author: REESE, J.

text:
    DEGGS v. LOVING et al.
    (Court of Civil Appeals of Texas. Galveston.
    Dec. 19, 1913.)
    1. Appeal and Error (§ 1011) — Findings— Conflicting Evidence — Review.
    Findings of the trial court in' a boundary dispute, based on conflicting evidence, will not be set aside on appeal.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3983-3989; Dec. Dig. § 3011.]
    2. New Trial (§ 99) — Newly Discovered Evidence — Discretion.
    Where an application for a new trial for alleged newly discovered evidence was not supported by affidavits of the proposed witnesses as to the facts to which they would testify, and it also appeared that the evidence was only corroborative of that given at the trial by other witnesses, and whether there was a lack of diligence in obtaining the evidence was not shown, there was no such abuse of the trial ■court’s discretion in denying the motion as would justify a reversal on appeal.
    [Ed. Note. — For other eases, see New Trial, Cent. Dig. §§ 201, 207; Dec. Dig. § 99.]
    Appeal from District Court, Polk County; L. B. Hightower, Judge.
    Trespass to try title by Oliver H. Deggs against J. L. Loving and others. Judgment for defendants, and plaintiff appeals.
    Affirmed.
    Campbell & Campbell, of Livingston, for appellant. Holshousen & German, of Livingston, for appellees.

      For otter oases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   REESE, J.

As originally instituted this was an action in trespass to try title by Oliver H. Deggs against J. IL. Loving and his wife, to recover the O. H. Deggs survey of 138 acres in Polk county. Defendants disclaimed as to all of the land sued for except a tract of 22 acres, .which plaintiff claims is a part of the O. H. Deggs survey, which he owns, lying, according to his claim, between the north line of the Hood survey of 160 acres, which belong to defendants, and the south line of the B. B. Deggs and Barco surveys. Defendants claim that this 22 acr,es is a part of the Hood survey, which, according to their contention, extends on the north to the B. B. Deggs and Barco surveys. Defendants claim that the north line of the Hood survey is the south line of the B. B. Deggs and Barco surveys, while it is plaintiff’s contention that such line lies 130 varas south of the B. B. Deggs and Barco surveys, leaving a strip of land of this width, and extending east and west 950 varas, constituting the 22 acres in controversy. The issue thus developed was the true location of the north line of the Hood survey belonging to defendants. The case was tried without a jury. The court, after hearing the evidence, found that the Hood survey extended on the north to the B. B. Deggs and Barco survey, and rendered judgment for defendants for the 22 acres, they having disclaimed as to all of the land sued for except this strip, and as to that having set up their title and prayed in the affirmative for judgment. The court filed conclusions of fact and law. Plaintiff made a motion for a new trial, which was overruled, and he appeals.

Two questions are presented by the appeal: First, the sufficiency of the evidence to support the court’s findings of fact and the judgment based thereon; and, second, whether the court erred in overruling plaintiff’s motion for a new trial on the ground of newly discovered evidence.

The O. H. Deggs survey of 138 acres was patented to appellant October 21, 1901, and as described in the patent includes the land in controversy. The Hood survey of 160 acres was patented to W. D. Hood June 14, 1872. The field notes are as follows: “Beginning 1762 vrs. S. and 714 vrs. E. from the N. E. cor. of Pias Mici surv. of one Lea. a stake from wh. a pine 12 in. dia. brs. N. 11 deg. W. 1 vara, also a pine 18 in. dia. brs. S. 10 deg. W. 3Vio vrs. Thence: S. 950 vrs. a stake fr. wh. a white oak 9 in. in dia. brs. N. 16 E. 5Vio vrs. a hornbean 9 in. dia. brs. ,S. 17 deg. E. 22/10 vs. Thence: E. 950 vrs. the W. Bdy. line of D. M. Deggs preemption sur. a stake from wh. a hornbean 5 in. dia. brs. S. 3 vrs. also a hornbean 10 in. dia. brs. S. 75 deg. E. 7 vrs. Thence: N. with sd. Deggs W. B. line 937 vrs. pass Deggs N. W. corner 950 vrs. a stake from wh. a pine 7 in. dia. brs. S. 55 deg. W. E. V10 vrs. also a pine 9 in. dia. brs. S. 45 deg. W. 7 vrs. Thence: West 950 vrs. to the beginning.” It will be noticed that its northeastern and northwestern corners are each marked by two bearing trees. The D. M. Deggs survey is called for on the east, but there is no call for the B. B. Deggs or the Barco on the north.

In his first assignment of error that the court erred in his finding of fact that the north line of the Hood was the same as the south line of the B. B. Deggs and the Barco appellant sets out all of the evidence introduced by Mm in support of his contention, but makes no reference to the evidence introduced by appellees. The testimony was very conflicting; that of appellant showing not only the location of the disputed line as claimed by Mm, but also recognition of that line by several owners of the Hood at different times. It was also shown that the B. B. Deggs survey was made on August 1, 1871, and the Hood on the succeeding day, and the official map of Polk county was also introduced by appellant showing the 22 acres to be a part of the O. H. Deggs. Several witnesses testified for appellees, all of whom testified as to the location on the ground of the disputed line, each of them testifying that this line was identical with the south lines of the B. B. Deggs and Barco surveys. The Barco south line is a continuation of the south line of the B. B. Deggs. Several of these witnesses testified as to having found the two bearing trees called for in the original field notes of the Hood as marking its Northeastern comer, and locate this corner of the Hood unmistakably in the south line of the Barco survey. These witnesses testified clearly and intelligently, and showed that they had knowledge of the facts testified about; and, if they were telling the truth, there can be no question that the Hood survey, as originally made and as patented, extended on the north to the B. B. Deggs and the Barco. It is true that the testimony of appellant’s witnesses is equally positive that the disputed line is located as claimed by him. It is simply a case of conflicting evidence. That introduced by appellees is amply sufficient to sustain the court’s findings. We cannot say that the evidence even preponderates in favor of appellant’s contention. It would serve no useful purpose to set out the evidence here. The first assignment of error is overruled.

What we have said disposes also of the second, third, and fourth assignments of error.

'Appellant filed a motion for a new trial, setting out, among other grounds, that since the trial he had discovered that R. W. Hubert and Bill Turner had knowledge of, and would testify to, certain facts, material and important to him. The unsworn statement of Mr. Hubert is attached to the motion from which it appears that the witness at one time surveyed the Hood survey, that he ran the line beginning at the northeastern corner of the Pias Mici as called for in the field notes of the patent to the Hood, and that he found an old marked line at the proper distance from the beginning point for the north line of the Hood, but found no marked corners. According to his testimony, as set out in his statement, the disputed line as thus found by him lay south of the B. B. Deggs, and where appellant claims it to be. The testimony of the witness, according to his affidavit, is only corroborative of that of the several witnesses whose testimony was introduced by appellant. The witness lived in Polk county, where the trial was had. There are no prescribed rules as to granting new trials on this ground. Necessarily such a motion is addressed to the sound discretion of the trial court, and it is only when it clearly appears that the trial court has exercised such discretion improperly, and that appellant has been prejudiced thereby, that the appellate court can properly set aside such ruling. The materiality of the testimony, and whether it will probably change the result on another trial, whether it is as to independent facts or merely cumulative of other evidence introduced on the trial, and, all of these conditions having been met by the application for a new trial, whether the failure to ascertain the existence of the evidence or to produce it on the trial was due to any want of diligence on the part of appellant, are all questions to be considered in passing upon such motion. Where it can be done, it is always proper and generally necessary to get the affidavit of the proposed witness as to the facts to which he will testify. As to the witness Hubert, there was attached to the motion only his unsworn statement, and as to the witness Turner not even this. It is true that appellant states that he did not know of the existence of this testimony at the trial, but whether this was due to lack of diligence was a question for the court. We cannot say that the refusal of the motion for a new trial, on the grounds stated, was an abuse, or an improper exercise of the discretion necessarily vested in the trial court. What we have said applies also to the alleged newly discovered testimony of the witness Turner, which was only cumulative of the testimony of the other witnesses for appellant. The fifth assignment of error is overruled.

The whole case involves merely a disputed issue of fact, as to which the evidence was conflicting. To authorize an appellate court to set aside the verdict of a jury, or the conclusions as to the facts of a trial court sitting without a jury, it must be made to appear that such verdict or conclusions are manifestly wrong. We cannot say that in this case. The judgment is affirmed.

Affirmed.


source: Caselaw Access Project

author: RAINEY, C. J.

license: Public Domain

text:
    AMERICAN NAT. INS. CO. v. FAWCETT.
    (Court of Civil Appeals of Texas. Dallas.
    Dec. 20, 1913.)
    1. Insurance (§ 646)— Lira Insurance — Burden op Proof — State op Health.
    The burden was not on one, suing on a life policy, to show that she was in sound health at the issuance of the policy, which provided that no obligations were assumed unless insured was in sound health, under Rev. Civ. St. 1911, arts. 4947, 4948, requiring misrepresentations by insured to be material to avoid the qontract, and barring- such defense unless defendant show at trial -that it notified insured, after discovering the falsity of such representations, that it refused to be bound by the policy.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 1555, 1645-1668; Dec. Dig. § 646.]
    2. Insurance (§ 390) — Life Insurance — Defenses — Estoppel to Assert.
    Where a life insurance company was informed about June, before insured’s death in January, 1911, that she was in bad health when insured, and did not then cancel the policy, it was estopped from .afterwards denying liability.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 1037, 1038; Dec. Dig. § 390.]
    Appeal from District Court, Dallas County; W. F. Whitehurst, Judge.
    Action by W. A. Fawcett against the American National Insurance Company. From a judgment for plaintiff, defendant appeals.
    Affirmed.

