author: JENKINS, J.

text:
    NATIONAL EQUITABLE SOC. v. REVEIRE.
    (No. 6015.)
    (Court of Civil Appeals of Texas. Austin.
    Jan. 8, 1919.
    Rehearing Denied March 19, 1919.)
    1. Appeal and Error @==>843(2) — Matters not Necessary to Decision — Review.
    Whether appellant, by making no objection to peremptory instruction given, waived objection to refusal of court to submit case upon requested issues need not be passed upon, where the same result is reached in considering assignments of error based upon said refusal.
    2. Trial @=350(8) — Submission op Uncon-tradicted Issue.
    It is improper to submit an issue of fact when the uncontradicted testimony establishes such fact.
    3. Bills and Notes @=>367 — Suit by Innocent Purchaser — Immaterial Issue.
    Plaintiff being an innocent purchaser for value before maturity of the note sued on, issue whether original payee insurance company, which was not a party, had obtained a permit to do business within the state was immaterial.
    4. Trial @=>350(1) — Immaterial Issue — Submission.
    An immaterial issue should not be submitted, and a finding thereon cannot be made the basis of a judgment.
    5.Appeal and Error @=>843(2) — Issue Unnecessary to Decision — Determination.
    Where appellee in his brief concedes that collateral is worthless and consents to reformation of judgment by striking out all mention of any lien, it is unnecessary to determine whether trial court, although it found the existence of a lien, could enter judgment of foreclosure, where jury did not so find.
    Appeal from District Court, McLennan County; Richard I. Munroe, Judge.
    Suit by J. W. Reveire against the National Equitable Society. Judgment for plaintiff, and defendant appeals.
    Reformed and affirmed.
    Alva Bryan and G. W. Bareus, both of Waco, for appellant.
    Rogers & Earle, of Waco, for appellee.
   Findings of Fact.

JENKINS, J.

This suit was brought by appellee on a note for $6,120, executed by appellant to the Peerless Fire Insurance Company, upon which there were certain credits. This note was secured by certain collateral, among which were nine notes executed by an Odd Fellows lodge at Rogers, Tex., and secured by a mortgage on certain lots in the town of Rogers. There was a prior mortgage on said lots which has been foreclosed, and the security on said lots is now worthless. Appellee is the owner of said $6,120 note, and there was due thereon at the time of the trial the sum of $2,200.85.

The court peremptorily instructed the jury as follows:

“You are instructed that you will find for the plaintiff in the sum of $2,200.85, and you will further find that the plaintiff is the owner of the nine promissory notes described in plaintiff’s original petition as the Rogers lodge notes on lot 10 and 10 ft. off of the west side of lot 9, in block 13 of the original town of Rogers, Bell county, Texas, as collateral security for the purpose of securing the above indebtedness, and that plaintiff is the owner of the C. P. Little notes described in plaintiff’s petition.
“Rieh’d L. Munroe, Judge 54 District Court.”

The jury returned a verdict as instructed. The court rendered judgment for the amount found by the jury, and also .foreclosing the mortgage lien on the Rogers lots.

Opinion.

Appellant’s first assignment of error is as to the refusal of the court to submit the case to the jury upon the following special issues, requested by it:

“(1) Docs the note sued on herein belong to the plaintiff, or does it belong to the Peerless Fire Insurance Company?
“(2) What amount, if any, do you find is due on the note sued on herein?
“(3) Who is the present owner of the C. P. Little notes described in the plaintiff’s petition?
“(4) Did the Peerless Eire Insurance Company maintain an office in the city of Waco, Mc-Lennan county, Texas, and was the transaction between the Peerless Eire Insurance Company and the National Equitable Society out of which the note in controversy arose, a transaction carried on in Texas?
“(5) Did the pláintiff, J. W. Reveire, know that the consideration given by the Peerless Fire Insurance Company to the National Equitable Society for the note sued on was for stock of the Peerless Eire Insurance Company?
“(6) Is the Peerless Eire Insurance Company a corporation organized under the laws of Arizona, and did it file its article of incorporation with the secretary of the state of Texas and obtain a permit, to do business in Texas?
“(7) Was it the intention of the parties to said contract that J. W. Reveire should own the $5,656.70 note signed by the Peerless Eire Insurance Company and payable to J. W. Reveire, and secured by a note for $12,500.00, or was he to own the $6,120.00 note described in said contract?
“(8) Is the defendant an innocent purchaser for value before maturity of the note sued on?
“(9) Is J. W. Reveire, plaintiff herein, 'the owner of the note sued on in this cause, to wit, the note for sixty-one hundred and twenty ($6,120.00) dollars, dated August 18, 1916, due four months after date; if so, when did he become the owner of said note?
“ (10) At the time J. W. Reveire obtained the possession of the note sued on herein did he know that the lien securing same on the Rogers I. O. O. F. property was released?”

Appellant excepted to the failure of the court to submit these issues, but made no objection to the peremptory instruction given •by the court.

In Railway Co. v. Bartek, 177 S. W. 137, the majority of this court held that an appellant must be held to have waived all objection to the charge of the court, where he did not object to such charge, notwithstanding the fact that he-- requested a special charge contradictory of the general charge, and duly excepted to refusal of the court to give such special charge. The Chief Justice of this court dissented as to this holding.

It is not necessary for us to pass upon this issue in the instant case, for the reason that we arrive at the same conclusion whether we do or not consider appellant’s assignments of error as to the refusal of the court to submit the case upon the requested issues.

If we should hold that said assignments •cannot be considered on account of the failure of appellant to object to the peremptory instruction, of course we overrule them. After a careful examination of the statement of facts, we have arrived at the conclusion that if said assignments be considered they should be overruled, for the reason that as to requested issues, except No. 6, the evidence was undisputed.

The uncontradicted evidence shows that: (1) The note sued on belonged to plaintiff ; (2) the amount due thereon was the amount for which the court instructed a verdict; (3) plaintiff is the owner of the O. P. Little note; (4) the Peerless Eire Insurance Company did maintain an office in Waco, Tex., and that the National Equitable Society acquired the note sued on in Texas; (5) the consideration for the note sued on was not for stock of the Peerless Eire Insurance Company; (7) it was the intention of the parties that J. W. Reveire should become the owner of the $6,120 note described in the contract; (8) the plaintiff was an innocent purchaser for value before maturity of the note sued on; (9) J. W. Reveire became the owner of the note sued on before the filing of this suit;; (10) J. W. Reveire did not know at the time he obtained said note that the .Rogers T. O. O. F. property was released.

It is not proper for a court to submit to a jury an issue of fact when the uncontra-dicted testimony establishes such fact. R. S. art. 1971; Railway Co. v. Dawson, 201 S. W. 252; Bank v. Graf, 200 S. W. 859; Greif v. Seligman, 82 S. W. 533.

The issue requested in the sixth special charge was immaterial. The Peerless Eire Insurance Company was not a party to this suit. An immaterial issue should not be submitted, and a finding thereon cannot be made the basis of a judgment. Krentz v. Stromeir, 177 S. W. 181; Kelley v. Ward, 94 Tex. 294, 60 S. W. 311; Railway Co. v. Eddleman, 175 S. W. 777; Petroleum Co. v. Dinwiddie, 182 S. W. 446.

Assignments of error Nos. 2, 3, 4, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, and 18 are overruled, for the reasons herein given for overruling the first assignment of error; that is to say, they relate to issues of fact established by the uncontradicted testimony, or to issues that are immaterial.

Assignments of error Nos. 5 and 17 assign error upon the action of the court in foreclosing the lien on the Rogers lots, for the reason that the jury did not find the existence of such lien.

The fact of the existence of such lien was found by the court, as appears by the recitals in the judgment, and the uncontradicted testimony supports such finding. It is not necessary, however, for us to decide whether or not the court could enter judgment of foreclosure on the verdict of the jury and such finding made by the court, for the reason that appellee makes the following statement in his brief herein:

“Part of the collateral security constituted a lien agáinst certain property in Rogers, Bell county, Tex.' ⅜ ⅜ * Subsequent conditions have made this Rogers Lodge collateral security worthless to appellee. ⅜ ⅞ ⅜ In order to eliminate said lien as an issue in this cause, ap-pellee is willing that this honorable court reform said judgment by striking therefrom all mention of any liens.”

The judgment of the trial court is here reformed in accordance with said suggestion. In all other respects the said judgment is affirmed.

Reformed and affirmed.
      @=For otiler cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: HIGGINS, J.

license: Public Domain

text:
    CAROTHERS et al. v. FINLEY et al.

    (No. 875.)
    (Court of Civil Appeals of Texas. El Paso.
    Dec. 12, 1918.
    Rehearing Denied Jan. 16, 1919.)
    1. Sales <⅜=>420 — Buyer's Ability and Readiness to Perform — Question eoe Juby.
    In suit for breach of contract, whereby defendants agreed to sell and deliver to plaintiffs 1,000 cows and calves, whether plaintiffs were ready and able to pay for cattle tendered by defendants held, under the evidence, for the jury.
    2. Tbial <S=>191(1) — Questions fob Juby— Weight of Testimony.
    It is improper to assume as a proven fact a material issue supported only by the uncorroborated testimony of one of plaintiffs, especially where there is evidence warranting a contrary inference.
    S. Apfeal and Ebbob <®=»499(3) — RspoBD — Exclusion of Testimony — Objections. Where bill of exceptions fails to disclose objection made to introduction of testimony, action of trial court in regard thereto cannot be reviewed.
    4. Appeal and Ebbob <©⅛51059 — Exclusion of Testimony — Haemless Ebbob.
    Where, under charge given, ability of plaintiffs to perform was assumed, no possible error could have occurred by' reason of exclusion of testimony of such ability.
    5. Sales <⅜=>83 — Performance by Sellers— Evidence.
    Under contract for sale and delivery of 1,000 . head of cattle, from 500 to 700 to be delivered on or about June 15th, balance, etc., defendant sellers were not required to make first delivery in one herd, and, if they tendered at least 500 cattle on or about said date, they would have complied with contract.
    6. Evidence <S=^51S — Opinion as to Meb-chantability — Admissibility.
    In suit for breach of contract relating to merchantable cattle, where a witness had qualified as an expert, there was no error in permitting him to testify what was meant by “merchantable cattle.”
    Appeal from District Court, Reeves County ; Chas. Gibbs, Judge.
    Suit by A B. Carothers and another against G. B. Finley and another. Verdict for defendants, judgment accordingly, and plaintiffs appeal, and defendants cross-assigned error.
    Affirmed.
    J. W. Parker, of Pecos, and J. A. Buck, of Crosbyton, for appellants.
    Jas. F. Ross, of Pecos, for appellees.

