text:
    LINDLEY et al. v. LINDLEY et al.
    (No. 1476.)
    (Court of Civil Appeals of Texas. Texarkana.
    June 3, 1915.
    Rehearing Denied June 10, 1915.)
    1. Descent and Distribution <&^99 — Deed —Construction—Advancement.
    Where parents conveyed land to their daughter, by deed reciting that “we, for and in consideration of the sum of one thousand dollars to us in hand paid by (the daughter), and for the purpose of conveying to her the hereinafter described land, which is to be a part of her interest as one of our lawful heirs at our death, the same to be a credit on her part of- our landed estate of one thousand dollars, have granted, sold,” etc., such deed would be construed as an advancement to the daughter; the recital of consideration being formal and not intended to be construed as a recital of fact.
    [Ed. Note. — For other'cases, see Descent and Distribution, Cent. Dig. §§ 404^410; Dec. Dig. &wkey;^99.]
    2. Frauds, Statute oe <&wkey;56 — Oral Agreement Aeeecting Land.
    Under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1103, providing that no estate of inheritance ’ or freehold or lease for more than one year in lands and tenements shall be conveyed unless by an instrument in writing subscribed and delivered by the party disposing of the same, or by his agent authorized thereto by writing, where a father executed a deed reading, “This instrument is a deed that I acknowledge to my wife and our children that I have not deeded any land to as- a gift,” and thereafter, upon a dispute as to the ownership of the land, a daughter to whom the father had deeded land as a gift made an oral agreement with the grantees in the father’s deed by which all parties waived and abandoned any and all claims that any of them had lands given them, and agreed to divide the land equally, such verbal agreement could not pass title to the daughter to an interest in the land.
    [Ed. Note. — For other cases, see Frauds, Statute of, Cent. Dig. §§ 83-89, 136 — 138; Dec. Dig. <&wkey;>56.]
    3. Frauds, Statute oe <&wkey;56 — Orad Contract to Convey Land.
    Under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 3965, providing that no action shall be brought' on, any contract for the sale of land unless the promise to be enforced or some memorandum thereof shall be in writing and signed by the party to be charged, where a father executed a deed reading, “This instrument is a deed that I acknowledge to my wife and our children that I have not deeded any land to as a gift,” and thereafter, upon a dispute as to the ownership of the land, a daughter, to whom the father had deeded land as a gift, made an oral agreement with the grantees in the father’s deed by which all parties waived all claims that any of them- had had lands given them, and-agreed to divide' the land equally, such verbal agreement was not enforceable by the daughter against the grantees in the father’s deed, as a contract by them to convey her an interest in the land.
    [Ed. Note. — For other cases, see Frauds, Statute of, Cent. Dig. §§ 83-89, 136-138; Dec. Dig. &wkey;>56.]
    4. Estoppel <&wkey;93 — Agreement Waiving Claims to Land.
    Where a father deeded land to such of his children as he had not already made advancements to, and such children orally agreed with a daughter to whom an advancement had already been made that all parties would waive conflicting claims and divide the land equally, on the faith of which the daughter paid her share of the cost of defending a suit concerning the land, the agreement did not vest title in her to her aliquot share of the land through the doctrine of equitable estoppel, since the case was merely one where vendor refuses to convey to a vendee who has paid the purchase price of land, as verbally agreed upon, in which case there is no equitable estoppel, and the transaction is within the statute of frauds.
    [Ed. Note. — For other cases, see Estoppel, Cent. Dig. §§ 26A-275; Dec. Dig. &wkey;93J
    Appeal from District Court, Hunt County; A. P. Dohoney, Judge.
    Suit to partition land by Ephraim Lindley and others against J. H. Lindley and others. From the interlocutory judgment, defendants appeal.
    Reformed and affirmed, and remanded for further proceedings.
    T. D. Montrose, of Greenville, for appellants. Crosby, Hamilton & Harrell, of Green-ville, for appellees.
   WILLSON, C. J.

By a deed dated January 27, 1899, Jahu Lindley conveyed 588 acres of land to his wiife, Sallie, “for the period,” quoting, “of her natural life and then to be divided between my children equally, except those that has had land given to them.” As explanatory of Lindley’s intent in making it the deed contained a recital as follows:

“This instrument is a deed that I acknowledge to my wife and to our children that I have not deeded any land to as a gift.”

Jahu Lindley died March 9, 1906.

April 25, 1906, J. M. Lindley, son oif Jahu and Sallie Lindley, claiming to be owner of a one-half undivided interest in the land, by virtue of conveyances made to him by his mother after the death of his father, sought by a suit (numbered 6246) then commenced by him in the district court of Hunt county against his mother and his brothers and sisters then alive, and against children of his brothers and sisters then deceased, to have the land partitioned between himself and them. The suit resulted in a judgment, rendered May 6, 1007, as follows: (1) Canceling the deeds from said J. M. Lindley’s mother, by virtue of which he claimed title to an undivided one-half of the land, on the ground that he had induced his mother to execute same by the exercise over her of undue influence. (2) Determining that said J. M. Lind-ley’s parents had given him land during the lifetime of his father, and therefore that..he took nothing by virtue of the deed of his father, dated January 27, 1899, .above referred to. (3) Further determining that by virtue of said deed the land belonged to the defendants Harlon Lindley, Cordelia Jernigan, Pegg Ann Booker, Ephraim Lindley, Marshall Lindley, Pearl Winton, Carl Winton, Alice Hall, Laura Needham, Carl Lindley, Eva Floyd, and Joe Edwards, children and grandchildren of said Jahu Lindley, subject to the life estate therein owned by his widow, Sallie Lindley. (4) That said J. M. Lindley take-nothing by his suit.

Sallie Lindley, widow of Jahu Lindley, died February 6, 1913.

This suit was commenced August 26, 1913, by appellees Ephraim Lindley, Mellie Jerni-gan, and others, children and grandchildren of said Jahu and Sallie Lindley, both then deceased, against appellants J. H. Lindley, Jack Millsaps, and others, also children and grandchildren of said Jahu and Sallie Lind-ley, to partition said 588 acres of land, which was alleged to Be of the value of $25,000. The parties plaintiff and defendant were all defendants in the suit referred to above as having been brought in 1906 by J. M. Lindley. The appeal is by said J. H. Lindley and by Jack Millsaps, John Booker, and Mintie Crisp, joined,by her husband, children of Pegg Ann Booker, deceased, who was a daughter of said Jahu and Sallie Lindley, from a judgment determining that the land was owned in proportions stated (and appointing commissioners to partition same accordingly) by parties to the suit as follows: Ephraim Lindley, Mellie Jernigan, Cordelia Jernigan, and J. H. Lindley, each one-eighth thereof; B. M. Lind-ley, C. C. Lindley, Lizzie Prim, Sallie Hem drickson, and Inez Moore, jointly, one-eighth thereof; J. H. Winton, Alice Hall, Laura Needham, and Pearl Burén, jointly, one-eighth thereof; Eva Floyd, Carl Lindley, and Joe Edwards, jointly, one-eighth thereof; and Jack Millsaps, John Booker, and Mintie Crisp, jointly, one-eighth thereof.

On the trial it was shown that by a deed dated March 22, 1897, Jahu and Sallie Lindley conveyed certain land to their daughter Mellie Jernigan. The deed contained recitals as follows:

“That we, Jahu Lindley and wife, Sallie Lindley, of the county of Hunt and state aforesaid, for and in consideration of the sum of one thousand dollars to us in hand paid by Mel-lie Jernigan, and for the purpose of conveying to the said Mellie Jernigan the hereinafter described land, which is to be a part of her interest as one of our lawful heirs at our death, the same to be a credit on her part of our landed estate of one thousand dollars, have granted, sold,” etc.

Both Mellie Jernigan and her husband testified as witnesses. Neither of them claimed in their testimony that any sum of money, or other thing of value, had been paid by them or either of them as a consideration for the conveyance of the land to the former; nor was there evidence of any kind, unless the recital in the deed of the payment by Mellie Jemigan of $1,000 to her father and mother should be regarded as of probative force, showing that the conveyance to her was based on a valuable consideration. Appellant insists that the recital, when considered, as it should be, with reference to other recitals in the portion of the deed copied above, reasonably could not be construed as evidence of the payment by Mellie Jernigan to her parents of anything for the land; that, on the contrary, it conclusively appeared from the recitals, when construed togetner, that the land was given to Mellie Jemigan by her parents as an advancement out of their estate. Therefore appellant insists, further, that the trial court erred when he found that Jahu lindley had not deeded land to Mellie Jernigan as a gift; and that, because he had not, she was a grantee in the deed conveying the 588 acres and as such owned an interest in the land. We are of opinion the contention should be sustained. It is plain from the face of the deed, we think, that the conveyance to Mellie Jerni-gan was intended as an advancement to her; in other words, was a gift to her by her parents. The recital therein of the payment by Mellie Jernigan of $1,000 obviously was formal and not intended to be construed as the recital of a fact. As shown by the recitals following it, it was not intended to be indicative of anything more than the value to be placed on the land in the adjustment contemplated after the grantors’ death between their heirs of their rights as such.

The trial court found that, after the death of Jahu Lindley, all of his children then alive, except J. M. Lindley, and the descendants of those dead—

“met and entered into an ag'reement, by the terms of which they agreed to waive and abandon any and all claims that any-of them had had lands given them, and agreed that they would join in the defense of cause No. 6246, styled ‘J, M. Lindley v. Harlon Lindley et al.,’ and pay' the expenses of such defense jointly according to their interests in the land, and that at the death of Sallie Lindley they would divide the land equally according to the terms of said deed.”

