text:
    AMERICAN INDEMNITY CO. v. BURROWS HARDWARE CO.
    (No. 5768.)
    (Court of Civil Appeals of Texas. San Antonio.
    Jan. 17, 1917.)
    1. Pleading &wkey;>252(2) — Amended Pleadings —Effect.
    When amended pleadings are filed, the former pleadings are discarded, and the amended pleadings cannot be aided by reference to the former pleadings.
    [Ed. Note. — For other cases, see Pleading, Cent. Dig. § 737½; Dec. Dig. &wkey;252(2).]
    2. Constitutional Law c&wkey;89(l) — Obligation of Contracts — Powers of Legislature.
    The Legislature may provide in regard to the validity, effect, and consequences of contracts within constitutional limits and may provide that certain liabilities shall follow from making or entering into certain kinds of contracts.
    [Ed. Note. — For other cases, see Constitutional Law, Cent. Dig. § 157; Dec. Dig. <&wkey;>89(l).]
    3. Constitutional Law <&wkey;154(l), 299 —Mechanics’ Liens <&wkey;3 — Due Process of Law —Obligation of Contracts.
    Rev. St. 1911, art. 5623, as amended by Acts 34th Leg. c. 143, providing that if any bond is given by a contractor to the owner it shall inure to the benefit of any .one who furnishes material or labor regardless of. whether he is named as the obligee or not, does not deprive any one of due process of law or impair the obligation of the contract, but merely notifies the parties how any contract they may make will be construed.
    [Ed. Note. — For other cases, see Constitutional Law, Dec. Dig. <§=154(1), 299; Mechanics’ Liens, Cent. Dig. § 4; Dec. Dig. &wkey;>3.]
    4. Mechanics’ Liens <&wkey;313 — Contracts — Construction.
    AVhere an owner and contractor entered into a contract for construction, their contract must be construed and their rights determined in view of Rev. St. 1911, art. 5623, as amended by Acts 34th Leg. c. 143, making the benefit of a bond given by a contractor inure to materialmen and laborers.
    [Ed. Note — For other eases see Mechanics' Liens, Cent. Dig. § 656; Dec. Dig. <&wkey;>313J
    5. Mechanics’ Liens <&wkey;313 — Bonds—Statutes — Construction—“Material.”
    Since Rev. St. 1911, art. 5621, provides for a mechanic’s lien for labor or material, machinery, fixtures, or tools, but article 5623, as amended by Acts 34th Leg. c. 143, making the obligation of a contractor’s bond inure to .the benefit of materialmen and laborers, do.es not include fixtures or tools in its enumeration, one furnishing machinery and tools does not receive the benefit of such bond unless named therein; the word “material” not including such articles.
    [Ed. Note. — For other cases, see Mechanics’ Liens, Cent. Dig. § 656; Dec. Dig. <§=313.
    For other definitions, see Words and Phrases, First and Second Series, Material.]
    Appeal from Bee County Court; W. G. Gayle, Judge.
    Suit by tlie Burrows Hardware Company .against the American Indemnity Company and others. Judgment for complainant, and the Indemnity Company appeals.
    Reversed and remanded.
    R. L. Cox and L. D. Stroud, both of Bee-ville, for appellant. Dougherty & Dougherty and H. S. Bonham, all of Beeville, for ap-pellee.
   FLY, C. J.

This is a suit by appellee on an open account against appellant, G. Q. Mauldin, and the Consolidated Petroleum Company. It is ascertained that it was an open account only by a reference in the second amended petition to an exhibit attached to the original petition, and fee account was not introduced in evidence. When amended pleadings are filed, the former pleadings are discarded, and the amended pleadings cannot be aided by a reference to the former pleadings. It is unnecessary to say, perhaps, that when an open account or other instrument is sued upon it should be introduced in evidence. However, every one seems to be satisfied with proof of the correctness of the account. The cause was tried by the court and judgment rendered in favor of appellee as against the petroleum company, a partnership, and the American Indemnity Company for $188.34. This appeal was perfected by the American Indemnity Company.

The facts show that the Consolidated Petroleum Company entered into a contract with certain parties to dig a well for oil on land in Bee county, the company “to furnish at its expense all machinery,- tools, casing that may be necessary, reserving to the company the right to remove all such machinery, tools, casing and other articles of personal property upon completion of said well.”

This suit is prosecuted against appellant under the theory that it is bound under a bond executed by the petroleum company to the other parties to the contract, with appellant as surety thereon, conditioned that the petroleum company would perform “all the obligations imposed upon it by said contract faithfully and well.” The liability of appellant is claimed to exist under and by virtue of a statute passed by the Thirty-Fourth Legislature on March 31, 1915. Gen. Laws 1915, pp. 223-225. That act amended article 5623, Revised Statutes, so as to give a lien for labor performed and to require any owner, railroad company, its agent or receiver, to execute a written contract for any erection, repair, or improvement and file the same with the county clerk and also cause to be executed and filed a good and sufficient bond by the contractor. Article 5623a is added, by the act, to the statutes in which it is provided:

“The owner, railroad, receiver or his agent shall take from every contractor described in this chapter a good and ‘sufficient bond in the sum of at least the full amount of the contract price, where said contract price is equal to or less than one thousand dollars; three-fourths of the eon-tract price where said contract price exceeds one thousand dollars, but does not exceed five thousand dollars; one-half the contract price where said contract exceeds five thousand dollars, but does not exceed one hundred thousand dollars; and one-third of the contract price where said contract exceeds one thousand dollars, payable to the said owner, railroad or receiver. The condition of said bond shall be the true and faithful performance of the contract, and the payment of all subcontractors, workmen, laborers, mechanics and furnishers of material by the undertaker, contractor, master mechanic or engineer, the said bond to be made in favor of the owner, subcontractors, workmen, laborers, mechanics and furnishers of material as their interest may appear, all of whom shall have the right to sue upon said bond; and regardless of the provisions or wording of any such bond, said bond shall be construed by the courts, whether so specified or not, to guarantee the true and faithful performance of the contract and the payment of all claims of each and every subcontractor, workman, laborer, mechanic and fur-nisher of material against the undertaker, contractor, master mechanic or engineer, and it shall guarantee the payment of such claims, regardless of whether or not they are secured by any lien. Suit may be brought on said boDd by the owner, subcontractor, workmen, laborers, mechanics and furnishers of materials, or any of them, and they and each of them shall have the right to recover on said bond in the same manner as if the bond were made payable directly to them. Suit on such bond may be brought in the county where the owner resides or where the work is performed, and at any other place provided by law. No change or alteration in the plans, building, construction or method of payment shall in any way avoid or affect the liability on said bond, and the sureties on said bond shall be limited to such defenses only as the principal on said bond could make.”

It will be noted that the article not only requires the execution of a certain bond in a certain sum by the contractor conditioned for “the true and faithful performance of the contract, and the payment of all subcontractors, workmen, laborers, mechanics and furnishers of material by the undertaker, contractor, master mechanic or engineer, the said bond to be made in favor of the owner, subcontractors, workmen, laborers, mechanics and furnishers of material as their interest may appear, all of whom shall have the right to sue upon said bond,” but it is further provided that the persons described shall have the same rights under the bond whether it is made payable to them or not, and “said bond shall be construed by the courts, whether so specified or not to guarantee the true and faithful performance of the contract and the payment of all claims of each and every subcontractor, workman, laborer, mechanic and furnisher of material,” regardless of whether secured by a lien. In effect the law amounts to a provision that any bond taken by an owner from a contractor for the faithful performance of a contract shall bind the contractor and his surety to pay all claims for material furnished or labor performed regardless of the language of the bond, and whether payable to any one except the owner or not. That portion of the law is attacked as being obnoxious to the “due process” clause of the federal Constitution. In this connection, it may be said that it is the ruling of the Supreme Court of Texas, in effect, that, if a statute is unconstitutional in any respect, any attempt to enforce it would be infringement of the “due process” provision. Railway v. State, 100 Tex. 420, 100 S. W. 766. In that case the court said:

“If the statute involved in this litigation is invalid, then the fact that the proceedings in the court are regular will not constitute it due process of law, by which the penalties denounced against the railroad company would be enforced.”

So if a statute destroys the obligation of contracts no trial under it could be due process of law. We have therefore considered the constitutionality of the law in question under an assignment alleging that due process of law has not been used. Railway v. Railroad Commission, 169 S. W. 1038.

Independent of any statute on the subject, it has been held in this state that, where the bond is made for the benefit of the owner, materialmen, and laborers, any of them could recover on the bond. Bank v. Railway, 95 Tex. 176, 66 S. W. 203; Nelson v. Stephenson, 168 S. W. 61. But it has been also held in Texas that a bond, which did not provide for the protection of materialmen and laborers, would not inure to their benefit. Lumber Co. v. Villegas, 8 Tex. Civ. App. 669, 28 S. W. 558; Santleben v. Cement Co., 25 S. W. 143; Wright v. Jones, 55 Tex. Civ. App. 616, 120 S. W. 1139; Lumber Co. v. Smith, 148 S. W. 1195.

We have now, however, a law which provides that such bonds shall be conditioned so as to protect materialmen and laborers, and, if they are not so conditioned, they shall inure to their benefit anyway. We have, after diligent search, found no case that bears directly upon the question raised in this ease, namely, that the provision of the statute that the bond shall inure to the benefit of materialmen and laborers whether named in the bond or, not is unconstitutional. In the California case of Gibbs v. Tally, 6 Cal. Unrep. Cas. 621, 63 Pac. 168, and 133 Cal. 373, 65 Pac. 970, 60 L. R. A. 815, the court discussed a statute which provided that a failure to comply with the law as to making a bond would render both owner and contractor liable to materialmen, laborers, and subcontractors. The court held that the statute was invalid because it attempted to compel the owner to furnish security for others in a matter to which he was not a party and was an undue interference with his property. The Texas statute imposes no burden upon the owner in the matter of the bond, but merely provides that when the owner takes a bond it shall inure to the benefit of materi-almen and laborers as well as himself.

The Legislature may make provision in regard to the validity, effect, and consequences of contracts within constitutional limits, and may provide that certain liabilities shall follow from making or entering into certain relations and kinds of contracts, and when one voluntarily does so, and thus incurs the liability, it may be said to be contractual in its nature. Elliott, Contracts, § 3. In other words, when parties enter into certain contracts, whose extent and ultimate results have been declared by statute, they will be held to have entered into the contracts with the statute in view and it would become a part thereof. The parties to a contractor’s bond are put upon notice how any bond made by them will be construed, and they are not deprived of any right whatever by such provision of the law. The statute does not seek to make a new contract for the owner and contractor, but it merely notifies them that, if they have a bond for faithful performance of their contract, it shall protect certain classes as well as the owner. The parties make the contract with that provision of the law in view, and it does, not take from them due process of law or impair the obligation of their contract. The law interferes with no existing right, and contracts are made with a full knowledge that the effect of them has been declared by statute.

“It is also settled that the laws which subsist at the time and place of the making of a contract, and where it is to be performed, enter into and form a part of the contract as if they-were expressly referred to or incorporated in its terms. This principle' embraces alike those which affect construction, discharge, and enforcement.” United States v. Quincy, 71 U. S. (4 Wall.) 535, 18 L. Ed. 403.

When appellant entered into the contract with the owners of the property, its liability became contractual towards material-men and laborers. Whitman v. National Bank, 176 U. S. 559, 20 Sup. Ct. 477, 44 L. Ed. 587.

Article 5623, as originally passed, and as amended, provides a means for fixing a lien, not only for material and labor already furnished, but also for that furnished subsequent to the notice provided for; no method being provided for protection as to material or labor to be furnished in articles 5621 and 5622. The right is given in article 5623, as amended in 1915, to any person, firm, or corporation who may furnish any material or perform any labor to have a lien and benefit of the bond, and by the amendment the Legislature sought, not only to protect persons who had furnished material and labor, but also those who might subsequent to a notice to the owner furnish such material or labor. To do this it provides for a lien, and declares, what many courts have declared without a statute, that every bond given by a contractor for faithful performance of his contract shall inure, not only to the benefit of the owner, but to the benefit of materialmen and laborers. The statute merely declares the effect of certain contracts, and when parties make such contracts they are fully informed by the Legislature what the result of the same will be.

Article 5621 provides for a lien for labor or material, machinery, fixtures or tools, but article 5623, as amended in 1915, is for the protection of “any person, firm or corporation who may furnish any material to or perform * * * labor for any contractor, subcontractor,” etc. It is clearly indicated by the provisions of article 5621 that machinery and tools are not included in the word “material,” because that word is used and in addition thereto the words “machinery, fixtures or tools,” are used. It has been held that the word “material” would include tools and machinery furnished to do the work, but a different construction is put on it by the Legislature of this state. The two articles of the statute must be construed together, and, if the Legislature has indicated in article 5621 that material does not include machinery and tools, no sound reason can be given for “material” meaning tools and machinery in article 5623. If this be a proper construction of the statute, the bond provided for in article 5623a would not secure payment of claims for machinery and tools, and consequently would destroy a large portion of the claim of appellee.

This court is unable to separate the material furnished for the improvement from the tools and machinery, and cannot therefore render the Judgment that should have been rendered.

The judgment will be reversed, and the cause remanded.
      <S=For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and indexes


source: Caselaw Access Project

author: KEY, C. J.

license: Public Domain

text:
    GULF, C. & S. F. RY. CO. v. McKIE.
    (No. 5692.)
    (Court of Civil Appeals of Texas. Austin.
    Nov. 24, 1916.
    On Motion for Rehearing, Dec. 23, 1916.)
    1. Carriers &wkey;>92 — Carriers or Goods — Seizure or Goods Under Attachment — Liability.
    At common law, when property received by a common carrier under contract of shipment is taken from its possession by a sheriff or other officer acting under judicial process, the carrier’s liability ceases.
    [E'd. Note. — For other cases, see Carriers, Cent. Dig. §§ 343, 364-366; Dec. Dig. &wkey;92.]
    2. Carriers <&wkey;94(5) — Caeeiers or Goods— Seizure of Goods Under Attachment — Liability.
    In an action against a carrier for failure to deliver goods, the defense being that the goods had been taken under attachment issued by a justice court in another state, since, in the absence of proof to the contrary, it will be presumed that the law of the other state is the same as Texas law, the power of a justice of the peace to issue an attachment will be presumed, and, since the federal Constitution requires each state to give full faith and credit to judgments of courts of other states, there was no question of law whether the court of the other state had power to issue the attachment, and therefore refusal of an instruction that the carrier was not liable for failure to deliver if the goods were taken under attachment could not be said to be non-prejudioial.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 386, 387; Dec. Dig. &wkey;>94(5).]
    3. Evidence <&wkey;474(19) — Carriers—Failube to Deliver — Evidence of Value — Opinion.
    Plaintiff in an action against a carrier for failure to deliver goods could not testify as to their market value at point of destination in the absence of testimony showing his qualification.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. § 2218; Dec. Dig. <&wkey;474(19).]
    On Motion for Rehearing.
    4. Appeal and Ebrok <&wkey;1177(2) — Disposition op Cause — Rendition op Judgment.
    Where it does not appear that the case has been fully developed as to one issue, it should on reversal be remanded, and judgment should not be rendered in the court on appeal.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4597, 4598; Dec. Dig. <S&wkey; 1177(2).]
    Appeal from McLennan County Court; Geo. N. Denton, Judge.
    Action by B. G. McKie against the Gulf, Colorado & Santa F'é Railway Company. Judgment for plaintiff, and defendant appeals. Reversed, and judgment rendered. On motion for rehearing.
    Motion granted. Judgment reversed, and cause remanded.
    Nat Harris and Spell & Sanford, all of Waco, for appellant. W. L. Eason, of Waco, for appellee.
   KEY, C. J.

Appellee sued appellant in the county court of McLennan county, and recovered judgment for the alleged value of 25 bales of cotton linters, shipped from Honey Grove, Tex., to Lima, Ohio. Among 'other things, the defendant pleaded and proved that the shipment in question was made in the name of S. R. Thompson, as owner; that after the property reached its destination, in a suit brought in a justice of the peace court in Allen county, state of Ohio,by the Lima Mattress Company against S. R. Thompson, an attachment was issued out of that court and levied upon the 25 bales of linters in controversy; that the constable who made the levy took the property referred to from the possession of appellant, and it was thereafter sold by that officer under an order of sale issued by the justice’s court to satisfy a judgment for $157.22 and costs, which had been rendered by that court. Before the case referred to was tried, appellee and his agent, S. R. Thompson, had notice that the 25 bales of cotton had been levied upon and seized by the constable under the attachment referred to. There was a jury trial, which resulted in a verdict and judgment for the plaintiff, and the defendant has appealed.

We sustain the first and second assignments of error, and reverse the judgment. The first assignment complains of the trial court’s refusal to give the following instruction:

“Gentlemen of the jury, you are instructed that, if you find and believe from the evidence that the 25 bales of linters sued for were taken from the possession of the defendant under and by virtue of a writ of attachment issued out of a court having jurisdiction, in a valid, legal proceeding, then you will find for the defendant, Gulf, Colorado & Santa Fé Railway Company.”

In the chapter of our Revised Statutes relating to bills of lading it is declared:

“The earner shall not be liable under the provisions of this chapter, where the property has been replevied or levied upon or taken from the possession of the carrier by other legal process, or has been lawfully sold to satisfy the carrier’s lion.”

It is contended on behalf of appellant that, as the property for the value of which this suit is brought was taken from its custody by an officer acting under a writ of attachment issued by a justice of the peace, the statute just quoted exempts appellant from liability, although the suit in which the attachment was issued was brought against a third person, and appellee was not a party thereto. The exemption referred to is limited to liability under the provisions of chapter 2 of title 20 of the Revised Statutes, and the liability asserted against appellant in this case does not seem to be covered by that chapter. Hence we doubt if appellant can claim the benefit of the exemption fixed by article 723.