      Writ oí error denied March 19. 1919.

   HIGGINS, J.

Appellants brought this suit against appellees to recover the sum of $8,000, alleged to have accrued as damages for breach of contract. It was alleged that appellants and appellees entered into a contract whereby appellees agreed to sell and deliver to appellants 1,000 cows and calves, the first delivery to be made on or about June 15, 1917, and to consist of from 500 to 700 head, and the balance to be delivered on or about October 15, 1917, delivery to be made at Riverton, Tex.; that the contract provided for a cash payment of $4,000, which was made, and that the balance of the purchase price was to be paid upon delivery, and that, in case of a breach of the contract on the part of appellants, appellees were to retain the $4,000 paid as liquidated damages, and, in case appellees breached the contract, they were to pay appellants $4,000 as liquidated damages; that the contract provided the cattle were to be merchantable, i. e., all unmerchantable cattle were to be cut out before the 10 per cent, cut provided for in the contract was made; that the contract provided for a 10 per cent, cut back in favor of appellants; the cattle were to be of an average of the cattle purchased by appellees from W. ID. Hudson; that appellees notified appellants they would make the first delivery on either the 17th or 18th of June, 1917, and to be ready to receive and pay for the cattle; that on said date appellants were at Riverton, in a position to receive and pay for the cattle, and appellees only had there 409 head to deliver, instead of from 500 to 700 head, as provided in the contract; that the cattle tendered were not merchantable and were not an average of the Hudson cattle; that they were weak, in bad condition, many of them very old, and not such cattle as was contemplated by the contract; that appellants refused to accept and pay for the cattle tendered, because an insufficient number was tendered and on account of the condition thereof; that appellants were ready, willing, and able to perform the conditions imposed upon them by the contract.

Appellees answered by general denial, and a special plea admitting the execution of a contract with appellants, substantially as stated in the petition, but that by a subsequent parol agreement the same had been modified as to the terms of the first delivery. Exceptions to the special plea were sustained by the court. Upon trial before a jury, the court, in substance, gave the following charge:

If the jury believed that the cattle tendered by defendants to plaintiff at Riverton on June 17, 1917, were not of the average of the Hudson cattle, and that defendants could not or would not have delivered to plaintiffs at Riverton, Tex., within a reasonable time after June 15, 1917, as many as 500 head of cows and calves, of the average of the Hudson cattle, in a merchantable' condition (but for the refusal of the plaintiff), then to find for the plaintiffs; but; if they found that the cattle tendered at Riverton on June 18, 1917, were of the average of the Hudson cattle, and that the same were in a merchantable condition, and that defendants could have and would have delivered to plaintiffs at Riverton as many as 500 head of an average of the Hudson cattle within a reasonable time after June IS, 1917, and in a merchantable condition (but for the refusal of the plaintiffs), and that plaintiffs would not suffer loss or injury by reason of the delay in delivery, then to find for defendants.

Verdict was returned in favor of Finley and Anderson, and judgment accordingly rendered.

Opinion.

Error is first assigned to the refusal of the court to give a peremptory instruction in favor of appellants. This charge was properly refused for the reason that it was an issue of fact whether or not the plaintiffs were ready and able to pay for the cattle tendered. The only evidence in the record to establish the readiness and ability of appellants to pay for the same is the testimony of one of the plaintiffs, who was, of course, interested. It is improper to assume as a proven fact a material issue supported only by the uncorroborated testimony of such an interested party. Thomas v. Saunders, 159 S. W. 769; Gonzales v. Adoue, 56 S. W. 543; Turner v. Grobe, 24 Tex. Civ. App. 558, 59 S. W. 585; Insurance Co. v. Villeneuve, 29 Tex. Civ. App. 128, 68 S. W. 203; Ry. Co. v. Lucas, 148 S. W. 1149. Furthermore there is other evidence in the record which would have warranted the jury in finding that appellants were not ready and able to pay,the purchase price of the cattle at Riverton when the first tender of delivery was made. In this condition of the record the peremptory instruction was properly refused.

Error is next assigned to the refusal of the court to permit one of the plaintiffs to prove the amount and value of his property as a circumstance tending to show his ability to perform the obligations imposed upon him by the contract. The bill of exceptions fails to disclose the objection made to the introduction of the testimony, and therefore the action of the trial court in regard thereto cannot be reviewed. Ry. Co. v. Jarrell, 38 Tex. Civ. App. 425, 86 S. W. 632; Grinnan v. Rousseaux, 20 Tex. Civ. App. 19, 48 S. W. 58, 781; Bank v. Smith, 160 S. W. 311; Ry. Co. v. Holzer, 127 S. W. 1062. However, under the charge actually given by the court, the ability of the plaintiffs to perform was assumed. No issue in that respect was submitted to the jury for their determination, and the plaintiffs’ right to recover by the charge of the court was conditioned upon facts distinct from their financial readiness and ability to perform- the contract. No possible error, therefore, could have accrued to the appellants by reason of the exclusion of the evidence.

Objection to the court’s charge is made upon the ground that the right of plaintiffs to recover was precluded if the jury, from the evidence, believed that the defendants could or would have delivered to the plaintiffs at Riverton, Tex., within a reasonable time after June 15, 1917, as many as 500 cows and calves. The point is made that the contract sued upon called for two deliveries only, the first to be made on or about June 15, 1917, and to consist of at least 500 head; and the uncontroverted evidence shows that on said date appellees tendered only 399 head. The contract provides:

“Deliveries as follows: From five hundred to seven hundred on or about June 15, 1917. The balance of the one thousand cows and calves on or about October 15, 1917.”

We do not construe the contract as requiring appellees to deliver at least 500 head in one herd on June 15th. The evidence shows that only about 400 head was in fact tendered at Riverton on June 18th, but the evidence further shows that, when appellants declined to receive the cattle because less than 500 head were tendered, the appellees immediately offered to bring enough to make the number at least 500 head, and that they could and would have done so within a reasonable time. As we construe the contract, all that was required, of appellees was to deliver at least 500 head on or about June 15th. It was not required that they be delivered in one herd, and, if they had tendered at least 500 head on or about June 15th, they would have complied with their contract. There is ample evidence in the record that less than 500 head were tendered in pursuance of the subsequent oral agreement which was pleaded by ¡appellees. In this connection, it may be said, further, that, in our opinion, the court improperly sustained appellants’ exceptions to the special pleas setting up a subsequent oral agreement, modifying the original contract as to the terms of delivery, and appellees have cross-assigned error to the court’s action in sustaining such exceptions. Evidence of the modified agreement was admitted apparently without objection, but under the terms of the first contract, as indicated above, we think that appellees had a right, within a reasonable time after July 15, 1917, to tender sufficient to make up the minimum of 500 head which was to be delivered on or about that date; and if they did so, or were willing and able and offered to do so, then they complied with their original contract. This is especially true in view of the evidence^ which shows that it was not considered to be of the essence of the contract that delivery should be made upon the exact date specified.

What has been said disposes, likewise, of the fourth and sixth assignments.

The fifth and seventh assignments are supported by propositions which seem to have no relevancy whatever to the assignments, but, under any view thereof, they seem to be without merit and are overruled.

The eighth assignment complains of the court’s action in permitting a witness to testify to what was meant by “merchantable” cattle in that country. The witness qualified as an expert, and there was no error in admitting the testimony, for the reason that the contract related to merchantable cattle.

Finding no reversible error, the judgment is affirmed.
      «gcaFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: WALKER, J.

text:
    MAGNOLIA PETROLEUM CO. v. CITY OF PORT ARTHUR.
    (No. 418.)

    (Court of Civil Appeals of Texas. Beaumont.
    Feb. 13, 1919.)
    1. Trial <§=>396(4) — Findings—Requests.
    Requested findings in conflict with trial court’s findings, which were sustained by evidence, held properly refused.
    2. Shipping <§=>86(2) — Collision with Canal Bridge — Contributory Negligence.
    In suit for damages due to collision of steamship with canal bridge of plaintiff city, erected pursuant to act of Congress, over a canal, the property of the United States, held that the trial court was justified in finding that plaintiff was not negligent in constructing bridge so that it inclined over canal, and in failing to have sufficient fender piling to protect it from a boat built as was the steamship.
    3. Shipping <§=>86(2) — Collision with Canal Bridge — Proximate Cause.
    In suit for damages due to collision of steamship with bridge of plaintiff city, held that the trial court was justified in deciding against defendant, which owned and operated tug which attempted to tow steamship through the canal, on the question of proximate cause.
    4. 'Shipping <§==>86(2) — Collision with Canal Bridge — Negligence.
    In suit for damages due to collision of steamship with bridge of plaintiff city, held that the trial court was justified in finding that defendant, owner of tug, represented to master of steamship that tug was competent to tow without assistance of another tug.
    5. Master and Servant <§=>301(4) — Collision with Bridge — Negligence oe Tug— Relation oe Parties.
    In suit for damages to canal bridge due to collision with steamship, held that contention that defendant, owner of tug, which attempted to tow steamship, was not liable for negligence of tug, in that tug was the special servant of steamship, so that relation of master and servant did not exist between defendant and the tug, could not be sustained.
    6. Shipping <®=>86(2) — Injury to Canal Bridge — Negligence—Evidence.
    In suit for damages due to collision of steamship with bridge of plaintiff city, held that the trial court was justified in finding that tug which attempted to tow steamship was negligent, and that defendant owner of tug was liable for damages due to destruction of bridge.
    7. Shipping <§=>86(3) — Negligent Navigation-Injury to Bridge — Special Damages — Pleading.
    In action for damages due to collision of steamship with canal bridge of plaintiff city, affording only means of access to its pleasure pier, the contract price between plaintiff and a third person for the use of the pier could not be recovered, there being no pleading to the effect that defendant knew of contract.
    8. Shipping <§=>86(3) — Injury to Bridge-Damage — Loss op Profits.
    In action for damages due to collision of steamship with canal bridge of plaintiff city, affording only means of access to pleasure pier, held that plaintiff’s loss of profits from failure to operate pier was proximately caused by destruction of bridge, and could be recovered under proper pleadings and proof.
    Appeal from District Court, Jefferson County; W. H. Davidson, Judge.
    Suit by City of Port Arthur against the Magnolia Petroleum Company. Judgment for plaintiff, and defendant appeals.
    Reversed and remanded in part and affirmed in part.
    Minor & Minor and F. J. & C. T. Duff, all of Beaumont, for appellant.
    A. W. Dycus, of Port Arthur, Jno. D. Grace, of New Orleans, La., and Crook, Lord, Lawhon & Ney, of Beaumont, for appellee.