      M. L. Robertson and W. H. Clark, both of Dallas, for appellant. Ross & Muse, of Dallas, for appellee.

      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   RAINEY, C. J.

Action on an insurance policy on the life of Nellie Fawcett, brought by her husband, W. A. Fawcett. The company plead that the policy was procured by false or fraudulent representations, in that she (Nellie Fawcett) represented at the time the policy was issued she was in sound health, when in fact she had consumption, and therefore the policy was void. A trial resulted in favor of W. A. Fawcett, and the insurance company appeals.

The policy provided, in effect, that no obligations were assumed by the company unless the insured was in sound health at the date of issuance. A general demurrer was leveled at the petition, because it did not allege that Nellie Fawcett was in sound health at the date of the issuance of the policy, the contention being that said stipulation was a condition precedent, and an allegation of its existence was necessary for a recovery. We do not agree with this contention of appellant. Whether or not the wife of appellee was in sound health at the date of the issuance of the policy was a subject of defense and proof by appellant, and it did not devolve upon plaintiff to allege and prove that she was in sound health at that time. R. S. 1911, arts. 4947, 4948.

The agent of the insurance company was informed about June before Mrs.-Faw-cett’s death in January, 1911, of her bad health, when the policy was issued, and the appellant is estopped from denying liability, having failed to cancel the policy upon being informed of Mrs. Fawcett’s condition; etc.

The evidence does not show conclusively that plaintiff’s wife was in bad health when the policy was issued, but was contradictory, and was such that the jury were justified in saying her health was sound at that time; and, in deference to their finding, we affirm the judgment.

Affirmed.


text:
    MISSOURI, K. & T. RY. CO. OF TEXAS v. LUSTER.
    (Court of Civil Appeals of Texas. Dallas.
    Dec. 13, 1913.
    Rehearing Denied Jan. 3, 1914.)
    1.Carriers (§ 356) — Carriage oe Passengers — Tickets.
    Where a conductor inadvertently detached a coupon from the contract portion of a ticket, but returned the contract portion so that the two might be presented together on the return trip, the act of the conductor will not excuse the failure of the passenger to present the contract portion with the coupon, which declared that it should be void if detached; and, in the absence of the contract portion, the passenger was properly ejected.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1409, 1410, 1423-1432; Dec. Dig. § 356.]
    2. Carriers (§ 254) — Carriage of Passengers — Tickets—Regulation.
    A railroad company in selling a round-trip ticket is entitled to make it a condition of passage that the trip coupons be not detached from the contract portion of the ticket.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1020-1026; Dec. Dig. § 254.]
    3. Principal and Agent (§ 14) — Liability of Principal for Acts of Agent.
    . Plaintiff was a member of the National Guard, and his captain on the trip to the encampment presented plaintiff’s ticket, with those of the remainder of his troop, for cancellation, but on plaintiff’s return alone neglected to give him the contract portion of the ticket, which the carrier’s conductor had inadvertently detached from the coupon, but which he had returned to the captain. Held, that the captain’s negligence was imputable to plaintiff, and plaintiff cannot complain that the carrier’s servants refused to honor the coupon on his return trip.
    [Ed. Note. — For other cases, see Principal and Agent, Cent. Dig. §§ 26-33; Dec. Dig. § 14.].
    Appeal from District Court, Dallas County; Kenneth Force, Judge.
    Action by W. G. Luster against the Missouri, Kansas & Texas Railway Company of Texas. From a judgment for plaintiff, defendant appeals.
    Reversed and remanded.
    Alex. S. Coke and Lawther & Pope, all of Dallas, for appellant. Allen & Allen, of Dallas, for appellee.

      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   RAINEY, C. J.

We take the following statement from appellant’s brief, to wit: “This was a suit for damages for alleged wrongful ejection of appellee from appellant’s train at Temple, Tex., on the 15th of August, 1911. Appellee alleged in his petition that he became a passenger on the appellant’s train at Taylor, Tex., for the purpose of being carried from Taylor to Dallas, Tex., having already provided himself with a ticket entitling him to such passage, and that after said train had left said town of Taylor but a short distance appellee presented to the auditor of the appellant in -charge of said train his said ticket; that said auditor then and there refused to accept the said ticket, and wrongfully ejected him from said train at an intermediate station, to wit, the town of Temple, Tex. Appellant answered with: (1) General demurrer; (2) general denial; (3) by special plea denying that appellee, when he boarded appellant’s said train, had a ticket entitling him to passage on said train from Taylor to Dallas, setting out that what was designated by ap-pellee as a ticket was in fact but a part of a ticket or a coupon, which would have entitled him to passage on appellant’s train from Taylor to Dallas had it been attached to what is known as the contract portion of the ticket, the said coupon and contract portion, together with other coupons, forming the entire contract between appellee and appellant; that said coupons expressly provided and stipulated on their face that they were ‘worthless if detached’; and that in addition to said express stipulation on tlie face of said coupon appellee liad been actually notified, before be boarded appellant’s train at Taylor, that the coupon which he had in his possession would not entitle him to passage on appellant’s train from Taylor to Dallas. Appellee, in answer to appellant’s answer, by supplemental petition pleaded that the contract for his transportation had been made by one E- A. Logan, who was the Captain of Battery A, First Field Artillery, Texas National Guards, of which appellee was a member, for and in behalf of all the members of said company, and that said Logan furnished him with no other ticket but two coupons, one calling for transportation from Camp Mabry to Taylor, Tex., and the other calling for transportation from Taylor to Dallas, Tex., and that appellee, before entering the ears at Austin, Tex., had presented said coupons to the ticket agent of the International & Great Northern Railway at Austin, who had informed him that the same were in due form; and before entering appellant’s train at Taylor, Tex., had also presented said coupon calling for transportation from Taylor to Dallas to the agent of the appellant at Taylor, which said agent had informed him that said coupon was in due form, and entitled him to transportation on the train from Taylor to Dallas, whereby the said appellant had waived the stipulation that the coupons were void if detached from the contract portion of the ticket. And further in his supplemental petition alleged that he had never detached said coupon from the contract portion, but charged that he was informed and believed that appellant’s conductor on the train from Dallas to Austin had detached said coupons from the contract portion of the ticket.” The trial resulted in a verdict for the ap-pellee for $500.

The evidence disclosed that appellee was a member of Battery A, First Field Artillery of the Texas National Guards, and on the 5th day of August, 1911, with the other members of the company, had been transported from Dallas to Camp Mabry, near Austin, Tex., by appellant’s road, for the purpose of attending and participating in an encampment of the state militia, that the arrangement for the transportation from Dallas to Camp Mabry and return from Camp Mabry to Dallas for the entire troop had been made with appellant by one F. A. Logan, who was the captain of the battery, and that said Logan on the way down was in possession • of the tickets for the entire battery, and delivered the same to the conductor of the appellant’s train; said conductor having no dealing with any member of the troop except the said Captain F. A. Logan.

Logan testified that on the way down the conductor in charge of appellant’s train not only tore off and took up the coupons or portion of the ticket entitling the troop to transportation from Dallas to Taylor (which coupon was at the bottom of the ticket), but that said conductor also tore off the contract portion of the tickets, the same being at the top and the head of the ticket, and afterwards handed back said contract portion to him, stating that he might need the same in connection with the baggage of the troop upon arrival at Taylor (from which point the troop marched overland to Camp-Mabry). This testimony of Logan was corroborated by one A. P. Terrell, second lieutenant and quartermaster of the troop.

The conductor of appellant’s train on the way down from Dallas to Taylor, one M. R. Baker, testified that he took up the transportation, which consisted of one party ticket for 68 or 69 people and some individual tickets, but that he took them all from one man; that he detached from said tickets the coupons calling for transportation from Dallas to Taylor at the lower end of the ticket, but that he did not detach the upper part or the contract portion of the ticket. Appel-lee became sick at Camp Mabry, and started back for Dallas some two days before the balance of the troop; Logan, the captain of the battery, to enable him to return, gave him two coupons of one of the individual tickets detached from the contract portion of the ticket, one of which read for transportation on the International & Great Northern from Camp Mabry to Taylor, and the other over appellant’s road from Taylor to Dallas. Although Logan had the contract portion or the head and the top of this ticket, he did not give same to appellee. The conductor of the International & Great Northern train from Camp Mabry to Taylor, upon appellee’s presenting to him the coupon calling for transportation from Camp Mabry to Taylor, informed him that the same was invalid, being detached from the contract portion of the ticket, and that he accepted the same under protest. Said conductor also informed him that the coupon calling for passage over appellant’s road ■ from Taylor to Dallas was worthless because detached, and that probably he would get no farther than Taylor. Appellee boarded appellant’s train at Tajylor, and When the auditor came around, presented to him the coupon reading from Taylor to Dallas, stating as he did so that the conductor on the International & Great Northern had tried to refuse the ticket and put him off." Upon looking at the coupon the auditor informed him that it was no good, and that he could not honor it, and asked him where the contract portion was. Appellee replied that his captain had torn it off, and he supposed kept it. The auditor then told him that if he had no money to pay his fare he would have to leave the train at the first stop, which was Temple. Appellee informed the auditor that it would not be necessary for him to put him off, that if he said he had to leave the train he would get off, and did so at Temple. The contract of transportation embraced printed conditions and stipulations at the top, succeeded by coupon specifying the initial and terminal points on the different roads and the final destination and “good for one person, on condition named in contract. Worthless if detached.”