However, we agree with counsel for appellant that at common law the weight of authority and reason supports their contention that when property received by a common carrier, under a contract of shipment, is taken from the possession of such carrier by a sheriff or other officer, acting under judicial process, the liability of such carrier ceases, and it cannot be held responsible for its failure to deliver the property to the consignee. M. P. Ry. Co. v. Barnes, 2 Willson, Civ. Cas. Ct. App. § 576; Railway Co. v. Belton Oil Co., 45 Tex. Civ. App. 44, 99 S. W. 430; Bliven v. Railway Co., 36 N. Y. 403; Railway Co. v. Wilcox, 48 Ga. 432; Railway Co. v. Yohe, 51 Ind. 181, 19 Am. Rep. 727; McAlister v. Railway Co., 74 Mo. 351; Pingree v. Railway Co., 66 Mich. 143, 33 N. W. 298, 11 Am. St. Rep. 479; Burton v. Wilkinson, 18 Vt. 816, 46 Am. Dec. 145; Jewett v. Olsen, 18 Or. 419, 23 Pac. 262, 17 Am. St. Rep. 745; Lemont v. Railway Co. (C. C.) 28 Fed. 920; Stiles v. Davis, 1 Black, 101, 17 L. Ed. 33; Railway Co. v. Bossut, 10 N. M. 322, 62 Pac. 977; Amer. Express Co. v. Mullins, 212 U. S. 311, 29 Sup. Ct. 381, 53 L. Ed. 525, 15 Ann. Cas. 536; Southern Express Co. v. Sottle, 134 Ga. 40, 67 S. E. 414; Railway Co. v. O’Donnell, 49 Ohio St. 489, 32 N. E. 476, 21 L. R. A. 117, 34 Am. St. Rep. 579; Robinson v. Railway Co. (C. C.) 16 Fed. 57; Thomas v. Express Co., 73 Minn. 185, 75 N. W. 1120; 4 R. C. L. 198, 199, 299; 1 Moore, Carriers, pp. 327-331; 2 Hutchinson, Carriers, pp. 821, 829.

In Stiles v. Davis, supra, which was similar to the instant case, the Supreme Court of the United States, among other things, said:

“After the seizure of the goods by the sheriff under the attachment, they were in the custody of the law, and the defendant could not comply with the demand of the plaintiffs without a breach of it, even admitting the goods to have been at the time in his actual possession. The case, however, shows that they were in the possession of the sheriff’s officer or agent, and continued there until disposed of under the judgment upon the attachment. It is true that these goods had been delivered to the defendant as carriers by the plaintiffs, to be conveyed for them to the place of destination, and were seized under an attachment against third persons; but this circumstance did not impair the legal effect of the seizure or custody of the goods under it, so as to justify the defendant in taking them out of the hands of the sheriff. The right of the sheriff to hold them was a question of law to be determined by the proper legal proceedings, and not at the will of the defendant, nor that of the plaintiffs.”

In American Express Co. v. Mullins, supra, the same court, speaking through Mr. Justice Brewer, said:

“While it is the duty of a carrier to safely carry and promptly deliver to the consignee the goods intrusted to its care, yet that duty does not call upon it to forcibly resist the judicial proceedings in the courts of the state into or through which it is carrying them. The company carried the goods to Kansas in obedience to the terms of the shipment. On arrival in that state they were taken by judicial process out of its possession and destroyed; the process being issued in a proceeding in the nature of one in rem. Undoubtedly it was authorized to appear in the Kansas court and contest for the rightfulness of its possession, but it might also notify the owner of the property and call upon him to .carry on the litigation. This it did; notified him in time, and received from him an assurance that he would contest the legality of the seizure. This relieved the company from further responsibility, and the owner could no longer complain of it because the judgment of the Kansas Court seized and disposed of the property.”

In Railway Co. v. Yoke, supra, in discussing the question here involved, the Supreme Court of Indiana said:

“It is impossible for the carrier to deliver the goods to the consignee, when they have been seized by legal process and taken out of his possession. The carrier cannot stop, when goods are offered to him for carriage, to investigate the question as to their ownership. Nor do we think he is bound, when the goods are so taken out of his possession, to follow them up, and be at the trouble and expense of asserting the claim thereto of the party to or for whom he undertook to carry them. We do not think it material what the form of the process may be. In every case the carrier must yield to the authority of legal process. * * * The carrier is deprived of the possession of the property by a superior power, the power of the state, the vis major of the civil law, and in all things as potent and overpowering, as far as the carrier is concerned, as if it were the ‘act of God or the public enemy.’ In fact, it amounts to the same thing; the carrier is equally powerless in the grasp of either.”

The other authorities cited above tend more or less to support the same conclusion. We are satisfied with the reasoning set forth in the opinions from which we have quoted, and therefore hold that- the undisputed proof shows that appellant is not liable.

Counsel for appellee contends that the trial court committed no error in refusing to give appellant’s requested instruction, because that instruction would have required the jury to pass upon a question of law, and determine whether or not the Ohio court had jurisdiction to issue the writ under which the property was seized. Counsel for appellee says that, if counsel for appellant are correct in their contention that the undisputed proof shows that appellant was not liable because of the fact that the property was taken from its custody under legal process, they should have requested a peremptory instruction for appellant, and complained of the action of the court in refusing to give such instruction. The course suggested would have been entirely proper, but we do not think that'the failure to pursue that course has deprived appellant of the right to complain of the action of the trial court in refusing to give the charge requested. If that charge contained error, as contended on behalf of appellee, such error was in favor of, and not against, appellee ; and we are not prepared to hold that, if the charge had been given, the verdict of the jury would have been the same, although there was no affirmative proof offered as to the power of a justice of the peace in the state of Ohio to issue a writ of attachment. There was no necessity of such proof, and the court might well have so instructed the jury, because: (1) In the absence of proof to the contrary it will be presumed that the law of any other state is the same as the law of Texas; and (2) the federal Constitution requires each state to give full faith and credit to judgments rendered by courts of other states. In this case the Ohio court not only issued the writ of attachment, but rendered judgment foreclosing the same, and requiring the property to be sold, which was done.

Furthermore, we hold that the trial court committed reversible error when it permitted the plaintiff, over appellant’s objection, to testify as to the market value of the property shipped in Lima, Ohio, the place of destination. The witness failed to show that he was qualified to give testimony upon that subject, and for that reason the case should be reversed; and, as the undisputed proof shows that appellant is not liable, final judgment will be rendered by this court for appellant.

Reversed and rendered.

On Motion for Rehearing.

After further consideration of this case upon appellee’s motion for rehearing! we have reached the conclusion that this court fell into error when it rendered judgment against appellee. We still hold that, if the cotton for the value of which this suit was brought was taken from the possession of the carrier by an officer of the state of Ohio, acting under an attachment issued by a court of that state, and was not returned to the carrier, appellee is not entitled to recover. The identity of the cotton seized by the Ohio constable and that delivered to appellant for shipment was not submitted to the jury; and we are now of opinion that appellee has the right to have that question tried and determined in the trial court. In other words, while the proof may sustain our finding upon that subject as stated in our former opinion, it does not appear that the case cannot be more fully developed upon that issue, and for that reason we hold that appellee is entitled to have it passed upon by a jury. We adhere to the other rulings disclosed by our former opinion.

For the reasons stated, appellee’s motion for rehearing is granted, and the judgment of this court reformed so that the case will stand reversed and remanded.

Motion granted. Judgment reversed, and cause remanded.
      other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      i&=>For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: JENKINS, J.

text:
    GULF, C. & S. F. RY. CO. v. COOPER et al.
    (No. 5697.)
    (Court of Civil Appeals of Texas. Austin.
    Dec. 6, 1916.
    Rehearing Denied Jan. 24, 1917.)
    1. Appeal and Error <§=930(1) — Injuries to Servant — Appeal—Presumption .
    In an action under the federal Employers’ Liability Act (Act April 22, 1908, c. 149, 85 Stat. 65 [Comp. St. 1913, §§ 8657-8665]) for death of a brakeman, where no special charge was requested as to the reduction of recovery by decedent’s negligence, and no complaint is made as to the amount of the verdict, which was general as to the amount of damages, the Court of Civil Appeals will presume that the jury found whatever was necessary to sustain their verdict, i. e., that they found that deceased was not negligent, or, if he was, that they made proper allowance therefor in assessing damages.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3755, 3756, 3758; Dee. Dig. <§==>930(1).]
    2. Master and Servant <§=>286(33) — Injuries to Servant — Negligence.
    It cannot be said that a railroad, as a matter of law, was not negligent, in crushing its brakeman between two cars attempted to be coupled, because its conductor did not know that the brakeman was between the cars, since the question would still remain whether or not the conductor was negligent in not knowing the fact.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 1020; Dec. Dig. <§= 286(33).]
    3. Evidence <§==590 — Credibility — Testimony of Interested Witness — Binding Force.
    In an action for death of a railroad brakeman, the jury were not bound to believe the testimony of the road’s conductor, as he was an interested witness.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. § 2439; Dec. Dig. <§=590J
    4. Master and Servant <§=2S6(1), 288(1), 289(1) — Injuries to Servant-Negligence — Assumption of Bisk — Questions for Jury.
    Ordinarily the question of negligence, contributory or otherwise, as well as that of assumed risk, is for the jury.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1001, 1008, 1068, 1069, 1087, 1088, 1089; Dec. Dig. <§=>286(1), 288(1), 289(1).]
    5. Master and Servant <§=>204(1) — Federal Employers’ Liability Act — Assumption of Bisk.
    The federal Employers’ Liability Act does not abolish assumed risk as a defense, except where the failure of the railway company to comply with the act as to safety appliance equipment has contributed to the injury.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 544; Dec. Dig. <§=> 204(1).]
    6. Master and Servant <§=>203(1), 227(1) — “Contributory . Negligence” — “Assumption of Bisk.”
    The distinction between “assumed risk” and “contributory negligence” is that contributory negligence implies fault or a breach of duty on the part of the injured servant, either by doing or failing to do something that a reasonably prudent man would not have done or would not have failed to do to avoid being injured, while dangers incident to an employment, which ordinary prudence cannot always avoid, when known or obvious to the employé, are assumed by him as an implied part of his contract of employment.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 538-540, 542, 668; Dec. Dig. <§=>203(1), 227(1).
    For other definitions, see Words and Phrases, First and Second Series, Assumption of Bisk; Contributory Negligence.]
    7. Master and Servant <§=>226(1) — Federal Employers’ Liability Act — Assumption of Bisk.
    Where a locomotive engineer failed to obey a brakeman’s stop signal, so that the latter was crushed between two cars, one of which he was attempting to prepare for coupling, such brakeman did not assume the risk of injury by voluntarily placing himself in front of the drawhead of the standing car, since, by the Employers’ Liability Act, the engineer’s act was the act of the road, and the servant does not assume the risk of injury arising from the negligence of the master.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 659, 660, 661, 665; Dec, Dig. <§=226(1).]
    8. Executors and Administrators <§=22(1) —Temporary Administratrix — Authority to Appoint — Statutes.
    Under Bev. St. arts. 3297, 3298, authorizing the county judge to appoint a temporary administrator and to define the powers conferred by such an appointment, the probate court had authority to appoint the widow of a railroad’s brakeman, killed in service, temporary adminis-tratrix of his estate to bring suit against the railroad under the federal Employers’ Liability Act; the appointment being made October 18, 1915, and the suit being tried November 24th, before the next meeting of the probate court of the county.
    [Ed. Note. — For other cases, see Executors and Administrators, Cent. Dig. §§ 116, 123-125; Dec. Dig. <§=22(1).]
    Appeal from District Court, Bell County; John D. Bobinson, Judge.

      Action by Mrs. Dona Cooper, administra-trix, and others, against the Gulf, Colorado & Santa Fé Railway Company. Prom a judgment for plaintiffs, defendant appeals.
    Judgment affirmed.
    Terry, Cavin & Mills, and A. H. Culwell, all of Galveston, for appellant. Winbourn Pearce, of Temple, and A. L. Curtis, of Bel-ton, for appellees.
   Findings of Fact.

JENKINS, J.

On May 27, 1915, W. D. Cooper was a brakeman on appellant’s train. He went between tbe cars to adjust a.knuckle in order to make a coupling. He wits caught between the drawheads and received injuries from which he died immediately. At the October term, 1915, the county judge of Bell county, where the deceased resided at the time of his death', appointed his wife, Mrs. Dona Cooper, temporary administratrix of the estate of W. D. Cooper, deceased, to take charge of his personal property, and “to institute, maintain, and prosecute a suit for damages against the Gulf, Colorado & Santa Fé Railway Company on aqcount of the injuries received by W. D. Cooper, which injuries resulted in his death, which action may be brought and maintained for the benefit of such persons as may be entitled to recover.” Mrs. Cooper qualified as such temporary administratrix. She thereafter filed this suit in behalf of herself and the four minor children of herself and 'W. D. Cooper, deceased. The case was tried before a jury upon a general charge in the district court of Bell county, November 24, 1915, and resulted in a verdict in favor of appellees for $12,-000; $6,000 for Mrs. Cooper, and $1,500 for each of the four children. Appellees alleged that while W. D. Cooper was employed by appellant as a brakeman, and while working in that capacity on a freight train, in the usual and customary discharge of his duties, he went between two cars to arrange the coupling apparatus; that it was necessary for him to do so, and that, while so engaged, other employes of appellant negligently shoved the cars together in such way as to catch him between the drawheads and injure him so that he died; that such movement of the cars was without, warning to deceased, and in disobedience of a stop order given by deceased.

T. H. Henderson, a witness for appellees, an experienced railroad man, who had in early life worked as a brakeman, and had worked 25 years in the engine department, 12 years as an engineer, testified, in substance, that he lived with his father about 55 steps south of the railroad track where the injury occurred; that the local train came in from the west between 3 and 4 o’clock p. m. and cut loose a carload of crushed gravel and distributed the same upon the track; that at the time of the accident he and his father were standing at his father’s yard fence; that after the rock was unloaded the- engine was backing the empty car slowly toward a furniture car which had been left standing on the track; that Cooper got onto the gravel car and was riding back for a distance of 25 or 30 yards, at which time he jumped off and ran ahead on the outside of the track about 15 or 20 yards, when he gave the engineer a stop signal three times, and went in on the center of the track and ran to where the furniture car was standing; that when he gave the stop signal he was near the furniture car, but was some 40 feet ahead of the moving car; that the stop signal was not obeyed, and the car did not stop until it struck the furniture car; that the place where the injury occurred was not directly in front of him, so that the moving car cut off his view of the impact; that another brakeman, Housely, who was some 40 feet distant, ran up and looked in and gave the engineer a violent signal to move forward, from which he inferred that Cooper was hurt; that he immediately went to the place; and that Cooper breathed only a few times after he got to him. This testimony was corroborated by other witnesses. It was also contradicted by the other brakeman, and by the conductor; but the finding of the jury in appellees’ favor was under the charge given, in effect, that this testimony was true, and we therefore adopt the testimony of the witness Henderson as above set out as facts in this ease.

By reason of the moving car’s cutting Cooper off from Henderson’s view, he could not see whether or not Cooper looked back after he went in on the track. Cooper was standing in front of the drawheads when he was struck, facing west; that is, with his back towards the moving car, as was shown by food which he spat on the drawhead of the furniture car. Had he been standing to one side of the drawhead, he would not have been' hurt. Had he looked back, he could have seen that the moving car had not stopped. At the rate the car was moving, the engineer could have stopped it within three feet. It was moving at the rate of three or four miles an hour.

It was admitted that the train upon which deceased was at work was at the time of his death engaged in interstate commerce, and that the appellant had complied with the federal Safety Appliance Act (Act March 2, 1893, c. 196, § 2, 27 Stat. 531, U. S. Comp. Stat. 1913, § 8606 et seq.) in properly equipping its said cars with automatic couplers; and we find such to be the fact.

Opinion.

Appellant assigns error upon that portion of the fifth paragraph of the court’s charge which reads:

“ * ⅜ ⅜ jf you further believe and find from the evidence that, at the time and place alleged, said W. D. Cooper was in the employment of the defendant as a railway brakeman on one of defendant’s freight trains, and if you further believe from the evidence that, while in the ordinary discharge of his duties as such brakeman, it became and was necessary to enter between such freight cars to adjust the coupling apparatus thereon, and that while so engaged the defendant, its servants and employes, carelessly and negligently shoved the said cars together, catching the said W. D. Cooper between said cars and thereby fatally injuring him, as alleged, and if you further find that the moving of said cars at the time and in the manner they were moved was ‘negligence,’ as that term has been defined heretofore, and‘if you further find that such negligence, if any, was the direct and proximate cause of the injury and death of said W. D. Cooper, then you will find for plain-tilt and assess her damages as hereinafter directed, unless you find for defendant under other instructions given you in this charge.”

A correct definition of “negligence” had been given in a previous part of the charge.

The appellant submits as propositions under this assignment of error: (1) That there was no evidence that it was necessary for the deceased to go between the cars at the time lie did so, and that therefore in going between the cars he was not in the discharge of any duty which he owed to axipellant. (2) That there was no evidence of negligence on the part of the appellant in that the conductor did not know that the deceased was between the cars at the time the same were shoved together. (3) That the undisputed evidence showed that the proximate cause of the injury was the negligence of the deceased in voluntarily placing himself in a position of danger, and that the court should have so instructed the jury, instead of leaving that issue for them to determine. (4) That the undisputed evidence showed that the deceased assumed the risk of the injury received by him, and that the court should so have instructed the jury, instead of leaving that issue for their determination. (5) The evidence conclusively shows that, under the terms of the federal Employers’ Liability Act, the deceased assumed the risk. (6) The appellant having complied with the law as to automatic couplers, no duty devolved upon the deceased to go between the cars to effect the coupling. (7) There being no evidence that the coupling was defective, the deceased assumed the risk in going between the cars to make the coupling. (8) There being no evidence that the coupling was defective, the deceased was guilty of negligence as a matter of law in going between the cars.

It will be seen that several of these propositions cover practically the same ground, and we shall not undertake to discuss them seriatum.

The federal Employers’ Liability Act abolishes the plea of contributory negligence as a bar to a cause of action, but requires tho jury to diminish the damages in proportion to the negligence of the injured party, except where a violation of that statute by the railway company contributed to the injury, in which case no diminution of damages is to be allowed on account of the contributory negligence of the injured party. Railway Co. v. Horton, 233 U. S. 502, 34 Sup. Ct. 635, 58 L. Ed. 1009, L. R. A. 1915C, 1 Ann. Cas. 1915B, 475.

The court, in a subsequent part of its charge, properly instructed the jury as to this phase of the law. As the jury returned a general verdict as to the amount of damages, it cannot be determined with certainty whether or not they found that the deceased was guilty of contributory negligence. No special charge was requested on this phase of the case; no complaint is made as to the amount of the verdict. Therefore it will be presumed that the jury found in this regard whatever was necessary to sustain their verdict. That is to say, that they found that the deceased was not guilty of contributory negligence, or, if he was, that they made proper allowance therefor in assessing the damages.

But the contention of appellant is that the undisputed evidence shows that the deceased was guilty of contributory negligence as a matter of law, and that the jury should have-been so instructed, instead of leaving to them to find, as they may have done, under the charge given, that he was not guilty of contributory negligence. This proposition rests upon the contention that appellant, having furnished its cars with automatic couplers, and the same not being out of repair, it was not the duty of the deceased to go between the cars to effect the coupling.

Under the old system, it was necessary for the brakeman to stand between the cars at the time of the impact and make the coupling by means of a pin fastened to the draw head with a chain. This was very dangerous, and it was to avoid this danger that railway companies were required to furnish their cars with automatic couplers — that is to say, such as would couple automatically by impact when the cars came together — and thus the brakeman, in order to effect the coupling, need not remain between the cars until the impact is made. But the evidence in this case shows that, notwithstanding the cars were furnished with automatic couplings, and the same are not out of repair, it may be necessary for a brakeman to go between the cars and adjust with his hands the knuckle, in order that the coupling may be automatically made when the cars come together; the safety to the brakeman being that when he has adjusted the knuckle he can get from between the cars before they come together, there being no necessity for his remaining there to make the coupling, as under the old system. In such case, the cars are supposed to be standing still while he is adjusting the knuckle.

Housely, the other brakeman, testified he and not Cooper, was giving the signals; that the empty car came back against the furniture car, but did not make the coupling. He says:

“I slacked ahead just a little, and I went ahead. probably two feet and gave the stop signal. * * * I opened the one (the knuckle) on the furniture car, and he started to open the one on the ballast car; but I told him to leave it off, and he turned around and saw this apart on the furniture car and said, ‘All right,’ and I gave the back-up signal, and I looked to see if the coupling was made, and when I looked back in there the train had backed and Cooper was between the drawbars, and I gave a slack signal fast, and as the car wrenched off he said, ‘Catch me.’ and I caught him and he fell on the track.”

This witness says that, when he turned to give the signal to back up, Cooper was standing at the end of the furniture car, and that, when he looked to see if the coupling had been made, Cooper was caught between the drawheads. The theory of appellant, based on this testimony, is that Cooper attempted to pass between the ears, after Housely had given the back-up signal, and was caught between the drawheads. While it is evident that the jury did not believe this witness as to who was giving the signals, it appears from his standpoint as an experienced brakeman that he regarded the adjustment of the knuckles as necessary, notwithstanding the fact that the coupling was automatic and not out of repair. Henderson, who, as has been said, was an experienced railroad man, testified:

“They (the brakemen) are accustomed to going in there (between the ears) in preparing the drawheads.”

Upon cross-examination Housely said:

“I adjusted one knuckle, and he started to adjust the other, and I told him not to do that, and he said, ‘All right.’ ”

There is no merit in the contention that appellant, as a matter of law, was not guilty of negligence because the conductor did not know that Cooper was between the cars. Such fact is not shown by the uncon-tradicted testimony, and, even if it was, the question would still remain whether or not the conductor was guilty of negligence in not knowing that Cooper was between the cars. Railway Co. v. Courtney, 30 Tex. Civ. App. 544, 71 S. W. 307. The conductor testified that he was not taking signals from Cooper, and did not know where he was. The jury were not bound to believe this testimony, as he was an interested witness. Wyatt v. Moore, 152 S. W. 1133; Gameson v. Gameson, 162 S. W. 1169; Bank v. Howard, 174 S. W. 719; Bank v. McWhorter, 179 S. W. 1150. Besides, he was contradicted by T. H. Henderson, J. R. Henderson, W. E. McCall, and D. M. McCall, each of whom testified that Cooper was giving signals to the engineer, and even the witness Housely testified that Cooper repeated a signal which he gave.

Ordinarily, the question of negligence, contributory or otherwise, as well as that of assumed risk, is for the jury. Railway Co. v. Levi, 59 Tex. 674; Railway Co. v. Cunningham, 168 S. W. 428; Stalworth v. Refining Co., 175 S. W. 767; Railway Co. v. Thomas, 175 S. W. 822; Bonnet v. Railway Co., 89 Tex. 72, 33 S. W. 334; Railway Co. v. Fuller, 204 Fed. 45, 122 C. C. A. 359; Railway Co. v. Jarvis, 227 Fed. 8, 141 C. C. A. 562; Railway Co. v. Gadd, 207 Fed. 277, 125 C. C. A. 21; Railway Co. v. Goughnour, 208 Fed. 961, 126 C. C. A. 39; Railway Co. v. Cotts, 95 S. W. 602. The facts of this case do not take it out of the general rule. Besides, as here-inbefore stated, under the federal statute contributory negligence is not a bar to recovery, but goes only to a diminution of damages.

Appellant seems to rely chiefly for support of its first assignment of error, as also its second, third, and fourth assignments, upon the doctrine of assumed risk. As we understand the federal Employers’ Liability Act, it does not abolish assumed risk as a defense, except where the failure of the railway company to comply with the act as to safety appliance equipment has contributed to the injury, but that, with this exception, the doctrine of assumed risk is left as it was at common law. Railway Co. v. Horton, supra; Railway Co. v. Crockett, 234 U. S. 727, 34 Sup. Ct. 897, 58 L. Ed. 1564; Railway Co. v. Sauter, 223 Fed. 604, 139 C. C. A. 150.

“Assumed risk” and “contributory negligence” are sometimes loosely treated as synonymous. This, perhaps, for the reason that the same act may constitute both assumed risk and contributory negligence. Railway Co. v. Allen, 48 Tex. Civ. App. 66, 106 S. W. 441. But there is a well-recognized distinction between assumed risk and contributory negligence. Contributory negligence implies fault or a breach of duty on the part of the injured party, either by doing or by failing to do something that a reasonably prudent man would not have done, or would not have failed to do, to avoid being injured under the same or similar circumstances. On the other hand, there is a certain amount of danger incident to many employments, which ordinary prudence cannot always avoid. Where these are known to the employé, they are assumed by him as an implied part of his contract of employment. An employé assumes the risk of those dangers known to him to be ordinarily incident to the labor which he has agreed to perform, or which are so obvious that a man of ordinary intelligence and prudence must necessarily be presumed to have learned of them in the ordinary course of his employment. Rogers v. Railway Co., 76 Tex. 502, 13 S. W. 540; Railway Co. v. Allen, supra; Bonnet v. Railway Co., 89 Tex. 72, 33 S. W. 334; Railway Co. v. Somers, 78 Tex. 439, 14 S. W. 779; Carter v. Railway Co., 155 S. W. 638; Oil Co. v. Carson, 185 S. W. 1003; Railway Co. v. Dickens, 170 S. W. 835; Railway Co. v. Horton, supra; Railway Co. v. Sauter, supra; Railway Co. v. Stewart, 223 Fed. 30, 138 C. C. A. 444; James v. Lumber Co., 44 L. R. A. 34 et seq., note.

It is the contention of the appellant that Cooper assumed the risk of the injury which he suffered for the reason that the undisputed evidence shows that he voluntarily placed himself in front of the draw-head of the standing car, and as an experienced brakeman, as well as a man of ordinary intelligence, he must necessarily have known that he would be crushed by the impact of the moving car when the cars came together. But there is another principle of law which must be taken into consideration under the facts of this case, viz. The servant does not assume the risk of injury arising from the negligence of the master (except under circumstances not involved in this case, and therefore need not be here discussed). Railway Co. v. Jowers, 110 S. W. 946; Railway Co. v. Mitchell, 48 Tex. Civ. App. 381, 107 S. W. 374; Railway Co. v. O’Connor, 78 S. W. 374; Railway Co. v. Bosher, 165 S. W. 93; Railway Co. v. Fuller, 204 Fed. 45, 122 C. C. A. 359; Railway Co. v. Gadd, 207 Fed. 277, 125 C. C. A. 21; Railway Co. v. Goughnour, 208 Fed. 961, 126 C. C. A. 39.

By virtue of the terms of the Employers’ Liability Act, the act of the engineer was the act of the railway company. Railway Co. v. Gadd, supra. The jury found that the engineer was . negligent in shoving the ear against Cooper, and that such negligence was the proximate cause of the injury. This finding is supported by the evidence. Except for the failure of the engineer to obey Cooper’s stop signal, there was no danger in Cooper’s going and remaining between the ears. He did not assume the risk of danger to himself, for the reason that, aside from the negligence of the engineer, there was no danger. He had the right to assume that the engineer would observe and obey the stop signal, as was his duty to do. Railway Co. v. Goughnour, supra; Cunningham v. Neal, 49 Tex. Civ. App. 613, 109 S. W. 455; Railway Co. v. Courtney, 30 Tex. Civ. App. 544, 71 S. W. 307.

This is also an answer to appellant’s contention that Cooper assumed the risk, because he chose the more dangerous way in which to perform his duty. But for the negligence of the engineer, the way which he chose did not involve any danger at all.

Appellant cites the case of Railway Co. v. Hynson, 101 Tex. 545, 109 S. W. 929, in which it was held, as a matter of law, that Hynson assumed the risk. The alleged negligence in that case was the failure of the railway company to block its guard rails — a fact which was known to Hynson, or which, under the undisputed testimony, he was presumed to have known. There was no negligence on the part of the engineer in pushing the train upon Hynson. He was not given any stop signal. It was also held in that case that Hyn-son assumed the risk, because he chose the more dangerous way in attempting to make the coupling. The danger of the way which he chose was obvious, as, if his foot should be caught in the guard rail, as it was, the engineer would not know that fact, and Hynson would be unable to give the stop signal. The case of Gilbert v. Railway Co., 128 Fed. 529, 63 C. C. A. 27, was decided upon the doctrine of contributory negligence, which was then a bar to recovery.

The court, at appellant’s rqquest, instructed the jury as to appellant’s theory that Cooper at the time of his injury was attempting to cross between the moving cars and was caught between the drawheads, and to find for appellant if they found such to be the fact.

In view of the special charges given at appellant’s request, and in view of the further fact that the charge of the court necessarily precluded any recovery, unless the jury found that negligence on the part of the appellant was the proximate cause of the injury, we do not think that the assignments as to the refusal of the court to give the special instructions requested by appellant are well taken.

We overrule appellant’s assignment of error as to the admission of the evidence that Mrs. Cooper was appointed temporary admin-istratrix of the estate of W. D. Cooper, deceased, for the purpose of bringing this suit.

It is the contention of appellant that the probate court had no authority to make such appointment, for the reason that the prosecution of the suit would necessarily extend beyond the time of the next meeting of the probate court. The appointment was made October 18, 1915; this suit was tried November 24, 1915, which was before the next meeting of the probate court of Bell county. The statute authorizes the county judge to appoint a temporary administrator (R. S. art. 3297), and to define the powers conferred by such appointment (article 3298). Insurance Co. v. Gibbs, 34 Tex. Civ. App. 131, 78 S. W. 399, where the court said:

“The county court had the authority to appoint a temporary administrator to prosecute the suit, and to continue such temporary administration so long as was necessary to accomplish the ends of the original appointment.”

To the same effect is Williams v. Bank, 91 Tex. 651, 45 S. W. 690. See, also, Railway Co. v. Hook, 60 Tex. 403; Callahan v. Houston, 78 Tex. 494, 14 S. W. 1027.

Finding no error of record, the judgment of the trial court is affirmed.

Affirmed.
      <S=For other cases see same topic and KEY-NUMBER m all Key-Numbered Digests and Indexes


author: BROOKE, J.

text:
    HUGHES et al. v. WILLIS.
    (No. 146.)
    (Court of Civil Appeals of Texas. Beaumont.
    Nov. 9, 1916.)
    1. Appeal and Error <§=*767(1) — Briefs — Failure to Comply with Rules.
    Where appellant’s brief was not prepared according to Courts of Civil Appeals Rules, in that it contained and referred to no assignments of error and its propositions were too general and not followed by sufficient statement of proceedings, it will be stricken from the record.
    [Ed. Note.- — For other cases, see Appeal and Error, Dec. Dig. <⅜=767(1).]
    2. Sheriffs and Constables ⅞⅜=>170 — Release of Property on Defective Bond— Liability.
    Where a sheriff released attached goods upon the filing of a defective replevin bond and the goods were later destroyed by fire and defendant was otherwise insolvent, the sheriff and his bondsmen will be liable for the amount of the debt and 10 per cent, thereof as statutory damages.
    [Ed. Note. — For other cases, see Sheriffs and Constables, Cent. Dig. §§ 409-413; Dec. Dig. <®=*170.]
    Appeal from Newton County Court; W. E. Gray, Judge.
    Action by J. R. Willis against T. M. Hughes and others. Judgment for plaintiff, and defendants appeal.
    Affirmed.
    Forse & Ferguson, of Newton, for appellants. Powell & Huffman, of Jasper, for ap-pellee.
   BROOKE, J.

On the 6th day of October, 1913, appellee, J. R. Willis, filed suit against T. M. Hughes and Preston Hughes, composing the private partnership of Hughes Mercantile Company, on an open account in the sum of $362.50, and on the same day filed his application and bond for attachment, which attachment was, on the said 6th day of October, 1913, issued by the county judge and placed in the hands of the sheriff of Newton county, who executed same by levying upon the stock of goods, wares, and merchandise in the storehouse of Hughes Mercantile Company at Bon Wier, Tex., valued at $600. On the 7th of October, 1913, defendants T. M. Hughes and E. P. Hughes replevied said goods, wares, and merchandise by executing a replevy bond in the sum of $352.50, signed by T. M. Hughes and E. P. Hughes as principals and S. A. Stark as surety. On the 13th day of October, 1913, the stock of goods replevied was destroyed by fire. On the 7th of January, 1915, the case of J. R. Willis v. T. M. Hughes et al. was called for trial, when S. A. Stark, by way of intervention, filed his motion to quash the replevy bond because same was not a statutory bond, which motion was by the court sustained, and the replevy bond quashed. Upon the trial of the cause it developed from the evidence that T. M. Hughes was not a member of the firm of Hughes Mercantile Company; hence judgment was rendered against E. P. Hughes and the Hughes Mercantile Company for $352.50, with interest and costs. The goods having been destroyed, no foreclosure of the attachment lien was-taken. On March 27, 1915, execution was issued against E. P. Hughes and Hughes Mercantile Company and returned on the same day by the sheriff showing that no property could be found belonging to the defendants. On the 30th day of August, 1915, motion was filed against the sheriff and his bondsmen for having released the goods on a defective replevy bond. On the 10th of September, 1915, citation issued against said sheriff and his bondsmen, citing them to appear at the October term of the county court to answer said motion. On the 21st of January, 1916, motion was called for hearing, and judgment rendered against said sheriff and sureties on his bond, for $374.55, the amount of plaintiff’s judgment against Hughes Mercantile Company and E. P. Hughes, and for $37.45 as statutory damages, making a total judgment of $412, and all costs of suit, from which judgment this appeal was taken.

We are confronted at the outset with a motion to strike out the brief of appellants, for the reason that the same was not prepared according to the rules of the Courts of Civil Appeals, because: First, the same contains no assignments of error, and in no instance makes reference to any assignments of error filed in the trial court. Second, the propositions contained in said brief are not made with reference to the assignments of error, are too general in their nature, and do not point out the error of the trial court relied on for a reversal of the case. Third, the various propositions in said brief are not followed by a statement of the proceedings contained in the record sufficient to explain and support the propositions. The motion is well taken, and the brief will be stricken from the record.

The court filed his findings of fact and conclusions of law, which are as follows:

“This, is a motion in the above entitled and numbered cause against A. M. Sharver, former sheriff of Newton county, Tex., and J. W. Mat-tox, J. R. Mattox, L. M. Autrey, G. W. Powell, J. D. Powell, L. C. Woods, and J. S. Griggs, as sureties on his official bond by plaintiff, to enter judgment against them as defendants in said motion, having moved the court to file findings of fact and conclusions of law, the same is here now done and are as follows:
“Findings of Facts.
“First. I find that J. R. Willis filed a motion in this cause on the 1st day of April, A. D. 1915, which motion was tried in this cause on the 15th day of July, A. D. 1915, and before any verdict or judgment was entered in said cause plaintiff took a nonsuit, and the cause was dismissed at plaintiff’s cost, on the 14th day of July, A. D. 1915.
“Second. That on the 30th day of August, 1915, plaintiff again filed a motion in this cause and had new process issued therein on the 10th day of September, 1915, which citation was served on the defendants in said motion on the 13th day of September, A. D. 1915, citing said parties to appear at the October term of the county court of Newton county, and' that defendant’s answer to said motion was filed on the 21st day of January, 1916, on which day this cause went to trial.
“Third. I find that A. M. Sharver was elected sheriff of Newton county, Tex., on the 5th day of November, A. D. 1912, and duly qualified by taking the oath of office and making bond, as such, on the 26th day of November, A. D. 1912, with J. W. Mattox, J. R. Mattox, L. M. Autroy, G. W. Powell, J. D. Powell, L. G. AVoods, and J. S. Griggs as sureties thereon, and that said A. M. Sharver was the sheriff of Newton county, Tex., during the month of October, 1913, and at the time the writ of attachment was issued and the replevy bond taken in cause No. 105, J. R. AVillis v. T. M. Hughes et al., and that J. W. Mattox, J. R. Mattox, L. M. Autrey, G. W. Powell, J. D. Powell, L. O. AVoods, and J. S. Griggs, were sureties on his official bond, at that time, and that, at the time the writ of attachment was issued and the replevy bond taken in said cause, W. E. Mattox was duly appointed and acting sheriff of Newton county, Tex., under the said A. M. Sharver.
“Fourth. That on the 6th day of October, 1913, a writ of attachment was issued in cause No. 105, J. R. Willis v. T. M. Hughes et al., out of the county court of Newton county, Tex., and placed in the hands of the sheriff of Newton county, Tex., which writ of attachment was duly executed by said A. M. Sharver, by and through his deputy W. B. Mattox, on- the 6th day of October, 1913, by levying upon all the goods, wares, and merchandise in the storehouse of the Hughes Mercantile Company at Bon Wier, Tex., as the property of T. M. Hughes, and Preston Hughes, then supposed to compose the firm of Hughes Mercantile Company.
“Fifth. That on the 7th day of October, 1913, T. M. Hughes and E. P. Hughes, as principals, and S. A. Stark, as surety, made and executed a replevy bond in the sum of $352.50 and all costs of suit, which bond was duly approved on the 8th day of October, 1913, and filed in this cause on the 16th day of October, 1913.
“Sixth. That the goods so levied upon by virtue of attachment above referred to were appraised by the sheriff as of the value of $500, as shown by his return on said writ of attachment. I find that the amount of plaintiff’s claim in the original suit was $352.50, and that said replevy bond is not given for an amount in double the amount of the goods attached nor in double the amount of plaintiff’s claim, and that said bond does not include all of the goods embraced in the levy made by virtue of the writ of attachment. I also find that the goods levied upon by the sheriff were of the value of $500 or more.
“Seventh. I find that on the 7th day of October-, 1913, citation was served upon T. M. Hughes and E. P. Hughes composing the partnership firm of Hughes Mercantile Company, and that on the same day they executed a re-plevy bond for the goods attached as principal obligators thereon, and that they nor either of them could sign said bond as surety; they being each sued as codefendants in said cause. That said bond had onty one surety thereon, and is not otherwise conditioned as required by law, and that, on the trial of said cause in which this motion is sued out, said replevy bond was duly quashed.
“Eighth. That the storehouse and all the goods lévied upon in the attachment and replevied by the defendants T. M. Hughes and E. P. Hughes were destroyed by fire on the 13th day of October, 1913, and that there was no property on which to foreclose the attachment lien on the 7th day of January, 1915, the date upon which the judgment in the original suit against Hughes Mercantile Company and E. P. Hughes, was at the date of said judgment insolvent, and now is and has been insolvent since the rendition of said judgment.
“Ninth. That plaintiff had an execution issued against Hughes Mercantile Company and E. P. Hughes, by virtue of said judgment, on the 27th day of March, A. E. 1915, which execution was duly returned into the county court of Newton county, Tex., on the same day, showing that nó property could be found belonging to said parties in Newton county, Tex.
“Conclusions of Law.
“First. I conclude as a matter of law that the replevy bond given for the possession off the goods was invalid and void as a statutory bond, and that the sheriff, A. M. Sharver, was negligent in releasing the goods under said bond, and no recovery could bo had on said bond in the suit and the same properly quashed.
“Second. That A. M. Sharver and the sureties on his official bond are liable to the plaintiff, J. R. AYillis, for the amount of his debt and costs, as shown by the judgment, together with 10 per cent, thereon as damages as provided by statute. I therefore find in favor of the plaintiff and against the defendants in said motion the amount of his judgment with 5 per cent, interest thereon and 10 per cent, thereof as damages, making a total of $412, and all costs of suit.
W. E. Gray, Judge Presiding.”

There is no error apparent of record.

The judgment of the lower court is in all things affirmed, and it is so ordered.
      ®=>For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: TADBOT, J.

text:
    VANN et al. v. GEORGE et al.
    (No. 7680.)
    (Court of Civil Appeals of Texas. Dallas.
    Jan. 20, 1917.)
    1. Records @==>18(9) — Lost Records — Suppi-ciency op Evidence op Title.
    In trespass to try title, a finding of title is sustained where the place of a missing deed dated in 1837 was supplied by proof that it was recorded in a county whose records were subsequently burned.
    [Ed. Note. — For other cases, see Records, Cent. Dig. § 40; Dec. Dig. @=>18(9).]
    2. Appeal and Error @=>204(3) — Questions Presented por Review — Limitation by Record.
    AYhether a record of one county of the certified copy of a deed taken from the records of another county is admissible is not raised where no objection was made to its introduction or upon ground that no proper foundation had been, laid therefor.
    [Ed. Note. — For other cases, see Appeal ancT Error, Cent. Dig. §§ 1262, 1263; Dec. Dig. @=> 204(3).]
    3. Deeds @=>199 — Trial @=>105(5) — Admissibility op Evidence — Predicate — B1 allure to Object.
    The existence and execution of a deed may be proved by circumstances where proper predicate is made or where no objection is made, that such predicate is láeking.
    [Ed. Note. — For other cases, see Deeds, Cent. Dig. §§ 595-600; Dee. Dig. @=>199: Trial, Cent. Dig. § 265; Dec. Dig. @=>105(5).]
    4. Appeal and Error @=>854(2) — Scope of Review — Correct Decision but Erroneous Reasoning.
    In trespass to try title, judgment for plaintiff who deraigned title from the state will be affirmed, although the trial court erroneously based its decision upon the ground that the parties claimed under a common grantor, and that defendant’s deed from such grantor was forged.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3108-8410; Dee. Dig. 854(2).]
    Appeal from District Court, Freestone County; A. M. Blackmon, Judge.
    Trespass to try title by T. E. George and others against W. T. Vann and others. Judgment for plaintiffs, and defendants appeal.
    Affirmed.
    Boyd & Bell, of Teague, for appellants. Alex. C. Bullitt, of San Antonio, for appel-lees.
   TADBOT, J.

This is an action of trespass to try title brought by the appellees, T. E. George and others, to recover of appellants, W. T. Vann and others, 958 adres of land, a part of what is known as the Gertrudas Diaz league and labor survey, situated in Freestone county, Tex. The land was patented to James F. Johnson, assignee of the said Diaz;, the 6th day of October, 1847. J. O. Hawkins, one of the plaintiffs, having died, his surviving wife, for herself and as next friend for her minor children, made herself a party to the suit. Defendants answered by a general denial and plea of not guilty. They also filed the affidavit of one of their attorneys charging that a conveyance bond for title purporting to have been executed by the said James F. Johnson for the land in controversy to Thomas T. Bailey, which forms a link in plaintiff’s chain of title, was a forgery. One of the muniments of the defendants’ title was a deed from Hugh F. McKenna to W. P. Jackson, dated March 3, 1851, and plaintiffs filed an affidavit attacking said deed as a forgery.

The ease was trifed by the court without a jury, and judgment rendered in favor of the plaintiffs for a recovery of the land sued for,' with writ of possession, to which judgment defendants excepted and perfected an appeal to this court.

The court filed the following conclusions Of fact and law:

“Findings of Fact.
“I. The defendants were naked trespassers, without title, and were in possession of the land sued for.
‘TI. The land in controversy was patented by the state of Texas to James F. Johnson, as-signee of Gertrudas Diaz, the original grantee, on the 6th day of October, A. D. 1847.
“III. The plaintiffs, and those under whom they claim, have asserted title and exercised the acts of ownership of the land in controversy, such as the payment of taxes, defending suits, making conveyances thereof, etc., for a period of more than 60 years, claiming the same all the while under an executory sale for bond for title executed by the said James F. Johnson to one Thomas T. Bailey, dated October 18, 1837, some ten years prior to the issuance of the patent to the said James F. Johnson. There has been during all the while no adverse claim, or assertion of claim, on the part of James F. Johnson or his heirs to the land in controversy.
“IV. One Hugh F. McKenna was shown to be the common source of title of plaintiffs and defendants. Plaintiffs having attacked by affidavit of forgery the purported conveyance from said Hugh F. McKenna, under which the defendants claimed, and it appearing on its face to have been acknowledged before an officer not authorized at that time to take acknowledgments, and its execution not having been proven, I find as a fact that the instrument was forged, and that plaintiffs hold a superior title under such common source.
“Conclusions of Daw.
“I. From the long and continued claim, and acts of ownership thereunder by plaintiffs, I conclude that the conveyance from James F. Johnson to Thomas T. Bailey may be presumed, and that same was and is sufficient to pass title, and entitle plaintiffs to recover herein as against naked trespassers.
“II. That the plaintiffs, as the holders of the superior title under a common- source, are entitled to recover herein.
“III. That under the testimony herein the plaintiffs are entitled to judgment for the land sued for.”

The appellants present five assignments of error in their brief, complaining of certain of the court’s findings of fact and conclusions of law, and appellees object to a consideration of any of said assignments on the ground that they are not briefed in accordance with the rules. The assignments are, perhaps, subject to some criticism in this respect, but they are sufficient to direct “the attention of the court to the error complained of,” and will be considered.

The first assignment of error is to the effect that the trial court erred in finding, as shown by the third paragraph of his conclusions of fact, that the plaintiffs, and those under whom they claim, have asserted title and exercised acts of ownership over the land in controversy, such as the payment of taxes, defending suits, making conveyances thereof, etc., for a period of more than 60 years, claiming the same all the while under an executory sale for bond for title executed by James F. Johnson to Thomas T. Bailey, dated October 18, 1837, during which time no adverse claim was set up by the said Johnson or his heirs. The contention, -in effect, is that under the facts and the law applicable in such case the court was not warranted in making such findings. One of the plaintiffs’ attorneys made and filed in the case an affidavit asserting that the original bond for title here referred to had been lost or mislaid; that plaintiffs had never seen it and did not know where it was, and offered in evidence the record in Freestone county of a certified copy of said bond for title taken from the records of such instruments in Limestone county. The certificate of the clerk of Limestone county, Tex., showing the registration of said bond for title in that county, and forming a part of the transcript recorded in Freestone county, Tex., is as follows:

“I, G. W. Johnson, clerk of the county court for Limestone county, do hereby certify that the foregoing is a true transcript of the original deed certificate of acknowledgment thereof as filed in my office for record on the 4th day of March, A. D. 1854, and was duly recorded the same day in record Book 0 at pages 257 and 258. Given under my hand and official seal at office in Springfield this March 4, A. D., 1854. G. W. Johnson. Olerk.”

W. M. Jackson was one of the witnesses to the execution of the bond for title, and sought to prove its execution before J. A. Laughmayd, deputy clerk in and for Harrisburg county, Tex., for registration. It is asserted in the brief of appellants, in presenting their foregoing assignment of error, that appellants objected to the introduction of the record of Freestone county, referred to, and that the objections urged were sustained, but aside from this assertion no such action appears. It is stated in the statement of facts, in substance, that said record was offered by appellees’ attorney, .in connection with the other testimony in the case as a circumstance to show the execution of the bond for title under which appellees claim, and that appellants’ counsel stated that he had no objection to its introduction for that purpose. The said record was then admitted and forms a part of the statement of facts sent to this court. By deed dated February 19, 1859, Thomas T. Bailey conveyed to Geo. W. Paschal a part of the land patented James F. Johnson as assignee of Gertrudas Diaz, situated in Freestone county, Tex. This deed was recorded the 18th day of March, 1859, and refers to former sales made by Bailey of parts of said survey to Jesse Cowart and William Allen. Thereafter, on June 21, 1859, the said Bailey executed a deed of trust to Chauncy B. Sabine, as trustee, on his interest in a league and labor of land granted to James F. Johnson as assignee of Gertrudas Diaz, situated in Freestone county, Tex., to secure the firm of C. Ennis & Co. in the payment of a debt due by said Bailey to said firm. This deed of trust recites that the said Bailey’s interest in the said Diaz survey is about 2,557 acres, and that same was conveyed to him by the said James F. Johnson by deed dated October 18, 1837. In April, 1867, George K. Ennis was appointed substitute trustee under said deed of trust, and in July of that year by deed conveyed the land described in said deed of trust to C. Ennis. Then by regular muniments of title the land was transferred and passed to the appellees. What became of the original bond for title or deed given Thomas T. Bailey by James F. Johnson, dated October 18, 1837, after it was recorded in Limestone county, does not definitely appear. The witness R. N. Compton, offered by the appellees, testified however, among other things, in substance, that since his retirement from the county clerk’s office of Freestone county in 1888 he had been engaged in the abstract business; that he hearcj and understood that the records of Limestone county were destroyed by fire in 1871; that such “was the general representation.” He said:

“I learned that from being an abstractor and a man of affairs in this county.”

He further said:

“As to how long I have been looking after the land in controversy, my recollection is that in 1906 I first began to look into this. I represented the Paschals. Since that time I have, to a certain extent, looked after it until I disposed of it and sold it. I know they paid taxes on it since I have had anything to do with it. I don’t know that they have paid taxes on it down to now. I could not say since I disposed of it. I know they paid taxes on it two or three years after I sold it.”

This witness further testified, in substance, that he had been interested in the land in controversy; that he had been familiar with the situation with respect to said land since 1888, and that he had never heard of any party by the name of Johnson during that time asserting any title to the same; that he was familiar with the tax records; and that Johnson had not paid any taxes on the land up to 1910. There was no evidence whatever introduced to show that the conveyance or bond for title given by Johnson to Bailey, dated October 18, 1837, was forged.

In view of the foregoing and other evidence in the record, the great length of time that has elapsed since the date and registration • of the bond for title under which the appellees claim, the presumption that may be indulged that- all of the subscribing witnesses thereto are dead, and the probability that said instrument may have been destroyed by fire in the destruction of the records of Limestone county in 1871, etc., we are not prepared to say the material findings of the trial court complained of in the assignment of error under consideration is without evidence to support them.

The question of whether or not the record of Freestone county of the certified copy of the bond for title in question was taken from the record of Limestone county is not raised, and we are not called upon to pass upon that question. If any objection was made to the introduction of that record, it is not shown, as has been stated, in any way by the transcript or statement of facts sent to this court. On the contrary, its admission as a circumstance to show the execution of said bond for title appears to have been acquiesced in by the appellants. The contention of appellants therefore, in the assignment under consideration, that said record of Freestone county was inadmissible and should not have been considered by the trial court for any purpose, cannot be made in this court. The record before us not only fails to show that any objection was urged to the introduction of said record of Freestone county, but it fails to disclose that proof of circumstances to establish the execution of said bond for title was objected to on the ground that no testimony had been offered to show that the original was lost and by proper search could not be found, or on any'other ground.

Now that the existence and execution of a deed or other instrument in writing constituting a link in the chain of one’s title to land, when such title is questioned by an adverse claimant in a suit to recover the land, may be proved by circumstances when a proper predicate is laid for such proof, .is so well established that authorities in support thereof need not be cited, and where, as in the present ease, the evidence of the circumstances relied on is admitted without, objection that, the predicate required for the admission thereof has not been laid, the rule is the same. The circumstances shown by the evidence adduced by appellees were sufficient, it occurs to us, to justify the trial court’s conclusion that the bond for title in question was executed by Thomas T. Bailey at the time and as it purports to have been executed by him, and such other conclusions reached by him as were necessary to support the judgment rendered in appellees’ favor.

The second assignment of error complains of the court’s conclusion, as shown in the fourth paragraph of his findings of fact, that Hugh F. McKenna was the common source of appellants’ and appellees’ title. This assignment is well taken. The appellees failed in any manner to connect themselves with McKenna’s title. Certain deeds and a judgment rendered in a suit wherein E. H. Wilson was plaintiff and T. T. Bailey was defendant were introduced by appellees for the purpose of showing common source, but they utterly failed to do so. The statement of facts does not contain a copy of the petition in said suit or otherwise show that the land in controversy was involved therein, and the judgment rendered was simply:

That “the plaintiff take nothing by said suit, and that the defendant go hence without day, and that he have and recover of the plaintiff his costs.”

Neither of the deeds introduced served to connect appellees’ title with appellants’ title, and, of course, the judgment referred to in the state of the record before us could have no such effect.

The third assignment of error is that the court erred in the following findings:

“Plaintiff having attacked by affidavit of forgery the purported conveyance from Hugh F. McKenna, under which defendants claimed, and it appealing on its face to have been acknowledged before an officer not authorized at the time to take acknowledgments, and its execution not having been proven, I find as a fact that the instrument was forged, and that plaintiffs hold a superior title under common source.”

In disposing of this assignment it is sufficient to say that, appellees having failed to show common source, these findings, if erroneous, do not require a reversal of the case. The evidence being sufficient to show the execution of the conveyance or bond for title given by James F. Johnson to Thomas T. Bailey on the /18th day of October, 1837, the appellees deraigned their title from the state, and under the undisputed facts were entitled to recover the land in controversy without regard to any question of common source of title that may have been involved in the suit, and the fact that the trial court may have based the judgment rendered upon erroneous conclusions or given a wrong reason for such judgment is unimportant in disposing of the appeal. The court’s third conclusion of law is:

“That under the testimony herein the plaintiffs are entitled to judgment for the land sued for.”

What we have said disposes of the fourth assignment of error, charging that the court erred in concluding as a matter of law that the appellees, as holders of the superior title under a common source, are entitled to recover herein, and if it be conceded that the abstract propositions of law contended for in the fifth assignment, to the effect that a plaintiff in trespass to try title must recover on the strength of his own title, and not upon the weakness of his adversary’s, and that, if he fails to show title to land sued for, of which defendants are in possession, he cannot recover, although they have no title, and that possession of land is prima facie evidence of title as against one out of possession, are correct, still under the evidence in the instant case those principles of law have not been violated by the rulings and judgment of the district court.

The assignments of error failing to disclose any error for which the judgment should be reversed, it is affirmed.
      @=>Eor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes