author: FUNDERBURK, Justice. GRISSOM, Justice

text:
    COPUS et al. v. CHORN et al.
    No. 2054—2108.
    Court of Civil Appeals of Texas. Eastland.
    Nov. 15, 1940.

      R. E. Rodgers, of Hamlin, for plaintiffs in error.
    Smith & Smith, of Anson, and Malone, Lipscomb, White & Seay, of Dallas, for defendants in error.
   FUNDERBURK, Justice.

This case was tried in the court below and judgment entered September 7, 1939. Plaintiffs in error, by their attorney of record, actually participated in said trial. Petition for writ of error and bond were filed December 30, 1939. Citations in error were issued February 7, 1940, and served on February 20 and 21, 1940. Thus, it appears that writ of error was not perfected until after January 1, 1940.

We heretofore overruled a motion of defendants-in-error to dismiss the writ of error. A second such motion has been filed, based upon the same grounds and citing as authority the subsequently decided case of United Employers Cas. Co. v. Skinner, Tex.Civ.App., 141 S.W.2d 955. For brevity, this decision will be referred to as the Skinner case or Skinner decision.

The majority of the members of this court, after careful consideration, are unable to escape the firm conviction that the Skinner decision shows an incorrect interpretation of the law. The fact that the Supreme Court refused a writ of error poses for us a difficult and delicate question of our duty in the premises. Said decision, we think it clearly apparent, bears internal affirmative evidence showing a misapprehension of a material fact, which may have had controlling effect in the Court of Civil Appeals, and, at any rate, was naturally assumed by the Supreme Court, and if so, would fully account for its refusal of a writ of error. Under these circumstances, although it must be admitted that we cannot feel as certain of the propriety of our action as could be wished, we have reached the conclusion that the refusal of the writ of error should not, for the reasons which will appear, be regarded as having the same effect or authority as if the decision were' one by the Supreme Court itself and free from the evidence that it was based upon a wrong assumption of fact.

In Parker v. Bailey, Tex.Com.App., 15 S.W.2d 1033, it was held that the fact that the Supreme Court refused a writ of error in a case holding contrary to a decision of the Supreme Court was not to be taken as overruling such decision. This conclusion was reached as the result of applying to court decisions the well known principle applicable to legislation, namely, that repeals by implication are not favored. This, it must be admitted, provides but an imperfect analogy, yet it would seem that when the Supreme Court refuses a writ of error in a case wherein the decision appears to be clearly contrary to principles which it is unreasonable to infer that the court intends to repudiate, and such action may well have resulted from a patent mistake of fact on the part of the court below which may have been of controlling effect, and, at best, may account for the action of the Supreme Court in denying the application for writ of error, the act of refusing a writ of error should not be given the same authoritative effect as if the Supreme Court, after its own hearing and consideration, had expressly decided the point.

The statute upon which the question at issue arises originated as Chapter 2, p. 59, Acts of the Regular Session of the 46th' Legislature, Vernon’s Ann.Civ.St. Art. 2249a. The Act does not purport to affect the jurisdiction of any court, or to change the time in which any of the several steps must be taken in order to prepare cases for review by appeal or writ of error. If, therefore, it had any such effects, they are implied and consequential only.

There can be no difference of opinion, it would seem, regarding the following aspects of the nature and effect of the statute: (1) It relates alone to parties to civil suits in trial courts. (2) It, in effect, classifies all such parties into two classes; those who actually participate in person, or by attorney, in the trial of a case, and those who do not. (3) Said statute changes the law only as to said first class and leaves it wholly unchanged as to the second class. (4) As to' the class affected, it abolishes a pre-existing right. (5) The statute became effective either on the date of its passage (May 31, 1939 or June 1, 1939) or on January 1, 1940. (6) Whether it became effective at the date of its passage, or ninety days after adjournment, or on January 1, 1940, it then and then only had the effect to repeal “all laws and parts of laws, insofar as they conflict with this Act.” (7) The only ambiguity, if any, in the statute arises because of the provision that “this Act shall take effect from and after January 1, 1940”, and another provision being part of the emergency clause — that “this Act shall take effect from and after its passage.” For convenient reference, we may treat the date of passage of the Act as June 1, 1939, the date it was filed in the office of the Secretary of State.

If the statute went into effect on June 1, 1939, that was directly contrary to the expressed intention of the Legislature that it should take effect “from and after January 1, 1940.” If the intention thus expressed was rendered ambiguous by the further declarations of an emergency and that the Act should take effect “from and after its passage”, then a long recognized rule of construction would require that January 1, 1940, rather than the date of the passage of the Act, he held to be the date when the law went into effect in order to resolve the uncertainty created hy such ambiguity in favor of the right of review in the appellate court. “It is the policy of the Legislature and of the court's to construe liberally all provisions of the statute so as to secure the right of appeal.” Hamill v. Samuels, 104 Tex. 46, 133 S.W. 419, 421; Eppstein & Co. v. Holmes & Crain, 64 Tex. 560.

During the entire time intervening between June 1,‘ 1939, and January 1, 1940, did a party who had participated in the trial of his case have the right to a review by writ of error? The answer to that question, it is believed, is conclusive of the question at issue. A party undoubtedly had such right, unless the law in effect before the passage of the statute in question was repealed hy the statute, effective on June 1, 1939. If such be the meaning of the statute, then no effect whatever can he given to the provision thereof reading thus: “It is hereby provided that this Act shall take effect from and after January 1, 1940.” It is implicit in the opinion in the Skinner case that the right of a party to a review of his case by writ of error continued, as previously, up to January 1, 1940, and that it then ceased only if, before that time, a writ of error was not perfected. If such right continued up to January 1, 1940, then the provision “all laws and parts of laws, insofar as they conflict with this Act are repealed” did not take effect until January 1, 1940, since before that time there was no law or part of law in conflict. Under said decision, a party to a case tried as late as December 31, 1939, could procure review by writ of error, provided he perfected writ of error before January 1, 1940. It is respectfully submitted that under that construction of the statute its only effect was to shorten, in cases tried less than six months before January 1, 1940, the time theretofore allowed in which to perform the several steps required in perfecting writs of error to courts of civil appeals. Take, for example, this case in which final judgment in the trial court was rendered on September 7, 1939. The right of plaintiff in error to review by writ of error continued until January 1, 1940. Under the law existing until January 1, 1940, a party who participated in the trial had six months, or until February 7, 1940, in which to file petition for writ of error and bond and more time in which to perfect writ of error by procuring service or waiver of citation in error. The only effect of the statute as interpreted in the Skinner case was to shorten the time in which to take the several steps leading up to and including the perfection of the writ of error from six months or more to four months, ending December 31, 1939. As affects the question at issue, the statute so construed would, in effect, be precisely the same as if it read thus: “Sec. 1. From and after January 1, 1940 no party who participates either- in person or by his attorney in the actual trial of a case in the trial court shall be entitled to review by the court of civil appeals through means of writ of error. Sec. 2. The provisions of this Act shall apply to and include all cases tried prior to January 1, 1940, unless before January 1, 1940, writ of error therein has been perfected.”

Such a statute, as applying to any case in which from the date of the trial to January 1, 1940, there was not reasonably sufficient time in which to perfect writ of error, would be void. This was recognized in Odum v. Garner, 86 Tex. 374, 25 S.W. 18, 19. The court in that case said: “The general rule as to statutes of limitation, where a different period is substituted, is that the new law applies, provided that a reasonable time is given within which to prosecute the claim.” (Italics ours). “Our supreme court”, it was further said, “has adopted the rule that upon the substitution of a new term of limitation the time which elapsed under the former law will be counted in the ratio that it bears to the whole period, and the time of the new law will be computed upon the basis of the ratio that the unexpired time under the old law bears to the whole time. That is, if, under the old law, two-thirds of the time had expired, then one-third of the new law would be allowed within which to sue. Gautier v. Franklin, 1 Tex. 732. The same rules should be applied in construing this statute [i.e., one shortening the period of time in which to sue out writ of error] as in construing statutes of limitation of actions.” For subsequent applications of the same rule, see Union Assur. Soc. v. Equitable Trust Co., 122 Tex. 293, 58 S.W.2d 58; Hunter v. Moore, 122 Tex. 583, 62 S.W.2d 97; Wright v. Hardie & Co., 88 Tex. 653, 32 S.W. 885; Phil H. Pierce Co. v. Watkins, 114 Tex. 153, 263 S.W. 905.

Did a party who participated in the actual trial of his case between June 1, 1939 and January 1, 1940, have a right to waive appeal and have his case reviewed by writ of error? Manifestly he did, unless the statute in question took away such right. The Skinner decision is to the effect that _he had such right. If the effect of the statute was to deny such right, it was solely because of the provision thereof reading thus: “All laws and parts of laws, insofar as they conflict with this Act, are repealed.” Whether that provision had such effect is wholly dependent upon whether it became effective on June 1, 1939 or January 1, 1940. If it became effective June 1, 1939, then the opinion in the Skinner case is wrong in its implication, if not express holding, that if the writ of error had been perfected at any time prior to January 1, 1940, the right of review by writ of error would have been available. If the repeal did not become effective until January 1, 1940, still the opinion is wrong, since it does not purport to be based upon the theory that the writ of error was not perfected until after the expiration of a reasonable time from January 1, 1940. On the contrary, the decision is expressly based upon the fact that writ of error was not perfected before January 1, 1940. The effect of the statute as construed was to preserve the right of a party to review of his cases by writ of error up to and throughout the day of December 31, 1939, but as to cases in which judgment was rendered at the close of such period, no time whatever was given in which to perfect writ of error, thus nullifying the right.

Let us suppose a case was tried and final judgment rendered on November 30, 1939, would the losing party in such case, if he actually participated in the trial, then have the right of election to appeal or to sue out writ of error? Thirty days having elapsed without perfecting an appeal, and his right of appeal having thereby been waived, would he, on December 31, 1939, continue to have the right to a review by writ of error? He certainly would, unless the law so permitting had already then been repealed by the Act in question. If such law had then been repealed, the repeal had been in effect since June 1, 1939, with the result, therefore, that such party had never had from the first any right of election between appeal and writ of error, but only had the right of appeal. The provision that “this Act shall take effect from and after January 1, 1940” was wholly inoperative. But, if the repeal was not effective “until January 1, 1940,” such party, although he had waived his right of appeal, still, on December 31, 1939, had the right to a review of his case upon writ of error. The question then occurs, how long would he have in which to perfect the writ of error — meaning thereby to file his petition and bond and procure service of citation in error, or a waiver thereof. Under the Skinner decision, if applied to the supposed case, the right to review by writ of error still existed on December 31, 1939, but the statute in question required that the petition for writ of error and bond be filed and citations in error be issued and served all in the one day’s time. It is submitted that süch is an unreasonable construction of the statute, and even if it be the required construction then the statute would be void as not providing for a reasonable time in which, after it became effective, to permit of the perfection of the writ of error. To say the least, the statute is susceptible to a different and reasonable construction according to which it would be valid rather than void — a sufficient reason in itself for adopting such construction.

If the provision of the statute, namely, “No party who participates either in person or by his attorney in the actual trial of a case in the trial court shall be entitled to review by the Court of Civil Appeals through means of writ of error” only became effective “from and after January 1, 1940,” as undoubtedly held in the Skinner case, then it may well be asked: What laws or parts of laws were embraced within the repealing provision? There was no law or part of a law in conflict until the first named provision itself became effective. Therefore, of necessity the provision taking away the right of a party to review by writ of error and the provision for the repeal of laws in conflict became effective at the same time whether such time was June 1, 1939 or January 1, 1940. Undoubtedly, among the laws included within the repealing provision was Vernon’s Ann. Civil Statutes, Art. 1839, reading (so far as material) as follows: “In * * * writ of error the * * * plaintiff in error shall file the transcript and statement of facts with the Clerk of the Court of Civil Appeals within sixty (60) days from * * * service of the writ of error,” etc. The Skinner decision holds impliedly that if writ of error be perfected on December 31, 1939 then the record may subsequently be filed in the court of civil appeals. By authority of what law? ' The only law authorizing that to be done and fixing the time therefor was the law quoted above and which was repealed as of January 1, 1940, unless the statute should be construed, as we think it must, to apply only to cases tried on and after January 1, 1940. Consistency will require that the interpretation of the statute as made in the Skinner case be amended so as to include within the condition that writ of error be perfected on or prior to December 31, 1939, that the record be filed in the court of civil appeals on or before that time.

Statutes speak prospectively, unless the contrary is clearly indicated. Freeman v. Terrell, 115 Tex. 530, 284 S.W. 946. A statute speaks as of the time at which it takes effect. Moorman v. Terrell, 109 Tex. 173, 202 S.W. 727; Fischer v. Simon, 95 Tex. 234, 66 S.W. 447. In Galveston, H. & S. A. Ry. Co. v. State, 81 Tex. 572, 598, 17 S.W. 67, 72, the court said: “We apprehend that no universal rule of construction can be adopted when a statute, which makes a distinction between future and past transactions is passed upon one day to take effect upon another; but we think the general rule is that a statute speaks from the time it becomes a law, and what has occurred between the date of its passage and the time it took effect is deemed, with respect to the statute, a past transaction.” The statute now under consideration does not purport to deal with or make any distinction between future and past transactions. As to any change in the existing law 'the statute speaks only thus: “No party who participates either in person or by his attorney in the actual trial of the case in the trial court shall be entitled to review by the Court of Civil Appeals through means of writ of error.” As of what time does the statute thus speak? Under the above authorities it so speaks as of January 1, 1940. It purports to speak prospectively. What is there in the statute clearly to indicate the contrary? There is nothing to indicate the contrary clearly or otherwise, unless it be the recitations in the emergency clause including the apparently inconsistent provision before mentioned, namely: “this Act shall take effect from and after its passage.” If this is to be regarded as in any manner indicating that the law is not to speak from January 1, 1940, it is respectfully submitted that it does not constitute a clear indication of that intention, such as is required. The purpose and function of an emergency clause is not to express the legislative intention in the provisions of the statute. Missouri-Kansas-Texas Ry. Co. v. Thomason, Tex.Civ.App., 280 S.W. 325. On the contrary, the purpose of section 3 of the Act itself was to express the intention that the statute speak “from and after January 1, 1940.” If, therefore, the recitation in the emergency clause is irreconcilable with the expressed intention that the statute shall take effect from and after January 1, 1940, it should be disregarded.

What has thus far been said is upon the assumption that the vote upon the bill in the Legislature was sufficient to adopt the emergency clause. In the Skinner case [141 S.W.2d 956], it was said: “The vote was sufficient to suspend the constitutional rule so as to put it in effect at once.” If this was error, then it may very well be considered that it affected the validity of the decision, and may alone account for the action of the Supreme Court in refusing application for writ of error. According to a certificate appended to the official publication of the Acts of the Legislature after said Act was vetoed it was passed by the Senate by a vote of 17 yeas and 8 nays. The Senate consists of thirty-one members. The Constitution (Art. 3, sec. 39, Vernon’s Ann.St.,) provides that an emergency act can only be passed by a “vote of two-thirds of all the members elected to each House.” Seventeen is not two-thirds of the thirty one members elected to the Senate, and, therefore, it seems to us that in the Skinner case it was a mistaken supposition that the emergency clause was adopted. This poses the further question : Can a mere recitation in an emergency clause not adopted be made first to create an ambiguity not otherwise existing and then to control an express provision in the body of the statute? It áeems to us there can reasonably be but one answer to this question. ' Since it was not the purpose of the enacting clause to express the legislative intention attempted to be expressed by the terms of the Act, the failure of the Senate to pass the Act by a two-thirds majority of all its members had precisely the same effect as if there had been no emergency clause in the bill. Without an emergency clause it may be assumed the statute would have become effective on January 1, 1940, as plainly provided. Without such express provision as to the effective date, and without an emergency clause, the statute would, of course, have become effective ninety days after adjournment of the Legislature. With such express provision that the statute be effective from January 1, 1940, and the emergency clause rendered ineffective by failure to adopt same, the Act went into effect on January 1, 1940, just as certainly as that the Legislature had the power to fix such date at more than ninety days after adjournment. Such power is here assumed without any intention to decide that question.

It being the conclusion of the majority that the motion should be overruled, it is so ordered.

GRISSOM, Justice

(dissenting).

Believing that the majority opinion is in conflict with an opinion and rulings of our Supreme Court, and the opinions of at least two courts of civil appeals, and is not a correct interpretation of Art. 2249a, I cannot concur in that opinion, but most respectfully dissent. Popham v. Patterson, 121 Tex. 615, 51 S.W.2d 680; United Emp. Cas. Co. v. Skinner, Tex.Civ.App., 141 S.W.2d 955, writ refused; Blankenship v. Stallings, Tex.Civ.App., 141 S.W.2d 957, writ dismissed.

This judgment was rendered September 7, 1939. Service of citation in error was not had until after January 1, 1940; in fact, not until February 21, 1940. Under a fact situation which furnishes no ground for distinction between it and the present case (and none is attempted), the Waco Court of Civil Appeals, in United Employers Cas. Co. v. Skinner, 141 S.W.2d 955, writ refused, held that the appeal by writ of error must be dismissed. In said case, plaintiff in error participated in the trial of the case resulting in a judgment on July 10, 1939; it filed its petition and bond for writ of error in December, 1939, but failed to obtain the issuance and service of citation in error until after January 1, 1940. That court held that by virtue of Art. 2249a (Vernon’s Texas Statutes, 1939 Cumulative Supplement) plaintiff in error had lost its right to have the judgment reviewed by the court of civil appeals by writ of error. In the present case, plaintiffs in error participated in the trial of the case, judgment was rendered September 7, 1939, petition for writ of error and bond were filed December 30, 1939, citations were issued February 17, 1940, and served on February 20 and 21, 1940.

The majority is of the opinion that the decision in United Emp. Cas. Co. v. Skinner, supra, is wrong. The Supreme Court refused a writ of error. The question decided was that a litigant who participated in the trial of a case on July 10, 1939 (less than six months before January 1, 1940), and failed to perfect his appeal by writ of error before January 1, 1940, by virtue of Art. 2249a, had lost his right to have a court of civil appeals review the judgment; stated differently, that thereby the court of civil appeals lost jurisdiction to so review the case. The sole question was whether said statute required dismissal of the appeal. The majority opinion says that the recorded vote was insufficient to put the Act (Art. 2249a R.S.1939) into immediate effect upon its passage as stated in the Skinner opinion; that the Act, therefore, did not become a law until January 1, 1940, and that said mistake accounts for the refusal of a writ of error by the Supreme Cpurt, because the Supreme Court naturally assumed the correctness of the statement by the Court of Civil Appeals that the vote was sufficient to put the Act into immediate effect.

If the vote were insufficient to put the Act into immediate effect, it became a law ninety days after adjournment of the Legislature, or about September 21, 1939. Either immediately, or ninety days after adjournment, this Act became a law and operated thereafter as legal notice to plaintiffs in error, and all others, that on January 1, 1940, their right to take their case to a court of civil appeals by writ .of error would cease to exist. Popham v. Patterson, 121 Tex. 615, 624, 51 S.W.2d 680.

The result is the same whether the law became effective immediately, or ninety days after adjournment.

The case of Parker v. Bailey, Tex.Com.App., 15 S.W.2d 1033, has no application here, because there is no Supreme Court decision contrary to its action in refusing a writ of error in the Skinner case. If the principle announced in Odum v. Garner, 86 Tex. 374, 25 S.W. 18, were otherwise applicable to the present situation, it is not controlling, because it cannot be said that as applied to the facts of the instant case there was not reasonably sufficient time in which to perfect a writ of error. See Blankenship v. Stallings, Tex.Civ.App., 141 S.W.2d 957, writ dismissed.

I am of the opinion that under the authorities cited, which are approved by .the Supreme Court, it is our duty to dismiss the appeal.


source: Caselaw Access Project

author: FUNDERBURK, Justice.

license: Public Domain

text:
    CITY OF BAIRD v. WEST TEXAS UTILITIES CO.
    No. 2063.
    Court of Civil Appeals of Texas. Eastland.
    Nov. 22, 1940.
    Rehearing Denied Dec. 20, 1940.
    Scarborough, Yates & Scarborough, of Abilene, and L. L. Blackburn and F. E. Mitchell, both of Baird, for appellant.
    Wagstaff, Harwell, Douthit & Alvis, of Abilene, for appellee.
   FUNDERBURK, Justice.

The City of Baird, a municipal corporation, incorporated under general law, brought this suit against West Texas Utilities Company, a corporation, seeking the recovery of penalties in the aggregate sum of $44,700 claimed to be due under authority of the provisions of R.S.1925, Art. 1122. To the end that plaintiff’s right to so recover be tested by means of a general demurrer, the parties agreed in writing as follows: "It is agreed between the parties hereto only for the purpose of the demurrers which are to be argued in this case before the trial, that the total gross revenues from that part of defendant’s plant located at Baird, Callahan County, Texas, have in no years exceeded the sum of $36,000.00. It is further agreed, solely on the question of the demurrers to be argued, that West Texas Utilities Company is a corporation duly incorporated under the laws of the State of Texas, Article 1435, passed by the Legislature in 1911, and that West Texas Utilities Company is an integrated single plant owning electrical properties and operating in some 160 towns in the State of Texas, said towns all being connected by high-lines, and that its electricity and power is generated in Taylor, Tom Green and Hardeman Counties, Texas, and is distributed over high-lines connecting the various and sundry plants, including its electrical properties in the town of Baird, and that it has more than 2,000 miles of high-lines, and that its general office is in the city of Abilene, Texas, and its general books are kept in the city of Abilene, Taylor County, Texas, and that the city of Baird, is supplied with electricity over high-line running from the town of Abilene to Cisco, Texas, and connected with its other high-lines at said two points.”

Treating the facts thus stipulated the same as Allegations of plaintiff’s petition, the court sustained a general demurrer to said pleading. Plaintiff having refused to amend, the court dismissed the case. From the judgment of dismissal plaintiff has appealed.

Appellant, the plaintiff below, will be referred to as the City, and appellee, the defendant below, as the Utilities Company.

A number of more or less interesting, as well as difficult, questions are presented which, by reason of our conclusion upon two other questions, it becomes unnecessary for us to decide. Our judgment is rested upon the conclusions reached upon the two questions hereinafter discussed.

The first question may broadly be stated thus: Since R.S.1925, Art. 1121, requiring certain reports, and Art. 1122, imposing penalties for willful failure or refusal to make such reports, were enacted in 1907, and since at that time corporations with 'powers like appellee did not exist, that having been subsequently (in 1911) authorized by R.S.1925, Art. 1435, was the Utilities Company under duty to make such reports and therefore subject to the penalties provided in said Art. 1122 for willful failure or*refusal to do so?

The second question is whether even if the proper interpretation of said arts. 1121 and 1122 includes appellee within their provisions, do the facts treated as true by the general demurrer to plaintiff’s petition show that the Utilities Company willfully failed or refused to make such reports?

These questions will be considered in the order stated.

It appears that R.S.1925, Art. 1119, after having been held by the Supreme Court in Texas-Louisiana Power Co. v. City of Farmersville, 67 S.W.2d 235, to be unconstitutional and void, was purportedly amended by Acts 1937, 45th Legislature, p. 274, ch. 144, sec. 1, Vernon’s Ann.Civ.St. Art. 1119. Said Art. 1119, as well as Arts. 1121 and 1122, originated in an Act approved April 16, 1907 (Acts 1907, 30th Legislature, p. 217, secs. 1, 4, and 5). ' Said original Act (as do subsequent modifications of it) applied to (unincorporated) companies, corporations and persons. Said companies, corporations and persons were described or identified by the statute as (those) “using the streets and public grounds of said city or town, and engaged in furnishing water, gas, light or sewerage service to the public.” It will be seen that the said Act did not expressly identify the companies, corporations and persons subject to its provisions as only those whose physical properties, plant or enterprise in which engaged, was located in a single city or town. But looking to all provisions of the Act, together with other relevant statutes, we think that such was implied. A few of the. reasons for this view will be mentioned.

A limitation upon the power granted, namely, that “the City Council or Board of Aldermen shall not prescribe any rate or compensation which will yield less than ten (10%) per cent per annum net on the actual cost of the physical properties, equipments and betterments” (italics ours) must, in reason, have referred to properties, equipments and betterments constituting a plant, the operation of which was a single “enterprise” conducted in a particular city or town. The power granted in section 3, Vernon’s Ann.Civ.St. art. 1120, “to prevent any interference with their property” must refer to property constituting part of the one “plant” and used in one “enterprise.” Item (a) of the required report (sec. 4) was “The amount of any lien or mortgage upon the properties composing such plant”. (Italics ours.) Item (b) was “all other indebtedness pertaining to such enterprise and the consideration therefor”. (Italics ours.) Here undoubtedly is a clear identification of properties composing a plant, and of the plant as used in an enterprise, the -nature of which in the case of an electric light company, for example, was “furnishing * * * light * * * to the public” the rate for which the city council for any city or town of over 2,000 inhabitants incorporated under general law was empowered to prescribe and regulate, operative, of course, only in each such particular city or town.

Further, item (c) calling for “cost of the visible physical properties” etc.; item (d) calling for “annual cost of operating such plant” etc., and item (e) for “gross earnings from any such plant” all concur, it would seem, to strengthen, if not imperatively require, the conclusion that “the physical properties”, “equipments”, “better-ments”, “plant”, all related to a single enterprise conducted with reference to the particular city or town empowered by said act to regulate rates.

At the time of the passage of said Act, the Revised Statutes of 1895 (except, of course, in cases of subsequent modifications) were in effect. Article 642 provided thus: “The purposes for which private corporations may be formed are * * * 12. The supply of water to the public. 13. The manufacture and supply of gas, and the supply of light, heat, and electric motor power, or either of them, to the public by any means. * * *' 20. The construction and maintenance of sewers. * * * 23. The construction, maintenance and operation of dams, reservoirs, lakes, wells, canals, flumes, laterals, and other necessary appurtenances for purposes of * * * city water works. * * * ”

Then, as now, the charter of each corporation was required, among other things, to state “the place or places where its business is to be transacted.” R.S.1895, Art. 643. Also, then as now, it was provided “no corporation * * * shall employ its stock, means, assets or other property, directly or indirectly, for any other purpose. whatever than to accomplish the legitimate objects of its creation.” R.S. 1895, Art. 665 (R.S.1925, Art. 1349). It was undoubtedly implicit in the provisions of R.S.1895, Arts. 705 and 706, that the powers of a gas, water or light corporation were to exist and be exercised in reference to a single city or town. Consider, for example, the power to “manufacture and sell and to furnish such quantities of water or gas as may be required by the city, town or village where located.” (Italics ours.) Consider, also, the reserved privilege of a city or town “⅛ which any gas light or water corporation shall exist” (italics ours), to make certain connections with such corporations. Under R.S.1895 the power of eminent domain given an incorporated city or town was that prescribed by Art. 548. In the same Article such power was also given to water companies and corporations. It is to be noted that the power of eminent domain was not granted to sewer companies or corporations until the Act of 1899, p. 263 (R.S. 1925, Art. 1439). Apparently such power was not granted to a light or power company or corporation until the Act of 1911, p. 228 (R.S.1925, Arts. 1435, 1436). The latter Act itself shows by granting the power a legislative construction of the law that at that time such power did not exist. Said Act of 1911 authorized the corporations subject to its provisions to own and mortgage properties which theretofore no corporation was authorized to own or mortgage. They were thereby authorized to create debts of a character which no corporation theretofore had authority to incur. Upon the whole, it seems to us that the reports which were required by said Act of 1911 to be made by a corporation to which the statute was then applicable (R.S. 1925, Arts. 1121 and 1122) cannot be made by a corporation like the Utilities Company, having and exercising the powers granted by said Act of 1911 (R.S.1925, Art. 1435) with like or even similar relevancy to the reason or purpose of such reports. Upon the material question of what would be a fair and just rate of charges or compensation to be received for furnishing public utility services in a particular city or town, there would manifestly be a vast difference, to say the least, regarding the utility of information as to the amount of a mortgage upon the total properties of one plant devoted exclusively to the enterprise of furnishing such services, and upon the total properties of a plant only a small, and in many cases an insignificant, part of which was devoted to the furnishing of such services. The same would be equally true as to information regarding the amount of other indebtedness of such a plant; the visible physical properties composing such plants; the cost of operating same, and the gross earnings thereof. Such information useful and necessary in the one case would be wholly useless in the other, or if not wholly useless, only partially so, requiring some character of apportionment, involving in effect a change in the identity of the subject matter of the reports. The language of the statute, it is believed, will not reasonably lend itself to such a construction.

We think the conclusion a reasonable one that when in 1911 a character of public utilities corporations was authorized, of such nature that the reports required by said Art. 1121 if made by them, would not serve the intended purpose, the proper construction of the law should' be that it applies only to persons, companies and corporations of the same character as were in existence at the date of the passage of the Act. The reason supporting this view may, without further amplification, be said to be that which rules the decision in the Railroad Commission of Texas v. Texas & N. O. Ry. Co., Tex.Civ.App., 42 S.W.2d 1091, and authorities therein cited.

Independently of the first question above discussed, we think there can be no reasonable doubt that even if appellee should be held to be subject to the requirements of said Arts. 1121 and 1122, the facts admitted by the demurrer show no willful failure or refusal on the part of the Utilities Company to make the reports. The Utilities Company was in no event subject to the penalties provided in Art. 1122, unless it “willfully failed or refused to make such reports.” The word “willful” is in different connections used in different senses. Here, it is used in a penal statute— a statute imposing a penalty. So used, it has an “accepted, a restricted or well defined meaning.” 68 C.J. p. 290, sec. 4. “It is universally held,” says our Supreme Court, in State v. Alcorn, 78 Tex. 387, 393, 14 S.W. 663, 664, “that the word ‘willful,’ when used in a penal statute, means with evil intent, or without reasonable ground to believe the act lawful.” Other statements of the definition include: “A deliberate intention or set purpose to omit to perform a required duty; deliberate purpose to accomplish something forbidden * * * a determination to execute one’s own will in spite and defiance of the law; a purpose to do wrong * * * an evil intent without justifiable excuse * * * knowledge and a pttrpose to do a wrong act. It includes the idea of an act intentionally done * * * with knowledge it is unlawful.” 68 C.J. p. 290, sec. 4.

The entire discussion of the first question above considered, if not conclusive of the correctness of our holding upon that point, does certainly at .least demonstrate that the failure or refusal of appellee to make the reports was entirely consistent with a good faith belief that the law does not impose a duty to make same. Thus, it is clearly established, we think that the failure of the Utilities Company to do so was not willful; and hence said penalty provision was by its own terms not applicable.

It is, therefore, our conclusion that the judgment of the court below should be affirmed, and it is accordingly so ordered.


author: CRITZ, Justice.

text:
    HOUSTON OIL CO. OF TEXAS et al. v. KIRKINDALL et al.
    No. 7506.
    Supreme Court of Texas.
    Jan. 1, 1941.
    C. W. Wiedemann, of Beaumont, John T. Lindsey, of Port Arthur, and R. M. Briggs, of Kountze, for plaintiff in error Shine.
    A. L. Bevil, of Kountze, and T. J.- Arnold, W. C. Williamson, Williams, Lee, Sears & Kennerly, Sam R. Fisher, and J. J. Lee, all of Houston, for plaintiff in error Oil Co.
    Thos. J. Baten, W. D. Gordon, W. S. Parker, and G. D. Baten, all of Beaumont, and T. M. Jordan and B. A. Coe, both of Kountze, for defendants in error.
   CRITZ, Justice.

As tried in the district court, this is an action in trespass to try title. M. F. Kir-kindall et al., more than thirty in number, as heirs of B. F. Kirkindall and wife, Rebecca Kirkindall, both deceased, sued Houston Oil Company of Texas and Republic Production Company, both corporations, and several individuals to recover the title and possession of a certain tract of land, consisting of about 25 acres, a part of the' B. F. Kirkindall 160-acre homestead tract, out of the Nelson and Brooks original surveys in Hardin County, Texas. The case was tried with a jury in the district court. At the close of the evidence the trial court instructed a verdict for M. F. Kirkindall et al. The verdict was returned as directed, and judgment entered accordingly. On appeal by Houston Oil Company of Texas et al., this judgment was affirmed by the Court of Civil Appeals at Beaumont. Humble Oil & Refining Co. v. Kirkindall, 119 S.W.2d 731. Houston Oil Company of Texas et al. bring error. We refer to the opinion of the Court of Civil Appeals for further statement. We, however, make such statement herein as we deem sufficient to make this opinion complete within itself.

It appears that the common source of title to the land here involved were B. F. Kirkindall and wife,' Rebecca Kirkindall, both of whom were deceased prior to December 10, 1918. During the marriage of B. F. and Rebecca Kirkindall they acquired and occupied as their community homestead a certain tract of land situated partly on the O. C. Nelson Original- Survey or League and partly on the Geo. W. Brooks Survey or League, in Hardin County, Texas. This land can be identified of record in such county. While B. F. and Rebecca Kirkindall both still lived, they conveyed away several tracts of land out of the 160-acre tract above mentioned. The several tracts so conveyed away can also be identified of record in Hardin County.

After the deaths of both B. F. Kirkin-dall and Rebecca Kirkindall their community estate consisted of the Kirkindall 160-acre homestead tract, less what had been conveyed away, together with certain personal properties. Such personal properties consisted on December 10, 1918, of “horses, mules and hogs, cattle and the crops now on hand on the place,” and some money. It appears that the B. F. and Rebecca Kir-kindall 160-acre homestead tract was bisected by a public road. Some of the tracts sold off by B. F. and Rebecca Kirkindall were situated on the east of this road, and' some on the west. .The general direction of the road was north and south. It further appears that on December 10, 1918, the heirs of B. F. and Rebecca Kirkindall believed that the unsold part of the 160-acre tract lay west of the road, and consisted of about 18 acres. To say the least, no actual survey had ever been made, and the heirs did not know exactly what land was left. In fact, there was left about 18 acres on the west side of the road and some 25 acres on the east side.

With .conditions as above detailed, on December 10, 1918, the heirs of B. F. and Rebecca Kirkindall agreed to a division and partition of the estate as reflected by the following partition instrument or deed:

“The State of Texas!
“County of Hardin J
“Know all men by these presents:
“That we, M. F. Kirkindall of Sabine County, Texas, B. L. Kirkindall, L. S. Kirkindall, T. J. Kirkindall, C. B. Kirkin-dall, Mrs. Jane Eason, joined by her husband T. C. Cunningham, of Hardin County, Texas, Mrs. Ida Myers, joined by her husband William Myers, of Newton County, Texas, Mrs. Belle Burns, joined by her husband James Burns of Jasper County, Texas, heirs of B. F. Kirkindall and his wife Rebecca C. Kirkindall, dec. of the county of aforesaid, state of Texas, for and in consideration of the conveyance to us of all interest in the personal property owned by him in the estate of the said B. F. and Rebecca C. Kirkindall by R. D. Kir-kindall, consisting of horses, mules and hogs, cattle and the crop now on hand on the place, reserving his interest in all money now belonging to said estate, the receipt whereof is hereby acknowledged, have granted, sold and conveyed, and by these presents do grant, sell and convey, unto the said R. D. Kirkindall, of the county of Hardin, State of Texas, all that certain lot, tract or parcel of land situated in Hardin County, Texas, described as follows:
“1st Tract: Ten acres out of the O. C. Nelson league.
“2nd Tract: Eight acres out of the Geo. W. Brooks league, adjoining each other on the north line of the Brooks and the south line of the Nelson near the NW corner of the Brooks and the SW corner of the Nelson and being a part of the B. F. Kirkin-dall 160 acre homestead survey in said Hardin County, and being the remaining part of said homestead tract after deducting the various tracts which the said B. F. Kirkindall and his wife the said Rebecca Kirkindall have heretofore sold from said homestead tract and being all the interest that we own in the same.
“To have and to hold the above described premises, together with all and singular the rights and appurtenances thereto in anywise belonging, unto the said R. D. Kirkindall, his heirs and assigns forever; and we do hereby bind ourselves, our heirs, executors and administrators to warrant and forever defend, all and singular the said premises, unto the said R. D. Kirkin-dall, his heirs and assigns against every person whomsoever lawfully claiming or to claim the same or any part thereof.
“Witness * * * hand at * * * this 10 day of Dec. A. D. 1918.”

It appears that the certificates to the acknowledgments of two of the grantors in the above deed, who were married women, were defective. This will not affect the validity of the instrument, as will later appear.

An examination of the above instrument will disclose that, when considered as a partition deed, it contains an ambiguity or contradiction. This is because in one part of the description the land covered is a 10-acre tract and an 8-acre tract, while according to the general description the land covered or awarded to R. D. Kir-kindall is all the 160 acres left after deducting the land theretofore sold therefrom. According, to the evidence in this cáse, if the particular description is ignored, and the general description given effect, the land covered by the deed comprises some 25 acres more, than the 18 acres particularly mentioned. In other words, it appears that at the time this deed was executed and delivered there remained unsold west of the road above described about 18 acres of land on the Nelson and Brooks surveys, and there also remained unsold to the east of the road about 25 acres. The 25 acres east of the road is the land in controversy. We agree with the holding of the Court of Civil Appeals that, if the above deed is ambiguous, in that it contains two descriptions of the land covered, parol evidence was admissible to show the intent of the parties, grantors and grantees. On the other hand, we are of the opinion that such deed is not ambiguous unless there is a conflict of description.

When we come to examine the above deed to ascertain what land was included therein, we find that it, by its express words, covers an 8-acre tract and a 10-acre tract. No attempt is made to describe •these two tracts by metes and bounds. No line or corner is even referred to, except it is stated that the two tracts adjoin each other on the north line of the Brooks and the south line of the Nelson, near the N.W. corner of the Brooks and the S.W. corner of the Nelson. No attempt is made even to give the length of this line, and no corner at either end is even remotely referred to, except the statement “near the NW corner of the Brooks and the SW corner of the Nelson.” Under all our authorities, if we were to treat this deed as a conveyance of land it would be utterly void for total want of description, if the particular .description of the 10 acres and the 8 acres stood alone, and the deed did not contain the general description covering all unsold land in the 160-acre tract. Smith v. Sorelle, 126 Tex. 353, 87 S.W.2d 703; Curdy v. Stafford, 88 Tex. 120, 30 S.W. 551; Hunter v. Morse’s Heirs, 49 Tex. 219; 17 Tex.Jur., p. 888, § 402. Also, if this instrument should be treated as a deed of conveyance, since the 18-acre tract is undescribed, it would cover all unsold land in the 160-acre Kirkindall tract. Curdy v. Stafford, supra; Burroughs v. Farmer, Tex.Civ.App., 45 S.W. 846; Cartwright v. Trueblood, 90 Tex. 535, 39 S.W. 930; Smith v. Clay, Tex.Civ.App., 57 S.W. 74; Hermann v. Likens, 90 Tex. 448, 449, 39 S.W. 282; MacManus v. Orkney, 91 Tex. 27, 40 S.W. 715; Focke v. Garcia, Tex.Civ.App., 41 S.W. 187; Watson v. McClane, 18 Tex.Civ.App. 212, 45 S.W. 176; 14 Tex. Jur., p. 1022, § 228. Simply stated, if this deed should be treated as a deed of conveyance, within the meaning of Subdivision 4 of Article 3995, R.C.S.1925, there is no conflict of description, because there is no description that would meet the requirements of a conveyance, except the general description covering all unsold land. On the other hand, it is evident that if the description of the 8 and 10 acres can- be supplied by parol evidence, then the instrument is conflicting, — in that in one •instance ■ it would cover 18 acres, and in the other instance it would cover more than twice that much.

When this deed is considered as a whole, it is beyond, any question an instrument of partition, and not -of conveyance. This is because the .very con-sideration recited shows that the grantee was taking the land covered and intended by this deed as his share of the B. F. and Rebecca Kirkindall Estate; and the grantors were taking the personal property, money not included, as their share. The evidence is also conclusive on this question. Such an instrument is an instrument of partition, and not of conveyance. This is because, even though the partition of property vests each of the parties thereto with a separate ownership of the particular tract of land allotted to him, the transaction is deemed not to operate as a conveyance or transfer of title. “The partition is of the possession, and not of the title.” 32 Tex.Jur., p. 146, § 2; Chace v. Gregg, 88 Tex. 552, 32 S.W. 520; Davis v. Agnew, 67 Tex. 206, 2 S.W. 43, 376. A deed of partition does not confer or convey title, but merely dissolves the tenancy in common. Chace v. Gregg, supra.

It is settled in this State that persons who are common owners of land may effect a division or partition thereof by written instrument or deed. 32 Tex. Jur., p. 149, § 5. Also, since the partitioning of land is not classed in law as .a conveyance thereof, land may be partitioned by parol. Not being a conveyance, the parol partition is not within the purview of the Statute of Frauds. 32 Tex. Jur., p. 149, § 5, supra. It is even the rule that married women may partition by parol. Aycock v. Kimbrough, 71 Tex. 330, 12 S.W. 71, 10 Am.St.Rep. 745. It is .also settled that a parol partition setting apart to one of-the parties personal property, and to the other land, without any actual division of the land, would make no difference in the general principles of parol partition. Edds v. Edds, Tex.Civ.App., 282 S.W. 638, writ refused.

When we come to examine this deed, we find that it in effect contains two descriptions. By one description the land covered is described or designated as an 8-acre tract and a 10-acre tract. By another description it is designated as all of the Kirkindall 160-acre homestead tract remaining unsold. According to the testimony in this case, by one description it covered 18 acres, and by the other description it covered more than double that amount. It is true that the 18-acre description would be void in an instrument of conveyance; but since this is not an instrument of conveyance, but of partition, the 18 acres can be made certain or sufficient by parol. When this is done, it conflicts with the general description, and the instrument contains two conflicting descriptions, and therefore becomes ambiguous. If the instrument is ambiguous, it is elemental that parol evidence is admissible to show the intent of the parties. The rule against varying written instruments by parol evidence is not involved nor violated where such evidence is merely admitted to show the intention of the parties in a case where an ambiguous .instrument is to be construed. 17 Tex.Jur., p. 881.

The rules applicable to an innocent purchaser, in a proper case, may apply to a purchaser who acquires land from one who holds under a partition deed. On the other hand, if such purchaser takes with notice, he holds subject to the partition agreement. 32 Tex.Jur., p. 155, § 10. One whose title depends on the partition deed to R. D. Kirkindall could not be an innocent purchaser, because the instrument on its face discloses that it is a partition deed, and on its face discloses that there might be an ambiguity. To say the least, being a partition deed, the apparent conflict in the description of the land covered was sufficient to put the purchaser on inquiry.

The judgment of the Court of Civil Appeals, which affirms the judgment of the district court, is affirmed.


author: HICKMAN, Commissioner.

text:
    RODRIGUEZ v. W. O. W. LIFE INS. SOC.
    No. 2338—7576.
    Commission of Appeals of Texas, Section A.
    Jan. 1, 1941.

      L. C. McLean and Kelley, Looney & Norvell, all of Edinburg, for plaintiff in error.
    Brown & Bader and Woodrow-H. Edwards, all of Edinburg, for defendant in error.
   HICKMAN, Commissioner.

In the trial court plaintiff in error, Eustolia G. Rodriguez, as beneficiary in a benefit certificate issued by defendant in error to her deceased husband, Eusebio Rodriguez, recovered judgment on such' certificate against defendant in error in the sum of $1,370, which amount included a penalty and an attorney’s fee. The judgment was based upon findings of a jury in answer to special issues.

In his application for the benefit certificate Eusebio Rodriguez made answers to certain questions. One such question was as follows: “Have you ever been under observation, care or treatment in any hospital, sanitorium, asylum or similar institution?” His answer was “No.”

Special Issue No. 1 submitted to the jury was as follows: “Do you find and believe from a preponderance of the evidence that Eusebio Rodriguez was ever under observation in any hospital prior to the date of his application for insurance on June 2nd, 1934? Answer ‘Yes’ or ‘No’.”

Special Issue No. 2 differed from Special Issue No. 1 in the particular only that the inquiry was whether he had ever been “under care in any hospital,” instead of “under observation in any hospital.” Special Issue No. 3 was like the foregoing except that the inquiry was whether he had ever been “under treatment in any hospital.” All of such issues were answered “No”. The Court of Civil Appeals concluded that it was established by undisputed evidence that the deceased had been under observation in a hospital, and, upon such conclusion, reversed the trial court’s judgment and rendered judgment that plaintiff in error take nothing. 125 S.W.2d 1069, 1070.

It appears that the deceased was employed by Texas Gulf Sulphur Company at Newgulf, Texas. The company provided a hospital- and employed two doctors for the benefit of its employees, the doctors maintaining their offices in the hospital building. The evidence upon which the conclusion of the Court of Civil Appeals was based consisted alone of the testimony of Mrs. Rodriguez, and was stated by the Court of Civil Appeals in its opinion as follows: “Appellee, Eustolia G. Rodriguez, testified in effect that either in the latter part of 1928, or the early part of 1929, her husband, Eusebio Rodriguez, was suffering with pains in his stomach and went to the offices of Dr. Bomar and Dr. Giddings for the purpose of finding out what his trouble was and for treatment. Drs. Bomar and Giddings had their offices in the hospital at New Gulf. Dr. Bomar thought he had gas on his stomach and Dr. Giddings thought that he had malaria. It was decided that an X-ray picture should be made. It was necessary for Eusebio Rodriguez to stay all night in the hospital so that' he might be prepared for the taking of the picture. The next morning the X-ray picture was taken in the hospital and Eusebio left. Eusebio did not lose any time from work. The doctors decided from the picture that there was nothing very seriously wrong with Eusebio, that he only had gas on his stomach and gave him something to relieve him from this trouble.”

With reference to the finding by the Court of Civil Appeals that the doctors gave the deceased something to relieve him from his trouble, we find in the statement of facts evidence that a small bottle of black medicine was given the deceased, but when and where this was given him is not made clear. The X-ray picture was made about 7 o’clock in the morning and the deceased left the hospital about 7:30. We find no evidence that this medicine was given to him at that time.

It was stipulated between the parties that the defendant in error is a fraternal benefit society, as defined by the statutes of the State of Texas, and it is conceded by plaintiff in error that the answers made by the deceased in his application were warranties, and, further, that the provisions of Article 5043, R.C.S., have no application. That article provides, in substance, that misrepresentations in an application for a life insurance policy will not affect the policy unless same were material to the risk or actually contributed to the contingency or event upon which the policy became due and payable. What is conceded is that the above article does not apply to fraternal benefit societies, and that under the provisions of the certificate in this case the answers of the applicant were warranties. We therefore treat them as warranties. It does not follow, however, that in construing such warranties, the courts may not resort to the well-established rules for the interpretation and construction of contracts of insurance, for after all, the only concern is to ascertain the intention of the parties. In determining that intention one general rule for interpreting contracts of insurance requires that the terms employed be construed according to their popular and ordinary meaning, unless such terms have acquired a technical meaning in commercial usage, or unless it appears that it was the intention of the parties to use such terms in a technical sense. 29 Am.Jur., Insurance, § 159.

32 C.J. p. 1150, § 261, states the rule in this language: “The words employed in a contract of insurance are to be taken and understood in their plain, ordinary, usual, and popular sense, rather than according to the meaning given them by lexicographers or persons skilled in the niceties of language, * * That is the Texas rule. W. O. W. Life Insurance Society v. Dickson, Tex.Civ.App., 133 S.W.2d 243, error dismissed, correct judgment, and the authorities there cited.

In the instant case the insured made an ordinary call upon the company doctors in their offices in a hospital building. That was more than five years before he made the application in question. He was detained there one night for the purpose of subjecting himself to an X-ray exposure. He left the hospital by 7:30 the following morning and lost no time from his work. There is no evidence that he was observed in the hospital that night. We are unwilling to hold or to approve a holding that under such facts the jury was not authorized to find that he was not under observation in the hospital within the meaning of that phrase as employed in the contract. To spend a few hours in a hospital for the purpose of having an X-ray picture made does not, as a matter of law, mean in ordinary parlance that one has been under observation in a hospital. It did not have that meaning to the jury in this case, and we cannot hold, as a matter of law, that it should have had that meaning and was not reasonably susceptible of any other.

In other issues the jury was asked whether the insured had been “under care in any hospital” or “under treatment in any hospital.” Those issues were answered “No”. The only evidence relied on to support the contention that, as a matter of law, he had been under care and under treatment in a hospital was that above set out, and what is written above applies equally to these issues.

By other special issues the jury was called upon to answer whether, within the five-year period next preceding the date of his application, the insured suffered “any bodily disease” or “any bodily infirmity” or whether, within that time, he consulted a physician for any disease or was attended by a physician for any disease. These issues were answered “No”. As above stated, the incident of his visit to the hospital was more than five years before June 2, 1934, the date the application was signed. These issues were submitted to the jury because there was some evidence that he had consulted a physician and had been treated for a disease in 1931 or 1933. That evidence was disputed and therefore the question was one wholly for the jury.

The defendant in error insists in this court that the judgment of the Court of’ Civil Appeals should at all events be affirmed, because there was not an iota of evidence to support the jury’s answer to special issue No. 8. That special issue and the answer thereto were as follows: “Do you find and believe from a preponderance of the evidence that Eusebio Rodriguez did, within the last ten years preceding the date of his application for insurance on June 2, 1934, have any disease? Answer ‘yes’ or ‘no’. Answer ‘No’.”

The hospital incident above narrated occurred within the ten-year period inquired about and the insistence is that, as a matter of law, the evidence discloses that the insured had a disease at that time. We' cannot sustain this contention. It cannot be held, as a matter of law, under this record that the insured had a disease at that time. He had some pains in his stomach, but whether or not they were the result of a disease, as that term was used in the application, is a fact question and not a law question. There is some opinion evidence that would support the conclusion that he was suffering from a disease at that time, but that is not conclusive of the question.

It is our opinion that by the special issues there were submitted to the jury only questions of fact. The assignments brought by the insurance society to the Court of Civil Appeals did not present the question that the answers of the jury were against the great weight and overwhelming preponderance of the evidence, a question of which the judgment of that court is final. The assignments presented the question that the various answers of the jury were not supported by “an iota of evidence.” It was also presented to that court that a peremptory instruction should have been given in favor of the insurance society, and that judgment should have been rendered in -its favor non obstante veredicto. These are all questions of law of which we have jurisdiction. There is therefore no necessity for remanding this cause to the Court of Civil Appeals for further consideration.

It is accordingly ordered that the judgment of the Court of Civil Appeals be reversed and that of the trial court be affirmed.

Opinion adopted by the Supreme Court.


author: TAYLOR, Commissioner.

text:
    MISSOURI, K. & T. R. CO. OF TEXAS et al. v. McKINNEY et al.
    No. 1849—7595.
    Commission of Appeals of Texas, Section B.
    Jan. 1, 1941.

      Greenwood, Moody & Robertson and Dan Moody, all of Austin, Charles C. Huff, of Dallas, and Ñaman, Howell & Boswell, of. Waco, for plaintiffs in error.
    Conway & Scharff, of Waco, for defendants in error McKinney and others.
    Rawlings & Sayers and Nelson S cur-lock, all of Fort Worth, and Sam Darden, of Wapo, for defendant in error Jackson-Strickland Transportation Co.,' Inc.
   TAYLOR, Commissioner.

This suit arose out of a collision on state highway No. 2 (Dallas-Waco highway) between a train and a truck. The scene of the accident was about five miles .north of Waco where the Texas-Central branch of the Missouri, Kansas & Texas Railroad Company of Texas crosses the highway. The highway runs north and south. It is a hundred feet in width, the central paved portion being twenty feet wide and the unpaved portions on the sides being each forty feet wide. On the occasion of the accident J. N. McKinney, a car inspector for the railroad company, was riding on the south side of the tank car. The train, which consisted of an engine and tank car, was proceeding across the highway from the east, moving directly westward. The truck was approaching the crossing from the north on the paved portion of the highway. The collision occurred when the train was partially across the highway. The engine had cleared the eastern unpaved portion and the central paved portion, but the tank car had not cleared the paved portion when the truck collided with.it. The truck struck the car on its north side about ten feet back from the west end, overturning the tank and its attachments onto McKinney in such manner as to crush him beneath the wreckage.

Mrs. Lola McKinney, the surviving widow, brought this suit for herself and two minor children against Jackson-Strickland Transportation Company, Inc., owner and operator of the truck, and against the railroad company, to recover damages on account of McKinney’s death. Upon a jury verdict the trial court entered a joint and several prorated judgment for plaintiffs, and denied the railroad company’s motion for judgment non obstante veredicto. Each defendant was granted judgment over against the other for contribution. Both defendants appealed, the railroad company seeking primarily to have the trial court’s judgment reversed and rendered in its favor, and in the alternative to have the judgment reversed and remanded; the transportation company seeking primarily to have the judgment reversed and remanded, and in the alternative to have the relief sought by the railroad company by way of a rendition in its favor, denied, and to have the transportation company’s judgment for contribution against the railroad' company affirmed.

The Court of Civil Appeals affirmed without modification the’trial court’s judgment. 126 S.W.2d 789. The transportation company did not seek a review by writ of error to this court. The writ was granted upon the railroad company’s application.

The record is too voluminous to state more than is essential to an understanding of the basic questions presented. None of the pleadings will be stated since no' contention is made here as to their sufficiency for present purposes. It was agreed between plaintiffs and the railroad company that at the time of McKinney’s death both the company and the train on which he was working and the employes thereon were engaged in intrastate commerce. Two hundred thirty-four special issues were submitted in the charge and sixty-seven others appear in the transcript as having been specially requested by defendants and denied submission by the trial court. The refusal to submit the latter and the findings made in response to the former will be referred to only insofar as they relate to the questions involved.

Sufficient facts have been stated to give a bird’s-eye view of the accident, its setting and the manner of its occurrence. A more comprehensive picture will be presented by a recital of further undisputed facts in order to make more apparent the decisive questions presented.

The Texas Electric transfer tracks are located a short, distance west of the highway at the point of the crossing. The purpose of the train movement at the time of the accident was to deliver the empty tank car on which McKinney was riding to the Texas Electric and to there pick up some other cars. It was about 6:40 on a July morning. It had rained some during the early morning hours and the highway was wet. The train, a switching train moving westward from the Bell Mead yards in east Waco toward the transfer tracks on the other side, came to a stop when the front end of the engine reached the eastern edge of the unpaved portion of the highway. The highway is straight from its intersection with the railroad to the crest of a hill to the north about a mile distant. The road is level for about three,-fourths of this distance and slopes gradually upward for the remaining one-fourth. Operators of vehicles upon the highway, when visibility is normal, can see a train at the crossing all the way from the crest of the hill to the crossing, and persons at the crossing can see a truck all the way to the crest of the hill, as well as from the point where the engine stopped at the east edge of the highway. As the train started up from its stopped position to move across the highway the engineer was in the cab on the right side of the engine (the side from which the truck approached) and three railroad employes were stationed on the footboard on the front end of the engine and one on the rear of the engine. Mr. Moody, the engine foreman in charge of the train, was on the right end of the footboard (on the side from which the truck approached), a switchman was standing in the center of the footboard to his left and to the left of the switchman another switchman was standing on the south end of the footboard. The employe on the rear of the engine was a switchman also and was on the left or south side. When the train started up upon the order of Mr. Moody from its stopped position the truck appears to have been at least 800 feet north of the crossing. The truck which was approaching carried a trailer without braking power other than that afforded by the truck brakes, the trailer brakes not being “hooked up.” The freight bill discloses that the load on the trailer was 10,213 pounds.

At this point the details concerning the accident will be stated from the viewpoint of W. S. Burge, the driver of the truck, a witness for the transportation company. He was coming down the highway. “I was around 120 feet from the crossing” he said, when he saw the engine entering the highway. He “jammed on” his brakes and “slid into the tank car.” It was his first trip over the highway. The trailer was carrying a load of steel army lockers. It was not raining at the time of the accident but was cloudy and somewhat misty and -foggy. He testified he could not see more than 200 feet as he came up to the crossing and was driving “around 20 or 25 miles an hour.” Detailing further the position of the train with respect to the paved portion of the highway, when he first saw the train, the witness said: “The front end of the engine was just entering the concrete slab * * *. I would judge it was going between 20 and 25 miles an hour.” He states that he “jammed on” his brakes (mechanical brakes) but that a loaded truck could not be stopped as quickly on a wet highway as on a dry one; and further that when he applied his brakes the wheels both on the front and rear of the truck slid; that he pulled to the west and at the time of the impact the front end of his truck was facing the west; that when he turned his truck to the left “it slid to the left, jack-knifed, letting the front end of the trailer slide right into the front end of the car.” The trailer struck “the tank car head on.”

On cross-examination the witness stated that at the time of the impact he had reduced his speed from the rate at which he was going when he saw the train to 12 or 15 miles an hour; that when he “slapped on” his brakes the truck and trailer slid a distance of about a hundred feet; that the force of the impact tore the “truck tractor practically all to pieces” and the “trailer all to pieces”; that “it scattered that 10,000 pounds of steel all over the road.”

The jury found the transportation company negligent with respect to the following matters: In operating the truck at an excessive rate of speed; in operating it at a speed in excess of 40 miles an hour; in the failure of the driver of the truck to keep a proper lookout; in his failure to listen for approaching trains as he neared the crossing, and in failing to observe it in time to avoid the collision; in failing to heed the warning signals on the highway warning traffic of the location of the crossing; in failing to heed the warnings of the train’s approach to the crossing sounded by the operators of the train; in operating the truck and trailer with a load of more than 7,000 pounds; in operating them with a load of excessive weight; for the failure of the driver to have the truck and trailer under proper control as he approached the crossing; and for his failure to yield the use of the crossing to the train.

The jury found also that each of the foregoing acts of negligence on the part of the transportation company was a proximate cause of the collision.

The jury found other acts of negligence on the part of the transportation company but they need not be recited as it further found none of such other acts proximately caused the collision.

It is not necessary to point out the testimony bearing on the transportation company’s acts of negligence found to have proximately caused the collision as it is apparent from what has been stated already that they are supported by a mass of testimony, much of that against it being undisputed.

The railroad company was found not negligent in most of the particulars alleged. The jury did find, however, that the employes in charge of the train were negligent in the following particulars: In starting the train from its stopped position before the truck passed over the crossing; for failure to stop the train as it approached the east edge of the paved portion of the highway; and for the failure of the engineer to blow the whistle as the train approached that point.

Each of the foregoing acts of negligence was found to be a proximate cause of the collision.

Other findings against the railroad company are that the conditions surrounding the crossing were such as to render it “more than ordinarily dangerous as a daytime crossing,” and that such conditions were' known to the railroad company. These two findings, together with the findings that the employes in charge of the train negligently failed to place a flagman north of the intersection to warn the oncoming traffic of the approach of the train and that such negligence proximately caused the collision, will be later referred to.

The railroad company contends on the one hand there is no evidence it was. guilty of any negligent act which resulted in the’ collision, and on the other that the negligence of the truck driver in not yielding the crossing to the train was the sole proximate cause as a matter of law.

The jury found the truck driver’s-negligence in not yielding the crossing was-one of many proximate causes of the accident, with which we readily agree; but we cannot agree that it was the sole proximate cause. In view of this conclusion it will be unnecessary to point out the evidence supporting more than one of the negligent acts of the railroad company found by the jury to have resulted' in the accident, namely, that of the train operatives in failing to flag the train movement over the crossing as a warning to-oncoming traffic.

The railroad company enacted the following rule relating to the movements of switching trains over this crossing: “Road and yard movements over the new Dallas-highway crossing between Caphead and Bern must be flagged from both sides of train or cars if handled by yard engines.. If blocked by either train or yard movement the crossing must be cut.”

Mr. Moody himself interpreted the order in his testimony. In response to an inquiry as to what the flag order was, propounded before a copy had been introduced,, he said: “Stop and flag crossing; man flag the crossing before we go across.” He further stated that he knew “there was a flag order on that crossing”; that the order had been in force about a year; and he knew “that under that order a flagman, was supposed to be put out to flag that crossing before a train went over it” (Italics ours); and that a bulletin had been issued by the company some time-prior to the accident requiring the crossing to be flagged. Engineer Keith testified he was cognizant of these facts; that the crossing was dangerous and that “a flagman was not put out to flag the crossing” on that morning.

This crossing was a dangerous one. Whether it was extrahazardous need not be determined. The dangers incident to-the switching movement at the time of the accident will be discussed only insofar as they bear on the question of whether failure of the operatives of the train to flag the crossing was negligence that might reasonably result in a collision between the train and the truck.

Mr. Moody, the engine foreman who had been making one trip a week for two years over the crossing in charge of a switching crew, was familiar with it, and with traffic conditions at that point. It was his duty among others to give the train the go ahead signal before moving up from a stopped position, as he did on the morning of the accident. He testified as -a witness for the railroad company that “there was lots of travel over that highway”; that it “consisted of automobiles, trucks and buses; that while he had on occasion gone over the ' crossing in the early part of the morning without seeing automobiles coming from both directions, it was seldom one could “look up beyond that crossing” without “seeing an automobile somewhere”; and that “very few cars make less than sixty miles along there * * Thg engineer’s testimony was to about the same effect.

. Both Moody and Keith saw the truck near the crest of the hill about three-fourths of a mile away approaching the crossing, while the train was in its stopped position on the eastern edge of the highway. Moody said the truck was traveling sixty miles an hour when he first saw it and that it slackened its speed very little. Notwithstanding this situation Moody gave the-“go ahead” signal without putting out a flagman and Keith obeyed, and succeeded in getting only the engine over the paved portion of the road before the truck hit the tank car.

The action of the engine foreman and the engineer in thus violating the flag rule was negligence. Texas Trunk Ry. Co. v. Johnson, 75 Tex. 158, 12 S.W. 482; Cleveland Nehi Bottling Co. v. Schenk, 6 Cir., 56 F.2d 941. They could reasonably have anticipated' from the facts just stated that failure to observe the rule might result in a collision between the truck and the switch train. Carey v. Pure Distributing Corp. et al., 133 Tex. 31, 124 S.W.2d 847; Missouri, K. & T. Ry. Co. v. McLain, 133 Tex. 484, 126 S.W.2d 474; Sullivan et al v. Flores, 134 Tex. 55, 132 S.W.2d 110; Foster v. Woodward et ux., Tex.Civ.App., 134 S.W.2d 417, writ refused; Sturtevant v. Pagel, 134 Tex. 46, 130 S.W.2d 1017; Miller v. Union Pac. R. Co., 290 U.S. 227, 54 S.Ct. 172, 78 L.Ed. 285.

The railroad company cites, in opposition to the conclusion that it could be reasonably anticipated that an accident would occur, Texas & N. O. Ry. Co. v. Stratton, Tex.Civ.App., 74 S.W.2d 741, writ refused, and Texas & N. O. Ry. Co. v. Compton, Tex.Sup., 136 S.W.2d 1113, both of which are readily distinguishable from the present case.

In the Compton case the employes operating the train did not see and could not have seen, before entering upon the crossing, the automobile which collided with the train, which was 87 cars in length. It is pointed out in the opinion that the engine at the time the automobile struck the sixtieth car back was more than half a mile from the intersection, the engine having cleared the crossing three minutes before'. Nor could the occupants of the automobile, who were more than one and a half miles distant when the engine entered the crossing, have seen the warning sign in question at the crossing on that dark night. In the Stratton case the Court of Civil Appeals held that the evidence was insufficient to show the crossing was more than ordinarily hazardous as a nighttime crossing. It is pointed out in the opinion in this connection that the crossing was on a spur track used on an average only once in twenty-four hours. There is no evidence that the train operatives saw, or were negligent in not seeing, the automobile before the train approached and went upon the crossing. The opinion in that case [74 S.W.2d 744], deals with a ’situation existing while the train was ‘ “lawfully passing over the highway” and while it was lawfully obstructing the passage of traffic over the intersection. The train was not, as in the present case, proceeding across the intersection in violation of the company’s rule negligently, or as in the McLain case, negligently blocking the crossing in violation of law. In neither the Compton nor the Stratton case is there any evidence that the train operatives moved the train upon and across the intersection negligently. The holding of the Court of Civil Appeals with respect to the crossing, thus fixing its status as applied to the circumstances of that case as not more than ordinarily dangerous, was binding upon this court; and in view of such status it followed as a matter of law, as held by the Cpurt of Civil Appeals, that the railroad company was not negligent in not maintaining a light, or other extra precautionary signal, “at the intersection of a highway and a spur track only used occasionally.”

Whether the crossing in the present case was more than ordinarily hazardous need not be determined, or considered. It has been pointed out that the operatives of the engine and tank car were negligent in their switching movement at the crossing in violation of the flag rule, and that they could reasonably have anticipated that a collision would occur.

Nor do the findings of the jury with respect to discovered peril of the truck driver eliminate from the case the issues of primary negligence on the part of the railroad company wjiich resulted in McKinney’s death. Smith v. Galveston-Houston Elec. Ry. Co., Tex.Com.App., 277 S.W. 103; Hines v. Foreman, Tex.Com.App., 243 S.W. 479; Dallas Ry. & Terminal Co. v. Bankston, Tex.Com.App., 51 S.W.2d 304; Panhandle & S. F. Ry. Co. v. Sutton, 125 Tex. 401, 81 S.W.2d 1005. The jury found that the train operatives did not discover the perilous position of the deceased. Furthermore, he had no part in operating the train and no question of negligence on his part is involved. The finding of discovered peril affected only the negligence of the operatives of the train that arose after they . took deceased into what they recognized as the realm of danger, and not that negligence which had to do with taking him into that realm. In moving up from their stopped position on the edge of the highway Moody and Keith assumed (mistakenly) the truck driver would slacken his speed. They took the risk, slight though it may have appeared to them to be, and proceeded across the highway in violation of the company’s rule promulgated in the interest of safety for such movements. It is not within our province to say there was no evidence under facts stated that a collision would probably result. Pure Distributing Corp. v. Carey, and other cases cited with it, supra.

Under the facts stated both defendants were guilty of negligence proximately causing the accident, and the negligence of the truck driver in not yielding the crossing to the train was not the sole proximate cause. The findings that both defendants were negligent renders unnecessary any discussion of the question of unavoidable accident.

The last assignment of error necessary to be discussed complains of the following statements made by Mr. Conway, counsel for plaintiffs:

“(1) Life is cheap to these corporations; it didn’t mean very much to them to take the life of this woman’s husband.
“(2) This railroad corporation used the life of Mr. McKinney for nineteen years and when they wiped that life out they left her cold with two orphan children.”

The record necessary to be considered in passing upon this assignment is made up of arguments by Messrs. Conway and Scharff, representing plaintiffs, and of Messrs. Scurlock and Darden, representing the transportation company and of Messrs. Boswell and Ñaman, representing the railroad company, together with a portion of the evidence to which the arguments relate.

The application for the writ quotes a part of the argument by Mr. Conway to show the setting in which the first statement (italicized statement below) appears. It reads: “He took care of his home during the afternoon; he did repair work around the house, worked that yard, did the garden work, and Mrs. McKinney says he helped her to wash those dishes and do whatever there was to be done about the house. In other words, Jim McKinney was a good husband to Mrs. McKinney. Now Jim McKinney is not there; now he cannot help Mrs. McKinney about the house any more; he cannot put the money there in the bank — she has got to do that herself. Jim McKinney is gone and he has left Mrs. McKinney alone to face those responsibilities, and one of these truck corporation lawyers comes along and says that, Mrs. McKinney, you have not lost but $7800.00 when your husband was killed. Life is cheap to these corporations; it didn’t mean very much to them to take the life of this woman’s husband and one 'of them even says that all together $7800.00 would be * * (sufficient compensation).

Counsel for both defendants objected to the first statement on the ground that it was inflammatory and prejudicial.

The objection was overruled. The trial court in qualifying the bill of exception set out about a page of argument by Mr. Scurlock made prior to Mr. Conway’s, in which he contended that in view of the salary McKinney was making at the time of his death, $300 would be all that the older boy could have expected by way of contribution from his father, that $1,500 would be all the younger son could have expected to receive and 'that about $6,000 was all Mrs. McKinney could have expected, making- a total compensation in damages of $7,800; also that Mr. Scharff, for plaintiffs, had argued for a total recovery of $37,500 and that Mr. Darden, in his argument made prior to Mr. Conway’s, had sought to refute the $37,500 contention. It is pointed out in the qualification also that there was evidence that McKinney, who had worked for the company many years, had a life expectance of twenty-one years and earned $2,135 the year proceeding his death; that his hours of work were from 11 o’clock p. m. to 7 a. m.; that he slept during the forenoon and worked around home and assisted his wife in the afternoons; and that he deposited his salary to the joint account of his wife and himself.

Obviously the court’s action in overruling the objection to the first statement was correct, as it was in direct reply within the evidence to the prior arguments pointed out.

The ápplication for the writ quotes another part of Mr. Conway’s argument to show the setting in which the second statement (italicized statement below) appears. It reads:

“We say to this truck corporation and to this railroad corporation, you took from this woman her husband who walked by her side for twenty-five years and left her with the responsibility and care to take care of her own home and it worth to her $30,000.00, and I ask that you write that in there and don’t count the loss to her so cheap.
“This railroad corporation opens the windows of Heaven again and asks the sealed lips of Jim McKinney to come in and talk about his oldest son. They have the nerve to come here and tell you Jim McKinney says the boy has been giving him trouble. Yet they say they want to be fair to you. They come in here and humiliate those young men and tell you all they are trying to do it, do what is right. This railroad corporation used the life of Mr. McKinney for nineteen years and when they wiped that life out they left her cold with two orphan children * * *."

The court’s first qualification of the exception complaining of the above argument strikes out a portion of the proposed bill, and the last qualification points out that there was evidence that McKinney and his wife had been married for 25 years at the time of his death and that he left surviving him his widow and two sons, the' elder nineteen years of age and the younger, sixteen; that at the time of McKinney’s death he had been continuously employed by the railroad company for 19 years.

The second qualification is as follows:

“That immediately following the argument by Tom Conway, one of the counsel for plaintiffs, the following proceedings and none other were had with reference to said argument.
“Mr. Ñaman: We object to that argument—
“The Court: I sustain the objection to that.
“Mr. Ñaman: We ask that the jury be instructed not to consider that argument.
“The Court: Gentlemen, you .will not consider that part of it.” . (Italics ours).

The third qualification points out that Mr. Ñaman, counsel for the railroad company, in cross-examining McKinney’s immediate foreman who had testified that McKinney wanted to give his boys an education, sought’to elicit from the witness that the older boy did not care for an education; that the witness stated it “seemed from his school record” that “he did not go very much”; that Mr. Conway then elicited from the witness that about the only thing he had ever heard McKinney say in this connection was that the boy “always wanted the car and when he would let him have it he would stay out too late at night, and that he was having trouble with him in that way.”

The fourth qualification points out that Mrs. McKinney, under cross-examination by Mr. Ñaman, testified in response to an inquiry whether the older boy attended high school very regularly, that he did the first year but was out on account of his eyes a good deal; that she did not remember just when he dropped out but thought he dropped out some time about March, 1935, and did not remember why; that in September, before McKinney was killed in July, 1936, he had entered school but had dropped out about two months later. The qualification discloses that the closing part of the cross-examination was as follows:

“Q. And during all of that time, Mrs. McKinney, that he was * * * in and out of school for a few months at a time, he never passed a subject, except cooking, isn’t that true? A. I don’t know.
, “Q. You did not keep up very well then with the boy’s education, did you? A. Well *■ * *
“Q. I believe that’s all.”

The boy’s school record was not offered in evidence.

The court’s fifth qualification of the bill points out that prior to Mr. Conway’s argument Mr. Boswell, one of the attorneys for the railroad company, made the following statement:

“I believe, from the testimony in this case * * * that if Jim McKinney could come into this court room this. morning, that he himself would not point his finger at any railroad employe and say ‘you are responsible for my death.’ I believe that is true. I don’t believe Jim could contend, if he could talk this morning, he could not point his finger at Mr. Williams and say, Jyou have done 'something you should not have done,’ or ‘you* failed to do something that you should have done,’ or to those other men who were his life-long friends.” (Italics ours).

It appears also in this qualification that Mr. Darden, one of the attorneys for the transportation company, made the following statement in his argument:

“Oh, Bill Boswell says that if Jim McKinney could talk he could say the railroad-was not at fault. I say to Bill Boswell, if Jim McKinney could lean over the battlements of heaven this minute, he would point a finger of scorn at him for making any such statement like that to this jury. If he was, Gentlemen, with all good sense- — ■ here comes a truck 1000 feet away, going sixty miles an hour, and what did they do ? They pulled that train out in front of him, when they knew that highway was wet according to their own testimony, and traveling at that rate of speed.” (Italics ours).

The closing portion of the fifth qualification sets out an excerpt from Mr. Naman’s argument, which is as follows: “Without in any sense of being sacrilegious, but with the utmost respect to the memory of the man who is gone, I do say that if he gazed down upon this scene from the battlements of high heaven, he would put a restraint upon the attorneys who charge that Keith, and Moody, and Williams, • and Hall, and Joins were to blame for th.e life of Jim McKinney — men that were so closely tied to him, that it grieved them beyond expression to even view his lifeless form." (Italics ours).

Upon careful consideration of the lengthy record relating to the two arguments (the transcript record alone covering eighteen pages) we have concluded that the holdings of the Court of Civil Appeals to the effect they were not an appeal to prejudice or bias, and were in part invited by the argument of counsel for defendants, are correct, and supported by the cases cited. See opinion, 126 S.W.2d page 792, 2nd column; also MacFadden Publications v. Wilson, Tex.Civ.App., 121 S.W.2d 430, writ refused; Texas & P. Ry. Co. v. Smith, Tex.Civ.App., 115 S.W.2d 1238, writ dismissed.

As stated in Rio Grande, E. P. & S. F. R. Co. v. Dupree, Tex.Com.App., 55 S.W.2d 522, 526, “we think the argument is not of such a character as would be calculated to cause the jury to forget their oaths and duties, and return a verdict regardless of the facts and the law. Under our system lawyers are allowed some latitude to engage in oratory.” The record discloses that counsel for both plaintiffs and defendants “took some latitude” in the present case to do just that. Furthermore, the trial court sustained objection to the second statement with respect to the railroad corporation’s using the life of McKinney for nineteen years and leaving the wife cold with two orphan children and instructed the jury not to consider it. There was no reversible error.

The Court of Civil Appeals did not err in affirming the trial court’s action in overruling the railroad company’s motion non obstante. Its judgment affirming that of the trial court is affirmed.

Opinion adopted by the Supreme Court.