author: HICKMAN, C. J.

text:
    TEXAS EMPLOYERS’ INS. ASS’N v. LAWRENCE et al.
    (No. 547.)
    Court of Civil Appeals of Texas. Eastland.
    Feb. 15, 1929.
    Rehearing Denied March 15, 1929.
    Conner & McRae, of Eastland, Harry P. Lawther, of Dallas, and W. L. Saunders, of Gatesville, for appellant.
    M. McCullough, of Eastland, and W. V. Dunnam, of Waco, for appellees.
   HICKMAN, C. J.

At about the hour of 4:20 a. m. on June 21, 1921, a gas explosion occurred in a tent occupied by W. C. Lawrence, his wife, and two small children, setting fire to the clothing of each and from the effects of which all of them died. One child died on June 22d, another on June 23d, Lawrence on June 24th, and Mrs. Lawrence on June 25th. At the time of the injury Lawrence was employed by the Fleming-Stit-zer Road Building Company, which company had a contract to construct highways in East-land county. ' The place where the injury occurred was in a camp controlled and operated by the employer. Gas lines conveying natural-gas to the camp passed through the tent occupied by the Lawrence family. Lawrence’s duties were to cook the meals for all of the road workers. For his wages he was paid $100 a month in cash, and was furnished a tent and board for himself and family, estimated to be of the value of $75 a month, making his monthly wage $175. The use of the tent and the board were a part of his contract of employment, and by the terms of the contract he was required to occupy this tent in the camp controlled by the employer. Since no eyewitness of the accident survived, the exact facts as to the cause of the accident cannot be known, but must be ascertained, if at all, by circumstantial evidence. The foreman testified that it was the duty of Lawrence to have breakfast prepared and on the table by 6:15 a. m., and he estimated that, in order to do so, Lawrence would be required to begin the preparation of the meal about 4:30. This same witness furnishes the only description of what occurred at the tent that morning. In substance, his testimony was that he was awakened at 4:20 o’clock by the screams of Mrs. Lawrence. He arose from his bed and started to get his gun, but, as he did so, he saw Mrs. Lawrence in a sheet of flame rush past the corner of the tent occupied by him. Her clothing was on fire, and she was calling his name. When he stepped out of his tent she had run past it, but turned and came back. He caught her, and began tearing off her burning clothes. In an instant Mr. Lawrence came by, running and screaming the same way, with his clothes on fire. He passed a few feet beyond the foreman, and just at that time other employees came from their tents and tore the burning clothes off of Lawrence, while the foreman, at Lawrence’s request, went to the babies. One of the babies was found lying at the east end of the cook tent on a scale platform where its father had evidently laid it, with its clothing on fire. The other child seemed not to be on fire at that time, but in some way its clothing was later ignited, and, as stated, it also died from injuries received.

The employer was a subscriber under-the terms of the Workmen’s Compensation Law, and the appellant was the' insurer. Two claims for compensation were filed with the Industrial Accident Board, one by W. L. Lawrence, father of the deceased employee, his mother being dead. The other was filed by Leonard Williams and wife, Alice Williams, the father and mother of Mrs. Lawrence. An award was made by the board in favor of Williams and wife, and the claim of Lawrence was rejected. Lawrence appealed from the order denying him compensation, and the insurer appealed from the order granting compensation .to Williams and wife. The two cases were consolidated in the trial court and tried as one, resulting in a judgment against Lawrence and in favor of Williams and wife against the appellant for the sum of $6,534, from which judgment comes this appeal.

The foregoing statement discloses that the compensation for the death of the employee all went to his father-in-law and mother-in-law, and none went to the employee’s father, sisters, and brothers. This necessarily resulted from the fact that the employee died before his wife. Upon the death of the employee, a vested right to this compensation immediately passed to his surviving wife, and upon her death intestate such right passed under the laws of descent and distribution to her heirs. Moore v. Lumbermen’s Reciprocal Ass’n (Tex. Com. App.) 258 S. W. 1051; Id. (Tex. Com. App.) 262 S. W. 472.

The first contention presented by appellant in its brief is that the trial court was without jurisdiction to hear and determine this cause. This contention is based upon the claim that the right of Williams and wife to compensation was not a question arising between an injured employee of a subscriber and an insurer, but was a question arising under the laws of descent and distribution; that the Industrial Accident Board is not a court, but is an administrative agency of the state, created for the purpose only of administering the provisions of the Workmen’s Compensation Law; that, since the laws of descent and distribution are not a part of that law, the Industrial Accident Board had no jurisdiction to determine such ‘laws and make an award thereunder; and that, since the Industrial Accident Board was without jurisdiction, the district court was without jurisdiction on appeal from such board.

We cannot agree to this contention. Article 8307, § 5, R. S. 1925, provides that all questions arising under this law, if not settled by agreements of the parties, shall, except as otherwise provided, be determined by the board. Article 8306, § 8a, R. S. 1925, provides that compensation shall be distributed among the beneficiaries as may be entitled to the same, according to the laws of descent and distribution of this state. We think that, under the provisions of these and other relevant sections of the act, the Industrial Accident Board is necessarily vested with the right to determine the beneficiaries of an award. Otherwise, the law would create a right without a remedy. Moore v. Lumbermen’s Reciprocal Ass’n, supra.

The principal contention presented, and the controlling question of law in the case, relates to whether or not the injury which caused the death of the employee was sustained in the course of his employment. Article 8309, § 1, defines the term, “injury sustained in the course of employment.” This definition, after excluding certain injuries not relevant here, uses this language:

“But shall include all other injuries of every land and character having to do with and originating in the work, business, trade or profession of the employer received by an employe while engaged in or about the furtherance of the affairs or business of his employer whether upon the employer’s premises or elsewhere.”

For an injury to be compensative under this definition, it must have had to do with, and originate in, the work, and, in addition thereto, must have been received while the employee was engaged in or about the furtherance of the business of the employer. The question presented here is, Did the employee receive his injuries under such circumstances as to render same compensative under the above definition? It cannot be definitely known just what caused the explosion, nor whether the employee was awake or asleep-at the time of its occurrence. The evidence discloses that there was a gas explosion within his tent, which was of such violence as to-scatter the furniture and set on fire the tent and the clothing of the occupants thereof-It also discloses that gas pipes ran through this tent; that the explosion occurred at approximately the time when the duties of the employee required him to begin preparing breakfast. Gas does not explode unless it comes in contact with a spark or blaze. We therefore are of the opinion that it would not be mere speculation and conjecture to arrive at the conclusion that the gas escaped into this tent from the gas pipes running through it; that the deceased or his wife arose to begin the day’s duties, and struck a match, which resulted in the explosion.

The facts and circumstances do not even suggest that the employee’s injuries were occasioned by his disregarding or disobeying some instruction, or that they were brought about as the result of his undertaking some venture of his own not incidental to his occupancy of the tent. It is urged in this case that compensation should be denied because the'employee may have been asleep, or may have arisen to administer to the natural wants of himself or his family. We do not think the right to compensation is dependent upon a showing in these particular matters, for compensation should be allowed in any of these events.

We have been cited to no Texas case, nor have we discovered one, deciding the question of whether an employee is in the course of his employment within the meaning of the Workmen’s Compensation Law when he is injured in a place provided and maintained by his employer for him to occupy, and which he is, by the terms of his contract, compelled to occupy, and at a time when he is off duty.

We think the question is clearly decided in principle by the Supreme Court of our state, speaking through Justice Greenwood, in the cases of Lumberman’s Reciprocal Ass’n v. Behnken, 112 Tex. 103, 246 S. W. 72, 28 A. L. R. 1402, and Kirby Lumber Co. v. Scurlock, 112 Tex. 116, 246 S. W. 76. In those opinions our Supreme Court goes fully into the question of the meaning of this definition, and it would serve no useful purpose for us to discuss the principles governing its interpretation, as our discussion would be but a restatement of the principles there clearly announced. We have, however, made an investigation of the decisions in other jurisdictions upon cases involving facts very similar to the facts of this case, and have arrived at the conclusion that the general rule announced and established by the courts in interpreting definitions similar to, or identical with, that contained in our statutes above quoted, is that, when by the terms of the contract of employment the employee is required to sleep upon the premises of the employer, such employee, while on the premises, even when off active duty, if he is doing only what might be reasonably and naturally expected of him under such circumstances, is performing services having to do with and originating in the business of his employer, and is engaged m or about the furtherance of the affairs or business of the employer. A few of the leading cases will be referred to.

In the case of Larson v. Industrial Accident Commission, 193 Cal. 406, 224 P. 744, by the Supreme Court of California, a workman on a ranch was injured by an explosion of coal oil while in a bunkhouse provided by the employer for his employees. The bunkhouse was the only place provided for the accommodation. of the employees, and they were required to accept the accommodations provided ; such accommodations being a part of their pay. It was held that injuries to an employee from such explosion in the bunkhouse while he was off duty were compensa-tive under the statutes of that state. The Californiá statute is not materially different from our statute.

In the case of Kaiser Lumber Co. v. Industrial Commission of Wisconsin, 181 Wis. 513, 195 N. W. 329, by the Supreme Court of Wisconsin, the facts were that the lumber company was operating a lumber camp, and it was incident to the employment of its workmen that the employees were furnished food- and lodging on the premises. They were required to sleep in a bunkhouse. The injured employee was asleep at night in the bunkhouse when he was attacked and injured by another employee occupying the same room who had become insane. Compensation was allowed. The opinion uses this language:

“Under the circumstances of this case, where the employee was required to sleep on the premises of his employer as a part of his contract of hire, it has been held that the employee when so at rest is performing service growing out of and incidental to his employment.”

In the case of In re Bollman, 73 Ind. App. 46, 126 N. E. 639, the Appellate Court of Indiana construed these facts: The injured employee was employed by the owner of a threshing outfit which he operated in a community, going from farm to farm. Eor a period of ten years prior to the accident the employee had been engineer for the thresher, and it was the duty of the employee to sleep nights where the machinery was left. The injury occurred while the employee was asleep on a bed improvised by him in the barn at the farmhouse where he was to thresh the next day. Compensation was allowed. The opinion uses this language:

“The question whether the accident resulting in injury or death in a given ease arises out of the employment does not depend upon the minute details of what the employs was doing at the time, but rather upon the question as to whether the accident was due to a hazard to which the employe would not have been exposed apart from the business in which he was employed.”

In the case of Harivel v. Hall-Thompson Co., 98 Conn. 753, 120 A. 603, by the Supreme Court of Errors of Connecticut, the facts were that a traveling salesman was injured by attempting to escape from a burning hotel in the nighttime. His contract with his employer provided for the payment of a weekly salary and commission, transportation, and hotel bills. Compensation was allowed. The court uses this language:

“If the salesman lodged annd boarded on the premises of his employer, it would be conceded that his employment continued during this period. There can be no -difference in principle between the furnishing of lodging and board by the employer upon his own premises or upon the premises of another. .The hotel lodging furnished by the defendant to the claimant was its own for the time being, which it supplied to its salesman. The salesman was not, when injured, engaged upon the immediate duties of his employment, but he was doing something which was incidental to such employment.”

In the case of Holt Lumber Co. v. Industrial Commission of Wisconsin, 168 Wis. 381, 170 N. W. 366, by the Supreme Court of Wisconsin, the facts were that the employee was a sawyer in the woods. He was paid $40 per month and board, and lived in a camp furnished by his employer. The men in the camp slept in bunks arranged so that one man slept above the other. On the occasion of the injury the injured employee had retired to his bunk, and, while talking to a fellow workman, a piece of stráw dropped from the bunk above him and. lodged in his throat. Compensation was allowed. The following clear statement of the rule is contained in the opinion: _

“In the instant case it was part of the contract of employment that Bebeau should sleep on the premises in the bunk furnished by the lumber company. It was in the course of his employment to remain upon the premises nights and use the bunk furnished for him. Under such circumstances he was within the course of his employment. Foley v. Home R. Co., 89 N. J. Law, 474, 99 A. 624; Richards v. Indianapolis A. Co. et al., 92 Conn. 274, 102 A. 604; Hackley-Phelps-Bonnell Co. v. Industrial Commission, 165 Wis. 586, 162 N. W. 921, L. R. A. 1918A, 277; Kilduff v. Boston E. Co., 195 Mass. 307, 81 N. E. 191, 9 L. R. A. (N. S.) 873. “The general rule under the authorities is that when the contract of employment contemplates that the employé shall sleep upon the premises of the employer, the employé under such circumstances is considered to be performing services growing out of and incidental to such employment during the time he is on the premises of the employer. Rucker v. Read, 39 N. J. Law J. 48; Chitty v. Nelson, 2 B. W. C. C. 496; Alderidge v. Merry, 6 B. W. C. C. 450; Griffith v. Cole Bros, et al., [183] Iowa, [415], 165 N. W. 577, [L. R. A. 1918F, 923]; Meyers v. Michigan Cent. R. Co., [199] Mich. [134], 165 N. W. 703; Cokolon v. Ship Kentra, 5 B. W. C. C. 658; International & G. N. R. Co. v. Ryan, 82 Tex. 565, 18 S. W. 219.”

The above cases are illustrative of the holdings of the courts throughout the country. Many others could be cited. Extended notes upon the question are contained in 31 A. L. R. pp. 1251 to 1261, and 56 A. L. R. pp. 512 to 514.

We believe the holdings of our Supreme Court in the Behnken Case and the Scurlock, Case, supra, are in accord with the decisions in the above cases. In the Behnken Case the court thus defines “having to do with and originating in the work,” etc., “of the employer” :

“An injury has to do with, and arises out of, the work or business of the employer, when it results from a risk or hazard which is necessarily or ordinarily or reasonably inherent in or incident to the conduct of such work or business. As tersely put by,the Supreme Court of Iowa: ‘What the law intends is to protect the employee against the risk or hazard taken in order to perform the master’s task.’ Pace v. Appanoose County, 184 Iowa, 498, [506], 168 N. W. [916], 918.”

The same opinion thus defines “engaged in or about the furtherance,of the affairs, etc., of the employer”:

“Was Behnken engaged in or about the furtherance of the affairs or business of his employer when he received the injury causing his death? He was upon the crossing provided as the means of access to his work solely because he was an employee. He encountered the dangers incident to use of the crossing in order that he might perform the duties imposed by his contract of service. Without subjecting himself to such dangers he could not do what was required of him in the conduct of the lumber company’s business. He had reached a place provided and used only as an adjunct to that business, and was injured from a risk created by thé conditions under which the business was carried on.”

In the Scurlock Case the opinion quotes with approval from the opinion in the case of International & G. N. Ry. Co. v. Ryan, 82 Tex. 565, 18 S. W. 219, underscoring the following language:

“It was only by reason of the fact'that he was an employee of the company that he was in the ear on the side track at the time he was injured.”

The Ryan Case was decided before the enactment of compensation laws, but the holding therein has peculiar application to the construction of the statute here involved, as is manifest by the fact that our Supreme Court so applied it in the. Scurlock Case.

It is our conclusion that the jury was warranted in finding that the deceased employee died of injuries having to do with, and originating in, the work of his employer, and that such injuries were received while the employee was engaged in and about the further-anee .of the affairs or business of his employer.

Upon the submission of this case it was argued orally that no sufficient evidence was contained in the record to form a basis for estimating the employee’s wage, in that the evidence showed that he had been employed at his occupation but a short time, and there was no evidence as to his wages except for the short period of his employment. 'We do not find this point presented in appellant’s brief. There is no separate proposition covering the point and no statement from the rec■ord in the brief disclosing the basis for this contention. We are not permitted to search the statement of facts in an effort to discover whether or not an error was committed, and this contention'is therefore, overruled.

The judgment of the trial court is affirmed.


source: Caselaw Access Project

author: LESLIE, J.

license: Public Domain

text:
    SHAW, Banking Com’r, v. MORRISON.
    (No. 550.)
    Court of Civil Appeals of Texas. Eastland.
    March 15, 1929.
    L. C. Sutton and John W. Goodwin, both of Austin, for appellant.
    Butts & Wright, of Cisco, for appellee.
   LESLIE, J.

This suit was instituted by appellee, J. B. Morrison, against James Shaw, banking commissioner, appellant, as such commissioner and “liquidating agent” of the Commercial State Bank of Cisco, Tex. The appellee sued to recover $500 which he had paid to the appellant under a contract to purchase certain real estate, having made such payment as a part of the purchase price and to guarantee that he would carry out his part of the contract, and alleging that the banking commissioner had pot furnished an abstract showing merchantable title in compliance with the terms of the contract. The commissioner answered by general demurrer, general denial, and specially contended that he had furnished an abstract showing “good and merchantable title,” and was therefore, under the terms of the agreement, entitled to retain the $500. A trial before the court resulted in a judgment in favor of appellee, plaintiff below, for the $500, with 6 per cent, interest from January 1, 1928, and further decreeing the judgment a preferential claim against the banking commissioner as to the assets which came into his hands as receiver of said bank, and ordering defendant to pay the judgment first from such assets. From this judgment the defendant below has appealed.

Propositions 1, 2, and 3 complain of the court’s having overruled the defendant’s demurrers to the plaintiff’s petition upon the ground that the petition showed the plaintiff refused to carry out the contract, and further failed to allege that such refusal was based upon a defect in title which could not be cured in a reasonable time. The petition is not believed subject to the demurrers urged. These propositions are overruled. The questions sought to be raised by them will be considered on their merits under propositions 4, 5, and 6, which will now be considered together.

By the contract between the commissioner and Morrison the former contracted to convey to the latter a tract of land situated in Eastland county, Tex.; said contract being, in part, as follows:

“Being seventy (70) acres of land off of tlie East end of a One Hundred (100) acre tract, being the North, side of the North West one-fourth (NW¼) of Section No. 67, in Bloch No. 3 of the H. & T. C. Ry. Co. lands in Eastland County, Texas, save and except the following lots located in the South Side Addition, which addition is located in part of said seventy (70) acres, to-wit: Lots 4 and 13 in Bloch 1, 9 and 10 in Bloch 2, Lot 1 in Bloch 6, Lot 5 in Bloch 8 of said addition. Being the same land conveyed to the Commercial State Banh, Cisco, Texas, by Sheriff’s deed of date July 10th, 1925, and being commonly hnown as the Grover Ellis 70 acres.
“The party of the second part agrees .to pay Thirty-five ($35.00') dollars per acre, Twenty Four Hundred and Fifty Dollars ($2450.00), Five Hundred ($500.00) cash in hand, the receipt of which is hereby acknowledged and Nineteen Hundred Fifty Dollars ($1,950.00) when this deal is consummated.
“Party of the first part agrees to furnish party of the second a merchantable abstract brought down to date. * * *.
“If party of the second part refuses to carry out this contract for any other reason than a fatal defect in the title which cannot be cured in a reasonable time, the above Five Hundred Dollars ($500.00) shall be retained by the party of the first part as liquidated damages.”

Abstracts and supplemental abstracts were furnished in due time, and Morrison’s attorneys examined each, and the conclusion of the whole matter resulted in Morrison’s rejection of .the title tendered upon the sole ground that the abstract disclosed 50 acres of the entire tract had been platted into town lots with the usual streets and alleys, impressed with an easement in favor of the public, and constituting an incumbrance. This presents the controlling question arising upon the merits of the controversy.

The appellant’s contention is that the description of the land in the contract of sale put the purchaser, Morrison, on notice that the land was located in a city cut up in lots and blocks and streets and alleys, and that under the terms of th§ contract Morrison necessarily purchased the land subject to the streets and alleys. Appellant, in his brief, states that no decisions in this state passing upon this particular question have been discovered by him,_ but that the following cases appear to recognize the rule that an express warranty will not be applied to cover an open or known defect as to land with reference to which parties have contracted, citing Doyle v. Hord, 67 Tex. 621, 4 S. W. 241; Mayer v. Wooten, 46 Tex. Civ. App. 327, 102 S. W. 423.

The contention is that the purchaser of land takes it subject to an easement of an existing public highway and is not protected by even a warranty against incumbrances; that a street or alley is a public highway.

Our attention is particularly directed to the case of Sandum v. Johnson, 122 Minn. 368, 142 N. W. 878, 48 L. R. A. (N. S.) 619, Ann. Cas. 1914D, 1007, in which it was held that a highway across land conveyed by warranty deed of the form in common us'e does not constitute a breach of the covenants usually contained in such deeds. In that opinion, it is pointed out: “Incumbrances are of two kinds, viz.: (1) Such as affect the title; and (2) those which affect only the physical condition of the property. A mortgage or other lien is a fair illustration of the former; a public road, or right of way, of the latter.”

That opinion is to the effect that a servitude imposed upon land, which is visible to-the eye but winch affects not the title but the physical condition of the property, does not constitute a breach of covenant. Courts-of different jurisdictions have taken different views upon the question suggested by the appellant. Such views were set forth and carefully considered in Sandum v. Johnson, Supra. Numerous authorities are there cited, stating the holdings in the different states;. but we do not believe that authority controlling in the instant case. It may be said here, as in Doyle v. Hord, supra, there is nothing in this case to give application to the rule, if there be such a rule, that an express warranty will not be applied to cover an open or known defect of certain kinds with reference to which parties have contracted. The instant case differs in its facts from those in the line of authorities cited by the appellant. At the time Morrison rejected the appellant’s title, the contract between them was executory and not an executed one. The principles involved in a suit for specific performance are more applicable to the situation presented here.

As said in Evans v. Taylor, 177 Pa. 286, 35 A. 635, 69 L. R. A. 790: “While an existing street upon a lot, or the mere liability to have a street opened upon it, is matter of which a purchaser is bound to take notice, and therefore, on that account, cannot defend against an action for the purchase money after the deed has been accepted, the case is very different when no deed has been accepted, no mortgage or other lien for the purchase money has been given by the purchaser, no possession has been taken, nor any other act done by the purchaser in affirmance of the contract. And when, in addition to all this, a large loss of the actual consideration of the contract may, and probably will, be suffered by the enforcement of the contract against the will of the purchaser, surely an express provision against the possibility of such loss, embodied in the written terms of the contract, will not be violated or disregarded by the courts, when they are asked to enforce it as an executory contract only.”

In the instant case Morrison, under the terms of the contract as .we construe it, agreed to purchase 70 acres of land upon an acreage basis, paying therefor $35 per acre. Six lots evidenced by the plat of said addition were specifically excluded from the subject-matter of this contract. In passing it may be observed that this particular exclusion but naturally confirms Morrison’s contention that the other portions of said “70 ■acres, including the streets and alleys, constituted the subject-matter and real consideration passing from the commissioner to Morrison for his money. This is but the application of a well-known rule of construction of contracts. However, under our construction of the contract it is important to observe that said streets and alleys embraced approximately 17 acres of the 70 acres sought •to be conveyed. The abstract revealed nothing that indicated that the dedication under said plat had ever been revoked, canceled, or set aside, or that the streets and alleys had ever been vacated, or the title thereto acquired by the banking commissioner. These streets and alleys dedicated to the public use carried all the burdens incident to such dedication, and the record discloses that the appellant failed in his efforts to repurchase, at •least, one of said six excepted lots which he endeavored to acquire, with the view of closing said streets and alleys. The lots: had •been conveyed with reference to the plat. Such being the case, the owner of any such lot had an enforceable right to have the Streets and alleys left open.

That said streets and alleys constituted an incumbrance upon the appellant’s title cannot be doubted. Devlin on Real Estate, vol. 2, p. 1708, § 910; Maupin on Marketable Title (3d Ed.) p. 849, § 304, et seq.

The land covered by the streets and alleys undoubtedly constituted a material and substantial part of the consideration passing to Morrison. The plaintiff rejected the title because of such incumbrance. The trial court has found that the appellant was not able to convey a merchantable title to the land. In the condition tendered it was not a merchantable title; it was not free from “fatal defects.” We confirm the trial court’s conclusions in this respect and are of the opinion that the plaintiff is entitled to a return of his forfeit money under the circumstances of the case, and the executory nature of the contract. Koshland et al. v. Spring et al., 116 Cal. 689, 48 P. 58; People’s Savings Bank of Pittsburgh v. Alexander (Pa.) 3 A. 821; Grow et al. v. Taylor et al., 23 N. D. 469, 137 N. W. 451; Evans v. Taylor, supra.

Propositions 4, 5, and 6 are overruled.

Proposition 7 complains that the court erroneously decreed the $500 to be a preferential claim against the commissioner as to the assets of said defunct bank. The debt or claim constituting the subject-matter of this suit arose out of an independent transaction of the banking commissioner-, whose status, in fact, is that of a statutory receiver and did not originate prior to the time said Commercial State Bank was taken in charge by the banking commissioner. It grew out of an agreement entered into by him in an effort to reduce the tract of land to liquid assets. Until he furnished a merchantable title the consideration paid and to be paid by Morrison did not, in fact, become a part of the assets of the bank. Morrison agreed to forfeit the $500 only in event he rejected the title for some other reason than a fatal defect therein rendering it unmerchantable. The appellant’s. rights thereto were wholly contingent upon such title being merchantable. Under the law and the contract the title stands condemned as such, and upon the trial it was admitted: “That the Banking Commissioner received the $500.00 and still has it.”

Having the $500 in his possession and it being his duty to return it, the trial court’s having decreed it a preferential claim as to such assets, if error, would be harmless in its nature; but we do not believe the court committed an error under the peculiar facts of this case, since the consideration paid and to be paid at no time became a part of the bank’s assets, and the commissioner’s detention thereof was wrongful. This proposition is overruled.

The eighth proposition, to the effect that the judgment erroneously awards execution, presents a question which, because of 'its lack of importance from a practical standpoint, we deem it unnecessary to determine. The judgment establishes the claim, directs the manner of its payment, and the appellant acknowledges he has the money. It was therefore unnecessary, to say the least, to direct the issuance of execution. The judgment will be reformed to eliminate this provision, but the costs will not for that reason be adjudged otherwise. Arnold v. Penn, 11 Tex. Civ. App. 325, 32 S. W. 353.

The ninth proposition is overruled. It complains that interest should not have been allowed in the judgment. As may be seen from the nature of this case the liability here was predicated on a contract express or implied, and not on a purely statutory liability, as was the case of Eastland County v. Chapman (Tex. Com. App.) 278 S. W. 425. By implication, at least, that opinion is authority for the recovery of interest under the facts of this case.

Eor the reasons assigned the judgment of the trial court is affirmed.


author: COBBS, J.

text:
    NATIONAL W. C. T. U. et al. v. ANDERSON et al.
    (No. 8160.)
    Court of Civil Appeals of Texas. San Antonio.
    Feb. 20, 1929.
    Rehearing Denied March 20, 1929.
    Briscoe & Morris and Joe B. Hill, all of San Antonio, for appellants.
    Douglas, Garter & Black and Denman, Franklin & Denman, all of San Antonio, for appellees.
   COBBS, J.

This suit was filed by appel-lee T. D. Anderson and others, executors and trustees of the estate of M. Eleanor Bracken-ridge, against the National W. C. T. U., the W. C. T. U. of the state of Texas, the W. C. T. U. of San Antonio, of which Mrs. Holt is president, and the W. C. T. U. of Bexar county, of which Mrs. Thomas was president, alleging that the W. C. T. U. of which Mrs. Thomas is president was the W. C. T. U. of Bexar county. The names of the officers have been changed from time to time.

The controversy arose over the $5,000 bequest in the will and deed in trust made by Miss Eleanor Brackenridge, in which She gave to the W. C. T. U. of San Antonio $5,-000, to be paid $25 per month for a certain number of years, and then the whole amount to be paid to the W. C. T. U. of San Antonio. Some of the members of the San Antonio W. C. T. U. bolted and organized another similar society.

After a number of members left the regular organization, a charter was granted them-by the state for what was known as the Thomas faction — all the charter members-belonging to that faction. The charter was for “W. C. T. U. of Bexar County.” This charter was granted after the death of Miss-Brackenridge.

the other faction was known as the Glass-faction, and remained in the regular organization.

A meeting was called on September 3, 1925, by the Thomas faction, and an election was held by them, and Mrs. Hopkins was elected president. That faction elected 21 delegates to go to a state meeting at Dallas. The Dallas meeting was not the meeting of the regular members of the organized W. C. T. U. Miss Jessie Fuqua, a member of the Thomas faction, swore: “The regular W. C. T. U. of Texas met at Waxahachie. The Dallas meeting elected Mrs. Claude Carter president of the W. C. T. U. of Texas and started a new paper called ‘The Star.’ We paid the expenses of 21 delegates to the Dallas meeting. This meeting, however, was not intended as a new W. C. T. U. but was only a protesting group of ladies independent, who wished to make objection to the regular State president in her rulings and in her stand on certain political issues, and when we sent a committee from the Dallas meeting to the regular State W. C. T. U. at Waxahachie we were trying to correct the errors which the State Union had made. There was no charter mentioned. We only took out the charter for the W. C. T. U. of Bexar County to be used in case the faction then called the Glass faction should sue iis and try to keep us from using the name W. O. T. U.” This witness did hot claim that the Thomas faction or the state organization were regular, but always called the state meeting, to which the Glass faction adhered and by whom it was recognized, the regular W. C. T. U. of Texas.

Mrs. Wade Lewis of the Thomas faction described the officers of the Glass faction as the “regular officers,” and said that “Mrs. Glass and the regular officers” did not attend the meeting of September 3, 1925.

Mrs. Claude Carter, president, elected at the Dallas meeting, called her organization the “protesting or bolting faction.” She testified, when asked what the state dues' of the regular W. O. T. U. of the state of Texas were, that, not having any connection with it, she could not tell what the dues are; “that her faction had nothing to do with the W. C. T. U. of the State of Texas.” Mrs. Carter gives the reason for her faction leaving the regular organization as: “We did not want a president whose husband is working in the Comptroller’s office on the Ferguson pay roll. We wanted a change in the personnel and policy which they refused, is tlie reason we organized the protesting or bolting faction. We wanted to be lined up ■with the moral forces and not used by Ferguson Forum endorsing Mrs. Ferguson.”