The court further found that:

“In pursuance of said agreement, a contract was entered into in writing by all the parties with Looney & Clark and Mulkey & Hamilton, by which Mellie Jernigan became liable and bound for her respective proportion of an attorney’s fee of $1,000 in the defense of said cause No. 6246,” and that Mellie Jernigan paid her “proportion of the attorney’s fees and expended money, time, and trouble in the defense of said law suit, and that the other children arid their descendants of Jahu Lindley received the benefits thereof.”

On the facts so found by him, the trial court concluded as a matter of law that appellants were estopped from asserting that Mellie Jernigan was not a grantee in the deed of Jahu Lindley of January 27, 1899, and from asserting that she was not interested in the lands in controversy to the extent of one-eighth thereof. It is insisted, and we agree, that the trial court erred in so concluding. The agreement by the parties to suit No. 6246 “to waive and abandon,” as found by the trial court, “any and all claims that any of them had had lands given them,” and that they “would divide the land equally,” on the faith of which Mellie Jernigan expended money, time, and trouble in assisting in the defense of said suit No. 6246, was a verbal one. Therefore it could not have operated to pass title to her to an interest in the land. Article 1103, Vernon’s Statutes. For the same reason, it was not enforceable against appellants as a contract on their part to convey to her an interest in the land. Article 3965, Vernon’s Statutes; Arnold v. Ellis, 20 Tex. Civ. App. 211, 48 S. W. 886; Dietrich v. Heintz, 44 Tex. Civ. App. 602, 99 S. W. 417. The transaction was lacking in essential elements of equitable estoppel. Mellie Jernigan knew that her father had given her land, and that therefore she did not come within the description in the deed of the grantees therein. She must be held to have also known as a matter of law that she therefore did not take anything by virtue of the deed. The ground of the estoppel asserted therefore was not that Mellie Jernigan had been misled by appellants as to the facts upon which she acted in expending money, time, and trouble in assisting in the defense of suit No. 6246, but that, knowing the facts, she had been induced to act as she did because she relied upon' appellants’ promise to convey her an interest in the land. The doctrine of estoppel, it seems to us, has no application. The case as made by the testimony is not different from the ordinary one in which the vendor refuses to convey to the vendee who has paid the purchase price of the land as verbally agreed upon. In cases of that kind, it has been held that the transaction is within the statute of frauds. Garner v. Stubblefield, 5 Tex. 552; Jones v. Carver, 59 Tex. 293.

The conclusion we have reached is that the judgment is wrong in so far as it determined that appellant J. H. Lindley owned a one-eiglith instead of a one-seventh undivided interest in the land; in so far as it determined that appellants Jack Millsapps, John Booker, and Mintie Crisp owned, jointly, a one-eighth instead of a one-seventh undivided interest therein; in so far as it determined that Joe Earl Edwards owned one-third of a one-eighth, instead of one-third of a one-seventh interest therein; and in so far as it determined that Mellie Jernigan owned a one-eighth undivided interest therein. The parties entitled to claim under said deed of January 27, 1899, other than Joe Earl Edwards and appellants J. H. Lindley, Jack Millsaps, John Booker, and Mintie Crisp, in their pleadings alleged that the land was owned by them and Mellie Jernigan and said Joe Earl Edwards and said appellants in the proportions of one-eighth to each child then living of said Jaira and Sallie Lindley, except J. M. Lindley, and of one-eighth to the children, jointly, of each of the deceased children of said Jahu and Sallie Lindley, and prayed that it be partitioned accordingly. Therefore we are of.opinion the ownership of the land undivided should have been adjudged to be in the parties in these proportions: In J. H. Lindley, one-seventh; in Jack Millsaps, John Booker, and Mintie Crisp, jointly, one-seventh; in Ephraim Lindley one-eighth; in Cordelia Jernigan, one-eighth; in E. M. Lind-ley, C. C. Lindley, Lizzie Prim, Sallie Hen-drickson, and Inez Moore, jointly, one-eighth; in J. H. Winton, Alice Hall, Laura Needham, and Pearl Burén, jointly, one-eighth; in Joe Edwards, one-third of one-seventh; in Eva Eloyd and Carl Lindley, jointly, two-thirds of one-eighth; and in Mellie Jernigan one-twelfth of the whole. The judgment of the court below will be reformed accordingly, and as reformed will be affirmed. The cause will, however, be remanded for such further proceedings as are necessary to complete the partition.

The contention made by appellants Jack Millsaps, John Booker, and Mintie Crisp that they had improved a part (109 acres) of the 58S acres and were entitled in the partition to he made to have same allotted to them, is overruled. The findings of fact made by the trial court with reference to this contention are, we think, supported by evidence in the record, and the conclusion reached by him as to the law applicable to these facts was, we think, correct.
      (g^vPor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      cg^jFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: LANE, J.

license: Public Domain

text:
    RAGLEY-McWILLIAMS LUMBER CO. v. DAVIDSON et al.
    (No. 6944.)
    (Court of Civil Appeals of Texas. Galveston.
    June 8, 1915.)
    1. Trespass to Try Title <&wkey;38 — Actions— Burden of Proof.
    In trespass to try title, where defendant has shown title to the land involved by a regular chain of transfers from the sovereignty of the soil down to itself, plaintiffs who attack such title have the burden of proof.
    LEd. Note. — For other cases, see Trespass to Try Title, Cent. Dig. § 53; Dec. Dig. &wkey;>
    2. Homestead &wkey;>57 — Vendor and Purchaser &wkey;>244 — Community Property-Conveyance by Husband — Invalidity.
    In an action to recover land which a husband had conveyed without the consent of his wife, evidence held not to show* that it was the homestead of the spouses, that the conveyance was a fraud on the rights of the wife, or that defendant had notice or knowledge of the fraud.
    [Ed. Note. — For other cases, see Homestead, Cent. Dig. §§ 83 — 85; Dee. Dig. <S^>57; Vendor and Purchaser, Cent. Dig. §§ 609-611; Dec. Dig. &wkey;244.)
    Appeal from District Court, Sabine County ; A. E. Davis, Judge.
    Action by J. O. Davidson and another against the Ragley-McWilliams Lumber Company. From a judgment for plaintiffs, defendant appeals.
    Reversed and rendered.
    W. F. Goodrich, of Hemphill, for appellant. Hamilton & Hamilton and J. W. Minton, all of Hemphill, for appellees.
   LANE, J.

J. O. Davidson, H. C. Maund, and Rebecca Stone, joined pro forma by her husband, E. N. Stone, brought this suit in the district court of Sabine county in the year 1911, in the ordinary form of trespass to try title, against the Ragley-McWilliams Lumber Company, a corporation, to recover 200 acres of land described in their petition. The cause was then tried, and resulted in a judgment being rendered in favor of Mrs. Stone for an undivided interest of 50 acres of said land; in favor of J. O. Davidson and H. C. Maund jointly for an undivided interest of 50 acres of same; and in favor of Ragley-McWilliams Lumber Company for an undivided interest of 100 acres therein. The Ragley-McWilliams Dumber Company appealed from so much of said judgment as whs in favor of Davidson and Maund, but no appeal was taken from the judgment in favor of Mrs. Stone, and the same was affirmed and made final by this court on a former appeal of this case, reported in 152 S. W. 856. But so much of said judgment as was in favor of Davidson and Maund was on said appeal reversed, and that part of the suit was remanded for a new trial. Therefore the only issue before the court, at the trial from which this appeal is taken, was as to the title to the 50 acres claimed by Davidson and Maund, and the Stones were practically no longer in the case. The last trial was had upon the petition and answer upon which the first trial was had; appellees’ petition being in the ordinary form of trespass to try title to-the said 200 acres of land, and appellant’s answer consisting of a plea of not guilty only. The case was tried before a jury upon special issues submitted by the court as follows:

“Question No. 1. Did Joe Meely Cosgrove and his wife, Rebecca Cosgrove, purchase the 200 acres of land described in plaintiff’s petition for a homestead, and by the act of them or either of them designated said 200-acre tract of land as their homestead? ‘ Answer this question ‘yes’ or ‘no.’
“Question No. 2. Did Rebecca Cosgrove, since she and her husband purchased the 200-acre tract of land described in plaintiff’s petition, live on said land? Answer ‘yes’ or ‘no.’
“Question No. 3. Did Rebecca Cosgrove, now Rebecca Stone, after living upon said land, if she did live upon said land, leave said land, if she left it, with the intention not to return to said land and live upon it as her homestead? Answer ‘yes’ or ‘no.’ ”

Upon these instructions the jury returned their verdict, as follows:

“We, the jury, answer the questions propounded to us by the court as follows: To question No. 1, we answer, yes. To question No. 2, we answer, yes.' To question No. 3, we answer, no.”

Upon motion of plaintiffs J. O. Davidson and H. 0. Maund, tile court rendered judgment upon said verdict in favor of said Davidson and Maund against defendant Ragley-McWilliams Dumber Company, for an undivided interest of 50 acres in the land in question, and for all costs of suit, and further adjudged that Rebecca Stone and husband, E. N. Stone, take nothing by their suit. Prom this judgment the Ragley-McWilliams Dumber Company have appealed.

While appellant has assigned several errors, practically the substance of all of them is that there was no evidence to support the judgment rendered. Therefore we shall not undertake to consider and dispose of the assignments in the order they are presented in appellant’s brief, but will consider and dispose of them together as one assignment.

The undisputed evidence shows that Joe Meely Cosgrove and Rebecca Cosgrove, now Mrs. Stone, were married some time prior to 1891, and the 200 acres of land involved in this suit was purchased by them for a home in 1891 and was the community property of said Cosgrove and wife. Shortly after the purchase of this land, for some reason not made entirely clear, Cosgrove left his wife and was gone six or eight months, at the end of which time he returned and asked his wife to live with him. She refused to live with him, giving as her reason for refusing that he was drunk and did not know what he was talking about. At this time Mrs. Cos-grove was living with her father, a Mr. Perkins, upon whom she partly depended for a support for herself and her two children. As Cosgrove did not contribute to their support, she moved with her father from Sabine county, where her husband was, to San Augustine county, and lived there about five years. After she had so resided in San Augustine county for four or five years, her husband, Cosgrove, came to her in that county and asked her to live with him.' She agreed to do so, and lived with him for about two or three months; this was in 1897 or 1898. While they were so living together, Cosgrove got from his wife the deed to the land in question and went back to Sabine county without assigning any reason for so doing. Some time after he left the last time, Mrs. Cosgrove brought suit against him for a divorce ; but no process was ever served upon him, and no divorce granted. About two years after Cosgrove left his wife in San Augustine county in 1S97 or 1898, and while he was still living, she married one E. N. Stone. She and Stone bought a place in San Augustine county and lived thereon as their home, but did not pay for same and gave it up and bargained for another place and moved to and lived upon it, but have not paid for it. She testified that she never intended to permanently abandon the Cosgrove 200 acres of land as her home, but did intend at some time to return to and live on it as her home. The husband, Joe Meely Cosgrove, the purchaser of said 200 acres of land in question, in 1903, some two years after Ms wife had married E. N. Stone, conveyed the same to J. D. La Brie. At the time La Brie bought, the fences and dwelling house formerly upon the place had either been removed or rotted down, and the little cleared field thereon had grown up in brush and trees, and there was nothing thereon to put one upon notice that it was a homestead. Some time after La Brie bought said 200 acres, he sold the same to the Ragley-McWilliams Dumber Company, appellants, who never knew Cosgrove nor Mrs. Cosgrove; never knew that there was such person as Rebecca Cosgrove or Rebecca Stone, nor of any claim by her to the land in question. It had its attorney pass on the title of Da Brie to the land before it purchased, and this attorney informed it that the title was good. In other words, appellant Ragley-McWilliams Dumber Company had no notice whatever of any fact which would or could lead it to suspect that the land was being claimed by Mrs. Stone as her home, or that her former husband, of whom it knew nothing, intended to defraud her of her community interest in said land. Mrs. Stone was advised by one S. P. McElroy in 1904 or 1905 that her former husband, Cosgrove, had sold the land, and thereafter, in 1906, Mrs. S tone and husband, E. N. Stone, conveyed to J. O. Davidson and H. C. Maund the interest in the land for which they sue; the consideration therefor being their services in recovering 50 acres of same for them. It is further shown that Mrs. Stone never received, any of the proceeds of the sale of land by Cosgrove to La Brie.

Prom the foregoing statement of facts we find that the 200 acres of land in question was the community property of Joe Meely Cosgrove and Ms wife, Rebecca, who later, before Ms death, and without being divorced, married E. N. Stone; that both Cos-grove and Mrs. Stone had abandoned the land as a home long before La Brie bought, she having married Stone before Cosgrove sold the land to La Brie; that at the time the Ragley-McWilliams Lumber Company bought the land from La Brie it had no notice or knowledge of the fraud, or any fact upon which such fraud as charged to have been practiced upon his wife by Cosgrove was based, if in fact such fraud existed; neither did It have any notice or knowledge that Cosgrove ever had a wife, or that he or his wife ever occupied or claimed said land purchased by it, as a homestead. We find nothing in the record to show that appellant had any such knowledge or notice, and before appellees can recover they must affirmatively show such facts.

The correctness of the judgment is assailed on the grounds of the insufficiency of the evidence to show: Pirst, that the premises was a homestead when sold to La Brie; and, second, that if the sale was a fraud upon the' rights of the wife, appellant had no notice thereof at the time he bought from La Brie.

Upon a former appeal of this case, Judge Eeese, in speaking for this court, in an opinion reported in 152 S. W. 856, says:

“(1) The land being community property of Cosgrove and wife, and no homestead rights being involved, Cosgrove had the right to dispose of the same by sale and conveyance without joinder by the wife. E. S. 2968. Under this general power to manage, control, and dispose of the community property, however, the husband would not be allowed to make such disposition of it as would be a fraud upon her rights as the owner of one-half of it. Smitheal v. Smith, 10 Tex. Civ. App. 446, 31 S. W. 422; Martin v. McAllister, 94 Tex. 567, 63 S. W. 624 [56 L. R. A. 585]; Purdom v. Boyd, 82 Tex. 130, 17 S. W. 606; Moody v. Smoot, 78 Tex. 123, 14 S. W. 285.
“(2) This power of control and disposition continues as long as the marriage relation is not dissolved in some legal way. What would be such a disposition of the property as would be set aside as in fraud of the rights of the wife it is not necessary clearly to define, if indeed it could be done; but it seems to us that the evidence in this record falls short of .making such a case. Prima facie, the property being' community and the marriage legally subsisting, the husband’s deed is valid.
“(3) The burden would rest upon any one claiming otherwise to establish the circumstances relied upon to invalidate it.
“(4) The only fact so relied upon, as shown by this record, is that the parties were living apart, and had been separated for several years when the deed was made. This of itself did not deprive the husband of the power to convey, and cannot be held sufficient evidence that such conveyance was fraudulent. The deed being regular, the presumptions are in its favor, not against it.
“(5) Another fact necessary to be shown in order to authorize the court to set aside the deed is that it be made to appear that the parties adversely interested are not innocent purchasers. Harris v. Hardeman, 15 Tex. 468. Mrs. Cosgrove in attacking this deed would have the burden also as to this. The only evidence that squints in this direction in this record is the testimony of McElroy that everybody in the neighborhood knew that Cosgrove and his wife were separated, and that this was community property. If this fact was not sufficient to authorize the inference of fraud, in the conveyance, notice of this fact alone would not be sufficient to affect the purchaser with notice of Cosgrove’s fraudulent intent in making the deed. We think the evidence fails totally on these points.”

We think: the evidence on the last trial, from which this appeal is taken, is very much the same as it was at the former trial, as shown by the statement made by Judge Eeese in his opinion on the former appeal. Certainly it is no more favorable to appel-lees than it was on said former trial. Ap-pellees at that trial wholly failed to show any title in themselves to the land sued for, or to show the invalidity of the title of appellants, and, as before said, we think the evidence on the last appeal was no more favorable to them than on the first. Appellant has shown title to the land involved by a regular chain of transfers from the sovereignty of the soil down to itself, and ap-pellees, who have attacked such title, and upon whom the burden of proof rests, have wholly failed to show a better or superior title in themselves.

We think the trial court erred in rendering a verdict for appellees Davidson and Maund, and in not instructing a verdict for the appellant, and, so believing, we here reverse the judgment of the court below and here render judgment for appellant.

Eeversed and rendered.
      cgr^For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: PLEASANTS, O. J.

text:
    BROWN et al. v. FOSTER LUMBER CO.
    (No. 6761.)
    (Court of Civil Appeals of Texas. Galveston.
    Feb. 25, 1915.
    Appellee’s Motion for Rehearing Denied March 11, 1915.
    Appellants’ Motion for Rehearing Denied June 30, 1915.)
    1. Husband and Wipe <&wkey;249 — Property— “Community Property.”
    Where a conveyance to a married woman in her own right and her payment of the consideration out of her separate estate gave her no title because her grantor had no title, any title acquired under the adverse claim of herself and husband was community property, notwithstanding she claimed it as her separate property.
    [Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. §§ 887, 889-892; Dec. Dig, <&wkey;249. •
    For other definitions, see Words and Phrases, First and Second Series, Community Property.]
    2. Homestead <&wkey;212 — Becovery—Parties.
    In a suit to recover homestead property, the wife was not a necessary party, as her claim of homestead would have been no defense thereto, and she was bound by the judgment rendered against her husband.
    [Ed. Note. — For other cases, see Homestead, Cent. Dig. § 393; Dec. Dig. <&wkey;212.]
    3. Judgment <&wkey;>511 — Collateral Attack-Fraud in Procuring.
    In such suit if there was an agreement by the husband in fraud of the homestead rights of his wife, or mistake or fraud whereby the judgment was not entered in accordance with the true agreement, the judgment could only be set aside in a timely direct proceeding.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 951, 954; Dec. Dig. &wkey;511.]
    4. Trespass to Try Title <&wkey;41 — Identity and Description oe Property — Evidence.
    A conveyance to plaintiff of all the unsold part of .a survey described by metes and bounds, except an 80-acre tract described in the deed, without evidence showing what part of the survey had been previously sold by the grantor or that none of the survey had been previously sold, while not void for insufficiency of description, on its face did not identify with certainty the land involved in the grantee’s action of trespass to try title.
    [Ed. Note. — For other cases, see Trespass to Try Title, Cent. Dig. §§ 89-97; Dec. Dig. &wkey; 41.]
    5. Evidence <&wkey;460 — Parol Evidence — Identity op Land.
    In such case, the land might be identified by extrinsic evidence.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2115 — 2128; Dec. Dig. <§~*>460.]
    Appeal from District Court, San Jacinto County; J. Llewellyn, Judge.
    Trespass to try title by the Foster Lumber Company against E. P. Brown and another, in which Mary E. Brown filed a petition in intervention. Judgment for plaintiff, and defendant and intervener appeal.
    Reversed and remanded.
    Baldwin & Baldwin, of Houston, for appellants. N. 0. Abbott, of Houston, for appellee.
   PLEASANTS, O. J.

This is an action of trespass to try title brought by appellee against R. P. Brown and the Michigan Diamond Oil & Refining Company to recover the D. M. Bullock 601%-acre survey in San Jacin-to county. After the trial began plaintiff took a nonsuit as to the Oil & Refining Company.

The defendant R. P. Brown disclaimed title to all the land, except a tract of 160 acres described in his answer, as to which he pleaded not guilts'. He also pleaded limitation of 10 years; that the land was thei separate property of his wife; and that it was, and had been since 1875, the homestead of himself and wife.

Mary E. Brown, the wife of defendant, filed petition in intervention, in which she claimed the 160 acres of land as her separate property, alleging that it was conveyed to her by James Smith in 1875 for her sole and separate use, and that she paid for said land with property and money belonging to her separate estate. She also pleaded limitation of 10 years, and that the property had been her homestead since 1875.

The trial in the court below without a jury resulted in a judgment for plaintiff against appellants, R. P. Brown and Mary E. Brown, for the entire tract of 601% acres.

The record discloses the following facts: The D. M. Bullock survey was patented to M. O. Dimon, assignee, on April 3, 1852. Dimon conveyed it to Gabriel Ereidberger on February 7, 1866. In 1873 or 1874 James Smith settled upon the Bullock survey, and in 1875 he sold the 160 acres now claimed by appellants, and upon which he then lived, to Mrs. Brown, for a consideration of $150. This consideration was paid by Mrs. Brown out of her separate estate. After she bought from Smith, she and her husband took possession of the 160 acres and lived thereon continuously for 12 or 13 years, cultivating and using a portion thereof and claiming the whole 160 acres. They afterwards bought a tract of 56 acres upon the Patterson survey adjoining the 160 acres claimed by them on the Bullock and built them a house on said 56 acres. Their dwelling house was near the line of the 160 acres, and the fencing on the two tracts was connected, and both tracts have been used for homestead purposes up to the present time. On May 12, 1899, Gabriel Ereidberger brought suit in the district court of San Jacinto county against R. P. Brown and others, to recover the title and possession of the Bullock survey. Mrs. Brown was not a party to this suit, had no knowledge of the fact that the suit was pending, and knew nothing of the judgment that was rendered therein. On October 18, 1900, the following judgment was rendered in said suit:

“On this the 18th day of October, 1900, the above case came on to be heard, and the defendant R. P. Brown having agreed to take nothing and to surrender all right and claim that he had or might have at the time of filing of this suit, and the defendant McWilliams having wholly failed to make answer to this petition herein filed in this case, thereupon judgment was asked for and taken in the above styled and numbered cause against the said McWilliams, and Mrs. E. J. McDaniels, one of the defendants in said cause, made and entered into an agreement with the plaintiff G. Ereidberger that she take 80 acres of said land which her improvements now stand on, the same to be taken as near as possible out of the northeast comer of the hereinafter described lands, and the said Ereidberger is to have and recover the timber on said 80 acres of land, and that the title of said lands be divested out of each and all of the defendants, except the said E. J. McDaniels, wno is to have the above 80 acres, and the title to this balance of said land be invested in the said Ereidberger, and the title to the said above 80 acres to be divested out of said Ereidberger (except the timber on said 80 acres) and invested in the said McDaniels, which said land is described as follows: [Here follows description of the Bullock survey.] It is therefore ordered, adjudged, and decreed by the court that the plaintiff G. Ereidberger do have and recover of the defendants, James McWilliams, R. P. Brown, and Mrs. E. J. McDaniels, the lands sued for in plaintiff’s petition, except the 80 acres heretofore mentioned and excepted, and the said E. J. McDaniels is to recover the said 80 acres.”

On February 7, 1902, Gabriel Ereidberger conveyed to the Foster Lumber Company a portion of the Bullock survey, described as follows:

“All the unsold tract or parcel of land situated in San Jacinto county, Tex., being 601% acres of land patented to M. O. Dimon, assignee of D. M. Bullock, April 3, 1852, No. 337, certificate 178, and described by metes and bounds as follows: [Here follows field notes of Bullock survey] — save and except 80 acres of said land decreed by the district court of said San Jacinto county in the case of G. Freidberger v. R. P. Brown et al., No. 858, of date October 18, 1900, to belong to Mrs. E. J. McDaniels, to be taken by her out of said land where her improvements stand, and the same to be taken, as near as possible, out of the northeast corner thereof.”

Under appropriate assignments of error, the appellants assail the judgment of the trial court upon three grounds: First. It is contended that the undisputed evidence shows the 160 acres of land in controversy was the separate property of Mrs. Brown, and she, not being a party to the suit of Ereidberger against her husband, R. P. Brown, and others, in which an agreed judgment was rendered in favor of plaintiff for all of the Bullock survey, is not bound by said judgment. Second. If the property was not owned by Mrs. Brown in her separate right, it was the homestead of herself and husband, and she, not having been a party to the suit above mentioned, is not bound by the judgment therein rendered. Third. That the deed from Ereidberger to appellee conveys only the unsold portion of the Bullock survey, less the 80-acre tract described in said deed; and there being no evidence showing what portion of the survey had been sold by Freidberger before his conveyance to ap-pellee, or showing that none of said survey had been sold by him prior to said conveyance, said deed does not show title in appel-lee to the 160 acres of said survey involved in this suit.

We agree with the trial judge in the conclusion that neither of the first two contentions of appellants can be sustained. It is tr.ue that the undisputed evidence shows that the deed from James Smith to Mrs. Brown conveyed the land to her in her separate right, and that the consideration for such conveyance was paid by Mrs. Brown out of funds belonging to her separate estate, but the undisputed evidence further shows that Smith had no title to the land, and Mrs. Brown therefore acquired none by said deed. The only title acquired by her was a limitation title which ripened under the adverse claim and possession of herself and husband, and it is clear that property so acquired is community. Until the 10 years’ adverse claim and possession had expired, the title to the 160 acres remained in Freidberger, and, when this possession ripened into title, it vested in the community, notwithstanding the fact that when such adverse possession began, and during all of the 10 years of such possession, Mrs. Brown claimed the land as her separate property under her deed from Smith.

It is now well settled that, notwithstanding the fact that the property was the homestead, the wife was not a necessary party to the suit brought by Freidberger for its recovery. Her claim of homestead would have been no defense to said suit, and for that reason it was unnecessary to make her a party to the suit, and she is bound by the judgment rendered against her husband. Such judgment is not void, and cannot be collaterally attacked. Childress v. Robinson (Civ. App.) 161 S. W. 78; Jergens v. Schiele, 61 Tex. 255; City of San Antonio v. Berry, 92 Tex. 327, 48 S. W. 496; Collins V. Ferguson, 22 Tex. Civ. App. 552, 56 S. W. 225; Brown v. Humphrey, 43 Tex. Civ. App. 23, 95 S. W. 23; Breath v. Flowers, 43 Tex. Civ. App. 516, 95 S. W. 26; Central Coal & Coke Co. v. Henry (Civ. App.) 47 S. W. 281; Speer on Law of Married Women, § 295.

If the agreement of R. P. Brown was made in fraud of the homestead rights of his wife, or if the judgment was by mistake or fraud not entered in accordance with the true agreement made by R. P. Brown, it could only be set aside in a timely direct proceeding brought for that purpose.

We think the third contention of appellants above stated is sound and must be sustained. As we construe the deed from Bkeidberger to appellee, before set out, it conveys only the unsold portion of the Bullock survey, less the 80 acres mentioned in said deed. If this construction of the deed is correct, it follows that said deed does not show title in appellee to the 160 acres of said survey in controversy, in the absence of evidence showing what portion of the survey had been previously sold by the grantor, or that none of said survey had been sold prior to the conveyance to appellee. The deed is not void for insufficiency of description, but upon its face it does not identify with certainty the 160 acres involved in this suit as a part of the land thereby conveyed. This identification can be made by extrinsic evidence ; but, in the absence of such evidence, it cannot be held that title to said 160 acres passed by said deed. Smith v. Clay, 57 S. W. 74.

For the reason indicated, judgment of the court below is reversed, and the cause remanded.

Reversed and remanded.

Appellants’ Motion for Rehearing Denied.

In a very able motion for rehearing filed by counsel for appellant it is earnestly insisted that we erred in holding in our former opinion herein that the title acquired by possession under the 10-year statute by appellant R. P. Brown and wife was community property and not the separate property of Mrs. Brown. In support of this contention, appellant cites the case of Alford Bros. v. Williams, 41 Tex. Civ. App. 436, 91 S. W. 636, decided by this court, and in which the opinion was written by the writer of this opinion. That opinion is in direct conflict with our present holding, but we regard it as also in conflict with the rule now recognized by the courts of this state. That case did not reach the Supreme Court, but the case of Ry. Co. v. Speights, 59 S. W. 572, cited in the opinion as authority for our holding, did reach that court, and our decision upon the question here involved was not affirmed; the court stating in its opinion that it was unnecessary to decide the question. In subsequent cases from this and other Courts of Civil Appeals a contrary rule to that announced by us in the Alford Case has been followed, and the writer has reached the conclusion that the rule announced in the Alford Case is not the correct rule. The deed to Mrs. Brown from one who held no title vested in her no right in the land as against the owners of the title, and, up to the very time that the 10 years’ possession by herself and husband was completed, she had no title to the land and no right of any kind in the land as against the owners of the title. How, then, can it be said that the deed to her was the inception of the title afterwards acquired by herself and husband by their 10 years’ occupancy and claim to the land? As the title to the land was acquired during the existence of the marriage relation, and did not have its inception in any right acquired by Mrs. Brown before her marriage, we think it should be held to be community property. Bishop v. Lusk, 8 Tex. Civ. App. 30, 27 S. W. 306; Cook v. Houston Oil Co., 154 S. W. 281. As pointed out in the Cook Case, the holding in the ease of Bishop v. Lusk is apparently approved by our Supreme Court in the case of Creamer v. Briscoe, 101 Tex. 494, 109 S. W. 911, 7 L. R. A. (N. S.) 154, 130 Am. St. Rep. 869.

We adhere to the conclusions expressed in our main opinion updn all of the questions presented by the motion for rehearing, and it follows that the motion is overruled.
      <S=»Por other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: LEVY, J.

text:
    WATERMAN LUMBER & SUPPLY CO. v. KING.
    (No. 1428½.)

    (Court of Civil Appeals of Texas. Texarkana.
    May 27, 1915.
    Rehearing Denied June 17, 1915.)
    1. Master and Servant &wkey;>190 — Liability for Injuries — Negligence oe Fellow Servant.
    Plaintiff and C. were loading lumber on a truck of lumber. C. was lowering each piece to plaintiff, who placed it on the truck. Plaintiff called to C. to wait while he straightened a plank on the truck, but C., who was then lowering a plank, lowered it the usual distance downward, and then turned it loose, resulting in the plank striking plaintiff. C. had no authority to hire and discharge employes, but plaintiff testified that C. would make a report to the foreman whether a man would work or not and would go to the foreman if a man did not want to work after he was told by him what to do. Held that, even though C. had power or functions of a vice principal, he was not exercising them at the time of the injury, but was discharging the duties of a fellow servant, and, for his negligence, the employer was not liable.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 449-^474; Dec. Dig. <&wkey;> 190.]
    2. Master and Servant <&wkey; 139 — Liability for Injuries — Negligent Order oe Foreman.
    Where it did not appear that the plank slipped or was caused to fall because C. was hurrying, the foreman’s direction to C. and plaintiff to hurry with the work did not render the employer liable.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 275', 282, 289, 296; Dec. Dig. <&wkey;>139.]
    Appeal from District Court, Shelby County; W. C. Buford, Judge.
    Action by E. A. King against the Waterman Lumber & Supply Company. From a judgment for plaintiff, defendant appeals.
    Reversed and rendered.
    The action is for damages by appellee, an employs of appellant, a sawmill corporation, who received personal injuries- in his work of loading lumber from piles or stacks onto a truck or vehicle used for the purpose, through the 'negligent act, as alleged, of M. D. Cheek, assisting and jointly working with appellee, in shoving or pushing a plank onto plaintiff. The petition alleged that M. D. Cheek was the authorized foreman of appellant, and over appellee, with authority of direction and control of the kind of work required and the manner in which it should be done, and it was the duty of plaintiff so to do the work, as he was doing, as directed by M. D. Cheek. The appellant, besides traversing the allegations, pleaded as a defense that M. D. Cheek was not a vice principal or a foreman, but was only a mere fellow servant of the plaintiff, and for whose negligence, solely causing the injury, the appellant was not legally liable. By supplemental petition the appellee, among other things, alleged that, while appellee and M. D. Cheek were doing the work of loading out the lumber as expeditiously as could be done with safety, one W. C. Pittman, shed foreman and in general charge of all the work, came up and severely reprimanded M. D. Cheek for the time he was taking to load the lumber, and ordered and required of M. D. Cheek and appellee to hasten the work; and that, in an effort to obey the order of his superior, the said M. D. Cheek pushed the planks down on ap-pellee. And it is averred that the order of W. C. Pittman, appellant’s vice principal, to do the work faster, rendered the doing of the work unsafe and was an act of negligence proximately causing the injury, for which appellant was responsible. The case was tried to a jury, and verdict for appellee.
    The evidence establishes that the lumber, when sawed, was placed in piles or stacks, according to dimensions of the plank, of about 16 feet high, for the purposes of assortment and as a drying out process. In order to load out the lumber for final shipment in railway cars, it was taken from the stacks and put on a truck or vehicle provided for the purpose, and then hauled to the railway ear for loading therein. The men loading the mill truck or vehicle did not have anything to do with carrying it to the railway ears or loading of the lumber in the railway cars. In loading the lumber from the stacks onto the mill truck or vehicle, the men employed so to do,' as were appellee and Cheek, work two together, and no more, at the time on each stack. M. D. Cheek and appellee worked together as a gang or crew. The work is done by one man getting on the top of the stack of lumber and the other remaining on the ground or floor, and the man on the top of the stack picks up one end of a plank and pushes it endwise downward to the reach of the man on the ground or floor, who then takes it and places it in regular tiers on the truck or vehicle. At the time of his injury on July 20, 1913, appellee and M. D. Cheek were engaged in their work of loading lumber on a truck or vehicle from a stack of lumber, about 16 feet high and between 10 and 12 feet wide, containing plank of the dimensions of 1x6, 16 feet long. The truck was located 4 or 6 feet distant from the particular stack of lumber. M. D. Cheek was on top of the stack, lowering the plank one at a time, and appellee was at the bottom receiving same and laying them on the truck in tiers as they were passed down to him by Cheek. About 15 or 20 minutes before he was hurt, W. C. Pittman, the shed foreman, came to where appellee and Cheek were working and directed them to change the work from the stack of lumber they were then on to the instant stack in controversy, and they did so. The injury occurred, as described by appellee, in the manner and way following:
    “Mr. Cheek said to me when we got to this stack of lumber (it was a high stack) : T will get up and shove it down. You are taller and can reach the lumber.’ We had a buggy in the run between two stacks of lumber, and it was standing here (indicating), and we had loaded on several pieces. I think maybe we had loaded on 25 pieces. It is a rule in loading lumber on to get it in tiers and as near even as possible. One of the pieces of plank got crossways, and I raised my hand to Cheek and said, ‘Wait till I straighten this plank.’ He was coming over with this lumber, and I was on the opposite side. The cart wheel was up like this, and here were the planks (indicating), and when this plank was shoved off he turned it loose, and it came down and struck the other end of the lumber and glanced off, and I got back as quick as I could, and back to the ends of the lumber, and couldn’t back any farther, as I was jammed in, and this plank came endwise and struck my testicles.”
    On cross-examination appellee testified:
    “The runs between the stacks of lumber are from 14 to 16 feet wide. In this run was just the buggy and myself. The buggy was about 4 or 6 feet from the end of the lumber, so this lumber could come down on it. This left the buggy about 10 feet from the end of the stack of lumber opposite. I was standing right up there getting the lumber working around the end of the buggy from Cheek.' Cheek would slide it off, and it would come down, and I would reach up, catch hold of the end of it, and rest it against the side of the buggy and turn it around and throw it in the buggy. I was trying to straighten a plank on the buggy, and Cheek sent down a plank before I got ready for it. When I first saw this piece of lumber coming down from above, it was in about 4 feet of me, and, if I had had my hands loose, I had plenty of time to have reached up and taken hold of it, but I didn’t do this, because I had told Cheek to hold and wait a minute until I straightened that lumber. That plank got to me by falling.”
    The testimony offered by appellant shows that M. D. Cheek was merely an employé to load lumber as appellee was doing, and had no authority of hire or discharge and no authority over appellee or any other employé, and was not a foreman or subforeman or a straw boss. Appellee testified, however:
    “I was employed by Mr. Pittman, and, when Mr. Pittman employed me, he said, ‘Go to work with Mr. Cheek.’ * * * And, in loading the lumber out from the run, Mr. Cheek received all the orders, and they were given by Mr. Pittman. * * * I obeyed the orders and instructions Mr. Cheek gave me from time to time. * * * Mr. Cheek directed me in doing the different kinds of work that I did. * * * I knew that he (Cheek) had no authority to fire or discharge me. He would make a report to Mr. Pittman whether a man would work or not. He had no authority over me at all, and I knew that he had none, only to go to Mr. Pittman if a man did not want to work after he would tell him what to do. He did not report me any. I could not tell you. I don’t know how many times he ever reported anybody else.”
    Davis & Davis, of Center, Crook, Lord, Lawhon & Ney, of Beaumont, for appellant. Carter & Walker, of Center, for appellee.

       writ of error pending in Supreme Court.

   LEVY, J.

(after stating the facts as above).

The appellee predicates error, in the first assignment of error, upon the refusal of the court, after request so to do, to peremptorily instruct a verdict in its favor. The contention is upon the ground that the evidence conclusively shows that the appellee sustained his injury in the course of his work directly and only through the act of M. D. Cheek, working with and in the same common employment as himself, in carelessly turning loose and letting fall a plank that was being lowered by him from the stack of lumber for the purpose of being loaded by appellee on a truck. In his original petition appellee averred that his injury was caused by the negligent act of M. D. Cheek, as stated above. And the evidence of appellee, which is without dispute in the record, sustains such averment as to the manner of injury. Appellee testified that he and M. D. Cheek were at the time working together in taking lumber from a pile or stack and loading it on a truck. M. D. Cheek was on top of the stack lowering each plank to the appellee on the floor at the bottom of the stack, who would receive the plank from Cheek and load it properly on the truck. In the course of the loading a plank got crosswise on the truck, and appellee, raising his hand, said to Cheek, “Wait till I straighten this plank.” At the time appellee requested Cheek to wait, it appears that Cheek “was coming over with this lumber,” which inferably means that Cheek was in the act of lowering a plank at the time. It does not appear from the evidence whether Cheek did or did not either see appellee straightening the plank on the truck or hear the request of appellee to wait. It is inferable, though, that Cheek, with ordinary observation and prudence, could have seen that appellee was straightening the crosswise plank on the truck. M. D. Cheek, after lowering the plank the usual distance downward, simply turned it loose, and the end of the plank struck on the lumber on the truck and rapidly slid or glanced in the direction of appellee and hurt him. It was conclusively shown, and admitted as a fact by appellee, that M. D. Cheek was not clothed with authority of hire and discharge. The legal effect of these facts, established without dispute, is to make the relation between Cheek and appellee that of mere fellow servants and to deny appellee a recovery against appellant, upon the ground that his injury was solely caused by the negligent act of his fellow servant, for which appellant is not legally responsible. Langtry-Sharpe Contracting Co. v. McCracken, 105 Tex. 407, 150 S. W. 1156. In Railway Co. v. Anderson, 102 Tex. 402, 118 S. W. 127, bearing some similarity as to tbe manner of injury, Anderson was injured by tbe falling of a rail wbicb be and other section men were removing from tbe band car to tbe track. And because Anderson and those assisting him, and causing tbe injury, were fellow servants under tbe common law, a recovery was denied Anderson. And to same effect under similar facts is Lakey v. Railway Co., 33 Tex. Civ. App. 44, 75 S. W. 566. Appellee urges a distin-guisbment between these cases and tbe instant one upon tbe ground that, taking ap-pellee’s testimony as to tbe capacity of M. D. Cheek, be was a subforeman with authority to direct tbe work and with instructions to report failures of duty to tbe general foreman. Under tbe rule firmly announced by tbe Supreme Court in the McCracken Case, supra, it is not thought that M. D. Cheek was, in the circumstances, in tbe relation of a vice principal of tbe appellant rather than a mere fellow servant working with appellee. M. D. Cheek was working at tbe time in the capacity and only doing tbe services of a feL low servant passing plank from the stack to the appellee. Performing at the time, as Cheek was, merely the duties of a servant, then, as to appellee engaged with him in tbe prosecution of tbe, same common object, he ■was merely a fellow servant. And it would be this fact in this case, that Cheek was only discharging tbe duties customary in his work with appellee, and was not at the time of the injury exercising any power or function, if be had such, which was an essential attribute of the position of vice principal, that would control and determine that Cheek was not such representative of tbe appellant as would make it liable for Cheek’s personal negligence.

Appellee, though, insists that, if the evidence fails to support recovery on the ground alleged in tbe original petition, yet tbe peremptory instruction should have been refused because in the supplemental petition another ground of negligence was set up, and tbe evidence raises an issue in that respect. Tbe appellant replies that allegations made in tbe supplemental petition could not afford the basis of recovery under the law of pleading. The ground of negligence set up in tbe supplemental petition is, in substance, that appellee and M. D. Cheek were doing the work of loading lumber as expeditiously as could be done with safety with all usual dispatch, and that W. C. Pittman, shed foreman and in general charge of the work as vice principal of appellant, came to the place of work and required of appellee and Cheek to do the work more rapidly than it could be done with safety, and, in an effort to obey tbe orders of W. C. Pittman, appellee was injured in tbe manner stated in his original petition. The full evidence relied on, as shown by tbe record, is as follows: Appellee testified:

“I was hurt directly after dinner. About 15 or 20 minutes before I was hurt I saw Mr. W. C. Pittman in the run where we were working. He came down there where we were unloading some lumber and changed our work and sent us up there to load out some lumber. He kinder got after Cheek a little bit about being slow loading some stuff. He asked him why he couldn’t get this lumber out; that he didn’t want those buggies standing there. I asked him if he were talking to me, and he said, ‘No;’ that he was talking to Cheek. We had been doing the work about as usual, as we always worked. The work was being done in a hurry. We were trying to get the lumber out. It was being done as rapidly as it could be done with safety. * * He came down there and said they were needing lumber at the machines, and that they wanted some lumber, and said: ‘Don’t let those buggy hubs grow to the spindles. We want lumber up there. Keep those buggies loaded and get that stuff out of here.’ And he jumped at a stack of lumber and pulled it off of another buggy down there that had been run in and stopped; and he wanted to get the buggies. He sent us from there to this stack of lumber. He told Mr. Cheek to go up there and load out some lumber, to load lumber on those buggies, and we did so. A hundred pieces, I believe, is the amount he wanted. * * * After Mr. Pittman had been down there and reprimanded Cheek he was getting the lumber out faster, he made the remark,. ‘Well, we will load it out in a hurry, and we will try and please him.’ ”

Assuming only for tbe moment that ap-pellee could invoke tbe aid of bis supplemental petition to enlarge tbe cause of action, still it is concluded, under the evidence, ap-pellee would not be entitled to recover. The evidence conclusively establishes without dispute that tbe real producing cause of tbe injury was solely tbe act of hi. D. Cheek in simply turning loose and letting fall a plank after being requested by appellee himself to wait a while. Tbe order to hasten the work, previously given, did not include nor imply directions to Cheek to turn loose and let fall the plank whether or no. And the evidence does not, even remotely, explain or tend to show that the plank through hurry slipped or was caused to fall. Appellee explains it thus:

“Cheek would slide the lumber off, and it would come down, and I would catch the end of it. He would hold it until it came down, and I would catch hold of the end of it. * * * I was trying to straighten a plank on the buggy, and Cheek sent a plank down before I was ready for it. * * * When I first saw this piece of lumber coming down from above, it was in about 4 feet of me, and if I had had my hands loose I would have had plenty of time to have reached up and took hold of it, but I didn’t do this because I had told Cheek to hold, to wait a minute until I straightened that lumber. I wasn’t watching him, and didn’t know the plank was loose until I heard it slide. It was sliding all the time it came over. * * * I knew when he turned it loose, because of the difference in the movement of it. * * * The first time I saw that it was turned loose was when it had struck the buggy and I looked around and. saw it.”

In view of the facts as admittedly shown by the record, it is believed the court should have given the peremptory instruction. The judgment is therefore reversed and here rendered in favor of appellant, with all costs of appeal and of the trial court.

Reversed and rendered.
      <&wkey;Eor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: LEYX, J.

text:
    PAYNE v. FARLEY.
    (No. 1495.)
    (Court of Civil Appeals of Texas. Texarkana.
    June 3, 1915.)
    1. Wills <&wkey;577— Construction — Property Intended to be Bequeathed.
    A testator owning 104 acres of land and personal property, all of which was community property, devised 50 acres of land to his wife for life and bequeathed to her specific personal property and “all of my personal property not appropriated or described, also my money on deposit in the First National Bank”; the will further providing that this property last given should go to pay taxes, doctors’ bills, and burial expenses. The personal property not appropriated or described consisted of growing crops. The will also devised land and personal property to the children. Held that, while the will showed a clear intention to dispose of the com-munitj interest of both the testator and his wife so far as concerned the land and the particular personal property set aside to each legatee, it showed no such intention as to the crop and money on deposit, but only disposed of the testator’s one-half thereof, and the wife took such one-half interest subject only to the debt specified.
    [Ed. Note. — For other cases, see Wills, Cent. Dig. § 1257; Dec. Dig. &wkey;577.]
    2. Appeal and Error &wkey;>704 — Recoed — MatteRS Presented bob Review.
    A testator owning 104' acres of land and personal property all of which was community property bequeathed to his wife more than one-half of the personal property and 50 acres of land for life. Held that, as the value of the land did not appear, the trial court’s finding that she did not receive more free and disposable property than she was entitled to as her half interest in the community property could not be disturbed.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2900, 2939-2941; Dec. Dig. <@=704.]
    3. Wills <&wkey;792 — Election—Provisions por Surviving Wipe.
    A testator owning 104 acres of land devised 50 acres to his wife for life and also bequeathed personal property to her, but it appeared that she did not receive any more free and disposable property than she would have been entitled to as her community interest. The wife was an ignorant negro, was not informed, and did not know of her right to take under the will or to take one-half of the community property, and was not advised or informed of what would constitute an election. It did not appear that she knew or understood that the will attempted to give her only a life estate. She claimed the 50 acres of land as her own and conveyed it. Held, that the conclusion that she did not elect to take under the terms of the will was warranted, as consent and acquiescence must have been made understandingly, sometimes, even of the person’s rights under the law.
    TEd. Note. — For other cases, see Wills, Cent. Dig. §§ 2049-2052, 2001-2063; Dee.Di¿."&wkey;792.]
    Appeal from District Court, Harrison County; P. M. Young, Judge.
    . Action by Nelson Payne against Harriett Parley. Judgment for defendant, and plaintiff appeals.
    Affirmed.
    An action by appellant against appellee of trespass to try title to a specific tract of 50 acres of land. The defendant’s plea was not guilty. In a trial before the court without a jury, judgment was for the defendant for the land.
    Appellant claims title under the terms of the will of Jim Payne, his father, and the appellee claims title under a deed from Pro-zilla Payne, surviving wife of Jim Payne. According to the uneontroverted evidence, Jim Payne and Prozilla Payne were husband and wife, and had acquired during their marriage a tract of 104 acres of land, and occupied and used it as their homestead. The 50 acres in suit is a part of the 104 acres. Nelson Payne, appellant, is a son of Jim Payne by a former marriage. Harriett Farley is the granddaughter of Jim Payne, and is of no blood kin to Prozilla Payne, but she was reared from childhood by Jim and Prozilla Payne. Jim Payne died in August, 1892, testate, with his wife Prozilla and three children and two grandchildren of a former marriage surviving him. The will was duly probated in October, 1892. The will disposed of the 104 acres of land and all the personalty, which was community property, as follows:
    (1) Devising to Prozilla Payne, wife, “50 acres of land for a home during her lifetime,” and two mules, one horse, one wagon and harness, one hack, four cows, all of the household and kitchen furniture and cooking utensils, farm tools and implements, and “all of my personal property not appropriated or described, also my money on deposit in the First National Bank.” “It is my will that the last property given to my wife shall go to pay taxes on all the property for the year 1891 and for doctors’ bills ' and burial expenses.” (2) “At the death of Prozilla Payne the above 50 acres of land shall go to my son Nelson Payne and his heirs and assigns.” (3) Devising to Nelson Payne 29 acres to be cut out of the south side of the tract adjoining the 50 acres above. (4) Devising to his granddaughters Julia and Betsey' Johnson, children of his ¿laughter Caroline Johnson, 12% acres. (5) Devising to his daughter Matilda Fitzpatrick 12% acres more or less, and one cow. (6) Devising to his son Homer one cow.
    The trial court specifically finds:
    “Third. I find as a fact that there were four children of Jim Payne, and that Nelson Payne, the plaintiff in this case, being one of said four children, received under said will, and now retains possession of, 29 acres of the 104 acres of land belonging to the community estate of Jim and Silla Payne, and that said 29 acres received by Nelson Payne was more than he would have been entitled to as one of the four children, under the law of descent and distribution. 1 find that each of the legatees and devisees named in the will of Jim Payne received the items of property specified therein and devised to such legatees or devisees.
    “Fourth. I find that Prozilla Payne received all of the property devised to her under the will. I find that the residue of the estate was not of a value exceeding the expenses of last illness, doctors’ bills, taxes, etc., mentioned in paragraph 7 of the will. I find that said expenses and bills exceeded the value of the residue of the property, and that under the terms of the will such residue was applied to the payment of such expenses. I further find that Prozilla Payne did not receive under the will of Jim Payne any more free and disposable property than she should have been entitled to as her one-half interest in the community property under the laws of descent and. distribution) including the widow’s allowance and exemptions which she was entitled to under the law though she received the property bequeathed to her by the will; and that the will of Jim Payne only attempted to give her a life estate in slightly less than her half of community interest in the real estate. I find that Prozilla Payne never understood that by the terms of the will she was to receive only a life estate in the land in controversy.
    “Fifth. I do not find that there was any explanation of the meaning of the will to Prozilla Payne, but I find that she heard the contents of the will read. I find that Prozilla Payne was an ignorant negro woman, being an ex-slave, and that she was not informed or advised of her rights to take under the will or to take her one-half of the community property, nor was she advised or informed of what would constitute an election to take under the will, or the effect thereof; that she received all the property bequeathed to her by the will, but that there is no express election by her shown by the evidence, and her holding of the property in controversy in the manner that she did was not inconsistent with her rights to claim her half of the community property and her widow’s allowance and exemptions. And there is no evidence that she knew or understood that the will attempted to give her only a life estate in the land in controversy, or that she took and held said land under the claim of a life estate therein, but that she did claim the land as her own, and claimed the right of conveying or disposing of it without regard to the provisions of the will, attempting to give her only a life estate, and that no one has (lost) or will lose anything to which they are otherwise legally entitled if it should be held that Silla Payne did not elect to take under the will.
    “Sixth. I further find as a fact that prior to her death Prozilla Payne executed and delivered to the defendant, Harriett Farley, an instrument which was in form a general warranty deed conveying to the defendant, Harriett Farley., the property in controversy, and that the said instrument was intended by the said Prozilla Payne to be a general warranty deed conveying the property to tlfe defendant, Harriett Farley, and that at the time of making, executing, and delivering the same Silla Payne was sound of mind.
    “Conclusions of Law.
    “X conclude that Prozilla Payne, grantor of the defendant, Harriett Farley, did not elect to take under the will of her husband, Jim Payne, and that the land in controversy was her own land, being a part of her half interest in the community estate of herself and deceased husband, Jim Payne,’ and that her title to the same was not affected by the will of Jim Payne, deceased.
    “Second. I conclude that the deed executed by Prozilla E’ayne to the defendant, Harriott Farley, is a valid, general warranty deed, and conveyed the title to the property in controversy to the defendant, Harriett Farley, free from the claim made by the plaintiff, Nelson Payne, based upon the will of his father, Jim Payne.
    “Third. I conclude that the defendant, Harriett Farley, is the owner, in fee simple, of the 50 acres of land in controversy, and entitled to judgment for the title and possession of the same as against the plaintiff herein, Nelson Payne.”
    As the evidence' supports these findings, they are here adopted.
    Lane & Lane, of Marshall, for appellant. J. H. T. Bibb and F. M. Scott, both of Marshall, for appellee.
   LEYX, J.

(after stating the facts as above).

Appellant challenges the findings in the finding of fact “that the residue of the estate was not of the value exceeding the expenses of last sickness, doctors’ bills, and taxes mentioned in the will,” and “that Prozilla Payne.' did not receive under the will of Jim Payne any more free and disposable property than she would be entitled to as her one-half interest in the community property under the laws of descent and distribution, including the widow’s allowance and exemptions which she was entitled to under the law though she received the property bequeathed to her by the will.” As to whether the wife did not receive in the evidence any more free and disposable property than she was entitled to as her half interest in the community property, somewhat depends upon the construction of the will. There is a clear and unmistakable intention ’on the part of Jim Payne, the testator, to dispose of the community interest of both himself and his wife so far as concerns the land and the particular personalty set aside to each legatee. The language shows a devise of such property as an entirety. But, dealing with the personalty not so specifically devised, the seventh clause provides:

“It is lastly my will and X give and devise to my beloved wife Prozilla Payne all of my personal property not appropriated or described in the foregoing, also my money on deposit in the First National Bank of Marshall. It is my will that the last property given to my wife shall go to pay taxes on all the property for the year 1891 and for doctors’ bills and burial expenses.”

Disposing of “my personal property” and “my money,” as this clause does, would not appear to show, considered in connection with the language and intent of the preceding clauses, an intent on the part of the testator to dispose of his wife’s interest in this specific part of the community property. According to the evidence, the entire “personal property not appropriated or described in the foregoing” consisted of the growing crop, which was two bales of cotton, 70 or 80 bushels of corn, 15 bushels of potatoes, and 1 y2 bushels of peas. The money on deposit was $20. This particular property was all community property.' The trial court construed the clause as not showing an intention to devise the crop and money as an entirety, but only as a disposition of the testator’s one-half of this part of the community property. And this being a correct construction 'of this provision (1 Pomeroy, Eg. Jur. § 475), the wife took the husband’s half interest in the crop and money absolutely, subject only to the debts specified. There is evidence to support the finding that the taxes were paid by the wife, and that she “paid the funeral expenses.” The court’s findings, as complained of, would therefore be warranted, unless, ‘looking to the other community property devised as an entirety, the wife received more property than her one-half interest. The value of the land is not shown; but in point of acreage she received slightly less than one-half. There were six cows of the community, and she received four; there were two mules and one horse, and she got them, all the household furniture, and two turning plows and two “scuter” plows. Considering the value shown of this entire personalty mentioned, the wife did receive somewhat more than her one-half interest therein. But, in the absence of the value of the land, we cannot say from the record that the value of the personal property so received by her was greater than the lesser acreage of land set aside to her. As a consequence, we are unwilling to’set aside the findings of fact by the trial court.

The court on the facts of the case concluded that the wife was not estopped by an election under the will, and gave legal force to her deed to appellee. The appellant by proper assignment challenges the conclusion of the court. Finding, as the court did, that the will of Jim Payne only attempted to give his wife a life estate in slightly less than her half interest in the land, and that she was ignorant and did not know and was not informed as to her rights and had no intention to and did not elect to take under the terms of the will, this court would not be warranted, we conclude, in holding erroneous the conclusion of the trial court that election or finality of election should not be given her acts. Consent or acquiescence must have been made understandingly, sometimes even of the person’s rights under the law. Watson v. Watson, 128 Mass. 152; Packard v. De Miranda, 146 S. W. 211; 2 Underhill on Wills, § 731; 1 Pomeroy, Eq. Jur. § 512.

The judgment is affirmed.
      <&wkey;For other eases see same topic and KEY-NUMBER. in all Key-Numbered Digests and Indexes


author: HENDRICKS, J.

text:
    FT. WORTH & D. C. RY. CO. v. HART.
    (No. 814.)
    (Court of Civil Appeals of Texas. Amarillo.
    June 19, 1915.)
    1. RailRoads <&wkey;345 — Crossing Accidents— Discovered Peril.
    A complaint, alleging that the defendant railway company neglected to post a switchman on the end of its freight cars approaching the crossing, so that if any one was attempting to cross, the switchman could stop the cars by the use of brakes, and that for such reason plaintiff’s automobile was struck and injured, does not raise the issue of discovered peril.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1113-1116; Dec. Dig. &wkey;345.]
    2. Railroads &wkey;>327 — Crossing- Accidents— Evidence — Physical Facts.
    Where the driver of plaintiff’s automobile admitted that though he had a clear view he did not stop, look, or listen, and did not look at the tracks until within 25 feet thereof, and it appeared he was struck by cars which were kicked from some distance down the track, he was, as a matter of law, guilty of contributory negligence, though he testified to seeing the engine standing quiet on the tracks before he attempted to cross.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1043-1056; Dec. Dig. &wkey;327.]
    3. Appeal and Error <&wkey;1177 — Determination — Remand.
    In an action for injuries to an automobile resulting from a crossing collision, where there was some testimony that defendant’s brakeman was on the cars and saw the perilous position of the motor and its occupants in time to have slowed the speed of the cars, which had been kicked toward the crossing, a judgment for plaintiff will not be reversed without remand, though it conclusively appeared the driver of the motor was guilty of contributory negligence.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4597-4604, 4606-4610; Dee. Dig. <&wkey;>1177.]
    4. Railroads <&wkey;313 — Crossings—Signals.
    Under Rev. St. 1911, art. 6564, declaring that the whistles shall be blown and the bell rung at a distance of at least 80 rods from the place where the railroad shall cross any public road or street, and such bell shall be kept ringing until the train shall have passed, it is not necessary for those in charge of an engine engaged in switching to give the crossing signals before kicking cars across a street, where the engine and ears were not over 50 or 100 feet away.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. § 1002; Dec. Dig. &wkey;313.]
    Appeal from Wiebita County Court; C. B. Felder, Judge.
    Action by Leona Hart against the Ft. Worth & Denver City Railway Company. From a judgment for plaintiff, defendant appeals.
    Reversed and remanded.
    Thompson & Barwise, of Ft. Worth, and Carrigan, Montgomery & Britain and F. S. Jones, all of Wichita Falls, for appellant. W. F. Weeks, of Wichita Falls, for appellee.
   HENDRICKS, J.

The appellee, Hart, sued the appellant railway company for damages to an automobile, alleged to have been sustained at a railway crossing in the city of Wichita Falls, asserting that the employSs in charge of the engine and cars causing the injury negligently failed to give any signals or warning of the approach to said crossing.

The jury assessed damages in favor of appellee in the sum of $571, and the appellant assigns that the trial court erred in instructing the jury on “discovered peril,” for the reason that plaintiff’s pleading did not present such an issue for consideration. This assignment will be sustained; there is no support whatever in the pleading for the charge of the court on the particular issue. Sanches v. Railway Co., 88 Tex. 118, 30 S. W. 431; Railway Co. v. Powell, 41 S. W. 696; Railway Co. v. Knox, 75 S. W. 543; Townsend v. Electric Co., 154 S. W. 629.

The appellee, in controverting appellant’s assignment as to the failure of pleading upon the particular question, cites that part of the petition wherein it is alleged, in effect, that the railway company had neglected to post a switchman on the end of its freight car approaching the crossing, so that if any one was attempting to go upon said crossing, said switchman could stop the car by the use of the brakes on same. “Discovered peril” clearly does not come within the purview of such a pleading.

The appellant railway company also assigns that Walker, the driver of the automobile, was conclusively guilty of contributory negligence. Walker testified that he did not stop, look, and listen, when approaching the crossing, but that when he got within 20 or 25 feet of the track he looked and noticed the engine standing still within 50 or 55 feet from him, without any smoke issuing from the smokestack, and that he did not hear the blowing of any whistle or the ringing of any bell. The engine, upon this particular occasion, had shoved some ears with a “kick” towards the crossing, and Walker, the driver of tile auto, testified that he neither saw the movement of the engine, nor of the. two or three cars which had been disconnected from the same, until he heard a jar and some one on foot ran around one end of the ears and “hallooed.” He said:

“I never noticed the engine doing anything; only it kicked the cars. It seemed like a jar, and here come the cars. If those cars had been rolling when I saw them, I could have stopped.”

This driver was acquainted with this crossing, and from the time he left the corner of the building known as the Last Chance Saloon, a distance of from 65 to 70 feet from the crossing, there was an unobstructed view of the track and of the particular engine and cars kicked by the same at that time. All the other testimony, including that of appel-lees, was that the driver of this auto did not look until just as he got to the crossing, saw the danger, and turned his auto down the track to avert it. If he looked within 25 feet of the crossing and saw no cars moving, it is a fantasy, born of the stress of the conditions surrounding him. It is entirely improbable that the engineer could have started his engine from a (lead stop, produced the kick, and the resultant momentum sufficient to have met the auto at the crossing, considering the distance indicated in this record each had to go. It is, of course, generally inappropriate to reduce matters of this kind to mathematics, but in this instance it is pertinently suggestive that this auto, even running at a speed of 10 miles an hour, the lowest speed with which he could be charged, would take only six seconds to run 82 feet; and all the testimony is that he never slackened his speed from the time he left the Last Chance Saloon until the front wheels of his car struck the crossing. Eor the engineer to have started his engine, and to have kicked these cars and rolled them for the distance necessary, considering the distance from the track the driver says that he looked (and even doubling the distance to 50 feet from his testimony) in connection with the lowest speed of the auto, testified to by him, the engineer, with the movement of the cars to the crossing, could not have done that required of him if his engine had been standing. Am appellate court, whatever deference it may owe to a jury’s verdict, is not required to go blind. The testimony of all the other witnesses — a number of them who saw the moving auto, the cars and the accident — either directly or by inference,- shows that the ears which struck the auto were moving at the time Walker first looked, or could have seen. For example: J. B. Belote, one of appellee’s own witnesses, who was facing the automobile as it came by the Last Chance Saloon, noting its speed, and saw the moving cars approaching the crossing, and, intently watching both, said:

“What attracted my attention to the moving cars and the automobile was I wondered if that man was going to risk his life going- across that crossing and the cars in plain view of him. He never did look up the track until he got nearly, to the crossing. When he left the saloon there’ was nothing to prevent him from looking there and seeing those cars [meaning the moving cars].”

The driver of the automobile testified that if he had noticed the cars moving when he looked, he could have stopped the auto in sufficient time to have avoided the accident. Mr. Belote said:

“If he had looked he could have seen those cars coming. He had time to stop.”

We think, where the view is unobstructed, it was contributory negligence for this driver to run his auto into a moving train, whether he looked or did not look, upon all the facts presented in this record conclusively showing that the cars were moving at a time when he should have seen 'them in action, and that it would be the trial court’s duty to so instruct the jury upon another submission upon the facts. I. & G. N. Ry. Co. v. Edwards, 100 Tex. 22, 93 S. W. 106; Railway Co. v. Bracken, 59 Tex. 74; Boyd v. Railway Co., 101 Tex. 411, 108 S. W. 813.

Appellant railway company says that if the driver of the auto was guilty of contributory negligence, this court should reverse and render the case. This we do not think should be done, in view of the testimony of Lee Oldham, Janies Robertson, J. E. Miller, and Callie Smith, with reference to a brakeman, Walton, on top of the end car, some of whom testified that when the cars were approaching the crossing, this employs was “hallooing” from the top of the car to the driver of the auto. Walton denied that he was on top of the car, and said that he was on the side of the end car until after the crossing was passed. One witness, however, practically said Walton was “hallooing” when the auto was about 150 feet away, which, whatever you may think of the distance, in connection with the other testimony, may make discovered peril a jury question. It is true Walton said if he had been on top of the car when he first noticed Walker in the automobile, he could not have stopped the cars, but also said, “I might have been a'ble to have slowed them down.” The trial court’s charge could probably be more aptly framed under the numerous decisions in this state on discovered peril.

The trial court charged the jury that the railway company was guilty of negligence as a matter of law if its employés ran the cars across the crossing without beginning to ring the bell and blow the whistle at a distance of at least 80 rods from said crossing.- What testimony we have upon this subject starts the engine and cars at a point less than 80 rods; hence statutory negligence with reference to blowing the whistle does not apply. Railway Co. v. O’Neal, 91 Tex. 671, 47 S. W. 95; Gulf, Colorado & Santa Fe Ry. Co. v. Hall, 34 Tex. Civ. App. 535, 80 S. W. 135.

The statute (Rev. St. 1911, art. 6564) says that:

“The whistle shall be blown and the bell rung at the distance of at least eighty rods from the place where the railroad shall cross any public road or street, and such bell shall be kept ringing until it shall have crossed such public road, or stopped.”

Chief Justice Fisher held in the case cited (Railway Co. v. Hall, supra) that, though the start was made within less than 80 rods of the crossing, there should be a continuous warning by ringing the bell in approaching tho crossing, although the statutory requirement as to the whistle did not apply, citing the cases of Railway Co. v. Bailey, 83 Tex. 19, 18 S. W. 481; M., K. & T. Ry. Co. v. Magee, 92 Tex. 619, 50 S. W. 1013, which rather sustain the ruling.

For the errors indicated, the cause is reversed and remanded.
      <©5s>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes