILON et al. v. TEXAS TRUST & SECURITY CO.
    No. 8925.
    Court of Civil Appeals of Texas. Austin.
    Dec. 31, 1940.
    Rehearing Denied Jan. 29, 1941.

      S. C. Autry and Kerr & Gayer, all of San Angelo, for appellants.
    H. S. Lattimore, of Fort Worth, for appellee.
   McClendon, chief justice.

The Trust Company (Texas Trust & Security Company, appellee) sued Neilon and Córtese and wife (appellants) to enjoin them from obstructing a right-of-way easement over a strip of land 18 feet wide and 196 feet long, which strip adjoins on the north a tract 145 feet wide by 196 feet deep (designated for convenience the S. 145 feet) claimed by the Trust Company, as trustee, and which separates the S. 145 feet from Woodrow Street (San Angelo). In addition to formal pleas of general demurrers and denials by all defendants, Neilon, by way of cross-action, asserted title in himself to the 18-foot strip and prayed its recovery. The trial was to a jury; but at the close of the evidence, the court dismissed the jury and rendered judgment for the Trust Company establishing the right-of-way easement over the 18-foot .strip, perpetually enjoining its obstruction, decreeing title in the Trust Company to the S. 145 feet, and denying Nei-lon recovery on his cross-action. The appeal is by Neilon and Córtese and wife from this judgment.

Appellants have briefed thirteen propositions. In order to a clear understanding of the points thus presented, we make the following statem'ent of the controlling facts:

Prior to 1928 Córtese acquired the property comprising both the 18-foot strip and the adjoining S. 145 feet. This property had a west frontage on Oakes Street of 165 feet and a depth of 196 feet. Its north line was 11.25 feet north of the south curb line of Woodrow Street; which street is a cul-de-sac, its east end being closed and having no outlet except to the west into Oakes Street. There was then a two-story frame dwelling house on the S. 145 feet facing west on Oakes Street. In January, 1928, Córtese made arrangements with United Bond Company of Texas to finance a loan of $70,000 on the S. 145 feet, the proceeds to be used in erecting two two-story apartment houses on the property. In February, 1928, Córtese and wife executed a mechanic’s lien to Marinick to secure him in the contract price of the apartment houses which Marinick agreed to build. December 15, 1928, Córtese and wife executed a deed of trust to secure $70,000 in first mortgage gold bonds payable to bearer. Howard C. Wade, of Detroit Michigan, was the trustee and grantee in this instrument and the United Bond Company was named fiscal agent. The instrument is quite elaborate, comprising 42 pages of the statement of facts. It covered the S. 145 feet, including the apartments and all furnishings, fixtures and appliances. It gave to the trustee very extensive powers, including the right to take possession of the property and manage it in case of default, to sell at trustee’s sale, in which event the trustee should have the right to purchase, to foreclose the lien by suit, and to appoint a cotrustee. Whether the apartments were completed at the time this trust deed was executed was disputed. At any rate, they were completed a short time thereafter, all, as testified to by Córtese in accordance with the original plans and specifications, with the single exception of the location of the sidewalk along Woodrow Street, hereafter noted. When the apartments and other improvements on the property were completed, the following physical facts were shown to exist by undisputed evidence. The two apartment buildings faced each other with a court 25 feet wide between, them, opening on Oakes Street. This court had a concrete walk along its center, extending from the sidewalk on Oakes Street. Similar concrete walks leading'to the three front entrances of the north and south apartments intersected this central walk at right angles. At each of these three intersections was a circle in which there was either a fish pond or shrubbery. The spaces between these walks were sodded lawns with some shrubbery. Oakes Street was paved and had a concrete curbing extending all the way in front of the 145 feet and onto the 18 feet, where it curved to the east and extended into Woodrow Street to the intersection of the east property line of Oakes Street, where it terminated. There was a 4-foot concrete sidewalk a foot or two east of this curbing, which connected with a similar sidewalk extending east along the 18-foot strip to its eastern border. Its south side was just 2 feet north of the north line of the S. 145 feet, and its north side just a few inches south of the east end of the curbing. This curbing was 11.25 feet south of the north line of the 18-foot strip. The north apartment had three rear entrances to the north, corresponding with the three front entrances to the south opening on the court. These north entrances each had a concrete platform or stoop in front of it and a concrete walk extending north and connecting with the sidewalk on the 18-foot strip. These north entrances were used as service entrances for delivery of articles by tradesmen and the like, who parked their cars on Woodrow Street just north of the sidewalk on the 18-foot strip. To the rear of the apartments were garages built in an L shape along the entire east side of the S. 145 feet and west along its south side to a point 4 feet east of the east line of the apartments, leaving a space of 4 feet between the S. E. corner of the south apartment and the N. W. corner of the south line of garages. These garages faced wes.t and north and were for the use of tenants in the apartments. A concrete driveway extended from the sidewalk on the 18-foot strip in front of these garages, over which cars passed to and from the garages into Woodrow Street, which furnished the only means of ingress and egress. The dwelling on the S. 145 feet had been moved to a lot immediately east of the 18-foot strip and S. 145 feet, facing north on Woodrow Street. This lot was owned by Córtese and occupied by him as his homestead. The north wall of the north apartments was 13.5 feet south of the north line of the S. 145 feet and 15.2 feet .south of the south side of the sidewalk. On the north side of Woodrow Street were five dwelling houses, which faced south. In front of them was a concrete curbing and sidewalk extending from Oakes Street. This curbing was 33.1 feet north of the end of the curbing which curved east from Oakes into Woodrow Street on the south. This clear space of 33.1 feet was all used as the vehicular traveled portion of Woodrow Street, and had been so used for many years. It was the only means of ingress and egress to and from the residences fronting on Woodrow Street. Two of the witnesses testified they were born in residences on the north side of Woodrow Street, had lived there all their lives, and the street had always been as wide as it was then. There was no dispute in the testimony on this point.

June 6, 1931, United Bond Company of Texas and Howard C. Wade, Trustee, recovered judgment against Córtese and wife for $79,695 (the amount of principal, interest and attorney’s fees then accrued on the bonds) with foreclosure of the trust deed and mechanic’s lien on the S. 145 feet and the furnishings, etc., of the apartments. July 7, 1931, Wade as trustee and C. C. Crocker as cotrustee executed a deed conveying the S. 145 feet to Howard C. Wade, trustee. This deed recited the pre-viouf appointment of Crocker as cotrustee, default in the indebtedness, and advertisement and sale of the property, all in accordance with the terms of the trust deed. July 13, 1931, Córtese and wife conveyed the S. 145 feet, furnishings, etc., to Howard C. Wade, trustee, in consideration of the satisfaction of the judgment and of the indebtedness evidenced by the' mechanic’s lien and trust deed instruments. This property passed to appellee by deeds executed in August and September, 1937, as follows: Wade, as trustee, to Martz, trustee; Martz, trustee, to Yost; Yost and wife to Bradshaw; and Bradshaw to Texas Trust & Security Company, trustee.

February 5, 1938, Córtese and wife conveyed the 18-foot strip to Neilon by general warranty deed. Some time later Nei-lon erected a line of cedar posts just inside the south line of the 18-foot strip, he also placed some iron or steel slabs on the property, preparatory to attaching them to the posts as a fence. One of these posts was east of the driveway leading to the garage. Neilon testified that he had no intention of erecting the fence across the driveway, the post being erected at that point merely to mark his property line. In this connection, we quote from appellants’ brief: “Although (as previously shown) there is no connection between appellee and the persons who are entitled to the use of such driveway, the existence of a driveway from the garage north across the 18-foot tract to Woodrow Street is not and has never been denied by the appellants, and they have not threatened nor intended to block such a driveway.”

In so far as concerns the existence of an easement, this admission limits the controversy to that portion of the 18-foot strip lying west of the driveway.

Shortly after these posts were erected this suit was brought.

The first proposition complains of that portion of the judgment which denied recovery to Neilon on his cross-action at least to the fee to the 18-foot strip, subject to the easement. Appellee’s suit was primarily for an injunction, not for title to the property. In its petition it asserted title to the entire property, including the 18-foot strip, but in the alternative limited its title to the S. 145 feet. The clear purpose of the suit was to establish and protect the asserted easement over the 18-foot strip. The judgment decreed title in appellee only to the S. 145 feet, established the easement over the 18-foot strip, enjoined its obstruction, and in general terms decreed that Neilon “take nothing” by his cross-action. Appellants contend that the effect of this “take nothing” judgment was to divest Neilon of title to the fee to the 18-foot strip, and vest title thereto in appellee. Ordinarily this would be the effect of a “take nothing” judgment in a trespass to try title suit. But the fact that the judgment decrees title in appellee only to the S. 145 feet, and establishes an easement only in appellee to the 18-foot strip is inconsistent with a vesting of the fee to that strip in appellee. As a matter of fact there is nothing in the entire statement of facts to indicate that appellee really claimed more than an easement over the 18-foot strip. The field notes of all instruments under which it claimed delineated only the S. 145 feet. The fact that only an easement in the 18-foot strip was decreed in appellee, and the undisputed evidence showing the fee was not in appellee, the evident purpose of the “take nothing” judgment was to deny Nei-lon recovery as against the only real claim o'f appellee to the 18-foot strip, namely, the easement therein. Appellee, in its brief, takes this position; and further asserts that it makes no claim to the fee to the 18-foot strip, and is willing to have the judgment reformed so as specifically to vest title thereto in Neilon, subject to its easement. However, it asserts that this should be at appellants’ costs, since the point was not clearly raised in the motion for new trial. We think this position correct. The motion for new trial contains 44 assignments of error, the only one of which that is in any way germane to this proposition is the 26th, which is purely formal and reads: “The court erred in rendering judgment that defendants take nothing by their cross-action.” While this assignment is sufficient' to raise the point, we do not think it sufficient to require assessing costs of appeal against ap-pellee in view of the above state of the •record and real issues between the parties. It was no doubt construed by the trial court as attacking his judgment granting an easement orter the 18-foot strip. If appellants had desired a judgment in favor of Neilon specifically for the fee to the 18-foot strip subject to the easement; an assignment, directing the court’s attention to this specific point, would no doubt have resulted in a modification of the judgment accordingly. If there were any real controversy over the matter, we would have a different question.

The second proposition assails the injunction judgment as “erroneous and void” for uncertainty in that it enjoins appellants “from impeding certain easements, with no definite boundaries. It mentions no particular methods of interference. A casual connection between different future acts, and impediments that could later'be alleged to have resulted, and whether proximate or remote, would invoke questions appropriate for disposition by a future jury.”

We think the judgment amply spécific in the several respects complained of in this proposition. Its pertinent portions read: .

“The court further finds that there is an existing permanent easement of the free and unimpeded use of a way to and from Woodrow Street to the garages, apartment buildings, sidewalks a-nd entrances thereto, known as Pasadena Courts, erected upon the above-described tract of land; and
“It is, further, ordered, adjudged, and decreed, by the court that the said easement be, and the same is hereby established as a permanent easement in favor of the above-described tract of land and that said plaintiff, as the owner of the said tract of land and apartment buildings, garages, and other improvements thereon, is entitled to the free and unimpeded use of ways of ingress and egress, to and from said above-described tract of land, apartment buildings, garages, sidewalks and other improvements thereon, over and across the said land claimed by defendant, Frank Neilon, to and from said Woodrow Street, and that said defendants and each of them, their agents, attorneys and employees, be, and they are permanently enjoined from impeding the free use of said easement and from doing anything to obstruct the free arid unimpeded use of the land described in the deed to plaintiff in connection with the strip of land lying on the north thereof claimed by the said defendant, Frank Neilon, either in entering the driveway or building entrances and sidewalks, or using such driveway, building entrances, sidewalk and dwellings, as same were constructed by the said J. G. Córtese and wife, and as they now are.
“It is further ordered, adjudged and decreed, that Texas Trust and Security Company as the owner of the 145 feet by 196 feet tract, above described, do have and recover of and from the defendants, Frank Neilon, J. G. Córtese and wife Katherine Córtese, an easement for said tract over and upon the premises lying between said tract and Woodrow Street to the extent and for the purpose and uses as set out in the description in the easement as herein above decreed.”

The third proposition asserts the abstract principle of law that identity of name is not evidence of identity of persons where evidence to the contrary has been introduced. This proposition relates to the deed from Wade, trustee, to Martz, trustee. The facts are these. The deed recited that the grantor was “Howard C. Wade, of Detroit, Michigan,” it was dated August 31, 1937, signed, “Howard C. Wade, Trustee,” in the presence of two subscribing witnesses, and acknowledged before a notary public in Essex County, Ontario, September 1, 1937, the notary reciting the personal appearance before him of “Howard C. Wade, Trustee, known to me to be the person whose name is subscribed to the foregoing instrument.” The only evidence discrediting this deed was that of Córtese who testified that the signature was not genuine. This he based solely upon his knowledge of Wade’s signature from having seen him sign his name to an instrument dated December 15, 1928. This instrument was introduced in evidence and bore the signature, “H. C. Wade.” Photostatic copies of this signature and that to the 1937 deed are inserted in the statement of facts. Córtese was not a handwriting expert, his only experience in that regard being that of handling checks in connection with the grocery business. He was not familiar with Wade’s handwriting, and his testimony was predicated solely on his judgment as to the lack of similarity between the 1928 and 1937 signatures. The only probative effect of his testimony, therefore, was to establish the genuineness of the signature to the 1928 instrument, which was not in fact questioned. Unless, therefore, it can be said'that the two signatures are so dissimilar as that they could not have been written by the same person, the presumption of identity was not overcome. Conceding a marked dissimilarity in a number of respects, the following facts must be borne in mind. The second signature was written nearly nine years after the first, and it is matter of common knowledge that handwritings often change over a period of years. The first signature was evidently 'written hurriedly, and only initials were used, whereas the second was of the full name, followed by the word, “trustee.” Not a single circumstance casts suspicion upon the genuineness of the deed. The grantor describes himself just as the trustee in deed of trust is described, and the notary officially certifies to his own knowledge of identity of the suscribing person to be the one whose acknowledgment was taken. There is another important circumstance in favor of the genuineness of the instrument. Not only did the deed purport to pass the legal title to the property, but possession was held under it. The property consisted of apartment houses rented to tenants, and required constant attention. The trustee was actually managing the property for the beneficial owners who were the bondholders. We think it should take more than mere apparent dissimilarity in these signatures to a nonexpert observer to overcome the presumption of identity under the peculiar facts and circumstances of this particular case.

The fourth proposition (also in the abstract) is to the effect that to entitle a plaintiff to an easement appurtenant he must show ownership of the dominant estate. This proposition is germane to the contention in the third proposition, to the effect that the Wade who executed the 1937 deed was not the Wade in the trust deed and therefore the title to the S. 145 feet was still outstanding in Wade, trustee. We overrule this proposition on the same grounds as those upon which we overrule the third proposition.

The fifth proposition assails that portion of the judgment which decreed title to the S. 145 feet in appellee and awarded writ of possession, in that there was no pleading upon which to predicate that judgment. Specifically, this proposition is predicated upon 'the failure of the petition to allege ouster or that appellants had ever taken or threatened to take possession of the S. 145 feet. The suit was not in form in trespass to try title, but for an injunction. The petition did allege title in appellee as a predicate for its claim of easement and right to an injunction. The prayer included request for decree of title in appellee. Title to the S. 145 feet was essential to the asserted easement, which title was pleaded and proved. Cór-tese was the admitted common source of title. A judgment must, as between the parties, establish title to the dominant estate. That part of the judgment decreeing title to the S. 145 feet therefore added nothing to the judgment establishing the easement. In so far as the award of writ of possession was concerned, this was mere surplusage as appellee was conclusively shown to be in possession.

The sixth proposition assails the judgment on the ground that the pleadings and evidence did not identify the land. This is based upon the fact that the field notes of the S. 145 feet in the petition omit one of the four calls. The petition first asserted title to a tract beginning in the east line of Oakes Street, thence east 196 feet, thence north to Woodrow Street, thence west with the south line of Woodrow Street to its'intersection with Oakes Street,, thence S. along the E. line of Oakes Street to the beginning. This description clearly included the S. 145 feet. Then followed in detail a history of the transactions regarding the erection of the apartments, and other improvements, the facts upon which the eásement was asserted, the acts, of Neilon in erecting the line of posts,, etc. In the alternative, appellee’s ownership was alleged of the S. 145 feet, described as follows:

“145 feet by 196 feet, out of the Southwest corner of Acre Lot No. 32, Miles Addition to the City of San Angelo, Tom Green County, Texas, described as follows:1
“Beginning at an iron pipe driven in the East line of Oakes Street, being the-Southwest corner of Acre Lot No. 32;. Thence with the East ’line of Oakes Street North 19 20 feet East, 145 feet to an iron: pipe driven in the ground for the Northwest corner of this tract; Thence North 69 30 feet East, 196 feet for the North East corner of this tract; Thence South 1-9 deg. 20' West, 196 feet along the South line of Acre Lot No. 32 to the place of beginning.”

The previous allegations regarding the right to the easement over the 18-foot strip are then alleged by reference.

It is manifest that the detailed boundaries are incomplete in the particular that there is a missing call. If there were nothing in the pleading itself from which the error might be corrected, there might be merit in appellants’ proposition. But the fact that the tract is first described as 145 feet by 196 feet out of the southwest corner of Lot No. 32, etc., and the fact that its beginning point and frontage of 145 feet on Oakes Street, and the length of its north line as 196 feet are given, are sufficient in themselves to delineate the tract and supply the missing call. No objection was made to the introduction of appellee’s title deeds and other instruments based on this defect in description, which was manifestly a purely clerical error in copying.

The seventh proposition is that a mere agent of the dominant owner cannot sue in his own name to establish an casement and enjoin its obstruction. This may be true in the abstract as applied to a mere agent. It has no application to a trustee holding the legal title and in actual possession of the property, with full power to manage and control it, accounting to the beneficiaries for the net revenues. See 26 R.C.L., p. 1340, § 205. That was in effect the situation here. Wade, as trustee under the trust deed, was given very ample powers, including the right to take possession of the property and manage it, the power to sell and become the purchaser at such sale as trustee, the power to sue to foreclose the lien. When Córtese and wife conveyed to him as trustee, in settlement of the judgment and liability on the trust deed indebtedness, such conveyance was manifestly for the benefit of the bondholders, and vested in Wade the full legal title to the property conveyed. Córtese and wife are estopped by their deed to assert otherwise. Under the circumstances, the title thus conveyed was impressed with the same trust that theretofore existed, except only that the beneficiaries had become the equitable owners of the property instead of mere lien holders. It is not material to speculate upon what rights the bondholders may have had or now have to dissolve the trust and have the legal title vested in themselves, resort to partition of the property, or otherwise dispose of it. The property is such that manifestly it cannot be partitioned in kind. Nor could a stranger to the title question the validity of the several conveyances that finally placed the legal title in appellee in trust. As to third parties it will be conclusively presumed that the conveyances and change of actual possession and management of the property were with the consent of the beneficiaries. However, we do not have to resort entirely to presumption. Testimony of one of appellee’s attorneys of record, elicited by appellants’ attorney, was to the effect that appellee held the property in trust for a large number of bondholders to whom it accounted for the net revenues, less its commission for services as trustee. We think the powers of appellee ample to maintain the suit; whether in its own name or as trustee, was unimportant from the viewpoint of appellants.

The eighth and ninth propositions present the point that no easement passed to Wade, trustee, because the deed conveying the property was predicated upon the trust deed, which was executed before the improvements on the property were completed and at a time when no easement existed over the 18-foot strip; and the deed to Wade merely conveyed such title and “appurtenances” as were conveyed in the trust deed. This theory is not tenable. In executing the trust deed, Córtese and wife did not alienate the S. 145 feet, they merely encumbered it with a lien to secure an indebtedness. They owned both the S. 145 feet and the 18-foot strip, and there was therefore no dominant or servient estate, and consequently there could be no easement. It matters not, therefore, whether the improvements were completed when the trust deed was executed in so far as concerns the easement. Whether an easement was created in the 18-foot strip depends upon the situation existing _ at the time Córtese and wife conveyed. That situation was the same as it was at the trial.

The tenth and thirteenth propositions urge the point that no easement was granted over the 18-foot strip by the deed to Wade, because there were other ways of ingress and egress to the improvements erected on the premises. As above pointed out, the brief admits the existence of a right-of-way easement for ingress and egress of vehicles over that portion of the 18-foot strip; but contends that no easement was created over the remainder of the strip, because other means of ingress and egress into and from the north apartments were available. The principle applicable to the situation here is thus concisely stated in 17 Am.Jur., p. 945, § 33: “It is a well settled rule that where, during the unity of title, an apparently permanent and obvious servitude is imposed on one part of an estate in favor of another part, which servitude, at the time of the severance, is in use and is reasonably necessary for the fair enjoyment of the other part of the estate, then upon a severance of the ownership, a grant to the right to continue such use .arises by implication of-law.”

This principle was applied in Miles v. Bodenheim, 193 S.W. 693, error refused.

The undisputed facts which make this principle applicable are: At the time of the conveyance to Wade the S. 145 feet had constructed on it expensive apartment houses with garages to the rear for the use of tenants. These garages were provided with a concrete driveway extending to the sidewalk on the 18-foot strip, which driveway, projected across the 18-foot strip, provided the only vehicular means of ingress and egress to and from the garages. The roadway portion of Woodrow Street was and for many years previous had been 33.1 feet wide. This roadway extended to within 6.9 feet of the north line of the S. 145 feet. On this strip of 6.9 feet Córtese had constructed a 4-foot concrete sidewalk extending all the way from Oakes Street to the east line of the 18-foot strip, and had constructed concrete walks leading to each of the three rear entrances to the north apartments. The obvious purpose of these walks and sidewalk was to afford rear entrances from Woodrow Street to the north apartments. Such was their manifest use at the time Córtese and wife conveyed to Wade, and such continued to be their use up to the time of trial. The obvious, open, notorious facts admit of no other conclusion than an intention to devote the 18-foot strip to the service of the north apartments as rear service entrances and to a passageway for vehicles to and from the garages.

This holding disposes of the twelfth proposition which merely asserts in the abstract that an easement can only be created by deed.

The eleventh proposition complains of refusal to admit in evidence an unsigned draft of a mechanic’s lien from Córtese and wife to Marini ck, dated January 31, 1928, two days before the mechanic’s lien under which the apartments were constructed was executed. This draft contained a plat which showed a strip of land between Woodrow Street and the S. 145 feet, and it was offered to show that the intention of the parties Was not to include in the mechanic’s lien the 18-foot strip. There is no issue as to the boundaries of the S. 145 feet, and no contention here that a lien was created on the 18-foot strip either by the mechanic’s lien or the trust deed. Nor is it contended that appellee owns the fee to the 18-foot strip. All that is contended for in'-that regard is an easement arising by implication from the conveyance by Córtese and wife to Wade. The draft was not admissible for any purpose.

The trial court’s judgment is reformed so as to award the fee to 18-foot strip to Neilon, subject to the easement as decreed in that judgment. As so reformed and in all other respects the trial court’s judgment is affirmed. All costs are assessed against appellants.

On Appellants’ Motion for Rehearing.

Our attention is directed to the following errors in our original opinion which are hereby corrected in the interest of accuracy :

1. On page 2 [147 S.W.2d 324], in stating the powers of the trustee under the deed of trust is included the right to purchase at trustee’s sale, this is error, we do not find that particular power granted the trustee. The same error is repeated on page 12 [147 S.W.2d 328].

2. Under the first proposition we stated that the only assignment in the new trial motion relating to this subj ect was the 26th. There are in the motion two other assignments, the 10th and 27th, to the same effect, and subject to the same comment. The three assignments read:

“10. The court erred in rendering judgment that nothing be taken by the cross-action on file herein.”
“26. The court erred in rendering judgment that the defendants take nothing by their cross-action.”
“27. The court erred in rendering judgment that the defendant, Frank Neilon, take nothing by his cross-action.”

With these corrections the motion is overruled.

Overruled.