All of the witnesses for the Thomas faction spoke of the Glass faction and the state organization to which they belonged as the regular W. C. T. U. of Texas. Mrs. Claud Van Watts, the president of the regular state organization, stated that the division occurred on account of politics in 1924. She said: “The trouble grew out the fact that part of the San Antonio Union was in favor of Felix Robinson for governor, and this faction was trying to force me as president to support him, and I refused to do so because he has always been a wet and drinking man. Later they accused me of being in favor of the Fergusons, but this was not true. I refused to support either Ferguson or Felix Robinson, and the fact that I refus'ed to support Robinson caused a fight on me in the State Convention.” Mrs. Yan Watts defeated a candidate put in the race by the Tilomas faction of San Antonio.

The facts showed that Mrs. Glass was a great friend of Miss Brackenridge, and that her friendship for Mrs. Glass weighed with her in making the bequest to the W. C. T. U. of San Antonio. Mrs. Glass at no time forsook the regular local organization, which has at all times been recognized by the regular national and state bodies. The evidence clearly demonstrates that the organization to which Mrs. Glass has always belonged is the same regular organization to which Miss Brackenridge belonged, and to which she intended and did bequeath the $5,000. The Thomas faction, by bolting and obtaining a charter from the state under a new name, put itself out of the fold, and has never been recognized by any authority as being the regular W. C. T. U. of San Antonio. The constitution of the W. O. T. U. of San Antonio recites: “This organization shall be known as the Woman’s Christian Temperance Union of San Antonio, auxiliary to the Woman’s. Christian Temperance Union of Texas.” A bolting faction with a different name, known as the Thomas faction, severed all connection with the state and national organizations, and by all known rules are outside the organization with no rights to a bequest made to the regular local organization. The local body draws its life, its existence, from its recognition by, and adherence to, the State organization, which was dependent on the national organization. The subordinate which is regular and legitimate under the constitution and by-laws of the higher bodies is always the organization recognized by courts. This must, in the interest of harmony, order, and uniformity, necéssarily be the rule.

Mr. Thomas H. Franklin, a learned lawyer of San Antonio, drew the instruments making the gift, and he more than any other understood the wishes of the deceased, and knew the beneficiary. At that time there was but one W. C. T. U. in existence in San Antonio.

Mr. Franklin testified: “I asked Miss Brackenridge if the said Woman’s Christian Temperance Uniop. of San Antonio, Texas, was a corporation, and she Stated that she did not know, but that it was an organization connected with the Woman’s Christian Temperance Union of the United States; that she did not wish to make the Woman’s Chris--tian Temperance Union of the United States a direct beneficiary under the trust because she wanted the local organization to have the use of the money. She further stated that Mrs. Glass was connected with the local organization she intended to be benefited under the deed in trust, and I think said that Mrs. Glass was the President or head of the organization, but my .memory is not clear as to whether that statement was made to me by her or the statement that Mrs. Glass was connected in some way, not now clearly recalled, with the Association to be benefited.”

Ordinarily all conveyances to be valid should have a named grantee. It is likewise true that in all wills there must be a named beneficiary in existence at the time of the execution - of the instrument. The courts nor any person is at liberty to change the name .of a beneficiary. So we must ascertain who it was the grantor had in mind at the time. Miss Brackenridge herself was a member of this society, and certainly knew her own preference; she was making the donation to the society of which she and Mrs. Glass were members. Indeed, the society of which Mrs. I. V. Glass was a member was the only one in existence at the time, and she could not have intended any other.

For the reasons given, we think the court erred in its judgment, and the same is set aside, and judgment is here rendered in favor of appellants.

Reversed and rendered.

On Motion for Rehearing.

This court has found all of its conclusions of fact from uncontradicted evidence and admissions upon the part of the appellees. They form the Thomas faction that admittedly did not belong to the regular organization, but formed a new organization not recognized by the regular state and national organizations.

There is no merit in the motion for rehearing, and it is overruled.


text:
    STEPHENS COUNTY v. MOORE.
    (No. 544.)
    Court of Civil Appeals of Texas. Eastland.
    Feb. 15, 1929.
    Rehearing Denied March 15, 1929.
    Ben J. Dean, of Breckenridge, for appellant.
    Robert E. Bowers, of Breckenridge, for appellee.
   LESLIE, J.

This suit was brought by V. H. Moore against Stephens county, alleging a contract of employment as county highway engineer under which he was “to serve during the pleasure of the court, but not to be discharged until the end of a month.” Wrongful discharge before the end of a month alleged and this suit seeks to. recover $400 stipulated salary. Defendant answered with general denial and pleaded lawful discharge and failure of plaintiff to appeal from order of dismissal. Trial before court and jury, and upon the verdict returned judgment was entered in favor of plaintiff for the sum sued for.

The record shows that the appellee, Moore, presented to the commissioners’ court of Stephens county a written application for appointment as highway engineer at a salary of $400 per month, the last sentence of which application is as follows: “Said engineer ⅜ * ⅜ to serve during the pleasure of the court, but not to be discharged until the end of a month.”

Upon the docket of the commissioners’ court, and in connection with that court’s action upon this item, is made, through its presiding officer, the following notation: “Action of the court: Application granted and accepted ; details as to beginning work to be arranged January 26th, 1925.”

The clerk, in transcribing the orders of the commissioners’ court to a minute book of such proceedings kept by him, appears to have omitted the last sentence of Moore’s written application for appointment as such engineer; but his contract with the county is clearly establishd by his written application for said position and the court’s notation, or written proceedings, accepting the same.

Under article 2349, R. S., the court’s docket is deemed a “suitable book” for the recording of such a proceeding on its part. Whitaker v. Dillard, 81 Tex. 359, 16 S. W. 1084; Marshall v. Simmons (Tex. Civ. App.) 159 S. W. 89.

The docket entries meeting squarely the terms of the appellee’s application, and the clerk’s minutes, though not quite so extensive, showing nothing to the contrary, all are confirmatory of the contract declared upon by appellee. The assignments questioning the sufficiency of the record evidence of the county’s contract are overruled.

This brings the alleged contract before the court for construction. The evidence discloses that on September 30, 1925, the commissioners’ court of Stephens county entered its order removing said Moore from the capacity and employment of county engineer of that county and directed that said Moore be served with a copy of such order on October 1, 1925. According to appellant’s contention, this order itself was sufficient to terminate the contract of employment between Moore and the county. With this view we do not agree. The county by such ex parte order of the commissioners’ court, separate and apart from any notice of such action to the. employee, was unable to terminate the contract of employment in the manner indicated. Nor do we think that the appellee was bound, to watch the proceedings of - the court or take notice of such orders with reference to him. Leach v. Wilson Co., 68 Tex. 353, 4 S. W. 613.

We are of the opinion that “discharge” under the terms of this contract presupposed notice to Moore, the employee, by the commissioners’ court that it had exercised its pleasure to dispense with his services or terminate the period of his employment. Under such a contract, notice to an employee that he has been discharged- is necessarily implied from its terms and inheres in the very nature of the act of discharge itself. In the instant case, the county having entered into a contract lawful in its nature, it was, like other parties and to the same extent bound by the terms thereof. Collingsworth County v. Myers (Tex. Civ. App.) 35 S. W. 414.

We pass to the controlling question. It will be seen that the only limitation upon the court’s authority to discharge Moore is contained in the last sentence of the application agreed to and above set out. Evidently this provision was inserted for the benefit of the employee, designed to afford him a month’s notice prior to the time his term of- employment could be terminated at the will and pleasure of the court. A provision to this effect is not unusual in contracts of this nature. It is reasonable and intended to give the employee an opportunity to adjust his affairs to the changes and conditions incident to other employment, as well as to afford him an opportunity to procure other employment and thus avoid loss of time and wages incident to a sudden and unexpected discharge. Under this construction the appellee, in any event, would have been entitled to the month’s compensation sued for and recovered in the judgment here appealed from to this court.

If a more literal construction be given the clause, “but not to be discharged until the end of a month,” the contract would entitle the appellee (no error otherwise appearing in the record) to a judgment for the same amount, since the facts show that Moore performed services under his contract throughout the 1st day of October, without any notice of the court’s having exercised its pleasure to discharge him. Having labored throughout one day of “a month” or a new month, he was entitled to stand upon the above provision of his agreement, which protected him against discharge “until the end of a month”; that is, until the end of October. Young v. Lewis, 9 Tex. 73.

Under either construction of the contract the appellee unquestionably was entitled to recover the month’s salary which the judgment below granted him. It is unnecessary to determine what would have’ been Moore’s right had the commissioners’ court, on September 30th, notified him that his services were then and there dispensed with. The record presents no such state of facts. However, the construction first above suggested would appear to be most reasonable under all the circumstances and best calculated to safeguard the rights of the employee under such contract and at the same time exact nothing unreasonable on the part of the employer.

Upon sufficient testimony the jury has found that Bloore was employed by the calendar month. This is but in line with the terms of the contract, as well as the practical construction given it by the action of the parties in operating under it, and Moore’s testimony to that effect (complained of by appellant) in no way varied the terms of the contract, which was sufficiently evidenced by duly authenticated records. This construction of the contract and our review of the proceedings of the trial court require that we overrule appellant’s various assignments;

The judgment of the trial court is therefore affirmed.


author: BAUGH, J.

text:
    PATTERSON PRODUCE CO. v. TOMBS.
    (No. 7327.)
    Court of Civil Appeals of Texas. Austin.
    Feb. 15, 1929.

      Wilson & Biggers and Roy W. McDonald, all of Dallas, for plaintiff in error.
   BAUGH, J.

We shall designate the parties as in the lower court — O. A. Tombs as plaintiff and Patterson Produce Company, a partnership composed of A. B. Patterson, Sr., and A. B. Patterson, Jr., as defendants.

Plaintiff sued defendants in the justice court of precinct No. 2, San Saba county, Tex. Defendants filed their plea of privilege on Eebruary 9, 1928, to be sued in Dallas county, the place of their residence. Plaintiff filed what is designated a controverting plea on the following day. The record fails to show that defendant’s plea of privilege was ever set down for hearing, or that either defendant was ever served with a copy of the controverting plea. The docket entry of the justice court, as shown by the transcript sent to the county court upon appeal thereto by the defendants, shows the following: “March 12, 1928. Deft. Plea of Privilege Overruled. Judgment for plaintiff.” This is the only judgment shown in the justice court. Upon appeal to the county court, that court, upon motion made by the plaintiff, Tombs, entered the following judgment: “And this court finds that the trial court did not err in the disposition of said cause and the judgment of said court is affirmed in all things.” From that proceeding the defendant has prosecuted this writ of error.

S.everal questions are raised as constituting fundamental error. We are confronted at the outset with the question as to whether or not the county court had any jurisdiction over this case under facts disclosed by the record. Only a final judgment in the justice court can be appealed from. Article 2454, R. S. 1925. The above-quoted entry on the justice court .docket, in the absence of any further showing, does not constitute a final judgment. Roberts v. Landrum’s Ex’r, 20 Tex. 476 ; 33 C. J. 1202. Under the facts as disclosed by this record, therefore, the county court should have dismissed the appeal. Since, however, we must reverse and remand the ease, we deem it proper to discuss the other questions raised. The judgment as entered by the county court was wholly erroneous. On appeal from the justice to the county court, the trial must be de novo, and the county court has no jurisdiction to merely review the action of the justice court. Article 2178, R. S. 1925; Crutcher v. Wolfe (Tex. Civ. App.) 269 S. W. 841; McCaskill v. Clay (Tex. Civ. App.) 284 S. W. 643.

An examination of the record discloses that neither the purported plea of privilege filed by the defendants nor the controverting affidavit filed by the plaintiff is legally sufficient. The plea- of privilege is insufficient, for the reason that the defendants merely allege that they reside in Dallas county, without indicating in what justice court precinct they reside, or that in such precinct there is a justice court qualified to try the case. That is, had the justice court of San Saba county granted their plea, there was nothing to inform him what justice court the case should go to in Dallas county.

The controverting affidavit is insufficient, for the reason that it nowhere states that the contract sued upon, alleged' to b,ave been performable in San Saba county, was a contract in ivriting, a necessary element to sustain venue in San Saba county. Article 1995, subd. 5, R. S. 1925.

It is now settled, however, that a plea of privilege may be amended as any other plea, and we see no reason why such amendment to the plea or to the controverting affidavit might not be made in the county court upon appeal, provided that court has jurisdiction of the appeal, a matter yet to be determined. Lillie v. Globe Printing Co. (Tex. Civ. App.) 6 S.W.(2d) 444.

Under the circumstances, therefore, and the holdings in Perry v. Greer, 110 Tex. 549, 221 S. W. 931, and Myers v. Woodruff (Tex. Civ. App.) 277 S. W. 800, we reverse and remand the judgment of the county court with instructions-to that court that, unless it is shown that a final judgment was rendered herein in the justice court of precinct No. 2, the appeal to that court be dismissed. And, if it be made to appear that final judgment was so rendered, then that the venue question be determined in accordance with such pleadings as may be filed.; or, if no further pleadings be filed, then that the case be heard upon its merits.

Reversed and remanded, with instructions.

On rehearing. Petition denied.

For original opinion, see 13 S.W.(2d) 795.


author: NICKELS, J.

text:
    CONN et al. v. TEXAS & N. O. RY. CO. et al.
    (No. 1190-5192.)
    Commission of Appeals of Texas, Section A.
    March 20, 1929.
    John B. Warren, of Houston, for plaintiffs in error.
    Andrews, Streetman, Logue & Mobley, and Garrison & Watson, all of Houston, for defendants in error.
   NICKELS, J.

The ease is generally stated in the opinion of the Court of Civil Appeals, 4 S.W.(2d) 193. Particular matters (some of which are without notice in that opinion) will be stated herein below.

1. The shipment in question moved under through bill of lading. Each of the four (connecting) carriers became a party to the bill. Article 905, R. S. 1925. The bill required collection of freight charges at destination.

Each carrier is a corporation, and must have gotten whatever knowledge and notice it has through agents. Each was the agent of each and all of the others. Article 905. Since each is a corporation, and since there is inter-sese (corporate) representation, information acquired by the agent of the terminal carrier, while acting within the scope of his authority, became, immediately upon acquisition by him, the knowledge of each and all of the carriers.

The goods were tendered for shipment and the bill of lading was signed December 11, 1924. On December 15, 1924, Conn surrendered the bill of lading to the agent (immediately, of the terminal carrier) at destination, and paid the freight charges. Tender of the bill and payment was by the agent accepted. That act plainly lay within apparent scope, and, for aught that appears, within actual scope, of the agent’s authority.

In immediate connection with collection of the freight charges, that agent acquired from Conn knowledge of the “special circumstances”; that is, the necessitous condition of the cattle for whose feeding the goods were designed. By imputation of law, that knowledge became (then) the knowledge of the carriers. Thereafter, 14 days preceded delivery.

2. In our opinion, tiiere is liability if, subsequent to moment of transactions on December 15th mentioned, there was negligence which proximately caused the damages, called “special damages,” sued for. Bourland v. Choctaw, O. & G. R. Co., 99 Tex. 407, 90 S. W. 483, 3 L. R. A. (N. S.) 1111, 122 Am. St. Rep. 647; Western Union Tel. Co. v. Hice (Tex. Com. App.) 288 S. W. 175.

Since delivery, as is manifest, was an important subject of the contract, or of the general duty of a carrier, involved in the Bourland Case, and since, as is also manifest, the court declared liability despite entire lack of notice, of “special circumstances,” save that given long after the contract was made, the principle of that case cannot be reconciled with a view that original notice is indispensable. Its dispensability is there expressly declared, and application of the rule in Hadley v. Baxendale to facts or relationships which do not include ground for “the reasons underlying” the rule is therein repudiated.

The carriers charged and received all of the money which they might have charged .and received if notice of special circumstances had been given at time of receipt of the goods for shipment. And they were not at liberty to decline receipt, transportation, and delivery of the goods either in presence or in absence of that notice. Their duty at all stages was use of due care to forward and deliver within a reasonable time; that duty urns not lessened by absence of such notice, nor would it have been increased by presence of such notice. In such a case, notice, or lack of it, does not go primarily to the matter of duty vel non.

Primarily, it relates to foreseeability and thus to proximate cause. The carrier is immune to liability for “special damages” resultant of negligence transpiring before notice of the “special circumstances” because, unless it were more than the “ordinarily prudent man,” it could not then (i. e., at time of negligent act or omission) foresee the effect, and not because it performed its duty. If the carrier be held for “special damages” which are the proximate result of negligence committed after,receipt of notice of “special circumstances,” that holding includes or rests upon presupposition of immunity, in respect to “special damages,” for prior negligence.

In that situation the carrier is fully protected on the score of precautions to avert the injuries, for it could not be held negligent after notice unless it failed after notice to use due care, and in determining that question account would be taken of means available (and procurable) to avert threatened loss.

The “reasons underlying” the rule in Hadley v. Baxendale do not, in our opinion, have ground in the facts and relations making such a case as that before us, and, with that ground lacking, exclusive application of the rule “fails,” in the words of Judge Williams in tlje Bourland Case, “to meet the demands of substantial justice.”

Higginbotham v. Kyle (Tex. Com. App.) 294 S. W. 531, cited by the Court of Civil Appeals, did not involve facts or relationships comparable to those set up here; the nature of that ease is not to be ignored in reading what Judge Harvey had to say in the opinion.

3. The argument is made that the information of “special circumstances” must be given to an agent having “jurisdiction” of the matter of delivery, even if notice given subsequent to commencement of the relation be sufficient. This, it is said, is the predicate of Bourland v. Choctaw, O. & G. R. Co., and of Western Union Tel. Co. v. Hice. It so happened that the notice given in the transactions making up the subject-matter of those eases was in fact given to agents having the immediate duty of delivery; but negligence subsequent to notice of “special circumstances” and its proximity of causation of the “special damages” are the bases of the decisions made. The argument is nonsequential, in that it omits account of reasoning underlying imputation of knowledge. If the agent while duly representing the principal in a particular matter, in this case, collection of freight, etc., gets information, that information immediately becomes the knowledge of his principal, and the principal’s conduct from that moment becomes affected by the knowledge. The principal or principals here at that moment and afterward until December 29, 1924, had immediate control of the property whose delivery was due.

4. There is in the record evidence presenting “special damages” proximately resultant of failure to deliver after December 15 and before December 29, 1924. Hence, the remaining question is this: Does the evidence, as controlled by averments, show-negligence in that failure?

There are in the petition averments: (a) That “five days” is a “reasonable time” for forwarding and transporting to Camptown and delivery there, and that “two days” is a “reasonable time” for movement beyond Beaumont and final delivery, as compared with actual consumption of eighteen days in the entire movement and consumption of fifteen days thereof at Beaumont and beyond, (b) That the excess of time used, caused in part by mistake in billing so that the “car” first moved December 17th westward, instead of eastward, toward point of destination, out of Beaumont, caused the damages sued for.

There is proof: (a) Of “about 300 miles”, as the distance between Dallas, point of origin, and Beaumont and of about 40 miles as the distance between Beaumont and Camp-town, point of destination, (b) That the route between Beaumont and Camptown includes the lines of the terminal carrier and of two intermediate carriers, (c) Of consumption of eighteen days in this entire movement as com-paired with “five days” used in others like movements, (d) Of injuries reasonably attributable to the excess of time used by the carriers. This proof is unrebutted in any way or to any extent, and it raises inference of negligence. St. Louis, etc., R. Co. v. Gunter, 44 Tex. Civ. App. 480, 99 S. W. 152; Chicago, R. I. & P. R. Co. v. Gillett (Tex. Civ. App.) 99 S. W. 712; Panhandle & S. F. R. Co. v. Thompson (Tex. Civ. App.) 250 S. W. 751; Raphal v. Pickford, 6 Scott N. R. 478; Michigan, etc., R. Co. v. Day, 20 Ill. 375, 71 Am. Dec. 278.

But for the specific averments putting the car in Beaumont on December 14th with its erroneous movement out of Beaumont on December 17th, a presumption would arise that all of the excess time was used by the terminal carrier. Texas & P. Ry. Co. v. Adams, 78 Tex. 372, 14 S. W. 666, 22 Am. St. Rep. 56; Burd v. San Antonio Southern R. Co. (Tex. Com. App.) 261 S. W. 1021; Chicago & N. W. R. Co. v. C. C. Whitnack Produce Co., 258 U. S. 369, 42 S. Ct. 328, 66 L. Ed. 665; Central of Georgia R. Co. v. Goodwater Mfg. Co., 14 Ala. App. 258, 69 So. 343; Harper Furniture Co. v. Southern Express Co., 144 N. C. 639, 57 S. E. 458, 12 Ann. Cas. 924. The presumption would obtain as against the terminal carrier also except for the specific averments that the “car” stayed at Beaumont from some time on December 14th until some time on December 17th, in immediate possession of the initial or an intermediate carrier, and on the latter date, while in possession of an intermediate carrier, moved westward instead of eastward, toward point of destination. In view of the specific averments and the proof mentioned, the presumption so operates as to attribute the whole of the excess time to the carriers which had possession of the “ear” after arrival at Beaumont; that is to say, it must be presumed that the “car” was forwarded and transported to Beaumont within a reasonable time, alleged and proved, prima facie, to have been something less than five days. And, on the averments and proof and the presumption mentioned, the “car” was at Beaumont when notice of “special circumstances” was given on December 15th.

Conn, as noted already, on December 15th, surrendered the bill of lading and paid the freight charges to the agent of the terminal carrier at Camptown. In that connection, and as a part of the transaction, Conn notified that agent of the “special circumstances,” and requested that the “ear be traced at once” and the agent “promised to trace it.” At the same time the agent by telephone transmitted the information, along with data identifying the- “car,” to an agent of some of the carriers at Maurieeville, a junction intervening Beaumont and Camptown, and requested that agent also to “trace the car.”

It is manifest that, if the car had been “traced” it could have been located at Beaumont and its “misrouting,” thus could have been prevented with the result, inferably, that the “car” would have moved in proper direction out of Beaumont and subsequent delay avoided.

Or, if the “car” had been properly “traced,” its mismovement, if then already begun, out of Beaumont obviously might have been corrected so as to preclude some portion of the delay after December 15th.

Those probabilities, along with proof of consumption of fourteen days in movement from Beaumont and delivery at Camptown, about 40 miles from Beaumont, raise, in our opinion, inference of negligence either in failure of proper “tracing” or in failure of due care after discoveries made in proper “tracing.” Chicago, R. I. & P. R. Co. v. Gillett, supra: Missouri, K. & T. R. Co. v. Stark Grain Co., 103 Tex. 542, 544, 131 S. W. 410.

5. There are serious questions about admissibility of certain evidence offered by plain-, tiffs and excluded by the court. The bases of the objections thereto sustained may not exist in another trial and decision of the questions is not presently important.

6. Trial of the case was begun before a jury. Upon conclusion of introduction of plaintiffs’ evidence, defendants moved for verdict instructed in their favor. Thereupon the parties agreed to dismissal of the jury and determination of the case by the judge. The jury was dismissed, and judgment was rendered for the defendants because, as stated therein, the “plaintiffs by the evidence introduced failed to prove a cause of action against any of the defendants.” It appears to us to be-clear that the judgment was rendered upon a view that plaintiffs had failed to make a “prima facie case” and not because the judge resolved credibility of witnesses against plaintiffs.

In our opinion a prima facie case against at least some of the carriers was made. For this reason the judgments of the district court and Court of Civil Appeals should be reversed, and the cause should be remanded, and we recommend that action.

CURETON, C. J. Judgments of the district courts and Court of Civil Appeals both rer" versed, and cause remanded to the district court, as recommended by the Commission of Appeals.

We approve the holdings of the Commission of Appeals on the questions discussed in its-opinion.


author: LEDDY, J.

text:
    TRAVELERS’ INS. CO. v. PETERS et al.
    (No. 1003-5177.)
    Commission of Appeals of Texas, Section B.
    March 20, 1929.
    See, also, 280 S. W. 310.
    Oliver J. Todd, A. D. Moore, and Chas. S. Pipkin, all of Beaumont, for plaintiff in error.
    James A. Harrison and David E. O’Fiel, both of Beaumont, for defendants in error.
   LEDDY, J.

In this suit it was alleged that William Peters, an employee of the Gulf Refining Company, while engaged in the course of his employment, sustained personal injuries from the effects of which he died a week later. The Gulf Refining Company, being a subscriber under the Workmen’s Compensation Act of this state (Rev. St. 1925, arts. 8306-8309), had issued a policy of insurance covering the employee. Suit was by the widow and minor child to set aside the award of the Industrial Accident Board.

From the allegations of the petition it appears that Peters was injured while wheeling coke in a wheelbarrow preparatory to dumping the coke in a car; that, while pushing the wheelbarrow on a raised way or platform, the same slipped and fell to the ground, a distance of four feet or more, and Peters was thereby caused to fall on the metal handle of the wheelbarrow, or some other portion thereof; that as a result thereof his bladder and other organs were injured, from which an infection or uremic poison set up, causing his death on about December 13, 1922.

Plaintiff in error, after a general denial, interposed a special plea to the effect that the injury claimed was not the proximate cause of Peters’ death; that he died from sepsis, or systemic poisoning caused by infection and extravasation or leakage of urine into the tissues and flesh surrounding the urethra; that as a result of a venereal disease scar tissue and pus pockets had formed along his entire urinal tract or urethra; that this scar tissue and sears and pus pockets caused the urinal tract to practically close, thereby causing the'system to become infected with poison.

Plaintiff in error offered proof tending to establish the facts set forth in its special plea that the injury claimed was not the proximate cause of Peters’ death. At the close of the evidence it requested the submission of the following special issue: “Was the injury, if any, which Wm. Peters received in the course of his employment, the direct and proximate cause of his death?” In connection with the issue thus sought to he submitted, plaintiff in error requested special-charges defining proximate cause. . These instructions defined the term as is usual in negligence cases, with the exception that there was omitted from the definition that the injury ought to have been foreseen in the light of the attendant circumstances.

We are of the opinion that the rule of proximate cause has no application to cases arising under the Workmen’s Compensation Act. The term “proximate cause” is not used anywhere in the act. A party claiming compensation under such act cannot be compelled to go further than is required by the provisions of the act, either in pleading or proving his cause of action. It is true that there must be established a causal connection between an injury and the death of an employee before a recovery would be authorized. If, however, the injury is shown to be the producing cause of the death, a finding is justified that death was due to the injury, if it arises in the course of and out of the employment. It need not be established that the death was a proximate result of the ihjury. Snyder’s Workmen’s Compensation Haws, vol. 2, § 523; Lundy v. George Brown Co., 93 N. Y. Law, 107, 106 A. 362; Tanner v. Aluminum Castings Co., 210 Mich. 366, 178 N. W. 69; Krueger v. Hayes Mfg. Co., 213 Mich. 218, 181 N. W. 1010; King v. Buckeye Cotton Oil Co., 155 Tenn. 491, 298 S. W. 3, 53 A. L. R. 1086; Bramble v. Shields, 146 Md. 494, 127 A. 44; Anderson v. Industrial Ins. Co., 116 Wash. 421, 199 P. 747.

In Lundy v. George Brown Co., supra, the Supreme Court of New Jersey, in discussing the question as to whether there must he a showing that the injury complained of was the proximate cause of death in order to justify a recovery under the Workmen’s Compensation Act (P. L. 1911, p. 134, as amended by P. L. 1913, p. 309), said: “It was not essential to the petitioner’s right to recovery that she should have established that the fractured ribs'were the proximate cause of death. If the injuries were the producing cause, the proof of that fact is sufficient.”

In Bramble v. Shields, cited above, the Court of Appeals of Maryland clearly stated the difference in the rule applicable to compensation statutes and that applying-to cases of negligence and breach of contract in the use of the following language: “But in cases arising under the Workmen’s Compensation Law the question of negligence is excluded, and with it the rule as to reasonable and probable consequence would also be excluded, if such rule were applicable here. The only test is: Did the accidental' injury arise out of and in the -course of employment? If it did, it makes no difference whether it was a normal or abnormal occurrence. * * ⅜ It ■'eán make no difference whether the results are usual or unusual, if there is a direct causal connection between the injury and the disease, so that the disease is directly attributable to the injury.”

In view of another trial of this case we do not want to he understood as holding that plaintiff in error would not be entitled to have an affirmative submission of the issue as to whether Peters’ prior diseased condition was the producing cause of his death, if such submission is properly requested.

Complaint is also made that the defendants in error’s petition was demurrable because the award of the Industrial Accident Board was not described, nor was a copy of same attached to the petition. The only allegation made by defendants in error as to the award made by the Industrial Accident Board in this case was the following: “On the 6th day of February, 1923, the Industrial Accident Board of the state of Texas made its final ruling and award on this claim and cause, a copy of which award is hereto attached and marked Exhibit A, and made a part hereof.”

Exhibit A referred to was not attached or made a part of plaintiffs’ pleading, nor does it anywhere appear from the record that a copy of-the award was filed with the papers of the case or attached to any pleading. Under the Workmen’s Compensation Act, ■ the jurisdiction of the district court is appellate, and not original, the trial in the district court being de novo. The Workmen’s Compensation Act provides that suit to set aside an award of the Industrial Accident Board must be brought in a court of proper -jurisdiction. Such jurisdiction must affirmatively appear and cannot be based upon a presumption. It therefore becomes necessary in a suit filed in any court to set aside such award to describe the award made by the Industrial Accident Board, in order that the court may determine whether it has jurisdiction of the subject-matter under the claim as made before such Board. Georgia Casualty Co. v. Darnell (Tex. Civ. App.) 243 S. W. 579; Farris v. United States Fidelity & Guaranty Co. (Tex. Civ. App.) 251 S. W. 612; Mingus v. Wadley, 115 Tex. 551, 285 S. W. 1084; Vernon’s Civil Statutes 1918 Supp. art. 5246-1 et seq.

It is unnecessary to dispose of the remaining assignments of error, as they present questions which will probably not arise upon another trial.

F,or the error discussed, we recommend that the judgments of .the trial court and the Court of Civil Appeals be reversed, and the cause remanded for another trial.

CURETON, C. X Judgments of the district court and Court of Civil Appeals both reversed, and cause remanded to the district court, as recommended by the Commission of Appeals.

We approve me holdings of the Commission of Appeals on the questions discussed in its opinion.


author: SPEER, J.

text:
    ARRINGTON v. McDANIEL et al.
    (No. 997-5163.)
    Commission of Appeals of Texas, Section B.
    March 13, 1929.

      Sam R. Sayers, of Fort Worth, F. E. Johnson, of Cleburne, and Mantooth & Denman, of Lufkin, for plaintiff in error.
    J. M. Moore, of Cleburne, and Hamp P. Abney, of Sherman, for .defendants in error.
   SPEER, J.

J. B. Arrington died in Angelina county October 13, 1891, leaving surviving him his wife, Telitha, a daughter, Ari-menta, and four sons, to wit, J. E., O. J., P. B., and E. B. At the time of J. B. Arrington’s death, he and his wife owned community property consisting of the lands in Angelina county involved in this suit. He died testate, leaving the following will:

“State of Texas, County of Angelina:
“Be it remembered that I, J. B. Arrington of the state and county aforesaid, considering the uncertainty of this life and being of sound mind and memory, do make, declare, and publish this my last will and testament.
“First. It is my desire that all my just debts be paid with convenient speed.
“Second. I give and bequeath all my property both real and personal to my wife, Te-litha Arrington and my children, J. E., O. J., P. B., E. B. and Arimenta Abney, and J. E. Arrington, all of which I desire shall be kept together and used by the family until my youngest child shall become of age, after which it is my desire that the same be divided as follows: That my wife, Telitha Arrington, shall own and control the entire estate, both real and personal as long as she lives, with power to sell anything belonging to the estate, and make title to the same, she thinking the same to be of interest to the family.
“Third. I desire that all of the real estate be equally divided among J. E. Arrington, O. J. Arrington, P. B. Arrington, E. B. Arring-ton.
“Fourth. I desire that my three youngest sons, O. J. Arrington, P. B. Arrington and E. B. Arrington have the mill and gin.
“Fifth. I desire that my daughter, Arimem ta Abney to have two hundred and forty dollars as her interest in the real estate and also an equal interest in the personal estate.
“Sixth. I do hereby nominate and appoint my beloved wife, Telitha, and son, J. B. Ar-rington, to be the executors of this my last will and testament. It is my desire that my executors dispose of any or all of my said property at such prices and upon such conditions as they may see proper for the purpose of supporting, educating and maintaining said minor children and without any orders of court whatever.
“Seventh. It is my desire that my said executor's be required to do nothing further than to file and have probated this my last will and testament and subscribe to the oath as executors, without having to give any bond whatever, and without having to procure any further orders whatever from the probate court to dispose of my said property as directed in this my last will and testament.
“It is my desire that each of my said minors, sons, who have not had a horse, bridle and saddle, the executors must see that they have one, furnished, when they arrive at a sufficient age to use and attend to one.”

Of the children who survived the testator, Arimenta and O. J. have died, and their heirs instituted this suit against J. E. Arring-ton, one of the independent executors, and others, seeking a partition of the lands and to recover certain rents and the value of timber cut and sold from the land. The defendant Arrington pleaded the general issue and specially the statute of limitations. The case was tried to a jury, resulting in a .verdict and judgment for the plaintiffs for a recovery upon the basis of a two-fifths ownership in the land, and that judgment was affirmed by the Court of Civil Appeals. 4 S.W.(2d) 262.

The construction of the will made by the trial court and the Court of Civil Appeals is first challenged. That construction was that the will devised testator’s interest in the land in controversy to his wife and children, vesting in them a fee-simple title. The complaint must be sustained. If the will vested in the wife and children jointly the fee-simple title, then that part of item second declaring that testator’s wife “shall own and control the entire estate, both real and personal as long as she lives, with power to sell anything belonging to the estate and to make title to the same,” is repugnant to the devise and is .void. We are not unmindful of the wholesome rule that where the intention of a testator is clear to vest a particular title, that subsequent directions inconsistent with such right and estate being repugnant, must fail. But before this effect can follow, there must be a clear repugnance. It is but a platitude of law to say that one may devise his property as he pleases so long as it is not in violation of law. The real intention of the testator within the legal effect of the language employed is always the supreme test of construction, and all artificial rules of construction will yield to this obvious intention when once ascertained. It is not presumed that one will use language in such an instrument without a purpose, especially when to do so is to destroy in words a prior devise clearly expressed. The duty of the court is to construe the instrument, where possible, so that all parts will stand, and this is easily done in the present case. The language, “I give and bequeath all of my property, both real and personal to my wife ' * ⅜ * and my children, * ⅜ * if it stood entirely alone, undoubtedly would vest a fee-simple title in the beneficiaries named. But in the same item of the will the testator declares: “That my wife, Telitha Arrington, shall own and control the entire estate, both real and personal as long as she lives, with power to sell anything belonging to the estate, and make title to the same, she thinking the same to be of interest to the family.”

In succeeding items he makes provision for the distribution of his estate amongst the children after the death of his wife. It is thus apparent, we think, that the will, as a whole, evidences the unmistakable intention that the legal title to the property should vest in the wife, Telitha, with free right of disposition during life, with a trust in favor of the children in such property as remained after her death. McMurry v. Stanley, 69 Tex. 227, 6 S. W. 412; Dulin v. Moore, 96 Tex. 135, 70 S. W. 742; Norton v. Smith (Tex. Civ. App.) 227 S. W. 542; West v. Glisson (Tex. Civ. App.) 184 S. W. 1042.

On October 24, 1899, the independent executors conveyed the lands involved in this suit to one R. B. McPadden, the terms of the conveyance being broad enough to include the individual title of Mrs. Telitha Arrington as well as the title of the estate. The consideration for this conveyance appears to have been $1,300, $300 of which was paid by the delivery of a piano and the remaining $1,000 was evidenced by five promissory notes, each in the sum of $200. McPadden conveyed the property to one Dubose, and Dubose, in turn, conveyed the same to J. E. Arrington, plaintiff in' error. But this last deed, it seems, was lost aqd McPadden executed a new one to Arrington. It is undisputed that the consideration for the conveyance of the title to J. E. Arrington was the cancellation and surrender of the above-mentioned five vendor’s lien notes. Now the proposition is asserted by plaintiff in error that the right thus vested in him was a perfect fee-simple title unaffected by any trust relationship. -But this plainly cannot be true. If it could be said technically that the title did vest in J. E. Arrington free from and unaffected by the fiduciary relation of independent executor, it would yet be' true that his use of funds — the notes— belonging jointly to the estate of his father and the subsequent estate of his mother, would create a resulting trust in favor of the beneficiaries of the two estates. It is dif- • ficult to perceive any ground for the contention that the holding after the reconveyance of this property was not in trust for the children of J. B. and Telitha Arrington.

The trial court rendered judgment for the plaintiffs for a two-fifths interest in the value of the piano — $300—above mentioned, together with 10 per cent, interest, but there appears to be no basis in the pleadings for such judgment.

The second amended original petition, upon which the trial was had, seeks specifically for judgment for the title and possession of the plaintiffs’ interests, in the described lands, for personal judgment against the defendant J. E. Arrington for the value of their interests in timber sold, cut, and removed from the land, and for the value of rents and revenues collected as alleged, and that the property be sold for partition. The pleading nowhere makes reference to the land having been once sold and a payment therefor made to the executors; it nowhere mentions the piano or any other item or amount received in any way for the account of the estate by the defendant other than the items of timber and rents just mentioned. The prayer, for “other and further relief to which they may be entitled at law or in equity,” cannot enlarge the recovery to embrace a cause of action not within the pleadings. We sustain plaintiff in error’s assignment complaining of this part of the judgment.

The deed from MeFadden to plaintiff in error was duly placed of record whereby, it is claimed by plaintiff in error,- the statute of limitations, in his favor against his cotenants, was set in operation; such registration being constructive notice to them of his adverse claim. But this proposition cannot be sustained. It is elementary that possession alone by one cotenant is not of itself notice of an adverse claim to the other co-tenants. It is equally well settled that the registration of a deed from one cotenant or even a stranger to the property will not operate as constructive notice of the adverse claim of the grantee. His possession is yet a friendly one in the eyes of thelaw. It requires a repudiation of the rights of the other cotenants actually brought to their notice in order to start tire statute of limitations. Towery v. Henderson, 60 Tex. 291; Lynch v. Lynch (Tex. Civ. App.) 130 S. W. 461 (writ refused); Liddell v. Gordon (Tex. Com. App.) 254 S. W. 1098; McCoy v. Long (Tex. Com. App.) 15 S.W.(2d) 234.

Upon precisely the same principle, plaintiff in error Arrington’s possession under the McFadden deed would not be adverse whether the rights of the parties were, strictly speaking, those of tenants in common or the relation was one of resulting trust. The trustee of a resulting trust can no more hold adversely to the beneficiaries without actual notice than can a cotenant.

Besides, if the issue of limitations was. raised by evidence of actual notice of adverse holding, as actual notice of the MeFadden deed, long exclusive possession and the like, still that issue was not submitted, nor requested to be submitted, and it was therefore waived entirely. Ormsby v. Ratcliffe (Tex. Sup.) 1 S.W.(2d) 1084; Bulin v. Smith (Tex. Com. App.) 1 S.W.(2d) 591.

A point is made by plaintiff in error that upon purchasing the land from Dubose and MeFadden he paid $1,000 to two of his brothers who had never received any of the estate, from which it is argued his title was perfect and his holding not in trust. But this does not follow. On the contrary, it is a recognition of the trust. His payment of two did not satisfy the interest of the remaining heirs.

Upon the issue of rents the court submitted this question: “What amount of rent was collected by the defendant J. E. Arring-ton, from the land in Angelina County, Texas, involved in this suit since the year 1902?” To which the jury answered, “$2,970.” It is complained that the court erred in submitting this issue because there was no testimony to authorize it, or, to be more specific, to show “how much, rents he actually received from the lands.” It is true the evidence did-not specifically show the exact amount actually received for rents. But there was evidence without objection of the rental value of crops raised on the land, and the recovery is well within that evidence. The plaintiff in error testified, but his testimony, while negative in character, was not specific as to the amount of rents actually received, and under such circumstances the jury would be justified in finding that he had actually received the proven rental values.

Finally, it is complained that the trial court erred in excluding the parol evidence of plaintiff in error to the effect that a deed exhibited to him executed by himself and Teli-tha Arrington as executors, conveying to O. J. Arrington a certain 100 acres of land, was in satisfaction of his (O. J. Arrington’s) Interest in the estate, for which reason his ¡heirs could not recover herein. The evidence was excluded upon the objection that the same was in violation of the statute, in that, this witness could not be permitted to testify as to a transaction with the deceased. This matter, we think, was properly disposed of by the Court of Civil Appeals. The suit was in effect one by the “heirs” of O. J. Arrington, in which a recovery might be had by them as such; and the testimony, moreover, would have had no probative force, for it plainly contradicted the terms of the written instrument in a contractual respect, the parties not being strangers to such instrument.

We recommend that the judgments of the trial court and of the Court of Civil Appeals be reformed so as to eliminate from the plaintiff’s recovery the item for the piano, with interest thereon, and further that such judgments be reformed so that the final judgment will bear interest from and after January 24, 1927, at the rate of 6 per cent, per annum, and as thus reformed that the same be affirmed.

OURETON, C. J. Judgments of the district court and Court of Civil Appeals reformed and affirmed, as recommended by the Commission of Appeals.


text:
    KIRBY LUMBER CO. v. GIBBS BROS. & CO.
    (No. 989-5147.)
    Commission of Appeals of Texas, Section B.
    March 13, 1929.
    Andrews, Streetman, Rogue & Mobley and E. J. Fountain, Jr., of Houston, for plaintiff in error.
    Dean & Humphrey, of Huntsville, and E. B. Pickett, Jr., of Liberty, for defendant in error.
   SPEER, J.

The suit is one of trespass to try title to the 158 acres of land shown in the parallelogram A, B, Y, X and alleged to be a part of the Willis McWilkinson survey in Liberty county, and to recover damages for the value of timber cut and removed from the land. The defendant, Kirby Lumber Company, owned the Charles Smith survey' on the east of the McWilkinson, and, from a judgment in favor of the plaintiffs, appealed to the Court of Civil Appeals, where the judgment of the trial court was affirmed. 3 S.W. (2d) 819.

On August 1, 1838, H. B. Littlefield, deputy surveyor of Harris (then Harrisburg) county, surveyed the Smith carrying the following field notes:

“Survey for Chas. Smith of six hundred and forty acres of land situated in Liberty Co. on Targenten’s Creek, being the quantity of land to which he is entitled by virtue of certificate No. 641 issued by Chas. Mason, Acting Sec. of War, for having escaped from Goliad under Eannin’s command, dated 29th day of Nov. 1838, beginning on the north boundary line of a survey made for Wm. B. Duncan, thence east 1900.8 vs corner, stake in Prairie from which a sweet gum (mkd C. S.) 12 in. dia. bears N. 65 W. 35 vs. Also a sweet gum (mkd X) 12 in. di. bears N. 69 W. 37.6 vs. Thence North 1125 vs. Targenten’s Creek 6 vs. wide .Co. S. W. at 1900.8 vs. corner Sweet Gum 15 in. di. from which a magnolia (mkd. C. S.) 8 in. di. bears S. 27 W. 3.8 vs. Also a White Oak (mkd. X) 14 in. di. bears S. 20 W. 4.4 vs. Thence West 1900.8 vs. corner, stake from which a Red Oak (Mkd. C. S.) 12 in. di. bears S. 53 E. 9.8 vs. Also a Red Oak 8 in. di. (Mkd. X) bears S. 10 E. 9.8 vs. Thence South 1706 vs. Targenten Creek Co. west, 1900.9 vs. place of beginning.”

The survey was patented September 18, 1849, when the field notes were changed in the Land Office to call for Luce’s Bayou, Wm. H. B. Witham, and the McWilkinson surveys.

On January 7, 1846, James W. Henderson, deputy surveyor, of the same county, surveyed the Willis McWilkinson with the following field notes:

“Republic of Texas, County of Harris.
“Field notes of a survey of four hundred and eighty four acres, or 22,732,360 sq. vs. of land for Willis McWilkinson being a part of the land to which he is entitled by virtue of certificate Number five Hundred and fifty two issued by the Board of Land Commissioners of Harris County, North of and adjoining a survey in the name of Wm. H. B. Witham West of and adjoining a survey in the name of O. Smith. Beginning at said Smith’s S. W. corner a stake from which a White Oak mkd X 16 inch in dia. bears S. 32 E. 2 vs. dist. Also a White Oak mkd. X 16 inch in dia. bears N. 32 W. 2 vs. dist. Thence North 1900 varas with the west boundary .line of said Smith survey to his N. W. corner a stake from which an oak mkd X and W bears North 10 varas dist. Thence west 1438 varas to a stake frpm which an oak mkd II bears West also an oak mkd AY bears , South. Thence South 1900 varas to W. H. B. Witham’s N. W. corner, it being Mary McGruders’ N. E. corner, a stake from which a Magnolia 18 inch in dia. mk N. M. bears N. Go E. 5 varas dist. Also an oak Md X 24 inch in dia. bears N. 75 W 4 varas dist. Thence East 1438 varas to the place of beginning.
“Hutchinson PitmanA „ John A. Kanseyj U-
“James W. Henderson, D. Surveyor.
“Jan. the 7, 1846.”

The AVillis McWilkinson -was patented May 12, 1S46, upon the same field notes.

It will be thus seen that the Charles Smith was senior in survey and junior in patent. The undisputed evidence shows that the southeast corner of the Smith, marked C, and the southwest corner of the McAA'ilkinson, marked E, are well marked and identified corners on the ground. The parallelogram thus determined contains less than the aggregate acreage called for in the two surveys to the extent of the acreage in the disputed strip. It therefore becomes a question of determining where lies the shortage.

The Smith being the senior survey and the McWilkinson calling to adjoin that survey on the west and to begin at its southwest corner, that corner will control the call for distance to the west (reversed) 1,438 varas, and locates the well-defined corner, F. It is not a question of conflict or overlapping of surveys. It is a question of conflict in the McWilkinson between a' call for distance and an artificial object. There can be no possible overlapping of acreage where the junior survey expressly calls to begin at the senior. Where the senior line is established, the junior begins and the calls for distance and acreage of the junior must yield accordingly.

A call for an adjoinder is like a call for a natural or artificial object, and any conflicting call for course, distance, or acreage, and the like, must yield. Couch v. Tex. & Pac. Ry. Co., 99 Tex. 464, 90 S. W. 860; Steusoff v. Jackson, 40 Tex. Civ. App. 328, 89 S. W. 445; Ruth v. Carter-Kelly Lumber Co. (Tex. Civ. App.) 286 S. W. 322; Titterington v. Trees, 78 Tex. 567, 14 S. W. 692; Boon v. Hunter, 62 Tex. 582; Chapman v. Hamblet, 100 Me. 454, 62 A. 215; Curtis v. Francis, 63 Mass. (9 Cush.) 438; Percival v. Chase, 182 Mass. 371, 65 N. E. 800; Fincannon v. Sudderth, 140 N. C. 246, 52 S. E. 579; Whitaker v. Cover, 140 N. C. 280, 52 S. E. 581; Airey v. Kunkle, 7 Pa. Super. Ct. 112; Miller v. Holt, 47 W. Va. 7, 34 S. E. 956.

This rule of priority of surveys is not questioned by defendant in error, but it is denied • that the rule" is applicable to this case upon the contention that the original survey of both tracts involved was made without any authority of law and the same was therefore void, the precise point being that the surveyor acted beyond his jurisdiction. The plaintiff in error combats that proposition,- and insists that the surveys were not void, but that the acts of the deputy surveyor were within his statutory authority. Be that as it may, we are of the opinion the matter is entirely immaterial. It may be conceded, as it must be, that if the deputy surveyor, surveying the Smith in 1838, had no authority to act, then his attempted act was invalid and the survey was a nullity so far as it created any rights as an appropriation of the public domain. We may also admit, for the purpose of decision, that the' deputy surveyor did act without authority, and that the survey was thus void. Non sequitur, that the call in the subsequent patent to the McWilkinson (senior, however, to the patent to the Smith) was void. The ineffectiveness of the Survey to appropriate the land or to create any rights whatever in Charles Smith or his heirs 'does not affect the question of the beginning corner and east boundary line of the McWilkinson.’ That is determined by the calls of the field notes, as contained in the patent. The primary purpose of every inquiry like this is to ascertain where on the ground the surveyor actually laid the land, or where the grantor actually intended it to be located when there was no actual survey. To determine this all-important matter any call sufficiently clear and definite to determine location will be observed. Where that call, as here, is for an adjoining survey, it can make no difference that such survey is for any one reason invalid. It is not a question of validity of the survey called for, but rather one of the comer or line of such so-called survey. The beginning point is not a legal concept, but a physical object. Whether the survey this called for is void or valid, or the line thereof is legal or illegal, is of no importance. It may be the act of an individual, not a surveyor at all. It- is a question of where the surveyor or grantor did place, or meant to place, the subsequent tract. Welder v. Carroll, 29 Tex. 318.

The rule above discussed applies to and includes, necessarily, those senior surveys whose boundaries may be established by any of the recognized rules of construction of surveys, and includes comers and lines determined by course and distance, as well as those identified by natural or artificial objects on the ground. In this ease tbe southwest corner of the Smith is determined, not by calls for objects, for there are none, but it is determined by course and distance from its southeast corner, which is thoroughly identified and located on the ground. It is 1,900.S varas west from the established southeast corner of the Smith. No greater particularity or different rule obtains in thus fixing the beginning corner for a junior survey than exists for establishing the corner and lines of the senior survey. The two methods are identical.

The defendants requested a summary instruction in the trial court and have preserved their assignment to its overruling, to the present time. The view we have taken of the case requires a holding that such instruction Should have been given. Counsel for defendants in error insist that the jury, having located the boundary line, under instruction from the court, finding that the disputed strip was a part of the McWilkinson, and that there being evidence to support such findings, presents a question of fact and not one of law. But we are of the opinion there was no question of fact to be Submitted, and the location of the MeWilkinson is to be determined, as a' matter of law, from the undisputed evidence as we have indicated.

We therefore recommend that the judgments of the Court of Civil Appeals and of the trial court be reversed, and that judgment be here rendered that defendants in error take nothing as against plaintiffs in error.

CURETON, O. J. Judgments of the Court of Civil Appeals and the district court are both reversed, and judgment rendered as recommended by-the Commission of Appeals.