“The only issue submitted by the court to the jury was as to whether the contract portion of the ticket had been torn off by the conductor on appellant’s train from Dallas to Taylor, or by Logan, the captain of the battery; and the jury were instructed that if they found the conductor tore the same off, to find for the plaintiff — -if they failed to find the conductor tore it off, or if they found that Logan tore it off, they should find for the defendant.”

The evidence shows, as we think, that the conductor on appellant’s train from Dallas to Taylor had detached the coupon from the contract portion of the ticket, and, it showing by uncontradicted evidence that, if it was detached, the detached portion had been returned to Captain Logan by said conductor, the issue submitted by the court as to the conductor detaching the coupon was error. While it was wrong in the conductor to detach the coupon, his having returned the contract portion to Captain Logan, the proper custodian, the mistake was remedied; and, had the two parts of the ticket been presented to the last conductor for passage, they should have been honored. This was not done, but the detached coupon was alone presented, which showed upon its face that it was “worthless if detached,” which rendered it invalid for passage, and the conductor had the right to eject the appellee in the absence of payment or tender of the proper fare. Hutchinson on Carriers, vol. 2 (3d Ed.) § 1055. .

Appellee contributed to his own discomfort by not securing from Captain Logan both parts of the contract, and, having placed himself in that predicament, he has no one to blame but himself. The appellant in selling the ticket had the right to make such a stipulation, and no fault lies with appellant on account of its conductor on the going trip severing the ticket, for he immediately returned the portion to Captain Logan, which, as far as appellant was concerned, made it possible for both portions of the ticket to be presented on the return trip. That Captain Logan held the contract portion of the ticket, and that appellee .was ignorant of its being in existence, we think makes no difference. As far as the transportation was concerned, Captain Logan was his agent, and he must suffer for Captain Logan’s act in failing to give him all of the return ticket.

We appreciate the force of the position of counsel for appellee, but think the authorities cited by them are not applicable to this case. In each of those cases there was an effort made by the ticket holder to comply with the stipulations imposed by the ticket, but they were prevented from doing so by the fault of the railroad’s employes. In this case no employs of appellant did anything to prevent appellee from complying with the contract of carriage.

The judgment is reversed and cause remanded.


author: HALL, J.

text:
    McDOWELL v. NORTHCROSS et al.
    (Court of Civil Appeals of Texas. Amarillo.
    Dec. 20, 1913.)
    1. Assignments for Benefit of Creditors (§ 182) — Property Passing — Homesteads.
    A business homestead, if exempt at the date of a general assignment, does not pass to the assignee by virtue of that instrument.
    [Ed. Note. — Eor other cases, see Assignments for Benefit of Creditors, Cent. Dig. §§ 540-546; Dec. Dig. § 182.]
    2. Assignments for Benefit of Creditors (§ 182) — Property Passing — Homesteads.
    Neither a business nor a residence homestead, though afterwards abandoned as such, will pass under a general assignment, if not abandoned until after execution.
    [Ed. Note. — Eor other cases, see Assignments for Benefit of Creditors, Cent. Dig. §§ 540-546; Dec. Dig. § 182.]
    3. Homestead (§ 167) — Business Homestead —“Abandonment.”
    To be an abandonment of a business homestead, the head of the family must cease to use it for the purpose for which it is exempt, and have no present intention to resume business on the property, and hence a general assignment by the owner of the business homestead is not an abandonment where he retained his homestead, and carried on his business subsequent to the assignment.
    [Ed. Note. — For other cases, see Homestead, Cent. Dig. §§ 331, 332; Dec. Dig. § 167.

    Eor other definitions, see Words and Phrases, vol. 1, pp. 4-13; vol. 8, p. 7559.]
    4. Homestead (§ 122) — Conveyance—Estop-pel.
    A homestead must be conveyed as prescribed by Rev. Civ. St. 1911, art. 1115, and hence the failure of the head of the family to protest against the sale of his business homestead by his general assignee will not warrant an estop-pel vesting title to the property in the purchaser.
    [Ed. Note. — For other cases, see Homestead, Cent. Dig. §§ 220-222; Dec. Dig. §122.]
    5. Homestead (§ 177) — Estoppel to Claim.
    So long as the owner is in possession of his homestead, no conduct on his part can estop him to claim the exemption.
    [Ed. Note. — For other cases, see Homestead, Cent. Dig. §§ 344-347; Dee. Dig. § 177.]
    6. Homestead (§ 168) — Business Homestead —Abandonment.
    Where defendant made a general assignment, and his assignee sold his business homestead, and the person in possession paid only one month’s rent to the purchaser, holding the remaining rent until the right to the homestead should be determined, there was no question of abandonment by lease or other contract.
    [Ed. Note. — For other cases, see Homestead, Cent. Dig. §§ 333, 334; Dec. Dig. § 168.]

      7. Homestead (§ 162) — Abandonment — Intent.
    The mere intention, to again resume business in a business homestead at an indefinite time in the future, dependent upon a contingency which may not happen, does not perpetuate the previous homestead character of the property.
    [Ed. Note. — For other cases, see Homestead, Cent. Dig. §§ 315-319; Dec. Dig. § 162.]
    8. Homestead (§ 162) — Business Homesteads — Abandonment.
    That the owner of a business homestead, who was appointed postmaster, did not carry on the business of postmaster in his homestead, but used another building, does not show an abandonment ; public officers being entitled to retain their business homesteads, so that on going out of office they may resume business, and it being presumed that the postal authorities fixed the location, of the post office.
    [Ed. Note. — For other cases, see Homestead, Cent. Dig. §§ 315-319; Dec. Dig. § 162.]
    Appeal from District Court, Collingsworth. County; J. A. Nabers, Judge.
    Action by O. L. Northcross and others against T. W. McDowell. From a judgment for plaintiffs, defendant appeals.
    Reversed and remanded.
    R. L. Templeton, of Wellington, for appellant. R. H. Templeton, of Wellington, for appellees.

      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   HALL, J.

Appellee O. L. Northcross filed this suit in trespass to try title against T. W. McDowell, to recover a storehouse and lot, situated in the town of Dodsonville, Collings-worth county. Plaintiff alleges that on the 15th day of November, 1912, he was lawfully seized of lots Nos. 27 and 28, in block 40, in said town, on which day the appellant entered upon the premises and ejected him therefrom, to his damage in the sum of $500, and the rental value of the property, viz., $25 a month; that said property was purchased from J. B. Castleberry, the as-signee of appellant, at the instance of appellant.

The case was tried before the district Judge, without a jury, .who decreed the land to J. B. Castleberry, the assignee of appellant. It appears from the statement of facts that appellant, McDowell, was in business on the property involved in the suit, and on the 30th day of January, 1912, executed a statutory assignment, conveying “unto the said J. B. Castleberry all his real and personal estate other than that which is by law exempt from execution.” The schedule of property filed with the assignment does not list his home and the property involved in this suit, which he claims as his business homestead, as part of the estate delivered to the assignee. After the execution of the assignment, the assignee, Castle-berry, took charge of the property, consisting of dry goods and groceries, then located in the business homestead. The business homestead was a double house, situated upon adjoining lots; one of the compartments containing dry goods, and the other groceries.

From the date of the execution of the assignment until some time in August following the appellant continued to carry on the business. It appears that, soon after the execution of the assignment by an agreement between the creditors and the assignee, appellant was permitted to carry on the business, upon condition that he would turn the proceeds over to the assignee.. He testified that the assignment was made for the purpose of letting the business run on while he endeavored to pay out, and it appears that it was understood, if he could pay the creditors by conducting the business, it was to be redelivered to him. Having failed to satisfy the creditors, the property was, about the 25th of September, taken into possession by the as-signee, and sold at public auction. In this sale was included the house and lots to ap-pellee Northcross. Becoming dissatisfied with his purchase, Northcross subsequently re-conveyed the property to the assignee, and this contest is between the assignee, Castle-berry, and appellant. Appellee has filed no' brief. The appellant’s brief does not comply with the rules in many particulars; but, since there is no objection to its consideration, we have decided to pass upon the assignment, and propositions presented.

The questions for consideration are: Did the business homestead pass by virtue of the assignment? If not, has it been abandoned' as a business homestead since the execution of the assignment? And if so, did the sale by the assignee on September 12tb divest appellant of all title?

The rule is that, if a business homestead is exempt at the date of the assignment, it did not pass to the assignee by virtue of that instrument. City National Bank v. Merchants’National Bank, 7 Tex. Civ. App. 584, 27 S. W, 848; L. L. & G. Ins. Co. v. Ende, 65 Tex. 118. It is held, in Wynne v. Hudson, 66 Tex. 1, 17 S. W. 110, that residence property does not pass to the assignee, even though it is afterwards abandoned as a residence homestead. In order to constitute an abandonment of a business homestead, the head of the family must cease to use it for the purposes for which it is exempt, and have no present' intention to resume business on the property. Tackaberry v. Citizens’ National Bank,. 85 Tex. 488, 22 S. W. 151, 299; Sanger Bros. v. Hicks, 22 Tex. Civ. App. 473, 56 S. W. 775; Willis v. Pouns, 6 Tex. Civ. App. 512, 25 S. W. 716. It is held, in Alexander v. Lovitt, 56 S. W. 685, that the intention to resume business and occupy the business homestead upon a cessation of business must continue to exist, but that the question of intent is one of fact. Stayton, Chief Justice, in Tackaberry v. Citizens’ National Bank, supra, said: “The business, was practically destroyed by the conveyance [assignment] of the things necessary to its existence, and the same inferences as to discontinuance of business ought not to be drawn in the two cases solely from the fact that an assignment was made. If it was shown that the business, however, was carried on until the very moment the deed became operative, we do not see that, upon principle, the result would be different, for all persons making such conveyances do so with the knowledge that the act, in its consummation, destroys the business, and must be held to have contemplated the result. Thus is furnished one of the facts on which abandonment must depend.” In this case, Mrs. Tackaberry included her business homestead with the personal property in the schedule. The opinion continues: “It is fairly evident that the assignor did not understand that it was her duty to make a schedule of all her property, exempt and un-exempt, and while, as before said, the schedule cannot be made to convey property exempted from the operation of the deed, it may be true that it ought to be looked to, in the light of the facts of the case, to ascertain what she understood to be exempt property, and therefore not conveyed. She must be supposed to have comprehended the facts on which exemption depended, and it is not unfair to infer, when she omitted from the schedule' property clearly exempted, that she understood the situation of the schedule property to be such that exemption could not be given to it; that the business had ceased, without intention to resume it, or to begin and prosecute some other on the property, through which exemption might be continued even after temporary suspension. The exception in the deed has effect without bringing the property in controversy within its operation, and we are of opinion that the trial court, under the evidence, might have found that the business ceased before the delivery of the deed, and was bound to find in any event that it ceased simultaneously with, the delivery of the deed, and, in view of the judgment, it ought now to be presumed that such was the finding. The evidence shows beyond controversy that the assignor had no fixed intention at any time, either to resume the business she had formerly carried on, or to conduct some other business on the lots such as would have continued the exemption, notwithstanding a temporary cessation.”

The record in this case discloses a different state of facts altogether from that found in the Tackaberry Case. Here the deed of assignment expressly reserves all exempt property, and the intention of appellant not to abandon his business homestead is clearly shown by the fact that he undertook to carry on the business for six or seven months after the execution of the instrument in an effort to save his business from his creditors. While it is true that the effect of a statutory assignment is to divest the assignor of ail title to the property, yet this fact, when considered in connection with his positive testimony that he never intended to abandon the business homestead, but' intended to resume business, and reoceupy the premises, as soon as he was able, rebuts the idea of abandonment at the time the assignment was executed, and the rule ¿nnounced by Judge Stay-ton, to the effect that, if it was shown that the business was carried on until the very moment the deed became operative, the result upon principle would not be different, because all persons making such conveyances do so with the knowledge that such act destroys the business, has no application. The only fact in this record which tends to show any intention on the part of the appellant to abandon his business homestead occurred after the execution of the assignment, and is found in the evidence of the assignee, Castle-berry, and one Nesbit, who was the representative of one of the appellant’s creditors. Nesbit’s testimony is in part as follows: “I had an agreement with Mr. McDowell, acting-for my house, before we accepted under the assignment, in regard to the lots and house upon which the business was being conducted. It was an agreement with Mr. McDowell in person that he was to turn over the store building or the building in which he did business to the creditors, and the understanding between us at the time was that there was something against the lots. The understanding I had with him was that he had bought them from the Townsite ■ Company, and that he still owed something on the lots, and it was understood that whatever was on the lots to the Townsite Company would still stand against them, and be assumed by the creditors. He agreed that the house and lots were to be turned in to the creditors, and we accepted under the assignment on that agreement.” If this amounted to abandonment, then under the rule announced in Wynne v. Hudson, supra, it would not pass the title to the assignee, though it might subject it to forced sale. It appears that only two of several creditors had any such understanding with appellant, and it further appears that the creditors neither assumed nor paid the balance due on the business homestead, but that it was subsequently discharged by appellant himself. Appellant never executed any other instrument conveying the property to the as-signee, nor was it ever added to the schedule filed by the assignee. It is clear, from the facts and the authorities which we have cited, that the title to the property in question never passed from appellant to the assignee, either at the time of the assignment, or subsequent thereto. The court filed no findings of fact and conclusions of law, and we are at a loss to know upon what theory judgment was rendered against appellant.

If it was his business homestead, and continued to be up to the time of the sale, the fact that he stood by and made no protest while the assignee sold the property at public outcry could not divest him of the title, even if Northcross was contending for the validity of such conveyance. Since Northeross reeonveyed, and is now, as we conclude from this record, asserting no title whatever to the property, we must hold that, as between appellant and the assignee, the title is still in appellant. If we accept the testimony of the assignee, to the effect that appellant promised, as soon as the property was paid out, that it should be sold for the benefit of the creditors, as true, yet the fact remains that no such conveyance to him has ever been made, and neither this- promise nor his silence on the day of the sale will have the effect of estopping him, or waiving any part of a homestead exemption. The homestead must be conveyed in the manner prescribed by Revised Statutes 1911, art. 1115. Morris v. Wells, 27 Tex. Civ. App. 363, 66 S, W. 248. Northeross is not pleading estoppel or fraud as against appellant.

Nor can this be set up successfully by the assignee in behalf of the two creditors who claim a waiver on the part of appellant before they would consent to accept under the assignment. There can be no estoppel to claim a homestead while the owner is in possession. Farmers’ State Bank v. Farmer, 157 S. W. 283(6). The record discloses that appellant is a married man, and while in actual possession of the property, using the same as a business homestead, no promise or representation made by him could defeat his constitutional exemption. The creditors in the instant case cannot ignore the notice conveyed by the actual use and possession of the property.

We have searched the record closely for the purpose of ascertaining whether or not there were any facts authorizing the court to conclude that the business homestead had been abandoned, or the appellant’s rights thereto waived. It appears that soon after the sale appellant continued to conduct the business as before, accounting to the assignee for the proceeds; but it is not shown that he received any rents during that time. For three months after the sale by the assignee the property was occupied by Brown, the purchaser of the stock, who paid the first month’s rent to Northeross; rent for the remaining two months has not been paid, but is held by Brown, pending the result of this litigation. So there can be no question of abandonment by lease or other contract, indicating an intention on the part of appellant to abandon. Hargadene v. Whitfield, 71 Tex. 482, 9 S. W. 475.

It is true that appellant is now occupying part of another building; but the evidence discloses that he has been appointed postmaster, and we may presume that as an official his location has been fixed by the Post Office Department. If so, the rule announced in Schoellkopf v. Cameron, 19 Tex. Civ. App. 593, 47 S. W. 548, applies. In that case a shoemaker was elected county treasurer, and during his term of office occupied a room in the courthouse, assigned him by the commissioners’ court. In rendering its opinion, the court said: “There are decisions to the effect that one engaged in the performance of his public duties as an officer is entitled to a plea of business wherein he may perform those duties, and that the statute would exempt such a place where his official duties were performed from forced sale; but there is no decision holding in terms that the election to an office and the performance of the duties required of the officers, of itself, will necessarily operate as an abandonment of any previous business in which the officer may have been engaged.” Even if we are wrong in presuming that his location in another building as postmaster has been fixed by the Post Office Department at Washington, still the evidence fails to disclose that he was free to transfer the post office to his own building. The rule seems to be settled in this state that the mere intention to again resume business in a business homestead at an indefinite time in the future, dependent upon a contingency which might never happen, does not retain and perpetuate the previous homestead character of the property. Shryock v. Latimer, 57 Tex. 674; Hill v. Hill, 85 Tex. 103, 19 S. W. 1016; Hull v. Naumberg & Co., 1 Tex. Civ. App. 132, 20 S. W. 1125. But it is said in the case of Malone v. Kornrumpf, 84 Tex. 454, 19 S. W. 607: “It is urged, however, that, as he was shown to be without means or credit to carry on this previous business, he could have had no definite intention to resume, and that this constituted an abandonment of the premises. If the proof established the fact that the appellee Kornrumpf’s resumption of business depended exclusively on whether he had the means or credit for that purpose, and it was shown that he had neither, the case would be one in which it appeared that there was no definite intention to resume. * * * But in the present case, while there is evidence to the effect that appellee Kornrumpf was not at the time financially in a condition to carry on his business, it does not appear that his resumption of the business depended solely on this contingency. ⅜ * * The fact that the head of the family, in a case like the present, is unable, by reason of financial embarrassments, to resume business on his capital might be sufficient to support a verdict finding that there was no definite intention to return to his former calling; but to give this fact alone the effect contended for, it seems to us, would entirely destroy the force and weight of plaintiff’s evidence showing that it was his purpose to resume, and would make it a conclusive presumption of law. It does not necessarily follow from the fact that the head of the family was without means or credit to resume, that his intention to do so was indefinite or impossible of execution.” While we might reasonably infer from tbis record that at the time of the assignee’s sale appellant was without funds, and the presumption might be extended to include a want of credit at that time, it is not shown that such condition existed to the time of the trial, and the burden was upon appellees to establish that fact by affirmative proof.

Because the uncontradicted testimony shows that the title to the property in controversy never passed to the assignee at the time of the assignment, and because, under the rule announced in Wynne v. Hudson, supra, a subsequent abandonment would not pass the property to the assignee, and for the further reason that the facts are insufficient to show a waiver since the execution of the assignment, or to create an es-toppel in favor of the assignee, as the representative of the creditors, the judgment is reversed, and the cause remanded.


author: RASBURT, J.

text:
    MODERN ORDER OF PRAETORIANS v. NELSON et ux.
    (Court of Civil Appeals of Texas. Dallas.
    Dec. 13, 1913.
    Rehearing Denied Jan. 3, 1914.)
    1. Master and Servant (§ 187) — Injuries-Pello w-Servant — Vice Principal.
    In an action against a private corporation, not a common carrier, for wrongful death of a servant, under Rev. Civ. St. 1911, art. 4694, subd. 2, giving an action for damages for injuries causing death when caused by the wrongful act, negligence, unskillfulness, or default of another person or corporation, their agents or servants, the question is whether the negligence resulting- in death was that of a vice principal.
    [Ed. Note. — Por other cases, see Master and Servant, Cent. Dig. §§ 422-426; Dec. Dig. § 187.]
    2. Master and Servant (§ 189) — “Vice Principal” — What Constitutes.
    To make a servant a vice principal, it is only necessary that he have authority to direct and supervise the work and to hire and discharge subordinate servants engaged in the work.
    LEd. Note. — Por other cases, see Master and Servant, Cent. Dig. §§ 427-435, 437-448; Dec. Dig-. - § 189

    Por other definitions, see Words and Phrases, vol. 8, pp. 7313-7316, 7829.]
    3. Municipal Corporations (§ 595) — Public Safety — Ordinances—Regulations of Elevators.-
    Under the provisions of the law giving the city of Dallas full power to enact ordinances to protect the lives, health, and property of the inhabitants, it could enact an ordinance re-quiring elevator operators to have had 10 days of actual experience under competent instruction and be 18 years of age before being employed to operate an elevator.
    [Ed. Note. — Por other cases, see Municipal Corporations, Cent. Dig. §§ 1321, 1322; Dee. Dig. § 5951
    4. Municipal Corporations (§ 111) — Validity of Ordinances — Partial Invalidity.
    Any invalidity in a provision of an ordinance regulating the use of elevators, requiring the operators to be at least 16 years of age, would not render invalid another provision requiring an operator to have had 10 days’ actual experience under competent instruction before pursuing such occupation.
    [Ed. Note. — Por other cases, see Municipal Corporations, Cent. Dig. §§ 245-256; Dec. Dig. § 111.]
    5. Death (§ 9) — Grounds of Negligence.
    To permit a recovery thereunder for a death caused by negligently employing an elevator operator who had not had 10 days’ _ actual experience under instruction, as required by city ordinance, would not enlarge Rev. Civ. St. 1911, art. 4694, subd. 2, giving an action for damages for death caused by the “wrongful act, negligence, unskiilfulness, or default of another.”
    [Ed. Note. — Por other cases, see Death, Cent. Dig. § 11; Dec. Dig. § 9.]
    6. Master and Servant (§ 189) — 'Vice Principal.
    One who had authority to direct and supervise the work of all employés in an office building, as well as the elevators, and to hire and discharge such employés, was a vice principal as to an elevator operator, and hence his corporate employer was responsible for his negligent act in directing the operation of an elevator.
    [Ed. Note. — Por other cases, see Master and Servant, Cent. Dig. §§ 427-435, 437 — 448; Dee. Dig. § 189.]
    7. Master and Servant ⅞ 187) — Master’s Liability — Negligence of Vice Principal.
    Negligence of a vice principal in giving orders to a servant to do an act in a negligent manner was negligence of the corporate employer.
    [Ed. Note. — Por other cases, see Master and Servant, Cent. Dig. §§ 422-426; Dec. Dig. § 187.]
    8. Master and Servant (§ 286) — Injuries-Jury Question — Negligence. ■
    Evidence, in an action for death of plaintiff’s son, an elevator operator by the negligence of another operator in operating the elevator, held to make it a jury question whether the person having charge- of the operators was negligent in directing the work to be done in a negligent manner.
    [Ed. Note. — Por other cases, see Master and Servant, Cent. Dig. §§ 1001, 1006, 1008, 1010-1015, 1017-1033, 1036-1042, 1044, 1046-1050; Dec. Dig. § 286.]
    9. Master and Servant (§ 289) — Injuries-Jury Question — Contributory Negligence.
    In an action for an elevator operator’s death by the negligence of another operator in starting the car and crushing decedent, whether decedent negligently violated the employer’s rules, resulting in his injury, held a jury question.
    [Ed. Note. — Por other cases, see Master and Servant, Cent. Dig. §§ 1089, 1090, 1092-1132; Dec. Dig. § 289.]
    10. Master and Servant (§ 267) — Injuries —Admission of Evidence.
    In an action for an elevator operator’s death by the negligence of another operator in suddenly starting the machine down and crushing decedent, who was in the door, in which it appeared that the elevator bell rang about the time decedent entered the elevator, evidence as to whether decedent knew what the ringing of the bell meant was admissible, upon showing that he could have heard the bell.
    [Ed. Note. — Por other cases, see Master and Servant, Cent. Dig. §§ 909, 911; Dec. Dig. § 267.]

      11. Appeal and Error (§ 1056) — Harmless Error — Exclusion op Evidence.
    The exclusion of such evidence was not reversible error.
    [Ed. Note. — For other cases, see Appeal and Error. Cent. Dig. §§ 4187-4193, 4207; Dec. Dig. § 1056.]
    Appeal from District Court, Dallas County; Kenneth Force, Judge.
    Action by T. G. Nelson and wife against the Modern Order of Preetorians. From a judgment for plaintiffs, defendant appeals.
    Affirmed.
    Harry P. Lawther and Dabney & Townsend, all of Dallas, for appellant. Spence, Knight, Baker & Harris, of Dallas, for appel-lees.

      For other cases see same topic and section NUMBER in Deo. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

      Por other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   RASBURT, J.

Appellees, parents of Guy Nelson, sued appellant in the court below for damages for negligently killing said Nelson while entering the elevator of appellant’s building in Dallas, and recovered verdict and judgment for $7,500, from which this appeal is taken.

The negligence alleged in the petition on the part of appellant to have brought about the death of Nelson was in permitting an operator without previous experience to operate its elevator; in not instructing such inexperienced operator for a period of ten days at the hands of a competent person, as provided by city ordinance, how to operate the elevator; in failing to warn and instruct Nelson; in failing to prescribe and enforce rules for the protection of Nelson; in failing to close the door of the elevator which killed Nelson before starting same; in placing the elevator which killed Nelson in charge of an incompetent employé; in directing its employés to operate the elevator which killed Nelson iir an unsafe manner. The complaint also alleged that appellant was a private corporation engaged in the business of life insurance and owned the building and the elevator therein, by which Nelson was killed, same being an office building occupied by numerous tenants in many kinds of business, which appellant had placed in charge of and under the management of one W. Speers, its vice principal, whose duty it was to manage the building and elevators, employ, instruct, train, and discharge appellant’s servants, and who did employ and instruct the employés named in the petition, and who, in obedience to directions of said Speers, committed the wrongful acts, negligence, unskillfulness, and defaults that caused said Nelson’s death. Appellant met the charges of negligence by the general demurrer, certain special demurrers to be hereinafter discussed, the general denial, and the special plea that Nelson’s death resulted from his negligence and that of Rembert Bonner, his fellow servant, for which appellant was not responsible in law.

The first and second assignments of error complain of the overruling of appellant’s general and special demurrer, which in substance pointed out that appellee’s petition showing appellant to be a private corporation and that Nelson’s death was the result of the wrongful act, negligence, unskillfulness, and default of the servant and agent of.appellant, which was not alleged to be the proprietor or charterer or hirer of any railroad, steamboat, stage coach, or other vehicle for the conveyance of goods or passengers, no liability at law was shown by said petition for the reason that such allegations brought the case within the provisions of subdivision 2 of article 4694, R. S. 1911, commonly known as the death statute. This statute has been construed a number of times, and in our opinion the liability or nonliability of such as are included within said subdivision is now well settled under the old statute. (It is of course known that the statute was amended by a recent Legislature by adding to the words, “the wrongful act, negligence, unskillfulness or default of another,” the words, “person or corporation, their agents or servants.”)

Under the various cases construing the statute, the initial and preliminary inquiry in all cases brought under said subdivision, when the suit is against a private corporation, not a common carrier, as it is here, in order to fix liability, is: Was the negligence resulting in death due to the wrongful act, negligence, unskillfulness, or default of a vice principal? And in that respect it may be said that the question of vice principal or not is one of fact for the determination of the jury under correct instructions, and further that there is no inconsistency in the dual relation of servant and vice principal when applied under said subdivision. In the case at bar it was alleged that appellant was a private corporation, and that one Speers was its general manager, having conferred upon him the right and duty of managing appellant’s building and directing and supervising the work of all employés in the operation of its elevators, together! with authority to hire and discharge appellant’s servants who operated said elevator, and that one of the employés so hired by said general manager to operate said elevator did so negligently under the direction and control and supervision of said Speers, whereby said Nelson was killed.

Such allegations, in our opinion, are amply sufficient in alleging facts which, if true, constituted Speers the vice principal or alter ego of appellant, since the most that has ever been held necessary to establish the servant a vice principal is that he have authority to direct and supervise the work of those under him and to hire and discharge such subordinate servants. Hugo, Schmeltzer & Go. v. Paiz, 104 Tex. 563, 141 S. W. 518, and cases cited.

The third and fourth assignments of error complain of the overruling of certain special demurrers touching the validity of an ordinance of the city of Dallas, alleged by appellee to have been violated by appellant, which requires, among other things, that operators of elevators shall have had 10 days’ experience in running an elevator under the instructions of a competent person before being permitted to engage in such occupation. The proposition is urged that the ordinance is void because prohibitory. In support of this proposition we are cited Ex parte Epperson, 61 Tex. Cr. R. 237, 134 S. W. 685, 37 L. R. A. (N. S.) 303. The case, in our opinion, is not applicable. The point there decided was that, since the Legislature only authorized the town of Clarksville to “regulate” hackmen and like occupations, an ordinance making it unlawful for persons under 16 years of age to operate any sort of motor vehicle was invalid. The court did not decide that an ordinance prohibiting persons under 16 years of age pursuing a given occupation was a prohibition of the occupation, but that the right to regulate by the grant from the Legislature did not include the right to prohibit as well.

It was shown by the petition in this case that the city of Dallas, by grant from the Legislature, had full authority to enact and enforce ordinances for the protection of the lives, health, and property of its inhabitants, and that by virtue of said autho4ty the ordinance in question had been enacted. The ordinance prescribes the method and manner of building elevators, their shafts, cages, etc., as well as the qualifications of all operators thereof. It requires, as we have said, 10 days’.actual experiense on the part of operators under competent instruction, and that he shall be 18 years of age. We conclude the ordinance is not void. It is hardly necessary to discuss the reasonableness of the provision requiring some experience or instruction at the hands of a competent person before permitting any one to operate an elevator. Such a provision can have no other purpose than to protect the lives and health of the city’s inhabitants. It is known that numbers of persons daily use the elevators of the large office buildings, and it seems to us that the requirement that the operator of such elevators shall have some knowledge of the operation of the same is not only not unreasonable but commendable and necessary as well.

Whether or not that provision of the ordinance which denies to persons under the age of 16 years the right to pursue such occupation is void as to such person for the reason that it interferes with the liberty or the right to pursue a lawful occupation for the support of life, it is not necessary to decide, since Rembert Bonner, the operator, was of the required age, and since, if illegal for the reasons stated, the remaining portion of the ordinance requiring an experience of 10 days is not subject to the objection urged and is not dependent at all upon the provision with reference to the age of those pursuing such occupation.

Nor do we think, as urged by appellant, that the ordinance requiring experience on the part of elevator operators in any respect enlarges, alters, or aids subdivision 2 of article 4694, K. S. 1911, under which this suit is authorized. That subdivision permits those entitled to sue to recover damages where death results from the “wrongful act, negligence, unskillfulness, or default of another,” etc. These are general terms and are to be applied in the light of judicial determination, statutory enactment, or city ordinance defining negligence, unskillfulness, etc., except that, in the event such city ordinance should conflict with any general law or rule of decision, it would be required to give way to such general rule. The latter condition does not exist here.

We have disposed of the assignments of error which attack the sufficiency of the petition without first making a statement of the facts in the case for the reason that the arrangement of the briefs of the parties made such course necessary. In relation to the facts, it may be said that the evidence supports the following conclusions: Appellant is a private corporation engaged in the life insurance business and owns a 16-story office building in the city of Dallas. W. Speers was employed by appellant to superintend said building; his duties being to lease the offices, look after the welfare of the tenants, direct all other employés in their duties about the building, including the operation of the elevators, and to employ and discharge all employés at will. He employed both Guy Nelson, deceased, and Rembert Bonner, who was operating the elevator at the time Nelson was killed. 'Speers knew when he employed Bonner that he was without prior experience in operating an elevator. The city ordinances provide for 10 days’ prior instruction under a competent person before being put in charge of a public elevator. Bonner only received one day’s training, but at the time Nelson was killed had been operating the elevator in appellant’s building for a period of not less than 30 days. Speers directed Bonner and all other elevator operators in operating the elevator to start the elevator up or down and throw the door for the purpose of closing it simultaneously. The city ordinance provided that elevator doors should be securely closed before starting the elevator. The purpose of such practice was to save time. All instructions as to the management and operation of the elevators were given orally by Speers from time to time. There were no printed or published rules. There were but two witnesses to the killing of Guy Nelson; one being Rembert Bonner and the other Ben Boisseau. Bonner was engaged in operating the elevator. Guy Nelson, who was also an operator in appellant’s employ, was on the fifteenth floor of the building, resting before again taking up his duties. With him was Bois-seau, who was being instructed how to operate the elevator. When Bonner would reach the fifteenth floor, according to his testimony, where Nelson and Boisseau were, he would stop the elevator and open the door until the elevator bell signaled for him to go down. 'During this time Bonner and Nelson engaged in an argument concerning the distance from Dallas to Orphans’ Home; Bonner maintaining the distance to be five miles and Nelson asserting it was eight miles. Neither was angry, according to Bonner, during the argument. On the trip down previous to the accident Nelson in play prevented Bonner from closing the sliding door to the elevator as he started down by inserting his foot ahead of it. Bonner heard the door close after he started down and found it closed on his return. At the time of the accident the door to the elevator was again open and the boys had resumed their argument concerning the distance to Orphans’ Home. Nelson, according to Bonner, stepped toward the elevator, saying “Eight,” and Bonner replying, “Eive.” Bonner was not looking at Nelson as these words were passed but looking in the direction of the other elevator shaft; and just about the time the words “eight” and “five” passed between them, and while Bonner was looking toward the elevator shaft, the bell rang, and in response thereto he started the car with one hand and closed the door with the other, without looking in the direction of Nelson. Bonner further testified that Nelson started in just as the bell rang, and that Nelson’s body prevented the door from closing, and that he was not looking in Nelson’s direction when he started into the elevator, but down the shaft. Boisseau, who also testified in the case, varies to some extent from Bonner. He says Bonner was not in the elevator, when arguing with Nelson as to the distance to Orphans’ Home, but was on the outside in the hall. He says while the boys were engaged in the discussion Bonner, in play, said Nelson was a “liar” and stepped into the elevator he was operating, and that Nelson in like good humor said, “X will get you,” and started into the elevator which was then in motion and was three feet on its way down and the elevator door closed, except for a distance of three or five inches, and that the accident was caused by Nelson inserting his foot into the open space of the door.

The foregoing is in substance the material facts adduced upon trial relative to the manner of the killing, except to add that Nelson was caught by the descending car and crushed to death.

The sixth assignment of error complains of the court’s main charge, which in substance submits to the jury whether Speers was the vice principal of appellant, and authorizes the jury if he was, and as such was guilty of the various acts of negligence in directing the operation of its elevators and the employment of elevator operatives alleged by appellees, and the doing of such things was a failure to exercise ordinary care, etc., to find for appellee. No fault is found with the charge on the ground of its correctness, if .applicable to the facts in the case. The point made and the proposition asserted is that Nelson having been killed by the servant of a corporation liable only under subdivision 2 of article 4694, R. S. 1911, and appellant being under no legal duty by said subdivision to furnish either competent, careful, or skilled servants, no liability exists, and the charge submitting liability was error. In several quite recent cases the Supreme Court has, we think, very clearly settled all question about what facts are necessary to fix liability against corporations covered by said subdivision 2. Hugo Sehmeltzer & Co. v. Paiz, supra; Sullivan Sanford Lumber Co. v. Cooper, 105 Tex. 21, 142 S. W. 1168; Commerce Cotton Oil Co. v. Camp, 105 Tex. 130, 145 S. W. 902. In the Cooper Case it was said that the effect of the subdivision was to “charge the corporation with liability for death caused by the wrongful act, negligence, unskillfulness, or default of its vice principal, for in law such officer or agent is the corporation when exercising its authority.” Thus as we have said in disposing of the first and second assignments which attacked the sufficiency of appellant’s petition, the question always first to be determined is: Was the person, whose wrongful act, negligence, unskillfulness, or default caused the killing, a vice principal? If a vice principal, then all question of servants or agents is eliminated for the very cogent reason that the act of the vice principal is the act of the corporation itself. As we have also said at another place in this opinion, whether one claimed to be a servant, agent, or officer of the corporation, is a vice principal is a question of fact.

Whatever the position Speers had with appellant may have been denominated, he was in fact a vice principal, since it is not disputed and was affirmatively shown upon trial that he was charged with the duty and had the authority to direct and supervise the work of all employés of appellant’s building and elevators, as well as to hire and discharge such subordinate employés. Accordingly Speers was appellant’s vice principal at the time of the killing and will be treated as such here. We add by way of emphasizing the point, as suggested by the Cooper Case, that, Speers, being a vice principal, appellant is liable for his acts to the same extent that Speers would be if he owned the building and elevators and had done the same acts for himself. In the Cooper Case the application of the rule is illustrated by reference to the Paiz Case as follows: “The elevator became fastened in such way that to release it, except in a certain manner, would necessarily cause it to slioot up to the top (of the shaft). The vice principal ordered the elevator to be released in a negligent manner, which was done as directed, and it was suddenly and very rapidly carried up, catching Paiz’s leg and thus injuring him.”

Applied in the ease at bar we have Speers, the vice principal, the corporation itself, directing its employés to operate the elevator negligently. The servant does so, and a fellow servant is injured, not by his negligence, but by that of the corporation, since he did not negligently observe orders of the master but because the very orders given the servant were negligent. Bonner was not negligent in operating the elevator as he did, but Speers, the corporation, was negligent in directing him to operate it as he did. The case at bar is distinguished in the facts from 'the Cooper Case in that in that ease the servant negligently did a thing the vice principal had not directed him to do, while here the servant did the very thing the vice principal told him to do in the manner directed; and, the manner of doing it being negligent, it was the act of the vice principal and not that of the servant. Entertaining the views just stated, we are of opinion that the court correctly submitted the issue to the jury.

As to whether the evidence supported the several issues of negligence, our duty is solely to determine whether the record discloses evidence sufficient to raise a question of fact for the determination of the jury. We have detailed in substance the facts surrounding the accident, and from those facts, and the legitimate inferences to be deduced therefrom, we conclude the facts were sufficient to authorize the submission of the issues to the jury.

It will not be necessary to discuss appellant’s seventh assignment of error, which urges that appellant is not liable for the negligence of its servants under the subdivision of the statute already quoted, since, while we admit the soundness of the legal proposition, we hold that under the facts the acts of negligence were the acts of the corporation, through its alter ego, and hence a different rule prevails.

Appellant’s eighth assignment of error complains of the refusal of the court below to instruct the jury at its request to find for defendant, if they believed from the evidence “that the accident and consequent death of Guy Nelson was directly and proximately caused by a violation of any of the rules prescribed by the defendant for the regulation and conduct of the employés who operated the elevators,” by either Nelson or Bonner or both of them. The pleading of appellant at most charges that prior to and at the time of the accident Nelson was “interfering” with Bonner in the performance of his duty, which of course is deduced by the pleader from the facts and circumstances detailed in the pleading, and which are in substance the facts stated by us as preceding the accident. It is not alleged that Nelson was violating any rule of appellant in awaiting his time to take up his duties upon the fifteenth floor of the building, or in engaging in conversation or argument with Bonner when he stopped the car on said floor, or that it was in violation of any rule for Bonner to stop his car.’ Thus it can hardly be said that any rules had been properly pleaded. The proof adduced under these allegations went no further than the allegations with the exception of showing that one other employé did not engage in such discussions as took place between Bonner and Nelson. Besides, the charge is insufficient, and that fact should control in that it makes the violation of such rules negligence per se.

It is for the jury to say whether, under all the facts and circumstances, it was negligence on the part of Nelson in violating appellant’s rules, assuming in this statement that the evidence showed such violation.

The ninth assignment of error complains of the refusal of the court to direct a peremptory verdict for appellant, if the jury believed Nelson was killed as the direct and proximate result of the wrongful act, negligence, carelessness, unskillfulness, or default of Bonner. What we have said in the preceding portion of this opinion disposes of the question here raised and renders further discussion unnecessary.

The eleventh assignment of error relates to the exclusion of testimony and the refusal of the trial court to permit the witness Bonner to say whether or not Guy Nelson knew what the ringing of the elevator bell meant; it being shown that the ■bell rang either just before or simultaneously with Nelson’s entry into the elevator at the time of the accident, and that the ringing of the bell was the signal for the elevator to go down for passengers. It occurs to us that it would have been proper to have permitted the witness to testify, if he knew, whether Nelson understood the significance of the ringing of the bell after first showing that he heard or could have done so. At the'same time the value of such testimony, if it had been admitted, is hardly to be seen and the injury done by its exclusion is less perceptible. In no event can it be made to appear that its exclusion was reversible error.

The judgment of the court below is affirmed.


author: TALBOT, J.

text:
    POINDEXTER v. SCHAFFNER et al.
    (Court of Civil Appeals of Texas. Dallas.
    Nov. 29, 1913.
    On Motion for Rehearing, Jan. 3, 1914.)
    1. Dedication (§ 1) — Nature.
    “Dedication” is a setting apart of land for tile public use, and may be either statutory or at common law, the distinction between a statutory and a common-law dedication being that the statutory dedication operates as a grant, while the common-law dedication operates by way of estoppel in pais.
    [Ed. Note. — For other cases, see Dedication, Cent. Dig. §§ 8, 10-12; Dec. Dig. § 1.

    Eor other definitions, see Words and Phrases, vol. 2, pp. 1908-1918; vol. 8, pp. 7629, 7630.]
    2. Dedication (§ 23) — Statutory Dedication.
    To constitute a valid statutory dedication of land as a street, there must be a substantial compliance with the statute in the manner pre-scriljjd.
    [Ed. Note. — For other cases, see Dedication, Cent. Dig. §§ 55, 56, 60; Dec. Dig. § 23.]
    3. Dedication (§ 1) — Common-daw Dedication.
    Common-law dedications are either express or implied, it being necessary in each case that there be an appropriation of land by the owner to the public use, which may be express, or may be shown by some act or course of conduct.
    [Ed. Note. — For other cases, see Dedication, Cent. Dig. §§ S, 10-12; Dec. Dig. § 1.]
    4. Dedication (§ 19) — Dedication by Plat.
    There is a valid dedication of land as streets if the owner of a tract which has been platted into blocks, lots, and streets as an addition by a recorded map conveys the lots by deed referring to such map.
    [Ed. Note. — For other cases, see Dedication, Cent. Dig. §§ 35, 37-^7; Dec. Dig. § 19.]
    5. Municipal Corporations (§ 759) — Acceptance-Necessity.
    A municipality is not bound by a common-law dedication of a street by the owner, so as to impose the obligations of caring for it, unless it accepts the dedication.
    [Ed. Note. — For other cases, see Municipal' Corporations, Cent. Dig. §§ 1595-1600; Dec. Dig. § 759.]
    6. Dedication (§ 19) — Compliance with Statute.
    There was no valid statutory dedication of a street, which was a part of a platted addition, where the street as laid out did not conform to the existing streets and lots abutting on the same, as required by Dallas charter, art. 1, § 3.
    [Ed. Note. — For other cases, see Dedication, Cent. Dig. §§ 35, 37-47; Dec. Dig. § 19.]
    7. Vendor and Purchaser (§ 229) — Bona Fide Purchaser — Compliance with Dedication Statute.
    One who purchased a lot which was a part of a tract attempted to be* dedicated by his grantor as an addition to a city is chargeable with notice that his grantor did not comply with the statutory requirements in platting the addition and dedicating the streets therein.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 477-494; Dec. Dig. § 229.]
    Appeal from District Court, Dallas County ; J. C. Roberts,- Judge.
    Suit by J. E. Poindexter against John Schaffner in which others intervened. From an order denying injunction, plaintiff appeals.
    Affirmed.
    R. V. & W. S. Davidson, of Dallas, for appellant. Pierson, House & Pierson, C. F. O'Donnell, G. C. Adams, and Dwight L. Lewelling, all of Dallas, for appellees.

      E’or other oases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   TALBOT, J.

H. T. Field, in 1895, platted what is known as “Ross Avenue Addition” to the city of Dallas, Tex., and filed a map of said addition for record in the office of the county clerk of Dallas county. A copy of this map is included in the statement of facts, and it appears therefrom that the land in said addition was laid off into blocks and lots, and. certain streets and alleys designated thereon. Among the streets so designated was Juliette street. Subsequently the name 6f this street was changed to, or at least known as, Munger avenue, and lots in said addition were sold with reference to said map. Juliette street, now Munger avenue, extends east and west beyond Ross Avenue addition, and houses erected on lots in said addition, as well as houses erected on lots east and west thereof, were erected with reference to said street, and fronted thereon, and a street railway has been operated on said Munger avenue for a number of years. In 1911 Clayton D. Browne owned in the city of Dallas a tract of land 651 feet long by about 325 feet wide, which adjoined the said Ross avenue addition on the north or northwest, with Munger avenue as the southern boundary thereof. At this time there were no improvements on Browne’s land or streets running through the same, but in August, 1911, he platted it into lots, with a street running through the middle thereof, parallel with MuDger avenue, called “Haskell Place,” and his plat was filed for record in the office of the county clerk of Dallas county, Tex. From said plat it appears that Browne’s said tract of land was laid off into 26 lots, called Haskell Place addition, all fronting on Haskell Place street, opened by him. Thereafter Browne proceeded to sell these lots according to the plat he had made and filed, and at the time this suit was instituted had sold all of said lots except two. He sold to appellant lots fronting on both sides of Haskell Place street, among them being lot No. 18, which adjoins lot No. 17, which •is in the tier of lots south of Haskell Place street, and, according to Browne’s plat, fronts that street. The said lot No. 17 was sold and conveyed by Browne, by warranty deed, to a man named Vandivort, and by Vandivort, by the same character of deed, to appellee John Schaffner. There is evidence to the effect that the city of Dallas, through its proper officer, granted two or three building permits to owners of lots in “Haskell Place Addition,” recognizing the right of such owners to front their buildings on Haskell Place street, and in other ways it is claimed accepted the dedication of said street. After this the city of Dallas refused .to grant any further permits for the construction of houses fronting on “Haskell Place Street,” hut issued to appellee, Sehaffner, a permit to erect on his lot No. 17 of Haskell Place addition a house fronting on Munger avenue. Appellee Sehaffner having begun under the city’s permit to erect a house on his said lot No. 17 fronting on Munger avenue, appellant brought this suit, and prayed that the city of Dallas be required to cancel the permit issued to appellee, Sehaffner, and that Sehaffner be enjoined and restrained from fronting his house on Munger avenue. The allegations of appellant’s petition, briefly stated, are that all of the lots in Haskell Place addition were platted to front according to said plat, and that if he carried out his plans and purpose to face his house the other way, on Munger avenue, in violation of said plat and map, appellant would be greatly damaged, etc. W. S. Diamond, T. J. Melam, J. B. Prater, J. T. Brady, S. R. Dale, Frank Schmitz, and Mrs. É. S. Mayfield intervened in the cause, and, among other things, alleged that they are citizens and taxpayers in the city of Dallas, and are the owners in fee simple of certain property abutting on Munger avenue, on which street abuts appellee Schaffner’s lot No. 17, and that the property of interveners is located just across said street and opposite said lot No. 17 and lots belonging to appellant herein; that the property so located and owned by interveners is worth in the aggregate the sum of $26,500, and that to grant the relief herein sought by the appellant would result in irreparable injury to them; that interven-ers purchased and improved the property now owned by them, respectively, abutting on Juliette street, now Munger avenue, according to a plat or map describing what is known as Ross Avenue addition to the city of Dallas, which map was filed for record in the office of the county clerk of Dallas county, Tex., on the 23d day of July, 1895, and recorded in volume 190, page 80, of the Deed Records of said county; that all of the streets and alleys as shown by said map, including Juliette street, now Munger avenue, were duly dedicated to public use and accepted by the city of Dallas and opened for public travel, and that the platting of Haskell Place addition, with its lots fronting on Haskell Place street, was a violation of and contrary to section 3, art. 1, of the city charter of the city of Dallas, wherein it is provided that property platted into blocks and lots shall be laid off to conform to the streets and lots abutting on said streets. Upon a hearing before Hon. J. 0. Roberts, judge of the Sixty-Eighth Judicial District Court, appellant’s prayer for injunction was denied, and from that order appellant prosecutes this appeal.

Appellant contends that since it appears from the undisputed evidence that Clayton D. Browne, the owner of the tract of land involved in this controversy, divided the same by a street running through the same, and platted the same into lots fronting on said street, and filed said plat for record in Dallas county, and thereafter sold the lots according to said plat, among them the lots of appellant and the lot of appellee Sehaffner, the appellant acquired, by such platting and designation, a right and easement to have all said lots front according to said plat, and that, as appellee Sehaffner was attempting to front otherwise and contrary to said plat, appellant was entitled to an injunction restraining him from so doing; that such right to an injunction was not dependent or conditioned on the city of Dallas accepting the dedication by the said Browne of the said street to the public, but that if acceptance was necessary, the undisputed evidence showed such acceptance. On the other hand, ap-pellees contend that since the charter of the city of Dallas expressly declares that, should any property lying within the city limits as established thereby be platted into blocks and lots, the owners of said property shall plat and lay the same off to conform to the streets and lots abutting on same, and shall file with the engineer of the city a correct map thereof, and that, since Browne failed to plat his land into lots fronting on Munger avenue, which at said time and long before had been dedicated to public use, and in conformity to the lots situated in the Ross Avenue addition abutting on said street, appellant had acquired no such right by Browne’s plat and dedication of Haskell Place street to public use as entitled him to the injunction prayed for in this suit. In essential particulars, we agree with the contention of appellees.

Dedication is defined to be the setting apart of land for the public use, and there are two general kinds of dedication, namely, statutory and common-law. A statutory dedication is one made in conformity to the provisions of a statute, the distinguishing difference between it and a common-law dedication being that the former operates by way of a grant, and the common-law by way of an estoppel in pais.

In order to constitute a valid statutory dedication, the provisions of the statute must be substantially complied with, and such acts as it requires must be performed substantially in the manner prescribed. Elliott, Roads and Streets, page 85.

Common-law dedications are subdivided into two classes, express dedications and implied dedications. “In both express and implied common-law dedications it is necessary that there should be an appropriation of land by the owner to public use, in the one case by some express manifestation of his purpose to devote the land to the public use, in the other by some act or course of conduct from which the law will imply such intent.” Elliott, Roads and Streets, p. 90.

If, therefore, the owner of land which has been laid off and platted into blocks, lots, and streets as an addition to a city, by a map placed on the public records, sells and conveys the lots or blocks by deed referring to the map, in the description thereof, it constitutes a dedication to the public of such streets, and the rights in such streets become thereby vested in such purchasers and in the public.

In treating of this subject in the ease of Lamar County v. Clements, 49 Tex. 354, Judge Moore, speaking for the Supreme Court of this state, said: “It has been repeatedly held by this court, as well as by many others, that where the owner of land lays out and establishes a town, and makes and exhibits a map or plan of the town, with streets and public squares, and sells the lots with reference to such plan, the purchasers acquire, as appurtenant to their lots, all such rights, privileges, easements, and servitudes represented by such map or plan to belong to them, or to their owners; that the sale and conveyance of lots according to such map implies a grant or covenant, for the benefit of the owners of the lots, that the streets and other public places represented by the map shall never be appropriated by the owner to a use inconsistent with that represented by the map, on faith of which the lots are sold, and especially so where the use to which the owner proposes converting them tends to lessen the value of the lots thus sold.”

As has been seen, however, it is essential to a valid statutory dedication, and necessarily to the maintenance of rights claimed thereunder, that the provisions of the statute be substantially complied with, and that such acts as it requires be performed substantially in the manner prescribed. Now, the rights which a municipality acquires in a street by reason of dedication is burdened with the obligation to improve and care for the same, and to protect the public in the reasonable use thereof. Before this obligation can be imposed, it is necessary that the municipality accept the dedication. A dedication may be binding as a common-law dedication against the grantor, on the ground that he is estopped from asserting rights inconsistent with his former acts or declarations, and yet not be such a dedication as will invest the municipality with control of and charge it with duty of repairing the streets sought to be dedicated, or make the municipality liable for injuries caused by the defective or unsafe condition of the streets. To charge the city with such duty and make it liable for damages resulting from defects in the street, there must be an acceptance of the dedication by the proper authority. Gillean v. City of Frost, 25 Tex. Civ. App. 371, 61 S. W. 345; Krause v. City of El Paso, 101 S. W. 828; Holdane v. Trustees, 21 N. Y. 474; Littler v. City of Lincoln, 106 Ill. 353; Jordan v. City of Chenoa, 166 Ill. 530, 47 N. E. 191. The record sent to this court does not disclose an express acceptance of the Haskell Place addition, or the dedication of the streets of that addition, by the board of commission of the city of Dallas, and whatever evidence there may be of an implied acceptance, it is of such a nature as to raise an issue of fact in regard thereto, and the issue was determined against appellant by the lower court. But whether an acceptance on the part of the city of Dallas was essential to appellant’s right to the relief sought need not on this appeal be definitely decided. We will say, however, that we are inclined to think proof of acceptance was necessary, and that the evidence fails to disclose the same by the constituted authority of the city of Dallas. City of San Antonio v. Sullivan, 23 Tex. Civ. App. 619, 57 S. W. 42.

Browne in attempting to plat Haskell Place addition did not, according to the testimony in the record, comply with the provisions of the city charter of the city of Dallas, in that his land was not so platted and laid off as to conform to existing streets and the lots abutting on the same. Section 3, article 1, of the charter of said city reads as follows: “Should any property lying within the city limits as established by this act be hereafter platted into blocks and lots, then and in that event the owners of said property shall plat and lay the same off to conform to the streets and lots abutting on same, and shall file with the city engineer a correct map of same; provided, that in no ease shall the city of Dallas be required to pay for any of said streets at whatever date opened, but when opened by reason of the platting of said property at whatever date platted, they shall become by such act the property of the city of Dallas for use as public highways, and may be cared for as such.”

It appears without dispute that the tract of land owned by Browne .and platted into lots by him, adjoined Ross Avenue addition on the north or northwest, with originally Juliette street, now Hunger avenue, as the southern boundary thereof. Ross Avenue addition was a much older addition to the city of Dallas than Etaskell Place addition, platted by Browne, and the streets thereof, including Juliette street, now Hunger avenue, had been dedicated to public use and accepted by the city and public long prior to the dedication of the streets of Haskell Place addition. At the time Browne filed his plat and map of Haskell Place addition for ■record the section and article of the city' charter above referred to was in force, and it appears from said map that the lots of said addition south of Haskell Place street, and just north of and abutting on Hunger avenue, front Haskell Place street, and not Munger avenue. The lots in Ross Avenue addition which abut on Munger avenue south of Haskell Place addition front Munger avenue, and upon' many of said lots, if not all of them, houses have been built by their owners, and homes established. The charter provision above quoted, which must be taken in the sense of a statute, made it obligatory upon Mr. Browne, in platting his land as an addition to the city of Dallas, to front the lots south of Haskell Place street of said addition on Munger avenue. Not having done so, the platting of his addition and filing a map thereof for record does not conform to the provisions and requirements of the city charter of the city of Dallas, and does'not constitute a valid statutory dedication. That the acts of Mr. Browne in filing for record a map of Haskell Place addition and selling lots in said addition with reference thereto were sufficient to constitute a common-law dedication of the streets delineated and shown on said map as to persons who purchased with reference to the map, and that- he, Browne, would be estopped as against such persons from asserting rights or doing acts inconsistent therewith, is not questioned. The authorities cited by appellant are not applicable to the facts of this case. All of them deal with an acceptance by user and the sale of property with reference to a map, and disclose that some right was asserted by the original proprietor or grantor inconsistent with his former acts and declarations of dedication, and it was held he was estopped from doing so. In the view we take of the case, it is unimportant whether the ordinance passed in 1903, providing the mode and- manner of acceptance by the city of Dallas of plats of land into lots, streets, alleys, etc., was superseded and repealed by the city charter of 1907 or not. Browne in platting his land into lots, streets, etc., did not observe the provisions of the charter in that, as before stated, the lots of his addition were not made to front so as to conform to Munger avenue and the streets abutting thereon, and, not having done so, appellant is not entitled to the injunction prayed for.

In purchasing his lots appellant acquired only the rights of his grantor, and is chargeable with notice that his grantor had not complied with the statutory regulations and requirements in platting his addition; and, having purchased under such illegal platting and attempted dedication, he acquired no such rights as against the city of Dallas, or persons owning property abutting on Munger avenue, as entitled him to the injunction denied by the trial court.

The judgment of the court below is affirmed.

On Motion for Rehearing.

We see no good reason to depart from the views expressed in our original opinion in this case, and appellant’s motion for a rehearing will therefore be overruled. In compliance with the request of appellant for additional conclusions of fact, we find:

1. That the city of Dallas on March 4, 1913, enacted an ordinance entitled an ordinance amending section 161 of the Building Code of the city of Dallas, section 2 of which reads as follows: “That whenever any lots are laid off by any plat, showing a frontage for said lots on any street or avenue in the residence section of the city, all buildings erected on same, shall have their frontage on said street or avenue so as to conform to the frontage of the lots shown on any such plat.”
2. That the lots laid off by Clayton D. Browne, known as Haskell Place addition, are in the residence portion of the city of Dallas.

The motion for rehearing is overruled.