      For opinion on motion for rehearing, see 209 S. W. 991.

   WALKER, J.

This is a suit by appellee against appellant for damages to appellee’s bridge across the Port Arthur Ship Channel in the city of Port Arthur. The case was tried before the court without a jury, the court rendering judgment for the appellee for the damages to the bridge, and $3,000 for the loss of rents which the city would have received for the bridge and the pleasure pier but for its injury. On motion of appellant, the court filed the following findings of fact and conclusions of law:

“(1) That there is a canal, extending from Sabine Pass to the mouth of the Neches river, in Jefferson county, Texas, known as the Sabine-Neches Canal, and sometimes called the Port Arthur Ship Canal, passing between the city of Port Arthur and Sabine Lake, and that said canal is the property of the United States government, and is a navigable water of the United States, and that the Neches river is likewise a navigable stream of the United States, and extends from said canal to the city of Beaumont.
“(2) That .the plaintiff owns and maintains a lift bridge, which is situated in the city oí Port Arthur, on said canal, and said bridge on and prior to the 24th day of April, 1916, furnished a means of crossing said canal and reaching what is known as the ‘Pleasure Pier,’ which is a body of land owned by plaintiff lying out in the Sabine Lake, and was the only means of crossing said canal by land. That said bridge had theretofore been erected under enactment of the Congress of the United States, upon and across land belonging to the United States and its departments, officers, and agents having charge of such matters, and said bridge, and the location of said bridge, had been approved by the Secretary of War of the United States, and by the chief of engineers of thei United States army, as had been the plans, specifications, and details of said bridge, and the said bridge was a lawful structure, and was being operated in all respects agreeable to the usages and requirements of the government of the United States, and did not unlawfully, materially, or unnecessarily obstruct the navigation of said canal, and at the time of the collision in question was raised to its full height.
“(3) That the defendant owns and operates an oil refinery situated on the right bank of the Neches river, near the city of Beaumont, and on the 24th day of April, 1916, had loaded approximately 1,497,676 gallons of gasoline on the steamship Splendor from the docks of said refinery, which it had theretofore sold to the Standard Oil Company of New Jersey; that the said steamship was an ocean-going tank steamer, and was in length 410 feet, had a beam of 56 feet and 6 inches, and its gross tonnage was 6,570; the steamer was owned by a company or association of Genoa, Italy.
“(4) That the steamship Splendor could not be safely and properly navigated in the Neches river and in the said canal without the assistance of a tugboat with adequate power to tow and guide her along a safe course through the river and canal.
“(5) That the Magnolia Petroleum Company owned the steam tug Magnolia, which was about 94 feet in length, and had a draft of about 12 feet, and a horsepower of about 650, and on said date the defendant, Magnolia Petroleum Company, with its said tugboat undertook to tow and gmide the course of and assist said steamship Splendor from its said dock near Beaumont, out to sea over the Neches river and said canal, and did so by one hawser attached to the forecastle head of the steamship through the forward port chock, and extended and fastened to the tugboat Magnolia on the main bitts at' its stern; that said steam tug Magnolia during said time was operated by and under the control of the defendant, the Magnolia Petroleum Company, by and through Captain Thomas Fen-lon, who was an agent and employé' of the defendant, Magnolia Petroleum Company, in command of same as master of said tug, and he was aided and assisted in handling said tug by the other officers and crew of said steam tug, and said tug had on board a full crew, who were likewise in the employ of said defendant, and who were at all times under the control and direction of said Captain Thomas Fenlon; and the defendant, if not expressly, at least impliedly, represented to the master of said steamship that said tug was competent to perform said undertaking without the assistance of another tug.
“(6) That the steamship Splendor had on board a pilot, employed by the steamer, a master, and a full crew of officers and men, who assisted and co-operated with the captain of the tugboat by means of whistle signals at time?, touching the maneuvers in navigation, Captain Fenlon of the tugboat sometimes initiating and executing the movements and maneuvers of the tugboat without directions from the pilot or master of the steamship, and at other times carrying out the directions concerning the maneuvers in navigation as communicated by the pilot on the steamer, or the master of the steamer; that the steamship was usually propelled by her own engines, and her general management and control was under her master and the pilot on board.
“(7) That long before arriving at the said Sabine-Neches Canal, and while said steamship Splendor was being moved along the Neches river by the joint efforts of the officers and crew of said ship and of the tug Magnolia, the aforesaid Captain Thomas Fenlon, master of the tug Magnolia, observed that said steamship Splendor was in an improper trim, and, because of his years of experience as a water man and experienced navigator, he realized that in her said condition it would be almost impossible, if not absolutely impossible, to tow, direct, and guide the head of said steamship.
“(8) That the master of the tug Magnolia was confirmed in his opinion that it would be almost impossible, if not absolutely impossible, to control the course of said vessel, even before reaching the Sabine-Neches Canal, by reason of the vessel steering wildly; that is to say, the head of the steamship would swing off to sheer away from the course her officers and crew were endeavoring to hold her on ; and, notwithstanding the watchfulness of the officers and crew of both vessels, the head of the steamship would sheer away, carrying the steamship towards one bank or the other against the best efforts of the Magnolia to tow and guide the head of said vessel.
“(9) That both in the Neches river and in the Sabine-Neches Canal the said steamship frequently ran hard into the bank because the towboat Magnolia was wholly unable to arrest the sheers of the steamship, or to prevent her from going into the banks of the canal whenever she commenced to sheer.
“(10) That the tug Magnolia was of sufficient power, her equipment sufficiently complete, and her officers and crew of sufficient knowledge and skill, to have successfully executed the service she undertook, to tow and guide the head of said steamship along said waterways on a course safe to both vessels as well as safe to the property of third persons in and along said, waterways, if the said steamship had been in a normal condition, properly trimmed, so that her movements would be subject to control.
“(11) That the cargo and water ballast of the said steamship Splendor was so distributed in her cargo and ballast tanks as to put this steamship in such an improper trim as to render her movements uncontrollable notwithstanding her own efforts and the efforts of the tug Magnolia and the officers and crews of said vessels; and the steamship, as she was moved along said waterways in this condition, was a manifest menace and an instrument of grave danger to the property of those on and along the banks of said waterways.
“(12) That Captain Thomas Fenton, master of the said tug Magnolia, did from his personal observation of the said steamship and his experience as a waterman, his skill as an experienced navigator and his knowledge of the said waterways, realize, appreciate, and understand all the hazards and difficulties which would attend his efforts with the tug Blagnolia to attempt to tow and guide the head of the said steamship down the Neches river and Sabine-Neehes Canal to the sea. He knew these things when he entered upon that service, which was just after said'steamship had gotten off the river bank in the Neches river, on which she had run up high and dry among the trees, while she was attempting to go down the said river. Captain Fenton then knew, as an experienced navigator, that the ship was not in a proper trim, and that, as a consequence thereof, she would continue to prove unmanageable while in that trim, and that he would not be able to tow and guide the head of said vessel with only the tug Blagnolia; and thereafter, while in the Neches river, well knowing and observing from the effect of each sheer to sheer taken by this steamship, that the best efforts of himself and the other officers and crew of said tug, and of the said tug Blagnolia, to tow, guide, and direct the head of said steamship, were and would continue to be of no avail, and that the said tug was wholly unable and incapable of arresting the sheers of said steamship ; but nevertheless, in spite of such knowledge, the said master of the tug Blagnolia continued with the said tug Blagnolia to attempt to tow, guide, and direct the head of said steamship down said river and canal and past the aforesaid bridge.
“(13) That after said steamship arrived in the Sabine-Neches Canal, and on account of the fact that her draft was almost equal to the depth of the canal, the vessel became more unmanageable, and repeatedly sheered into or ran against first one bank of the canal and then the other, steering wildly all the time, and the officers and crew of the tug Blagnolia, with the said tug, were unable to prevent said steamship from so sheering, notwithstanding their repeated best efforts on each occasion to do so; that it then became all the more manifest to the master of the tug Magnolia that the tug, its officers and crew, could not possibly tow, guide, and control the head of this vessel, but they persisted in their fruitless efforts, and continued attempts to tow, guide, and control said steamship, as they had undertaken to do, along said canal and past defendant’s said bridge.
“(14) That when this steamship was about one-half mile above plaintiff’s bridge she sheered into the right bank of said canal, and upon being relieved of this situation she again started her uncertain course down this canal under the joint efforts of her crew and of the tug Magnolia and her crew. Still steering wildly, she proceeded on down to a distance of about 1,000 feet above said bridge, when she again sheered for the right bank, and the efforts of the tug Blagnolia to stop this sheer resulted in parting the towline which extended from the head of this ship to the stern of the tug; but she failed in this effort as she had failed on repeated former occasions,- the ship ran hard in and stuck fast on the right bank of the canal, narrowly missing dredge on which a number of people were at tvork, seriously endangering their lives. The tug Blagnolia was brought by her officers and crew back to where the steamship Splendor was stopped, stuck fast in’ the bank, and immediately made preparations to continue this perilous voyage. A towline was again run out from the head of the ship to the stern of the tug, and, after the ship was again gotten off the bank, the tug again, by her master, officers, and crew, attempted their repeatedly futile efforts to tow and guide the head of said ship down this canal and past the bridge. That after the said steamship straightened out in the canal her engines were stopped, and she approached the bridge, moving forward only by the momentum given her by the tug. She had progressed but a short distance when the steamship Splendor sheered for the right bank of the canal and toward plaintiff’s bridge.
“(15) That as the steamship Splendor sheered for the right bank, and towards plaintiff’s bridge, the ship’s engines were put in reverse motion, and the officers and crew of both the ship and tug used every reasonable effort in the face of an impending collision to prevent the ship from colliding with the bridge, but they were no more successful in their effort to stop this sheer than on the many previous occasions, when the ship ran into the banks of the river and canal; and the steamship Splendor crashed intp plaintiff’s bridge, injuring it in the manner and to the extent complained of by plaintiff.
“(16) From the foregoing facts the court finds that said Captain Fenlon, who' was then and there the agent and representative of the defendant, Magnojia Petroleum Company, and acting in the scope of his authority in the matters intrusted to him by defendant, was not in the exercise of ordinary care, and was guilty of negligence in attempting to tow and guide the steamship Splendor along said canal and past said bridge in the manner aforesaid and under all the circumstances apparent to him, knowing at the time that the tug could not control the steamship, and that such negligence was- the direct and proximate cause of said collision and the injuries to said bridge.
“(17) The court further finds that the collision in question was not the result of an inevitable accident, or from natural causes, and that the same was due to no intervening act or omission on the part of others, and the court finds that such collision was due to no- negligent act or omission on the part of the plaintiff in any of the respects alleged by the defendant.”

Appellant filed with the court below, and asked the court to approve the same, a large number of findings of fact and conclusions of law, some of which are in conflict with the findings made by the court. The court refused these findings of fact and conclusions of law, as prepared by appellant, to which action of tlie court appellant excepted, and has appealed the case to this court for review.

We have carefully examined the statement of facts in this case, and conclude that all the findings of fact made by the trial court are amply sustained by the testimony, and we adopt these findings as made by the trial court as a part of our findings of fact.

The bridge described in the court’s findings of fact was built so as to incline over the canal, when raised to its full height, at an angle of about 15 degrees from a perpendicular, and at the time the bridge was struck by the Splendor it was raised to its full height.

The city of Port Arthur had piling extending out from the bridge pier, but this piling was not sufficiently high to protect the bridge from a ship built as was the Splendor.

The steamship Splendor was owned by an Italian corporation of Genoa, Italy, the Standard- Oil Company of New Jersey being either the charterer of the Splendor or the New York agents for her owners. Chas. Martin & Co. of Port Arthur, Tex., were the duly appointed and acting agents of the Splendor on the occasion of her voyage to and from the defendant’s docks in April, 1916. Chas. Martin & Co., as such agents, before the arrival of the Splendor at Sabine Pass, on its voyage for defendant’s docks in April, received from the Standard Oil Company of New Jersey tjvo letters, one addressed' to Chas. Martin & Co., 'and the other addressed in their care to Captain E. Scarpa, the master of the Splendor, these letters being as follows:

“Standard Oil Company, Incorporated in New Jersey.
“New York, March 27, 1916.
■ “Messrs. Charles Martin & Co., Port Arthur, Texas:
“Gentlemen: I bog to advise that the Italian S/S Splendor sailed from Messina on March 12th, p. m., for Beaumont, direct, where she is to load five tanks, about 32,000 bulk barrels, deodorized naphtha 64/65° Baumé gravity, balance of cai'go, consisting of Standard White Oil, will be supplied at Baton Rouge. She should be due at your port, Beaumont, about April 2d, and you will kindly be on the lookout for her, giving the captain all necessary advice and assistance.
“I am forwarding a special letter to the captain giving him all the information and instructions necessary in regard to the navigation of the channel between Sabine and Beaumont.
“I beg to inclose bills of lading for the part cargo to he shipped from Beaumont. After steamer has finished loading, please fill in the number of gallons, also the numbers of the tanks containing the naphtha, as well as the hours consumed in loading.
“As in the case of the Lampo, this steamer should be loaded under the supervision of United States customs inspectors, and you will please obtain the necessary certificate, namely—
“Shipper’s affidavit;
“Custom house affidavit;
“Certified manifest viséd by the British, French, and Italian consuls. —and hand these documents to the captain before sailing. Should, however, the signatures of one of these consuls not be obtainable at Sabine, you can forward the respective documents to Mr. Rueff, and he can get the required consul's signature at New Orleans.
“Kindly also deliver to the captain the regular captain’s copy of bill of lading, and the original bills of lading, with the request that he deliver the latter one to his company on his arrival. The two other B/Ldg. shipper’s copy to be delivered to the refinery.
“Clear the Splendor for Savona via New Orleans, and notify Mr. George William Rueff at New Orleans as soon as the steamer sails from Sabine.”
“March 27,1916.
“Captain E. Scarpa, Italian S. S. Splendor, % Messrs. Chas. Martin & Co., Port Arthur, Texas.
“Dear Sir: From orders which we received from the Sociota Italo-American Pel Petrolia, Genoa, your steamer is to load—
“5 tank, abt. 32,000 bulk bbls., deodorized Naphtha, balance of cargo abt. 19.,000 bulk barrels refined petroleum (Standard White Oil).
' “The naphtha portion of your steamer’s cargo is to be supplied by the Magnolia Petroleum Company, Beaumont, Texas, after which you are to proceed to Baton Rouge,’ and there load the Refined Oil, Standard White, portion of your cargo and bunkers.
“With regard to loading the naphtha portion of your cargo at Beaumont, we are advised that the pilots although feeling quite sure that much larger vessels can navigate the channel, would prefer to test it out first with vessels 400 feet long and 23 feet draft.
“I can, of course, only ask that you take up with the pilots the matter of the navigation of the canal up to Beaumont, and satisfy yourself that it is a safe proposition for a steamer of the size of the Splendor, and particularly as she is only going to load a part cargo. You will, of course, advise the pilots of the length of your steamer, and the draft you expect to put her to when the naphtha is on board, and all further information for their guidance in handling the steamer.
“I understand that the Magnolia Petroleum Company have a tugboat in attendance for assisting steamers through the canal, the service of which will no doubt be available for your steamer.”

As agents for the Splendor, Chas. Martin & Co. paid on behalf of the owners the pilot’s fee of $185 for bringing the Splendor to the defendant’s docks and taking her out to sea on this trip. Chas. Martin & Co., as such agents of the Splendor had an understanding with the defendant that it was to furnish one tug to bring the Splendor from the sea to Beaumont. The master of the Splendor, Chas. E. Scarpa, made no application to Chas. Martin & Co. for an additional tug. Had he done so, the additional tug would have heen furnished. The Splendor was only partially loaded at the docks of the defendant — the balance of the cargo was to be taken on at Baton Rouge, La. Capt. Scarpa had sole charge and direction of the loading, directing what tanks should be filled and what tanks should not be filled.

On April 24, 1916, at about noon, the Splendor, with Pilot Grander on board, a regular river and bar pilot, employed and paid by Chas. Martin & Co., the agents of the Splendor, and also having on board her master, E. Scarpa, with full complement of officers and crew, under her own power and using «her own steering gear, left the defendant’s docks, bound for Baton Rouge, La., and went down the river a mile or so without the assistance of any tug. She was overtaken by the tug Magnolia, belonging to the defendant, with instructions to assist the Splendor out to sea and to make no charge for such service. This same tug brought the Splendor in from the sea without any charge. Capt. Fenlon of the Magnolia went forward and took a line over the Splendor’s bow, the line being furnished by the Splendor, and being fastened 'on the Splendor through her forward port chocks, and on to her bitts on her forecastle head,-and to the main aft bitts of the tug, Capt. Scarpa testifying:

“I should judge that the length of the towline between the tug and the ship was about three hundred feet; two hundred and fifty feet perhaps it is. I relied on the Magnolia and her crew as to how the lines should be attached to the steamer and how they should be attached to the tug.”

The speed of the Splendor was partly determined by orders from Capt. Scarpa and partly by Pilot Granger and partly by Capt. Fenlon of the tug Magnolia. Capt. Plummer, referring to Capt. Fenlon, says:

“He got his megaphone and hollered back to the pilot two or three times down- the river that he would have to let go if they didn’t slow down.”

He further says:

“When we went into the shell pile and parted the rope there, and had the ship stopped right up against the bank, we could have left her there. That was about 1,500 feet above the bridge.”

And also:

“With regard to whether there was any other times that Capt. Fenlon protested against the course the tow was pursuing down the river, he signaled to them he would have to let go if they did thus and so. That meant he would have to let go that towline and let her do just as she pleased on her own hook. I think they slowed down some when he threatened to leave the vessel if it wasn’t properly handled. That was in the river.”

Capt. Scarpa testified:

“As to whether the captain of the tug had any'control over the engines of the Splendor, well, sometimes the captain of the tug would suggest to us to go slower, you understand, because when I told the pilot perhaps it is better to make half speed than slow speed, then the tug says to go slow, otherwise they cannot control the steamer.”

The tug Magnolia was employed merely to assist the steamship Splendor. As the fleet went down the river into the canal, the Splendor was partly propelled by her own power and partly towed by the tug. At times Capt. Fenlon of the Magnolia directed the movements of the tug and of the Splendor. Capt. Scarpa testified:

“The pilot told me that the master of the tug was clever and thoroughly acquainted with the channel — better than he was, so he said— and that I could rely on his actions in the navigation of the ship down the channel. I certainly did so, in some measure. I had to, naturally.' * * * He knew how to handle the steamer very well. He did not have to wait for the orders from the pilot, because he understands his work himself. I mean that in going down the canal he did not always wait for the pilot to give him- his orders, but on his own motion and of his own volition he did what he thought ought to be done under the circumstances. He will use his own judgment, and his judgment is very good, too. I relied on him in a large measure, because the Magnolia Petroleum Company had promised to give us tugboat service, and I was counting on them doing it, and after that because I could judge his actions they were correct. In my opinion he was right in his maneuvers. When I saw he acted well I trusted him better and better. Seeing that his actions coincided with what I thought ought to be done in the situation, I learned to rely on the Magnolia doing the right things in navigating the boat down the channel. ⅜ * ⅞ The course and direction of those two vessels were determined by the pilot and given to the master of the tug boat by the pilot for the Splendor, and by the master of the tugboat, because he has such broad acquaintance with the river. He knows very well the river, and the master of the tug boat is thoroughly to be trusted, so the information is given to me by the pilot. I am told by the pilot to trust the master of the tugboat, because his business he knows very well, and he tells me that confidence is not to be- lacking in the master of the tugboat at all. The movements and directions of the tugboat were sometimes determined by the pilot, and sometimes the master of the tugboat himself proceeded to make movements without any orders when he sees it is necessary.”

The tugboat master, Thomas Fenlon, was, a thoroughly competent and experienced tug master, well acquainted with assisting ships in the waters of the Neches river and the Sabine-Neches Canal and Port Arthur Ship Channel.

Pilot Granger and the master and crew of the Splendor were not employed by, or paid by, the defendant, and they were the agents and servants of the Splendor. There is no evidence of any understanding or agreement between the defendant and the owners or agents of the Splendor as to tugboat service, other than as stated in the letters above copied, until the Splendor arrived at the mouth of the Sabine Pass, when there was an understanding between the defendant and Chas. Martin & Co. that the defendant would furnish a tug free of charge to bring the Splendor in and take her out. “After the Splendor took the sheer that brought her into collision with the bridge, neither the tug nor her master and crew could, by the exercise of any ordinary care and skill, have kept the Splendor from colliding with the bridge.” (This last sentence is the thirty-fifth finding of fact requested by appellant.)

All other findings of fact requested by appellant, except such as we have embodied in the statement above given, are in direct conflict with the findings of fact made by the trial court, and, as the findings of the trial court are sufficiently sustained by the record, we conclude that the court did not err in refusing to adopt appellant’s findings of fact, nor in making the findings of fact as filed, and all assignments based on the court’s failure and refusal to find the facts requested by appellant are overruled.

By its fourth and fifth assignments of error appellant asserts the proposition that the city of Port Arthur was guilty of contributory negligence in building the bridge so that it inclined over the canal, when raised for vessels to pass through, and in failing to have sufficient fender piling to protect the bridge from a boat built as was the Splendor.

In the statement heretofore made of this case tlie bridge is described and the arrangement of the fender piling. Appellant cites City of Richmond (D. C.) 43 Fed. 88; Edgerton v. The Mayor, 27 Fed. 232; Railway Co. v. Railway Co., 59 Fed. 192, 8 C. C. A. 86.

In the City of Richmond the damage grew out of the ship breaking the cable of the Western Union Telegraph Company, which was laid across the waters of the North river. The Western Union Telegraph Company was held liable for damages in this case, because its cable was not laid according to the act of Congress authorizing the same.

In Edgerton v. The Mayor, supra, the accident grew out of the fact that the bridge was not opened to its full width. The negligence in this case is predicated on an entirely different ground from the facts in the instant case. In the Edgerton Case it is not shown that the vessel was negligently navigated, but, on the contrary, it appears that the accident was caused by conditions over which the ship had no control.

In Railway Co. v. Railway Co., supra, the court said:

“In the present case those in charge of the tug navigated her with all reasonable care, supposing, as they had a right to, that the draw would be opened seasonably to permit the tug and her tow to pass.”

This case was decided on a proposition of law different from the one involved in the facts of the instant case.

Tlie most that can he said from the standpoint of appellant in the case under consideration is that the question of negligence was an issue of fact, to be decided by the trial court, as likewise the question of proximate cause. The court, trying this case without a jury, has decided both of thej¡p issues against appellant, and under the testimony in this record this finding should not be disturbed.

Where both plaintiff and defendant are negligent, Judge Yantis said in Wells Fargo & Co. v. Benjamin, 107 Tex. 331, 179 S. W. 513:

“If each party to the suit was guilty of negligence, then it became a question for the jury to determine, the trial being had before a jury, whose negligence proximately caused the injury. ⅝ * ⅜ One’s act is only a proximate cause of an injury when it could have been reasonably anticipated by him that some such injury would result from such act.”

In deference to appellant’s sixth assignment of error, we have found the facts to be as claimed by appellant, ¿nd have stated these facts in the statement of this case.

Appellant’s seventh assignment of error is not well taken. In this appellant complains because the court did not find that no protest was made by the master of-the Splendor to the defendant against the use of one tug only.

Capt. Scarpa of the Splendor testified:

“As to whether I suggested to the Magnolia Petroleum Company, after I got to Beaumont, or at any time, that I should have more than one tug, well, I suggested it you know when I was up there in Beaumont; but they told me that the Magnolia was strong enough, you understand, and that it was the only one there. I told them it was better that we should have two tugboats, and then they told me that they had sent three other steamers down with just that one boat. I relied on their judgment in that respect. I was looking to them to furnish mo tugboat service, and I respected their judgment in that particular,, because they told me they had sent the Lampo down with that tug — the. Lampo, you understand, is a sister ship to this' —and she had a good passage with one tug; and so, of course, I did not insist that we should have the two tugs. It was my judgment that two tugs would have been better. That was my personal judgment"; that would not have been too much. I cannot say that with the assistance of another tug or two more, I could have held that ship off of the bridge; it would have been more likely, certainly.”

This testimony was not objected to by appellant on tlie ground that Capt. Scarpa names no officer of tlie defendant to whom this protest was made. The court’s fifth finding of fact on this issue, we think, is sustained by sufficient testimony.

In our statement of the case we have found the facts requested by appellant in the eighth and ninth assignment of error.

Appellant’s tenth assignment of error is as follows:

“The court erred in rendering judgment for plaintiff, and in refusing to render judgment for the defendant, and in failing to conclude and hold that the trim of the Splendor, whether by the distribution of her cargo or of water ballast, was a matter within the absolute control of Pilot Granger and the Splendor’s master, and as to that question neither the defendant nor the tug nor the tug master had any voice or control, and for which neither the tug nor its master was responsible, nor the defendant liable, the tug being a mere helper or assistant of the Splendor, subject to the orders of Pilot Granger and the Splendor’s master, being the mere servant of the Splendor, with no will of its own, but bound to obey orders from the pilot and master of the Splendor, there being no part of tlie responsibility of the navigation of the Splendor on the tug or its operators to correct or regulate the trim of the Splendor, under the exclusive control of whose pilot and master she was.”

Under this assignment appellant advances the proposition that the Splendor was the special master of the tug, and the tug was the special servant of the Splendor, and hence the relation of master and servant did not exist between the defendant and the tug, and the defendant was not liable for the negligence, if any, of the tug, in towing the Splendor down the canal. In support of this assignment appellant cites Byrne v. Kansas City Ry., 61 Fed. 605, 9 C. C. A. 666, 24 L. R. A. 693; Clark v. Geer, 86 Fed. 447, 32 C. C. A. 295. These authorities, especially Byrne v. Railway Co., supra, sustain this legal proposition. We have carefully examined the Texas cases cited hy appellant, to wit, Cunningham v. I. & G. N. Railway Co., 51 Tex. 503, 32 Am. Rep. 632; Burton v. G. H. & S. A. Ry. Co., 61 Tex. 535; Railway Co. v. Flake, 1 White & W. Civ. Cas. Ct. App. § 253; Southern Oil Co. v. Church, 32 Tex. Civ. App. 325, 74 S. W. 797, 75 S. W. 817; Railway Co. v. Ferch, 36 S. W. 488; Railway Co. v. Couch, 56 Tex. Civ. App. 336, 121 S. W. 191 — and do not consider them in point on this proposition. These Texas cases are decided on the theory that a railway company, on the facts stated, was not liable for the negligence of an independent contractor.

As we construe the decisions of our courts, in Western Union Telegraph Co. v. Rust, 55 Tex. Civ. App. 359, 120 S. W. 249, and Manning v. B. S. L. & W. Ry. Co., 107 Tex. 546, 181 S. W. 687, they have followed Standard Oil Co. v. Edward Anderson, 212 U. S. 215, 29 Sup. Ct. 252, 53 L. Ed. 480. Judge Moody, after reviewing many authorities pro ■ and con, announces the following rule:

“But the mere fact that a servant is sent to do work pointed out to him by a person who has made a bargain with his master does not make him that person’s servant; more than that is necessary to take him -out of the relation established by the only contract which he has made, and to ^nake him a voluntary subject of a new sovereign — as the master sometimes was called in the old books. * * * But the person who receives such orders is not subject to-the general orders of the party who gives them. He does his own business in his own way, and the orders which he receives, simply point out to him the work which he or his master has undertaken to do. There is not that degree of intimacy and generality in the subjection of one to the other which is necessary in order to identify the two and to make the employer liable under the fiction that the act of the employe is his act.”

In Sturgis v. Boyer, 24 How. 110, 16 L. Ed. 591, the following rule is announced:

“By employing a tug to transport their vessel from one point to another, the owners of tlie tow do not necessarily constitute the master and crew of the tug their agents in performing the service. They neither appoint the master of the tug or ship the crew; nor can they displace either the one or the other. Their contract for the service, even though it was negotiated with the master, is, in legal contemplation, made with the owners of the vessel; and the master of the tug, notwithstanding the contract was negotiated with him, continues to bo the agent of the owners of his own vessel, and they are responsible for his acts in her naviga: tion.”

Under the tenth assignment appellant asserts the further proposition that, if the bridge was injured by a negligent act, it was the negligence of the steamship Splendor, and not the negligence of the tugboat; that the tugboat, was only the servant of the Splendor, and was compelled to obey all orders from the Splendor, and in so doing it is guilty of no actionable negligence.

Appellant has cited many authorities under this proposition, and, if the trial court had not found that the tug was guilty of negligence, these authorities would be in point, and would sustain this proposition. But by the seventh, eighth, twelfth, and sixteenth findings of fact, supra, the court finds that the tug was guilty of negligence, and states the facts on which he bases this conclusion.

On the facts found by the trial court, was he justified in concluding that the tug was negligent, and that the defendant was liable for such negligence?

In discussing the liability of the tow, the following rule is announced in 11 Corpus Juris, p. 1084:

“She is liable where she might have prevented a collision by timely action in the management of her own helm, or where she eonsentej to the navigation at such time and under such conditions as to make it dangerous, thereby contributing to a. collision.”

The same principle of law, making the tow liable, would certainly make the tug liable, where she assisted in the navigation at such time or under such conditions as to_ make it dangerous. Certainly, Capt. Penlon knew that the navigation of this ship was very dangerous.

The following rule is announced in Am. & Eng. Ency. of Law, vol. 25, p. 933, to wit:

“She is in fault as against innocent third vessels in towing a vessel which is unmanageable, though the tow, under such circumstances, is also in fault.”

And on page 937 it is said:

“The towing vessel will be held in fault as against a third vessel for towing a vessel which displays the wrong lights.”

In Sturgis v. Boyer, 24 How. 121, 16 L. Ed. 591, the Supreme Court said:

“Cases arise, undoubtedly, when both the tow and the tug are jointly liable for the consequences of a collision; as when those in charge of the respective vessels jointly participate in their control and management, and the master or crew of both vessels are either deficient in skill, omit to take due care, or are guilty of negligence in their navigation.”

In The James Gray, 21 How. 192, 16 L. Ed. 106, the court said:

“It was especially the duty of the officer in command of the steamboat, in a crowded harbor like that, when his tow was following him at the rate of six or seven miles an hour, and her course necessarily directed by the steamtug, .to have scanned carefully the surrounding objects before he cast loose the towline, and to see that there was nothing in the way of the tow which she could not avoid by means of her own rudder, without the aid of the steamboat, and also to have given reasonable notice of his intention, in order that she might prepare to take care of herself. But this was not done. He suddenly let go the towing line, without notice or warning to the John Eraser.' And the moment after he had done so, and not before, he found his own vessel almost aboard of a vessel at anchor, and the head of the John Eraser, under the direction and impulse his ship had given her, directed upon the anchored vessel, and too near to avoid a collision when she had lost the aid of the General Clinch.”

In The W. J. Keyset, 56 Fed. 734, 6 C. C. A. 104, it is said:

“It is further contended that, if the tug was not wholly responsible for the tow, she was culpable, concurrently with the libelant, in taking the barge to sea with open spaces on her deck, when heavy weather was to be expected. It has been repeatedly held that where a tug undertakes the towage of a boat known to both the owner of the tow and the tug to be unfit and unseawortliy for the voyage contemplated, and a loss occurs in the ordinary contingencies of the voyage, to which the unfitness and unseaworthiness contribute, both should be held in fault.”

In The Percy Birdsall (D. C.) 55 Fed. 683, it is said:

“I find both the tug and ship to have been negligent; the former in running with her unwieldy tow so far westward in the channel, and in approaching so near the schooner before turning off; and the ship £n failing to change her course and follow the tug until collision was inevitable. The evidence fully justifies a belief that the latter was negligently handled. The warning of her lookout was not promptly heeded. She seems to have virtually committed herself to the guidance of the tug, and to have paid little attention to the latter’s movements. The fact that the ship was very heavy and the tug’s control of her, at the end of a long hawser, very imperfect, imposed on both unusual vigilance, and rendered the duty of keeping well over to the eastward the more imperative. I will not discuss the evidence; it is sufficient to indicate my reasons for the conclusions reached.”

In The Civilta v. Perry, 103 U. S. 699, 26 L. Ed. 599, the Supreme Court said:

“Both vessels [the tug and the tow] were responsible for the navigation, as has been already seen; the ship because her pilot was in general charge, and the tug because of the duty which rested on her to act upon her own responsibility in the situation in which she was placed. The tug was at fault because she did not on her own motion change her course so as to keep both herself and the ship out of the way.”

If we have correctly analyzed the decisions quoted above, then, on the facts found by the trial court, the defendant, as the owner of the tug, is liable for the damages suffered by appellee in the injuries to its bridge.

Appellant’s second assignment of error is as follows:

“The court erred in overruling defendant’s special exception No. IV to plaintiff’s petition, contained in defendant’s first amended original answer, said special exception being to said petition where it seeks to recover the rental value of the Pleasure Pier, alleged to be $3,000, because too remote.”

Appellee alleged in its petition that the bridge was the only means of crossing the canal from the city to the Pleasure Pier, and further alleged:

“Plaintiff further alleges that the said Pleasure Pier is used by the plaintiff as a public resort as well as for other purposes, where great numbers of persons go for amusement and pleasure, and the plaintiff leases the said Pleasure Pier for the purpose of maintaining a pleasure resort for its inhabitants and the public generally, and from this source it received a revenue of $3,000 per year, and would have received that much for the year of 1916 but for the destruction of said bridge, but on account thereof it has lost the value of the use of said Pleasure Pier in the sum of $3,000, because the said Pleasure Pier has no rental value without the said bridge which furnished the only means of ingress and egress, and by reason thereof the plaintiff has been further damaged in the sum of $3,000, or the reasonable rental value of said Pleasure Pier with the said bridge.
“That all of the injuries to said bridge, and the consequent damages to the plaintiff is the direct and proximate result of the acts of negligence herein complained of.”

Plaintiff offered in evidence the contract between it and C. E. Dunstan. Under this contract the city was to receive $3,000 annual rental for the Pleasure Pier and the bridge and other property described in the contract. This Pleasure Pier was about 2,000 feet from the bridge.

Capt. Penlon testified:

“I began navigating this canal at the opening. The first vessel came up on March 22, 1916. 1, brought her up. * * * There is a dance pavilion, some kind of a scenic "railway and a roller coaster on the pleasure pier. I know it is maintained as a pleasure resort for the city of Port Arthur. I have been out there a few times. I knew that from the time I came into that city. I knew that the bridge furnished the only means over the water to that pier.”

The contract further provided that, if the bridge was injured so it would not be operated,..the city was to allow Dunstan a credit o£$20 per day. Under this contract the plaintiff was not able to collect any rent during the year 1916.

The court, on this pleading and under these facts, rendered judgment for plaintiff for $3,000 damages, basing the damages on this contract. •

We think the court was in error in not sustaining the special exception which is the basis of this assignment.

Under the pleadings of plaintiff this darh-age was too remote. There is no pleading to the effect that the defendant knew anything about this contract, either actually or constructively, or was put on notice of the existence of the contract. Clearly, under this statement of the record, the contract price between plaintiff and C. E. Dunstan for the use of the Pleasure Pier could not be recovered by plaintiff.

However, we believe that plaintiff’s loss of profit, if any, from the failure to operate the Pleasure Pier, was proximately caused by the destruction of this bridge, and under proper pleadings and proof the same can be recovered. City of San Antonio v. Royal, 16 S. W. 1101; Ry. Co. v. Miller, 38 S. W. 1132; Ry. Co. v. Baudat, 21 Tex. Civ. App. 236, 242, 51 S. W. 541; Ry. Co. v. Lackey, 12 Tex. Civ. App. 229, 33 S. W. 768; Ry. Co. v. Capers, 33 Tex. Civ. App. 283, 77 S. W. 39.

The trial court ruled correctly in overruling all other special exceptions to plaintiff’s pleading.

For the error indicated, this cause is reversed and remanded as to the $3,000 damages allowed for loss of profits from the Pleasure Pier, and in all other respects it is affirmed.
      ©s^For other oases see same topic and KEY-NUMBER in all'Key-Numbered Digests and Indexes


author: BRADY, J.

text:
    TEXAS LUMBER & LOAN CO. v. FIRST NAT. BANK OF ROSEBUD et al.
    (No. 6011.)
    (Court of Civil Appeals of Texas. Austin.
    Feb. 12, 1919.
    Rehearing Denied March 19, 1919.)
    1. Husband and Wife <@=257 — Community Peopeety — Rents from Wife’s Separate Estate — Statutes.
    Under Married Woman’s Act, amending Rev. St. arts. 4621, 4622, 4624, and under article 4627, unamended, rents from the wife’s separate estate ‘Continued to remain community property.
    2. Husband and Wife <@=269 — Community Peopeety — Rents from Wife’s Realty — Community Debt — Statutes.
    Under the Married Woman’s Act, amending Rev. St. arts. 4621, 4622, 4624, and under article 4627, unamended, rents from a wife’s separate real estate, though community property, are not subject to community debts, despite Acts 35th Leg. c. 194, amending article 4621, providing rents from wife’s separate lands shall be her separate property.
    3. Appeal and Ebeoe <@=994(3), 995 — Review — Credibility and Weight of Evidence-Question fob Court.
    The credibility of witnesses and the weight to be given the testimony were points for the decision of the trial court.
    4. Appeal and Eeeoe <@=1010(1) — Review-Judgment — Evidence»
    Court of Civil Appeals will not disturb the judgment of the trial court if there is sufficient evidence in the record to support it.
    5. Husband and Wife-<@=133(8) — Separate Property of Wife — Bank Deposit— Sufficiency of Evidence.
    In action to garnishee husband’s bank deposit, wherein wife claimed deposit as her separate property, evidence consisting of husband’s testimony held sufficient to show that the deposit was the separate property of the wife, consisting of the proceeds of her own lands.
    Appeal from District Court, Falls County; W. A. Patrick, Judge.
    Action by the Texas Lumber & Loan Company against F. A. Schuler, wherein plaintiff had judgment, and sued out writ of garnishment against the First National Bank of Rosebud, Mrs. Allie Schuler and F. A. Schuler intervening and claiming the bank deposit garnished. From judgment for Mrs. Schuler against plaintiff, plaintiff appeals.
    Affirmed.

      E. M. Dodson, of Rosebud, and Spivey, Uartlett & Carter, of Marlin, for. appellant.
    Walton D. Taylor, of Waco, for appellees.
   BRADY, J.

Appellant sued out a writ of

garnishment against appellee, bank, upon a judgment obtained by appellant against P. A. Schuler. The bank answered-'that it had on deposit in the name of Schuler certain money which was then due him by the bank, but that Mrs. Allie Schuler, his wife, claimed the money as her separate property; and Mrs. Schuler, joined by her husband, intervened in the suit and claimed the deposit as her separate property. The case was tried without a jury, and judgment rendered against appellant and in favor of Mrs. Schuler" for the fund, from which judgment this appeal was taken.

The case was tried in part upon an agreed statement of facts, it being agreed by the parties that Mrs. Allie Schuler had, previous to her marriage to E. A. Schuler, inherited from her father a farm, and that a part of the land was rented to one Geo. McCul-loch for the year 1916. It was further agreed that during the marriage, P. A. Schuler leased 20 acres of other land, with the privilege of purchasing the property at the expiration of a five-year lease, the lease contract being made about three years prior to this suit; that thereafter P. -A. Schuler built a house thereon,, and on January 1, 1915, executed to appellant his note for $2,500; that the house was afterwards destroyed by fire, and $2,500 collected from insurance paid on the note; and that the balance of the note and a bill for materials purchased by Schuler from appellant for the erection of a two-room house on the 20 acres represented the amount recovered by appellant in its judgment against P. A. Schuler.

It was also agreed that the debt for which the $2,500 note was given, and the debt represented by the account for materials were contracted by P. A. Schuler during the marriage, and that Mrs. Schuler knew of the creation of said debts at the time, and made no objection thereto, and that all the material for which the note was given and the account incurred was used by Schuler with the knowledge of his wife, and without objection by her, in making the improvements upon the 20 acres; that the rights and interest of Schuler and wife in the 20 acres were acquired during their marriage by onerous title, and was paid for out of rents collected therefrom.

P. A. Schuler was the only witness who testified on the trial, and, without undertaking to set out the details of his testimony, he testified to facts showing that the money in the hands of the garnishee and on deposit in his name was for rents received during the year 1916, from the tenant, Geo. Mc-Culloch, as rent on a part of the farm owned by Mrs. Schuler.

Under its first assignment of error, appellant makes the proposition that, appellant’s debt against P. A. Schuler being a community debt, and the rent from Iris wife’s separate real estate being community property, it was subject to garnishment, and judgment should have been rendered for appellant. On the other hand, appellees contend that rents from the wife’s separate real estate are not liable for debts contracted by the husband, and that this is true whether the rents be regarded as separate or community property. The question presented requires a consideration, and involves the proper interpretation of chapter 32,' General Laws of 1913, commonly known as the “Married Woman’s Act” of the Thirty-Third Legislature. This statute amends articles 4621, 4622, and 4624, Revised,, Civil Statutes. As amended by this law, article 4621 provides that:

“ * st s¡ All property of the wife both real and personal, owned or claimed by her before marriage, and that acquired afterwards by gift, devise or descent, as also the increase of all ‘ lands thus acquired shall be the separate property of the wife”

—and provides that the wife shall have the sole management, control, and disposition of her separate property, both real and personal, and that:

“Neither the separate property of the wife, nor the rents from the wife’s separate real estate, nor the interest on bonds and notes belonging to her, nor dividends on stocks owned by her, nor her personal earnings shall be subject to the payment of debts contracted by the husband.” (Italics ours.)

Article 4622 as amended provides that:

“All property acquired by either the husband or wife during marriage, except that which is the separate property of either one or the other shall be deemed the common property of the husband and wife, and during coverture may be disposed of by the husband only, provided, however, the personal earnings of the wife, the rents from the wife's real estate, the interest on bonds and notes belonging to her and dividends on stocks owned by her shall be under the control, management and disposition of the toife alone, subject to the. provisions of article 4621,” as amended.

Article 4624 as amended is as follows:

“Neither the separate property of the husband nor the community property other than the personal earnings of the wife, and the income, rents and revenues from her separate property shall be subject to the payment of debts contracted by the wife, except those contracted for necessaries furnished her or her children; provided, the wife shall never be the joint maker of a note or a surety on any bond or obligation of another without the joinder of her husband with her in making such contract.”

Article 4627, Revised Oivil Statutes, which was not amended by the act of the Thirty-Third Legislature, and which was enacted in 1856, provides as follows: Community property of the husband and wife shall be liable for their debts contracted during marriage, except in such cases as are specially excepted by law.

Before the enactment of the act of 1913 it was the statutory law and the uniform course of decisions in this state that community property was liable for the debts of either husband or wife, except where otherwise provided by law; and it was the settled rule in this state that the rents from the wife’s separate real estate were community property. We agree with appellant’s counsel that there is nothing in the act of 1913 to indicate the legislative purpose to change this rule or to change the status of the latter class of property from community to the separate estate of the wife. It is our opinion that under the act of 1913 rents from the wife’s separate real estate continued to remain community property. First Nat. Bank v. McWhorter, 179 S. W. 1147; Tannehill v. Tannehill, 171 S. W. 1050; Scott v. Scott, 170 S. W. 273; Emerson v. Brothers, 194 S. W. 608. But it does not follow from this conclusion that the rents from the wife’s separate realty would become subject to liability for debts contracted by the husband, even where they are community debts. While article 4627 was not amended by the act of 1913, it will be observed that, although it provides that community property of the husband and wife shall be liable for their debts contracted during marriage, it contains the qualification, “except in such cases as are specially excepted by law.” This statute simply means that the community estate shall be liable for the debts of either husband or wife contracted during marriage, except where the Legislature has seen fit to otherwise provide. Therefore the question is whether by the act of 1913 the Legislature has created an additional exception to those found in the Constitution and other laws of the state. Article 4621, as amended by that act, expressly provides:

“Neither the separate property of the wife, nor the rents from the wife’s separate real estate, nor the interest on bonds and notes belonging to her, nor dividends on stocks owned by her, nor her personal earnings shall be subject to the payment of debts contracted by the husband.”

The language seems plain and unambiguous, and does not in terms limit this exemption to debts contracted by the husband for the benefit of his separate estate, or otherwise than for the benefit of the community estate. The language is that the exemption of the character of property described shall extend to all debts contracted by the husband. To limit its operation to only such ■debts contracted by the husband as were for the benefit of his separate estate or not connected with the community, and leave such property subject to debts contracted by the husband where they are community debts, as contended' by appellant, would be to change, by judicial construction, the plain terms of the statute, which we have neither the inclination nor the power to do.

The language employed in this part of article 4621 bears intrinsic evidence of the legislative intent to exempt, not only the separate property of the wife from the payment of debts contracted by the husband, but also several * kinds of community property, including rents from the wife’s separate real estate. As to the latter, this was a distinct departure from the previous policy of the state, and was evidently intended to safeguard such property, as well as the separate real estate of the wife, and to preserve it free from liability for all debts contracted by the husband.

It is contended by appellant’s counsel that it would be an anomaly to hold that rents from the wife’s separate real estate are community property, yet not subject to community debts. We are unable to perceive that such would be the case, but, even if it were, the anomalous situation arises from the legislative policy as expressed in the statute, with which the courts are powerless to interfere. However, we will observe, that while this statute in the particular we are discussing marks a distinct departure from the previous policy of the Legislature, it does not present an anomaly without precedent. The homestead may be community, and yet by the Constitution it is exempt from forced sale for community debts. The same is true of current wages for personal services, the earnings of either the husband or the wife, which are community property, and yet are expressly exempted by statute from forced sale for all debts, whether community or not. The same situation exists as to all community property which by statute is exempt from forced sale. These are all but exceptions to the general provision in article 4627 that community property is liable for community debts, and the statute we are considering simply adds another exception to that rule.

Our conclusion is supported by the decision of the Court of Civil Appeals for the Seventh District, in the case of Emerson v. Brothers, 194 S. W. 608. It was there held that rents from a farm owned by the wife, while still community property under the act of 1918, were exempt from j:he payment of debts contracted by the husband, by virtue of the amendment to article 4621 by that act. The facts in that case were stronger for appellant’s position than in the instant case, because only a part of the purchase money oi an automobile, claimed by the wife as her separate property and levied upon under a judgment against the husband was paid out of separate funds of the wife; and it also appeared that the wife had borrowed from a bank the greater part of the money to pay for the car, upon a note executed by her husband and herself, and had repaid the note out of the proceeds of another car owned by her, and rents from her fa’rm. It is not necessary for us to go that far in this case, as the entire fund reached by garnishment in this case was, at the time the writ was served, the proceeds of crops raised on the wife’s farm, and constituted rents from her separate real estate.

Appellant cites the case of Bank v. McWhorter, 179 S. W. 1147. While the exact question does not seem to have been discussed in the opinion in that case, it appears that the trial court peremptorily instructed a verdict for plaintiffs» 'on the ground that the proof showed that tiie property attached, upon a judgment against the husband, was the separate property of the wife, and not liable for his debts; and the Court of Civil Appeals held that the peremptory instruction should not have been given. While the discussion in the opinion seems to be confined to the question whether crops raised upon the wife’s farm became her separate property or remained community property under the act of 1913, and the further question whether the husband’s half interest in the property had passed to the wife by gift, the appellate court seems to have not only regarded the property as still community, but that it might be liable for the husband’s debts. But be that as it may, the same court in a later opinion, Emerson v. Brothers, supra, held that, nothwithstand-ing rents from the wife’s realty remained community property even after the passage of the act of 1913, such property was not subject to seizure and sale under a judgment against the husband.

Appellant’s counsel further argue that, as showing that the Legislature did not intend by the act of 1913 to exempt rents from the wife’s separate real estate from the payment of community debts, the Legislature in 1917, by chapter 194, Acts 35th Leg. p. 436, provided for the first time that the rents and revenues from the wife’s separate lands shall be the separate estate of the wife, and that this is a legislative construction that the Legislature did not theretofore intend to exempt such property from liability for community debts. We are Unable to agree to this contention. Eirst, it may be said that the act of 1913 was ¡ unambiguous, and needs no interpretation, and therefore cannot be aided or its meaning determined by a subsequent legislative construction. But if we were free to resort to the act of 1917 in aid of the proper construction of the provision in the act of 1913, which we are considering, we see nothing in the later act to support appellant’s position. The act of 1917, in this respect, did nothing more than change the status of rents from the wife’s real estate from that of community property to her separate property.

Appellant’s counsel insist that if the act of 1913 exempted the rents of the wife’s real estate from the payment of debts contracted by the husband, as agent and representative of the community, and as he alone could contract such debts, there could be no reason for Legislature in 1917 to change the status of such property from community to separate estate, except to exempt the same from community debts from that time on, thus recognizing that it did not enjoy such exemption under the act of 1913. To this suggestion we cannot assent, because there is nothing in the act of 1917 to support it. The prime purpose of the amendment of article 4621 by the act of 1917 was to provide for the management and disposition of the wife’s separate property in cases of abandonment by the husband and in cases where he becomes insane, as shown by the emergency clause. We do not know what consideration induced the Legislature to change the status of the rents and revenues from the wife’s land from community to separate property, but it is just as easy to imp.ute to the Legislature the intention to definitely settle any controversy or difference of opinion that might have arisen among lawyers, or even in the courts, as to the proper construction of the former amendment to article 4621, jvhich relieved such property from liability for debts contracted by the husband.

It is also to be observed that the change made in 1917 in this respect accomplished more than relieving rents from the wife’s separate land from liability for payment of debts contracted by the husband, whether community or- not. By the change of the status from community to the separate estate of the wife, it materially affected rights under the laws of descent and distribution, and this may have been the controlling purpose in the enactment. At all events, we see no reason to attribute to the Legislature the intention suggested in appellant’s brief, certainly as against the plain language of the act of 1913.

Appellant’s second assignment of error is to the effect that the legal evidence before the court was wholly insufficient to sup-' port the judgment,' because the fund in the garnishee bank was deposited in the name of the husband, E. A. Schuler, and there was not sufficient evidence before the court to overcome the presumption created by statute that the fund in the garnishee’s hands was the separate property of F. A. Schuler and liable for his debts. The question whether the. evidence was sufficient to overcome this presumption was a question of fact for the trial court to determine. The credibility of the witness Schuler and the weight to be given to his testimony it was the exclusive province of the trial court to decide; and we will not disturb the judgment of the court, if there is in the record sufficient evidence to support it.

We do not think it necessary to state the details of Schuler’s testimony, but we have examined the statement of facts, and find that he testified to facts which substantially show that the fund in the hands of the bank at the time the garnishment writ was served was from rents from the farm of Mrs. Schuler, and was her separate property. He testified that at one time the deposit included some wood money and some cotton picking money, but he also testified that at the time the garnishment was served the wood money had all been checked out, except a few cents; and, as to the cotton picking money, it was advanced to the tenant, McCulloch, out of money placed in the bank, as the proceeds from cotton raised on his wife’s farm worked by McCulloch, and that this money had been returned and deposited in such fund from the crops raised on the farm. While there may be some apparent contradictions in Schuler’s testimony, it was sufficient, in our opinion, to show that the deposit garnished was in fact the separate property of Mrs. Schuler, and, in deference to the trial court’s judgment, we find this to be a fact.

We believe both assignments should be ■.overruled, and, finding no reversible error in the record, the judgment is affirmed.

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


author: GRAVES, J.

text:
    McPIKE v. SMITH et al.
    (No. 7648.)
    (Court of Civil Appeals of Texas. Galveston.
    Jan. 27, 1919.)
    1. Limitation of Actions <®=>56(1) — Accrual os Right of Action — Covenants.
    A right of action by M., an intermediate ■covenantee, against S., his covenantor, for breach of covenant in a warranty deed, does not accrue so as to set in motion the statute of limitations, until he has paid the amount of a. judgment recovered against him by G., a subsequent covenantee, though M. was made a party in a suit to toy title by G. against adverse claimants, but was dismissed, as a party thereto before judgment was rendered. ,
    2. Covenants <§=o110 — Accrual of Right of Action.
    An intermediate owner of land has no right ■ of action for the breach of the covenants of a warranty deed; until he has been made to respond to the claims of his covenants.
    3. Limitation of Actions <§==>56(1) — Failure to Being in Party.
    Where M., an intermediate covenantee, was made a party in a suit by G., a subsequent covenantee, to try title against adverse claimants, in which suit M. was afterwards dismissed as a party before judgment, M. was not bound to bring into that action S., his own cove-nantor, and such failure did not set the statute of limitations running as to an action later brought by M. against S. for breach of covenant in the warranty deed.
    Appeal from District Court, Harris County; Henry J. Dannenbaum, Judge.
    Action by J. E. McPike against Josie Smith and others. Prom a judgment for defendants, plaintiff appealed.
    Reversed and remanded.
    Kittrell & Kittrell, of Houston, for appellant.
    E. P. & Otis K. Hamblen, of Houston, for appellees.
   GRAVES, J.

There is here involved but a

single question: Was the cause of action sued upon barred by the statute of four years’ limitation?

The trial court, in sustaining demurrers interposing that defense, held it was, and the appeal presents that action as error.

The material facts were these: In 1900 Stafford Smith, among other lands in Harris county, Tex., sold a certain 199 acres to Mc-Pike, who in turn sold it in August, 1903, to Spevak, and Spevak in September, 1903, sold to Gardiner, all conveying by general covenants of warranty. In 1909 one W. P. Mock-el and others set up a claim to the 199 acres, and took possession thereof, whereupon Gardiner sued them in the district court of Harris county for title and possession of the land, making McPike, the appellant here, a party to the suit upon the warranty he had given to Spevak. Although McPike appeared therein by counsel, he was before final judgment dismissed from the suit without prejudice to the rights of Gardiner against him, and by a judgment entered in the cause on December 13,1911, it was decreed that Gardi-ner had no title. Both Gardiner and McPike lived in Missouri, and in 1913 the former sued the latter in that state upon the alleged breach of the warranty in his conveyance of the 199 acres to Spevak, which had in the meantime inured to the benefit of Gardiner through Spevak’s deed to him, and obtained a judgment against McPike that became final and was paid off by him in 1916. Then in February, 1917, more than four years after the judgment in Gardiner’s suit against Moclcel et al., McPike brought the suit now at bar against the legal representatives of Stafford Smith for breach of Smith’s warranty to him of the title to the 199 acres. Among other pleadings not now material, they answered by means of demurrers that his petition upon its face showed the action to be barred by the statute of four years’ limitation, which contention was upheld and tlie suit dismissed. This was upon the view that limitation began to run upon McPike’s cause of action against Smith on the date of the Mockel judgment, December 13, 1911. If that be correct, this appeal is not well taken; otherwise it is.

Since the holding was made upon demurrer to the sufficiency of his pleadings, the facts bearing upon the question of limitation must be taken to be as appellant alleged them; that has accordingly been done in the' preceding statement. This situation is thereby disclosed: Before Gardiner had lost the land in his suit therefor against Mockel and others, he dismissed appellant here, McPike, out of it, without prejudice to his right to pursue him in some other proceeding upon the same cause of action, which he after-wards successfully did in the Missouri suit, and in- effect told McPike, “I do not want you to remain a party to this suit until final judgment, nor do I expect you to therein defend the title to the land you have warranted.” This, we think, as effectively relieved McPike of further concern with that suit, or with its then undetermined result, as if he had never been a party to it at all. By the dismissal he was in effect affirmatively told that no action therein by him was desired, and so, not being a party at the subsequent time of the judgment, he was in no sense bound thereby. McGregor v. Tabor, 26 S. W. 443; Hart v. Meredith, 27 Tex. Civ. App. 271, 65 S. W. 507.

Neither had he by reason of that judgment suffered any actual loss, nor been in any wise damnified. That did not occur until' he paid in 1916 the judgment Gardiner had obtained against him in Missouri.

It is well settled .that “an intermediate owner of the land has no right of action upon the covenants under which he held until he has been made to respond to the claims of his covenantee.” Hollingsworth v. Mexia, 14 Tex. Civ. App. 363, 37 S. W. 455; Alvord v. Waggoner, 88 Tex. 615, 32 S. W. 872; Seibert v. Bergman, 91 Tex. 411, 44 S. W. 63; Penney v. Woody, 147 S. W. 872; Ballard on Real Property, vol. 21, §. 51; Cyc. vol. 11, p. 1133.

We see nothing that would take the case here presented out of the operation of that general principle; but the appellee replies, citing among other cases, Alvord v. Waggoner, supra, as authority for the position, that McPike, while a party to Gardi-ner’s suit against Mockel et al., both could and should have vouched his own warrantor, Stafford Smith, into that action for the purpose of having all their rights settled in the one proceeding, and that his failure to do so set the statute of limitation in motion against him. In this connection he says:

“Judgment could have been rendered in Gar-diner’s favor against McPike on his warranty, and in McPike’s favor against Stafford Smith with a stay of execution in the latter case until McPike had satisfied the judgment so recovered against him by Gardiner.”

It is not doubted that this procedure might have been followed, but the fact remains that it was not, and that upon the initiative of Gardiner himself in voluntarily placing Mc-Pike in the same position as if he had never been sued, for such is the legal effect of a dismissal. Morris & Cummings v. State of Texas, 65 Tex. 60; Hart v. Meredith, 27 Tex. Civ. App. 271, 65 S. W. p. 508. Consequently his rights were in no manner affected by a judgment rendered after he had ceased to be a party.

It follows that, in our opinion, the court erred in sustaining the demurrers, and its judgment will be reversed, and the cause re-mandeji for a trial upon the merits.

Reversed and remanded.
      <g=3>Por other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes