author: PHEASANTS, C. J.

text:
    MONK, Judge, et al. v. CROOKER.
    (No. 7605.)
    (Court of Civil Appeals of Texas. Galveston.
    Nov. 14, 1918.)
    1. Mandamus <©=>151(2) — Necessary Parties —Municipalities.
    The city was not a necessary party in mandamus by district attorney to compel judge and clerk of corporation, court to permit petitioner to prosecute all criminal cases, and to tax costs in such cases in his favor, although city ordinances attempting to deny him such right were involved.
    2. Statutes <©=>279 — Pleading—Necessity.
    In mandamus by district attorney to compel the judge and, clerk of a city court to permit plaintiff in the future to prosecute all criminal cases in such court, and to require the clerk to tax fees in the future in plaintiff’s favor, but not to recover any fees, it was not necessary to specifically plead in the petition the state statutes giving him such right.
    S. Pleading <©=>403(2) — Omissions—Ouee by Answeb.
    In mandamus against city officer, wherein the right sought was based on city ordinances, the officer could not complain of an order overruling a plea in abatement on the ground that plaintiff did not specially plead the ordinances, where the officer specially pleaded such ordinances in his answer.
    4. Mandamus <©=>187(4) — Appeai>-Mattebs Reviewable — Saving Objections.
    In mandamus a party who did not object to the court’s deciding the case on the evidence before it, and did not offer any further evidence, cannot complain that there should have been a further hearing on the facts, if the facts before the court were sufficient to sustain the judgment.
    5. Mandamus <S=>164(3) — Denials and Fail-uee to Deny.
    In mandamus by district attorney to compel judge and clerk of the city court to permit him to prosecute all criminal cases in such court, where the judge specially denied an allegation in the petition that he refused to permit the plaintiff to prosecute cases in his court, but did not deny an allegation in a verified supplemental petition that he purposely set cases so that plaintiff or his assistants could not be present, the district court was authorized, in the absence of other evidence, to find that the judge refused to recognize plaintiff’s right.
    6. Mandamus <©=>187(9) — Appeal—Haemless ■Eeeor.
    If the facts in mandamus did not show that defendant had denied plaintiff a right commanded by the judgment to be accorded him, the defendant was not prejudiced thereby, where the writ was properly granted upon other grounds.
    7. District and Prosecuting Attorneys <©=> 5(1) — Compensation—Fees.
    An ordinance of the town of Magnolia Park, in Harris county, fixing the fees of the city attorney in criminal cases to be taxed against the defendant, but providing that no fees should be taxed unless the city attorney prosecuted in person, will not be construed as forbidding fees to be taxed in favor of the district attorney of such county, allowed him under Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 345a, 345b; Code Cr. Proc. 1911, arts. 1177, 1179, 1180.
    8. District and Prosecuting Attorneys <©=> 5(1) — Fees—City Courts.
    Although a city in Harris county could, under Code Cr. Proc. 1911, art. 1177, provide that no fees should be allowed attorneys prosecuting criminal cases in the city court, it could not fix a fee to be taxed in cases prosecuted by the city attorney, and then deny the district attorney of the county a right to fees, in view of Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 345a, 345b; Code Cr. Proc. 1911, arts. 1179, 1180.
    9. Criminal Daw <©=>252(1) — Municipal Courts — Notice op Complaint.
    The judge of a municipal court need not notify the district attorney of the filing of criminal complaints in his court.
    10. District and Prosecuting Attorneys <S=>7(1) — Disqualification op District Attorney — City Attorney.
    A city attorney in Harris county may prosecute cases in the city court under state law, where the district attorney is disqualified or refuses to act, in view of Vernon’s Sayles’ Ann. Civ. St. 1914, art. 345a.
    Error from District Court, Harris County; William Masterson, Judge.
    Mandamus by John H. Crooker, Criminal District Attorney for Harris County, to compel W. E. Monk, Judge, and O. M. Smith, Clerk, of the Corporation Court of Magnolia Park, to permit plaintiff to prosecute all cases in such court, and to tax fees in his favor. From a judgment in favor of plaintiff, defendants bring error.
    Reformed and affirmed.
    A. C. Van Velzer and John B. York, both of Houston, for plaintiffs in error.
    John H. Crooker, H. H. Cooper, T. J. Harris, Ewing Boyd, D. M. Williamson, and Frank Williford, Jr., all of Houston, for defendant in error.
   PHEASANTS, C. J.

This is a suit for mandamus brought by John H. Crooker, criminal district attorney for Harris county, against W. E. Monk, judge, and O. M. Smith, clerk, of the corporation court of Magnolia Park, an incorporated town in Harris county.

Plaintiff’s petition alleges, in substance, that by the acts of the Legislature creating the office of criminal district attorney it was provided that the district attorney and his assistants should have the exclusive right to prosecute criminal cases in all the courts of Harris county, and to receive the fees provided by law therefor; that the said corporation court of Magnolia Park was a court authorized. by law to try criminal cases and has been for more than two years; that the fee prescribed by law for criminal cases in said court was $5 for all pleas of guilty, and $10 for all convictions on pleas of not guilty, and that defendants refused to permit plaintiff to appear in said court and prosecute said cases therein, and have refused, and now refuse, to tax fees provided by law for convictions therein in favor of plaintiff. It is further alleged that plaintiff was at all tunes ready to perform the duties of such prosecutor in said court, by himself and through his assistants. The prayer of the petition is for a writ of mandamus compelling the said Monk to permit plaintiff to prosecute all cases in said court, and requiring the said Smith to tax the fees provided by law. This petition was verified by the oath of the plaintiff.

' To this petition ¿te defendants filed a plea in abatement on the ground that the corporation of Magnolia Park was a necessary party to the suit. They also presented several exceptions to the petition, one of which was to “so much of said petition as alleges the right in plaintiff to collect fees from the defendants, or by or through defendants, or from said municipality, because same are more conclusions of the pleader, and are vague and indefinite, and do not set up any charter, ordinance, or statute.or other fact upon which said conclusions depend.”

The plea in abatement and all exceptions to the petition were overruled by the trial court.

The answer of the defendants, which was sworn to, specifically denied that the law gave none other than the district attorney the right to prosecute criminal cases in said court, or gave him the right to prosecute all criminal cases in said court. It further denied the allegations of the petition that the district attorney had the right to receive the fees for prosecutions in said court, and that the defendant Monk had refused to permit the district attorney or his assistants to prosecute in said court, and that defendant Smith has refused to tax fees allowed by law to plaintiff. It is further alleged that the ordinance of such city covers many designated subjects enumerated therein, and provided for fines for infractions thereof, not covered by the state law, and that there is no provision of law for the taxation of a fee for the district attorney, and that the plaintiff had never begun a prosecution before such court, and that plaintiff was so inaccessible to such court as to practically deny the aid of counsel thereto. Further allegation, that the ordinances of the city prevent and prohibit the taxing or collecting of a fee for plaintiff, was made; that the defendant Smith taxes fees as provided by ordinances, and under the direction of the defendant Monk, and if said Monk directed him to do so, and said ordinances permitted him to do so, he would tax fees for plaintiff.

Plaintiff filed a supplemental petition on the 19th day of May, 1917, in which he alleged that thp ordinances pleaded by defendants had all been passed since the filing of his petition, and alleged that the defendants purposely set the cases in said court without any opportunity for plaintiff or his assistants to be present, and that defendants knew plaintiff was always ready and willing to appear and prosecute said causes, and that such conduct and acts were purposely done to prevent. plaintiff and his assistants from being present and conducting the trial of cases in said court, and that such conduct amounted to a practical denial of plaintiff’s rights. This supplemental petition was sworn to, and was not in any manner denied by defendants. This cause had been passed from April 5th, from time to time, at the request of the defendants, until the 19th day of May, when their pleading was first filed, and was tried on that date on said pleading, together with exhibits attached to defendants’ answer, and the admission in court by the plaintiff that he did not claim the right to prosecute matters covered by ordinances of the city of Magnolia Park which did not involve an infraction of the penal laws of the state of Texas, and defendants’ admission that they did not deny the right of plaintiff and his assistants to appear and control the prosecution of offenses against the state laws or of local ordinances which were covered by or in violation of the state law; and thereupon the court entered its judgment in favor of plaintiff, awarding him a writ of mandamus requiring the defendant Monk, as Judge of the municipal court of Magnolia Park to permit the plaintiff, as criminal district attorney of Harris county, Tex., and his assistants in office, to exclusively control, manage, and conduct the prosecutions as prosecuting attorney in all cases of prosecutions for violations of the state laws of Texas, and for violation of the ordinances of said municipality in all cases where said ordinances cover or involve offenses which are penal under the state law, and requiring the defendant Smith to tax as costs in each case of such prosecutions such fee for the said criminal district attorney as he is entitled to according to law, as prayed for in plaintiff’s petition herein.

Appellants’ first assignment predicates error upon the refusal of the court to sustain the plea in abatement.

We cannot agree with appellants’ contention that the corporation of Magnolia Park was a necessary party to this suit. It is true that the ordinance pleaded by defendants, which was passed by the city council of Magnolia Park, attempted to prevent the district attorney from prosecuting cases in the corporation court by providing that in cases not prosecuted by the city attorney the fees provided by the ordinances for the prosecuting attorney should not be taxed against tlie defendants, and that the interpretation and validity of this ordinance are the main issues in this suit; but no judgment is sought against the city, and it certainly is not the law that in every suit against an officer of a city or town in his official capacity, in which the construction or validity of an ordinance of the city or town is involved, that such corporation is a necessary party to the suit, and we are cited to no case which so holds. In the case of Howth v. Greer, 40 Tex. Civ. App. 552, 90 S. W. 211, which was a suit by the county attorney of Jefferson county against the recorder, city attorney, city marshal, and city secretary of the city of Beaumont for mandamus to compel said officers to permit the count attorney to prosecute state cases in the recorder’s court of the "city, and to collect and pay over to plaintiff the fees provided by ordinance for the prosecuting attorney in such cases, the city of Beaumont was made a party defendant. The question of whether the city was a necessary, or even a proper, party-to the suit was not raised, and was not passed upon or considered by the court in disposing of the appeal.

The second assignment of error complains of the ruling of the court in refusing to sustain defendants’ exceptions to the allegations of the petition that plaintiff had the right under the law to a fee of $5 for each conviction on a plea of guilty, and $10 in each conviction on a plea of not guilty, because such allegations “are conclusions of the pleader, and are vague and indefinite, and do not set up as a fact any charter, ordinance, or statute or other fact upon which said conclusions depend.”

We do not think the trial court erred in ■overruling this exception. Plaintiff is not seeking in this suit to recover any fees, and therefore he was not required to plead facts which would entitle him to such recovery. In so far as his right to prosecute cases in the corporation court, and to have fees taxed in prosecutions which he may hereafter conduct in said court, is conferred by the statute law of the state, he was not required to specially' plead such statute. In so far as the rights claimed by him were conferred by the ordinances of the corporation of Magnolia Park, his failure to specially plead such ordinances was supplied by defendants, who specially pleaded all of the ordinances upon the subject, and made certified copies thereof, attached as exhibits, a part of their answer.

The third assignment, by which appellants complain of the judgment on the ground that evidence was heard upon the issues of fact raised by the pleadings and the mandamus was granted as prayed for, without any trial on the fact issues raised by the pleadings, is without merit. The judgment recites that the case was heard upon the pleadings and the exhibits attached thereto and the admissions of the parties. No exception was taken by the defendants to the court’s deciding the case upon the evidence before it, and no further evidence was offered by the defendants. If the facts before the court are sufficient to sustain the judgment, appellants’ complaint, made after the judgment was rendered, that there should have been a further hearing on the facts, will not be heard when, without objection, they permitted the case to be decided upon the pleading and the evidence before the court. The only fact put in issue by the pleadings and evidence which formed any basis for the judgment rendered was whether the defendant Monk had refused to permit appellee to prosecute state cases in the corporation court. Monk expressly denied this allegation of the petition. In answer to this denial appellee pleaded under oath that, while Monk had not expressly refused to allow him to prosecute such cases, he had in effect done so by arranging the docket of the court and calling the cases for trial at a time when it was impossible for appellee or any of his assistants to be present. This sworn statement of appellee was not denied. We think the trial court was authorized, upon this state of the evidence, to find that defendant Monk had refused to recognize plaintiff’s right to conduct the prosecution of state cases in the corporation court. If this holding is not sound, and the mandamus granted should not have commanded Monk to accord appellee a right which had not been denied him, the mandamus having been properly granted upon other grounds, the inclusion of this command in the judgment cannot possibly injure appellant Monk. The cases of Teat v. McGaughey, 85 Tex. 486, 22 S. W. 302, De Poyster v. Baker, 89 Tex. 155, 34 S. W. 106, and Clark v. Terrell, 98 Tex. 15, 81 S. W. 4, which hold that in an original mandamus proceeding in the Supreme Court a mandamus will be denied if an issue of fact is presented, have no application to this suit.

The defendant Smith admitted in his answer that he had refused, and still refuses, to tax any fees for appellee in state cases prosecuted by appellee in the corporation eourt, and defended his action solely upon the ground that by the ordinances of the corporation of Magnolia Park he was forbidden to tax such fees. These ordinances were specially pleaded by him, and, as before stated, were attached to his answer as exhibits, and submitted to the court as evidence upon the trial of the case.

This brings us to the discussion of the main questions in the case, viz., the construction of the ordinances, and whether or not the corporation was authorized by ordinances to prohibit the taxing of fees allowed by law for the district attorney in state cases prosecuted by him in the corporation co-urt.

Article 345a, Vernon’s Sayles’ Civil Statutes, which,creates the office-of criminal district attorney of Harris county, contains the following provisions:

“And he shall have exclusive control of all criminal cases wherever pending, or in whatever court hi Harris county that now has jurisdiction of criminal cases, asi well as any or all courts that may be hereafter created and given jurisdiction of any criminal eases, and he shall collect the fees therefor provided by law. He shall also have control of any and all cases heard on habeas corpus before any civil district court of Harris county, as well as before the criminal court of said county. The criminal district attorney of Harris county shall have and exercise, in addition to the specific powers given and duties imposed upon him by this act, all such powers, duties and privileges within said criminal district of Harris county as are by law now conferred or which may hereafter be couierred upon district and county attorneys in the various counties and judicial districts of this state. It is further provided that he and his assistants shall have the exclusive right, and it shall be their sole duty to pei-form the duties provided for in this act, except in cases of the absence from the county of the criminal district attorney and his assistants, or their inability or refusal to act; and no other person shall have the power to perform the duties provided in this act, or to represent the state in any case in Harris county, except in case of the absence from Harris county, or the disability or refusal to act, of the criminal district attorney and his assistants.”

Article 345b of said Statutes makes the following provision, among others, for the payment of fees to said district attorney:

“The criminal district attorney shall also receive such fees in misdemeanor cases, to be paid by thel defendant and by the county, as is now provided by law for district and county attorneys, and he shall also receive such compensation for other services rendered by him as is now, or may hereafter be, authorized by law to be paid to other district and county attorneys in this state.”

Article 1177 of the Revised Criminal Statutes of 1911 (Code Or. Proe.) provides that the attorney who represents the state in a criminal action in a justice’s, mayor’s, Or recorder’s court shall for each conviction receive a fee of $10, unless otherwise provided by the ordinances of any incorporated city or town.

Article 1179 of said Statutes provides that, where a conviction is had upon a plea of guilty before a justice, mayor, or recorder, the attorney representing the state shall be allowed a fee of $5.

Article 1180 provides that no fee shall be allowed the attorney unless he is present representing the state on the trial, or has taken some action therein for the state, or is present and ready to represent the state, provided, when pleas of guilty are entertained and accepted in the justice court at some time other than a regular term of the court, a fee of $5 shall be allowed the county attorney.

One of the ordinances pleaded by thé defendant Smith fixes fees for the city attorney for prosecuting criminal eases in the corporation court at $10 upon conviction upon a plea of not guilty, and $5 upon conviction on a plea of guilty, to be taxed as costs against the defendant, and provides that, in case the city attorney does not prosecute in person, no fee shall be allowed, taxed, or collected from the defendant. We think the provision of this ordinance forbidding the taxing of fees where the city attorney does not prosecute can only be properly construed to apply to the taxing and collection of fees for the city attorney, and it was not intended by the ordinances to forbid the taxing of fees allowed by law to the district attorney in cases in the corporation court which the law makes it his duty to prosecute.

Another of the ordinances pleaded is as follows:

“Be it ordained by the city council of the city of Magnolia Park, that where by ordinance it is the duty of an official of said city to do any act or perform any service for or in the name or on behalf of said city, and compensation is provided therefor to such official as fees or otherwise, in case such official fails or refuses to perform such duty or act therein, and some other person, whether he be official of said city or of the district or state, or otherwise, acts therein or performs the duty or service of the official of said city, such other shall not be entitled to compensation therefor, and no fee or costs shall be taxed therein in his behalf.”

This ordinance by express terms denies any compensation to any state or county officer who performs any service on behalf of the city which by any ordinance it is made the duty of a city officer to perform. Under the provisions of these ordinances, appellants contend that the appellee is not entitled to have the fees allowed him by law for prosecuting state cases in the corporation court taxed as costs against the defendant in the case. If this was the purpose of the city council in passing the above-mentioned ordinance, and they are so construed, we do not think they are valid. The city council had authority by ordinance to provide for different fees for prosecuting attorneys in the corporation court than those fixed by the statute, and if the council saw fit they might have provided that no fees should be taxed against defendants in cases prosecuted in the corporation court. But having fixed fees in such cases, just as they are fixed in the statute, we do not think they were authorized to provide that such fees-could only be taxed when the cases wev# prosecuted by the city attorney, and must be remitted when the county attorney in the performance of his duty has conducted the prosecution of the ease.

This conclusion requires an affirmance of the judgment of the court below in the main. In other assignments presented, by appellants, complaint is made of that portion of the judgment commanding the defendant Monk to notify appellee of the filing of complaints in the corporation court. We think the objection to this part of the judgment, on the ground that it is not made the duty of the judge by any statute or ordinance to give such notice, is valid and must be sustained. Another objection to the judgment is that it forbids the city attorney from prosecuting cases covered by the state law when the district attorney is disqualified or refuses to prosecute. If thp judgment can be so construed it is manifestly erroneous in this particular. We think the judgment should be reformed in the respects last mentioned, and as so reformed should be affirmed, and it has been so ordered.

Reformed and affirmed.
      <©=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: SWEARINGEN, J.

license: Public Domain

text:
    FRICK v. INTERNATIONAL & G. N. RY. CO. et al.
    (No. 6082.)
    (Court of Civil Appeals of Texas. San Antonio.
    Nov. 20, 1918.
    Rehearing Denied Dec. 18, 1918.)
    1. Master and Servant i&wkey;89(3) — Injury on Track — Trespasser.
    Employé of railroad company, injured while riding upon track in a motorcycle by invitation of another employé after working hours, motorcycle being run down by freight train, held) a “trespasser.” ■
    2. Appeal and Error &wkey;1067 — Failure to Define Terms — 'Harmless Error.
    In suit by employé to recover for injuries sustained while riding upon track in a motorcycle by invitation of another employé after working hours, instruction that plaintiff was a “trespasser,” although quoted term was not defined, helé without injury to plaintiff.
    3. Railroads <&wkey;359(l) — Duty to Trespasser —Instruction.
    Instruction that railroad company owed a trespasser no duty until his position of peril was discovered was erroneous.
    4. Appeal and Error &wkey;>1068(l) — Erroneous Instruction — Harmless Error.
    Instruction that plaintiff was a trespasser on track, and that defendant railroad owed him no duty until his position of peril was discovered, although erroneous, and not in compliance with Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1984a, as to definition of terms, cannot be said to have contributed to result where jury found in answer to only issue submitted that operators of train did not discover plaintiff’s peril in time to have prevented injury.
    5. Trial <&wkey;296(3) — Misleading Instructions — Cure by Other Instructions.
    Contention that from special instruction given jury might have believed that railroad company owed plaintiff employé no duty, even after discovering his peril, is not tenable, in view of instruction that duty of operators of train to use ordinary care was not diminished or dispensed with because of the fact that plaintiff might have been wrongfully upon the track.
    6. Appeal and Error &wkey;>213 — Failure to Submit Issue — Review.
    Contention that court erred in overruling appellant’s exception to main charge cannot be sustained, where bill of exception discloses that objection was to omission alone, since, under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1985, failure to submit an issue is not ground for reversal, unless submission was requested in writing.
    7. Evidence <&wkey;471(24) — Question Calling for Conjectural Conclusion.
    Question as to what might have happened if something had been done, which witness testified had not been done, called for a conjectural conclusion.
    8. Appeal and Error &wkey;>1058(l) — Exclusion of Question — Harmless Error.
    Where all facts which might have been elicited by question calling for conjectural conclusion, if in proper form, were testified to without objection, there was no injury to appellant because of exclusion of question and probable answer.
    Appeal from District Court, Bexar County; R. B. Minor, Judge.
    Suit by Emil H. Frick'against the International & Great Northern Railway Company and its receivers. The cause was tried with a jury upon special issues. The jury answered the issues against plaintiff, in accordance with which judgment was rendered, and plaintiff appeals.
    Affirmed.
    Perry J. Lewis, Champe G. Carter, Randolph L. Carter, and H. C. Carter, all of San Antonio, for appellant.
    John M. King, of Houston, and F. O. Davis and Marshall Eskridge, both of San Antonio, for appellees.
   SWEARINGEN, J.

This is a suit by Emil H. Frick, the appellant, against the International & Great Northern Railway Company and its receivers, James A. Baker, and Cecil A. Lyons, to recover damages for personal injuries. The cause was tried with a jury upon special issues. The jury answered the issues against appellant, in accordance with which judgment was rendered.

Appellant’s petition alleged that he was an employé of the appellee railway company, and upon November 5, 1913, he accepted an invitation from another employé of the railway company, Jack Meyers, to accompany him in the use of the railway track of the company with a motorcycle belonging to the railway company, but under the care and custody of Jack Meyers. It was alleged that the company’s mechanic, an official having control over the said car and the men thereon, was present, saw and consented to the trip; that when returning to San Antonio the said motorcycle was run down by one of the company’s freight trains while upon a bridge about eight miles from San Antonio, and appellant was thrown from the bridge and seriously and permanently injured; that the said collision and injuries were caused by the negligence of the railway company’s employés in operating said train at a negligent rate of speed and in failing to give a timely signal of any kind of the approach of the train; that the company’s employés in charge of said train were also negligent in •failing to stop or slacken the speed of the train, and in failing to give a timely warning signal after the appellant’s position of peril was discovered.

The railway company replied with a general denial and a plea of contributory negligence on the part of appellant. The answer averred that the plaintiff was upon a pleasure trip of his own; was not then in the course of his employment with the company, and that appellant was not upon said motorcycle and track by consent from any one having authority over said car, and that the employés in charge of the train owed no duty of lookout at the place where the collision occurred, and did not discover the plaintiff upon the track in time to have prevented injury to him by using the means at hand. The answer further averred that appellant went out upon the line of the railway company without the knowledge or consent of any official or employe of said railway company having control over the line, andi that no notice was or could have been given to the employés in charge of the train which came in contact with the motorcycle. The company answered, further, that the appellant knewl at the time he started on his trip that the train which collided with him was out and was due at the point of the collision about the time of the accident, and also knew that a train of the company was likely to pass over the line at any time, arid answered that appellant just prior to the accident stopped the motorcycle on the company’s railroad track; and indulged in the pleasure of shooting wild game, left the motorcycle on the track, went to gather up the game, and then started the motorcycle with a loud noise and failed to look or listen for an approaching train. The railway company averred that this was extrahazardous, because immediately south of the bridge there was >a steep grade and a decided curve, all of which was known to appellant.

The only issues submitted were the following:

“(1) Did the defendant’s engineer or fireman in charge of the locomotive discover the plaintiff’s position of peril in time, by the exercise of ordinary care, to have sounded a warning of the approaching train that would have prevented the injury to plaintiff?
“(2) Did the engineer and fireman, after such discovery, if any, fail to give such timely warning as would have prevented the injury to plaintiff?
“(3) Did the engineer or fireman operating the locomotive discover the plaintiff’s position of peril in time, with the means at hand, consistent with the safety of the train, to have so slackened the speed of the train as to have' prevented the injury to plaintiff?”

The first six assignments assail the action of the trial court in giving, at the request of appellee, the following special instruction:

“You are instructed that the plaintiff at the time of the collision and injury complained of was a trespasser on the track of the defendant, and that the defendant owed him no duty until his position of peril was discovered.”

It is urged that this special instruction is fallacious in two particulars, viz.: That it was error for the court to tell the jury that appellant was a trespasser on the railway company’s track, and that it was also error to tell the jury that the railway company owed appellant no duty until his position of peril was discovered.

The fact is that appellant was rabbit shooting after work hours for his own pleasure and was not in the performance of any duty for the railway, company. He was using the main line of track from Laredo to San Antonio at a time when he knew the track would be used by the company’s train. He was not invited or licensed to so use the track for his personal pleasure by any. one shown to have authority to give the permission to so use the track. Under the facts appellant was beyond question a trespasser. I. & G. N. Ry. v. Cock, 68 Tex. 713, 5 S. W. 635, 2 Am. St. Rep. 521; T. & P. Ry. v. Black, 87 Tex. 161, 27 S. W. 118. Counsel for appellant further insist that the question of whether or not appellant was a trespasser was, by the pleading and evidence, an issue to be determined by the jury. However, no such issue was requested by appellant. “The failure to submit any issue shall not be deemed a ground for reversal of the judgment upon appeal, * * * unless its submission has been requested in writing by the party complaining of the judgment.” Vernon’s Sayles’ Rev. Civ. St. art. 1985.

The further contention is made that “trespasser” means a lawbreaker, and the use of the term applied by the court tended to discredit appellant’s testimony upon the issue of discovered peril submitted to the jury. Appellant could have had the court define the word “trespasser” to mean one who was upon the property of another in pursuit of his own purpose without the permission of the owner. No request was made for a definition of the term. Moreover, the record does not disclose that appellant testified that his perilous position was discovered by the employés in charge of appellee’s train.

The special requested instruction does not explain any term or give any rule of law to aid the jury in determining any of the issues submitted. It is entirely irrelevant to those issues, but we are not able to say that any injury was caused to appellant by reason of this irrelevant, though correct, statement of a fact.

The instruction that the railway company owed a trespasser no duty until Ms position of peril was discovered is error, as contended by counsel for appellant. In the case of Texas & Pacific Ry. Co. v. Watkins, 88 Tex. 20, 29 S. W. 232, Associate Justice Den-man, writing the, opinion for the Supreme Court, stated:

“If is often said that a railroad owes no duty to a trespasser. * * ⅜ This doctrine has never been adopted in this state, but has been expressly repudiated.”
Then he cites Railway v. Sympkins, 54 Tex. 618, 38 Am. Rep. 632, Railway v. Hewitt, 67 Tex. 479, 3 S. W. 705, 60 Am. Rep. 32, and Artusy v. Railway, 73 Tex. 193, 11 S. W. 177. Associate Justice Denman then states the true rule:
“That it is the duty of the servants of the railroad company operating its trains to use reasonable care and caution to discover persons on its track, and a failure to use such care and caution is negligence on the part of such company.” Railway v. Watkins, 88 Tex. 20, 29 S. W. 232.

This rule has been expressly stated in many Texas decisions, some of which are the following cases: Railway v. Broomhead, 140 S. W. 820; Railway v. Jaramilla, 180 S. W. 1126; Railway v. Hammer, 34 Tex. Civ. App. 354, 78 S. W. 708; Railway v. Watts, 173 S. W. 909; Railway v. Hewitt, 67 Tex. 473, 3 S. W. 708, 60 Am. Rep. 32; Railway v. Huegle, 158 S. W. 197; Railway v. O’Donnell, 58 Tex. 27; Railway v. Davis, 110 S. W. 939; 33 Cyc. 786.

The cases cited by counsel for appellee do not announce a contrary rule and are in no respect in conflict with the opinion in the Watkins Case.

In Texas Midland Railway Co. v. Byrd, 102 Tex. 263, 115 S. W. 1163, 20 L. R. A. (N. S.) 429, 20 Ann. Cas. 137, M., K & T. Ry. v. Malone, 102 Tex. 269, 115 S. W. 1158, H. & T. C. v. Richards, 59 Tex. 373, as well as in Over v. M., K. & T. Ry., 73 S. W. 535, Missouri, K. & T. Ry. v. Cowles, 96 Tex. 24, 67 S. W. 1078, 69 S. W. 541, recovery was dented for the injuries sued for because according to the facts involved in those cases it was determined that the injured party was guilty of contributory negligence, which was found as a matter of law to have been the proximate cause of the injury and precluded a recovery. This holding is directly in accord with the opinion of Associate Justice Denman in the Watkins Case, wherein it is said:

“If such circumstances show that the party injured was a ⅜ * s trespasser at the time of the injury, the issue of contributory negligence is, as a general rule, established as a matter of law; but not so in all cases.” T. & P. Ry. Co. v. Watkins, 88 Tex. 24, 29 S. W. 234.

The special instruction made an erroneous statement of the law, and the instruction was not such explanation and definition of legal terms as was necessary to enable the jury to properly pass upon and render a verdict on such issues as were submitted. Article 1984a. But we cannot say that the irrelevant charge, erroneous though it was, probably contributed to the result reached by the jury. The jury found in answer to the only issue submitted to it that the operators of the train in collision did not discover appellant’s' position of peril in time to have prevented the injury. The assailed instruction had no bearing upon this issue. The possible inference that the jury might have believed that the railroad company owed appellant no duty even after discovery of the peril is not tenable, in view of the special instruction requested by appellant and given by the court, which is as follows:

“In connection with questions Nos. 1 and 3, I charge you that the exercise of ordinary care on the part of the engineer and fireman in charge of the train to use all the means at hand to warn the plaintiff and slacken the train’s speed, after discovering plaintiff’s peril, if it was discovered, is not diminished or dispensed with because of the fact that the plaintiff himself may have been wrongfully upon the track.”

The first six assignments are overruled.

The foregoing also disposes of the ninth and tenth assignments.

The seventh assignment is that the court erred in overruling the appellant’s exception to the main charge. Said charge was excepted to because it failed to submit to the jury the issues of defendant’s negligence in running its train at an excessive rate of speed, and in failing to give proper warning, and in negligently running the appellant down. The bill of exception upon which this proceeding is brought before us discloses that counsel only objected to the omission. “But the failure to submit any issue shall not be deemed a ground for reversal of the judgment upon appeal ⅜ * * unless its submission has been requested in writing by the party complaining of the judgment.” Vernon’s Sayles’ Tex. Civ. St. art. 1985. This statutory requirement has not been observed.

We overrule the seventh assignment.

We overrule the eighth assignment, complaining, of the exclusion of testimony. The form of the question excluded upon objection called for a conclusion of the witness as to what might have occurred if something had been done, which the witness had testified was not done. The question called for a conjectural conclusion. All facts that might have been elicited by the question if in proper form were testified to by the witness without objection, which refutes the idea that any injury could have been done to appellant by the exclusion of the question and probable answer.

The judgment is affirmed.
      ©asjFor other cases see same topic and KEY-NUMBER in ail Key-Numbered Digests and Indexes


author: HARPER, C. J.

text:
    HOLMES et ux. v. LONG.
    (No. 868.)
    (Court of Civil Appeals of Texas. El Paso.
    Nov. 14, 1918.
    Rehearing Denied Dec. 18, 1918.)
    1. Appeal and Error &wkey;s719(S) — Assignments of Ebb ok — Fundamental Ebkob.
    Where a judgment does not conform to the verdict, it presents fundamental error, which the appellate court will review without-assignment.
    2. PRINCIPAL AND AGENT <&wkey;177(8) — Knowledge oe Agent — Imputation, to Principal.
    Where the agent of a purchaser of notes, as attorney for the payee, knew of the failure of consideration, such knowledge is imputable to the purchaser, and he cannot recover as a bona fide purchaser without notice.
    Appeal from El Paso County Court, at Law; W. P. Brady, Judge.
    Action by H. W. Long against George M. Holmes and wife. From a judgment for plaintiff, defendants appeal.
    Reversed and rendered.
    F. G. Morris, of El Paso, for. appellants.
    Atlas Jones, of San Antonio, Claude Lawrence, of El Paso, and R. M. Turner, for ap-pellee.
   HARPER, C. J.

This suit was filed by ap-pellee on 15 promissory notes, executed by appellants, payable to Pomona Valley Investment Company. Plaintiff alleged that—

“Before maturity, the said company indorsed the said notes in blank and delivered them to M. A. Fleming, for plaintiff; the said Fleming being the agent of plaintiff in purchasing said notes for plaintiff.”

The defendant pleaded failure of consideration and that they were obtained by false and fraudulent misrepresentations, in that they were given for deferred payments in. the purchase from the company, payee, of the right to make a certain gas in the state of Arizona; that it was falsely represented to the defendant 'Holmes that the gas tanks or plants under the method would produce gas at less cost than was usually produced for towns and villages,' but that in fact it cost more; that he gave notice of the failure of the consideration to the payee, and demanded the cancellation of the notes; that it was agreed to, but, the notes not being present, the payee’s manager agreed to obtain them and return them to defendant, which was not done; that thereafter they were assigned to the plaintiff, with full knowledge upon his part of the fraud and failure of consideration.

The cause was submitted upon special issues, and, upon the verdict of the jury, judgment was entered for the amount of notes for the plaintiff, from which this appeal is prosecuted.

But one assignment of error is urged by appellant, viz.: “The court erred in rendering judgment for plaintiff.” Appellees suggest that this assignment cannot be considered under the rules, because it was not contained in the motion for new trial filed, but was filed after the motion was overruled. Upon the point, we cite Hess & Skinner Engineering Co, v. Turney et al. (Sup.) 203 S. W. 593, but without in any wise holding that it was decisive of the question under the facts presented by this record, because the case cited was tried without a jury and the instant case with a jury. But we conclude that, since the judgment in this case -does not conform to the verdict of the jury, it present^ fundamental error, which requires this court to review the case. Armstrong v. Hix, 107 Tex. 194, 175 S. W. 430.

The proposition urged is that, under the verdict of the jury, the judgment should have been for the defendant. As applicable to this question the jury found

“That the Pomona Valley Investment Company received the money paid by Long for the notes. That the said company through misrepresentations induced the -defendant to execute the notes sued on. That Fleming had information or belief when he purchased the notes for Long that defendant /claimed that they were caused to be executed through false representations. * * ⅜ That plaintiff or his attorney, Fleming, before the notes were purchased by Long, had information which should have: put a man of ordinary prudence upon inquiry as to whether a defense or failure of consideration might be claimed as to said notes, and that, having such information, if it had been followed up by the use of ordinary diligence, they would have discovered the facts. ⅜ * * That Gentry or his attorney, Fleming, agreed to cancel the notes sued on before the sale to Long. ⅞ ⅜ * iphat Gentry was the manager of the said company, and that the company ' ratified the sale of the notes and received the money.”

The exact point urged is:

• “The jury haying found that- M. A. Fleming, .attorney for plaintiff, through whom plaintiff purchased the notes sued. on,, knew of the do fense and agreed cancellation of the notes sued on, when he purchased them for plaintiff, and it appearing that said Fleming was general attorney for plaintiff in the investment of his money, when said Fleming learned of the defense and cancellation of said notes, and knew of said defense when he was making the purchase, the notice of the plaintiff’s attorney must, under the circumstances of this case, be imputed to the plaintiff, and judgment should have been rendered for defendants.”

The plaintiff, as will be noted in pleadings quoted, pleaded that Fleming was the agent of the plaintiff at the time be bought the notes, and Fleming, testifying for plaintiff, said he was the attorney for plaintiff, Long, at the time of the purchase. It is also noted that Fleming was at the same time, and for all the time of the transactions for which the notes- were given, the attorney of the payee company. The rule applicable here is clearly stated in Allen v. Garrison, 92 Tex. 546, 50 S. W. 335:

“Where an agent has effected a transaction for his principal by fraudulent practices, the latter cannot exempt himself from the consequences of such conduct by asserting that he had no knowledge of the fraud.”

The same principle was declared to be the law in Bank v. Cruger, 91 Tex. 446, 44 S. W. 278.

By the finding of the jury that Fleming knew that the original payee had agreed to cancel the notes because of the failure of consideration, and by the further fact that plaintiff alleged- Fleming to be his agent at the time of the purchase of the notes, although the plaintiff had no knowledge of the fraud, so found by the jury, such a privity between them arose as to charge the plaintiff with the consequences of the acts of his agent, Fleming, as that the former took the notes with all the defenses to which they were subject in the hands of the original payee, and he cannot exempt himself from the consequences of the conduct of his agent by asserting that he had no knowledge of the fraud.

The cause must therefore be reversed, and judgment here rendered for appellant.

Reversed and rendered.
      (g^>For other cases see same topic and KEY-NUMBER in all Key-Numbered, Digests and Indexes


author: KEY, C. J.

text:
    JOHNSON et al. v. JOHNSON.
    (No. 5968.)
    (Court of Civil Appeals of Texas. Austin.
    Nov. 9, 1918.
    Rehearing Denied Dec. 18, 1918.)
    1. Appeal and Error <&wkey;756 — Appellant’s Brief.
    Appellant’s brief, which does not contain all that is necessary to enable Court of Civil Appeals to decide some questions sought to be presented, has not been prepared in accordance with the rules.
    2. Husband and Wife <&wkey;119(l) — Deed to Married Woman.
    Where realty was deeded to a married woman, legal title to the property became vested in her.
    3. Husband and Wife <&wkey;132 — Property of Wife — Evidence.
    In trespass to. try title by divorced first wife of decedent claiming! through her son against her husband’s second wife, such second wife, defendant, had the right to introduce testimony tending to show that her husband caused deed of the land to be made to her because he intended it as a gift.
    4. Husband and Wife &wkey;>119(3) — Deed to Wife — Separate Property.
    Where husband caused deed of land to be made to his wife intending it as a gift, it became her separate property, though the deed did not state on its face that title was to be so vested in the wife.
    5. Husband and Wife <&wkey;121 — Acquisition of Land by Wife — Furnishing Consideration.
    A wife acquired land as her separate estate if the consideration used in paying for the property was her separate estate.
    6. Husband and Wife <&wkey;132 — Property of Wife — Evidence.
    In trespass to try title by divorced first wife of decedent, claiming through her son against second wife, defendant second wife, under the pleadings, held entitled to show that deed which was made to her was intended for her separate use and benefit; testimony being admissible under general denial and plea of not guilty.
    7. Husband and Wife <§=»273(2) — Community Property.
    In trespass to try title by divorced first wife of decedent, claiming through her son, against second wife, where by judgment court did not attempt to reform deed to second wife, it was not necessary that grantors should have been made parties.
    8. Husband and Wife &wkey;>273(2) — Community Property.
    If land conveyed to second wife became her homestead, it was not subject to partition after the husband’s death at suit of the divorced first wife, claiming through her son, even though it was community property of the second marriage.
    9. Husband and Wife <&wkey;273(4) — Community Property — Right of First Wife Through Son.
    If land conveyed to second wife was community property of second marriage, a divorced first wife claiming in right of son after his father’s death was owner of undivided half interest, subject to the second wife’s right to use property as her homestead.

      10. Vendor and Purchaser <&wkey;236 — Innocent Purchaser.
    First wife of decedent claiming land in trespass to try title in the right of her son against the second wife held not a bona fide purchaser in good faith, haring notice when she purchased her son’s interest of the second wife’s claim, and not haring paid yaluable consideration.
    Appeal from District Court, McLennan County; H. M. Richey, Special Judge.
    Action by R. C. Johnson against Mrs. T. K. Johnson, wherein J. M. Bird and another became plaintiffs. From judgment that plaintiffs take nothing, and for defendant, plaintiffs appeal.
    Affirmed.
    Jas. E. Yeager, of Waco, for appellants.
    E. M. Mann, of Mart, for appellee.
   KEY, C. J.

On November 23, 1915, R. C. Johnson filed his original petition in trespass to try title against Mrs. T. K. Johnson, a feme sole, in which he sought to recover 'an undivided one-half interest in a certain lot in the town of Mart. In an amended petition, in addition to the lot referred to, he sought to recover a> half interest in certain personal property, and alleged that all the property referred to was community property of his father, T. K. Johnson, deceased, and his stepmother, Mrs. T. K. Johnson, the defendant.

The proof shows that T. K. Johnson was married twice; that in 1898 he and his first wife were divorced, and a few months thereafter he married his second wife, the defendant in this case. The plaintiff R. C. Johnson was born during the first marriage, and claimed a half interest in the property which was acquired during the second marriage. T. K. Johnson died in June, 1915, and the plaintiff is his only child.

In December, 1915, the defendant filed an answer, consisting of a general denial and plea of not guilty. After the divorce referred to, the plaintiff’s mother married J. M. Bird; and on September 18, 1916, the plaintiff executed a general warranty deed, conveying all of his interest in the tract of land involved in the litigation to his mother, Mrs. J. M. Bird; and on May 9, 1917, he and Mrs. Bird, joined pro forma by her husband, filed an amended petition, setting up the fact that the plaintiff, R. 0. Johnson, had conveyed his interest in the land to Mrs. Bird, and alleging that he disclaimed any further title or right thereto, and thereafter Mrs. Bird became the plaintiff, in so far as the land was concerned. That petition also attempted to set up the right in R. O. Johnson to recover on the ground that a certain sum of money had been placed in the hands ■of his father, T. K. Johnson, as a trust fund for R. 0. Johnson’s benefit, but neither the pleadings nor the evidence disclosed any fact that would make the- defendant, Mrs. R K. Johnson, liable to R. 0. Johnson on account of the fund referred to. There was no proof that any of that fund was used in paying for the land, and nothing was alleged or proved that would show that Mrs. T. K. Johnson was liable for that fund, even if her husband misapplied it.

On May 17, 1917, the defendant filed her third amended answer, alleging that the real estate in question was her separate property, and, if not, that it was her homestead, and not subject to partition. On May 21, 1917, she filed a supplemental answer, denying the allegations in the plaintiffs’ amended petition, wherein it was alleged that Mrs. Bird was an innocent purchaser without notice. On May 23, 1917, plaintiffs filed a supplemental petition, containing certain exceptions, denying facts pleaded by the defendant, and pleading laches and limitation against the defendant’s cross-action, wherein she sought to have her deed corrected and cloud removed from her title.

There was a jury trial, wherein, in response to special issues submitted by the court, the jury found that the property in question was the separate property of the defendant at the time of the death, of her husband, T. K. Johnson. The jury also found that at that time it was the homestead of the defendant and her husband, T. K. Johnson, and also that it was the homestead of the defendant at the time this suit was commenced.

In addition to the verdict, the trial judge made findings which were incorporated in the judgment to the effect that the plaintiff Mrs. Bird was not an innocent purchaser of the lot in controversy; that the same was the separate property of the defendant, and constitutes her homestead; and that her deceased husband, T. K. Johnson, left no community or separate property. And thereupon judgment was rendered to the effect that the plaintiffs take nothing by their suit, and that the defendant, Mrs. T. K. Johnson, recover the lot or real estate in controversy; and from that judgment the plaintiffs have appealed.

Although appellants’ brief has not been prepared in accordance with the rules, inasmuch as it does not contain all that is necessary to enable the court to decide some questions sought to be presented, nevertheless we have examined the record, including the statement of facts, and have reached the conclusion that no reversible error appears.

The real estate in question was deeded to the defendant, Mrs. T. K. Johnson; and therefore, although she was at that time a married woman, the legal title to the property was vested in her; and the court ruled correctly when it held that she had the right to introduce testimony tending to show that her husband caused the deed to be made to her, because he intended it as a gift, which would make it her separate property, although the deed did not state upon its face that the title was vested in her as her separate property. Patty v. Middleton, 82 Tex. 586, 17 S. W. 909.

While it is true that the defendant pleaded that the scribner who prepared the deed neglected to use the words “separate estate,” it was not necessary to so plead, as testimony of that kind was admissible under the general denial and. plea of not guilty. At any rate, under the pleadings the defendant had the right to show that the deed which was made to her was intended for her separate use and benefit, and vested in her the superior right, 'which proof could be made by showing that the consideration used in paying for the property was her separate estate, or that her husband had the deed made to her, intending thereby to make a gift. By the judgment rendered’, the court did not attempt to reform the deed; and therefore it was not necessary that the grantors should have been made parties to the suit. The defendant submitted testimony tending to support the verdict in her favor on all of the issues submitted to the jury; and we are not prepared to say that the jury’s finding is so contrary to the testimony as would justify this court in sotting the verdict aside.

Some questions have been presented as to rulings upon the admissibility of testimony which we have considered, and they are decided against appellants. Error has also been assigned because of the refusal of certain requesteddnstructions, but we hold that reversible error is not shown in that regard.

If the property is the defendant’s homestead, it is not subject to partition, even if it be community property, in which event Mrs. Bird would be the owner of an undivided half interest, subject to the defendant’s right to use the property as a homestead. Therefore, if the question of homestead had been the only defense, we might hold that the court erred in not submitting to' the jury appellants’ requested charge upon the issue of abandonment of the homestead right; but, if it be conceded that the property was not homestead, still, if it was the separate property of the defendant, as found by the jury, the plaintiffs are not entitled to recover; and therefore the judgment should be affirmed.

Hence we conclude that appellants are not entitled to have the case reversed, unless it appears that material error was committed upon both issues, namely, separate property and homestead right; and, as no such error has been shown upon the issue of separate | property, our conclusion is that the case should not be reversed.

As to the question of innocent purchaser, we are of the opinion that the testimony was not such as entitled appellants to have that issue submitted to the jury. Mrs. Bird bought the property while it was in litigation. She not only had constructive notice of the fact that the defendant was claiming the property, but the undisputed proof shows that she had actual knowledge of the pen-dency of the suit, and had been assisting her son in its prosecution. Before she purchased her son’s claim to the property, the defendant had filed an answer denying that he had any Interest therein. The facts referred to constitute sufficient notice to prevent Mrs. Bird from being a bona fide purchaser in good faith; but, in addition to that, the testimony fails to show that she paid what is deemed in law a valuable consideration.

The testimony did not raise the question of estoppel; and therefore we decide against appellants on that point.

Our conclusion is that the judgment should be affirmed; and it is so ordered.
      t§=5>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      ÉrxoFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: ELY, C. J.

text:
    SAN ANTONIO & A. P. RY. CO. v. DUNN.
    (No. 6121.)
    (Court of Civil Appeals of Texas. San Antonio.
    Dec. 18, 1918.)
    1. Railroads <&wkey;411(5) — Killing Cattle— Burden of Proof.
    To recover from a railroad for killing cattle at a crossing which could not be fenced, it devolved on plaintiff to show negligence on the part of the railroad.
    2. Railroads <&wkey;419(5) — Killing Cattle-Negligence.
    It was not the duty of a railroad’s engineer to slow his train down when alreadjy running at a fairly slow rate because he saw cattle evidencing no nervousness or excitement standing 50 feet away from the track, as he could not anticipate they would attempt to cross.
    Appeal from Jim Wells County Court; W. R. Perkins, Judge.
    Suit by John E. Dunn against the San Antonio & Aransas Pass Railway Company. From judgment for plaintiff, defendant appeals.
    Reversed and rendered.
    Kleberg, Stayton & North, of Corpus Christi, for appellant.
   ELY, C. J.

Appellee sued appellant in the justice’s court to recover damages for three head of cattle killed and two injured by a train of appellant. In the justice’s court appellee recovered judgment for $160, and on appeal by appellant to the county court judgment was rendered for appellee for $140.

The cattle were killed and injured at a public crossing when they suddenly darted across the railroad when the train was so close that it could not be stopped, although the engineer used all means in his power to stop it. The train was moving at the rate of about IS miles an hour before the cattle were seen about 50 feet distant attempting to cross the track. When the cattle were struck, the train was going about 12 miles an hour. It was the uncontradieted testimony that the cattle, when first seen, were standing about 50 feet from the track, and when the engine was near the crossing they attempted to cross the track. The engineer, as soon as the cattle started towards the crossing, sounded the whistle and used all means in his power to stop the train, but failed and struck the cattle.

The crossing could not he fenced, and in order to recover it devolved upon appellee to show negligence upon the part of appellant. Railway v. Leuschner, 166 S. W. 418. That was not done, and the judgment has no evidence to support it. It was not the duty of the engineer to slow the train down because he saw cattle standing 50 feet away from the track. He could not anticipate that cattle so standing, without evidencing any nervousness or excitement, would attempt to cross the track. Railway v. Morris, 63 S. W. 888; Railway v. Byrd, 58 Tex. Civ. App. 609, 124 S. W. 738; Irving v. Railway, 164 S. W. 910. The train was running at a low rate of speed, and the whistle blew for the crossing.

The judgment is reversed, and judgment here rendered that appellee take nothing by his suit and pay all costs in this behalf expended both here and in the courts below.
      >Fnr other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HIGGINS, J.

text:
    MORRISON v. RICHARDS.
    (No. 896.)
    (Court of Civil Appeals of Texas. El Paso.
    Dec. 12, 1918.)
    Pleading <&wkey;110 — Plea or Privilege — Sufficiency.
    In suit on money demand filed subsequent to Acts 35th Leg. c. 176 (Vernon’s Ann. Civ. St. Supp. 1918, art. 1903), plea of privilege of one defendant to be sued in county of his residence was prima facie proof of his right to change of venue, and, in absence of controverting plea and proof, plea should have been sustained.
    Appeal from Gaines County Court; T. O. Stark, Judge.
    Suit by O. B. Richards against Earl Morrison and another. Plea of privilege of defendant named overruled, and he appeals.
    Reversed and remanded, with instructions.
    L. W. Sandusky, of Colorado, Tex., for. appellant.
    N. R. Morgan, of Seminole, for appellee. .
   HIGGINS, J.

Subsequent to the date upon which chapter 176, Acts 35th Leg. p. 388 (Vernon’s Ann. Civ. St. Supp. 1918, art. 1993), became effective, appellee filed this suit in the county court of Gaines county against Earl Morrison and L. D. Rodgers upon a money demand.

Morrison filed a plea of privilege to be sued in Mitchell county, where he resided.. The plea fulfills the requirements of the act above noted. Richards filed no controverting plea. Dp on hearing the plea was overruled, and Morrison appeals.

The plea was prima facie proof of Morrison’s right to a change of venue. In the absence of a controverting plea and proof, the plea should have been sustained. See legislative act above noted. For the error in overruling same, the cause is reversed, with instructions to the lower court to make the proper venue transfer.

Reversed and remanded, with instructions.


author: HUFF, C. J.

text:
    ALEXANDER et al. v. ANDERSON.
    (No. 1440.)
    (Court of Civil Appeals of Texas. Amarillo.
    Dec. 18, 1918.)
    1. Fixtures <&wkey;35(3) — Issues oe Fact — Evidence.
    In an action for the removal of fixtures, it was error to submit to the jury the question of fraud, accident, and mutual mistake in omitting reference to the fixtures from the contract of sale of the land, where there was no evidence raising such issue.
    2. Contracts <&wkey;94(4) — Validity—Fraudulent Representations.
    When a party undertakes to ascertain for himself the contents of a contract, he will be charged with its stipulations, and that fraudulent representations were made will not justify him in relying on them, but he will be charged with the terms of the contract.
    3. Brokers <&wkey;94 — Agency — Execution op Contract op Sale.
    A real estate agent who procured purchasers, took them upon land, and gave them the terms, but did not represent to them that there was a reservation of the buildings, was acting as agent for the owner and not for the purchasers, and the mere act of writing the contract did not confer power to make a contract with different terms.
    4. Brokers <&wkey;>105 — Knowledge of Broker as Binding on Purchasers op Realty.
    The knowledge of a real estate broker, acting as agent of. the owner of land, prior to execution of a sales contract, as to whether eer-tain buildings on the land sold were to be excepted, does not bind the purchasers.
    5. Principal and Agent i&wkey;178(l) — Imputed Notice — Knowledge of Agent.
    Notice to an agent will be imputed to the principal only where the agent acquires his knowledge in the transaction of his principal’s business.
    6. Deeds &wkey;> 108 — Relation Back — Rights of Parties.
    A deed, when executed, relates back to the date of the contract of sale of the realty and .fixes the right of the parties as of that date.
    7. Fixtures <&wkey;21 — Conveyance.
    A conveyance of land by deed containing no reservation of fixtures passes title thereto to the purchaser, regardless of a verbal sale or disposition of such fixtures.
    8. Evidence <&wkey;413 — Witnesses <&wkey;379(2)— Impeachment — Parol Evidence.
    In a purchaser’s action against the seller of land for removing fixtures, evidence that the seller’s agent, after the contract and deed had been executed, stated that the fixtures did not belong to the land, etc., could not affect the deed and contract and was not admissible as impeaching the agent’s testimony that there was no reservation by the owner when the land was listed.
    Appeal from Floyd County Court; W. B. Clark, Judge.
    Action by C. A. Alexander and another against T. F. Anderson. Judgment for defendant, and plaintiffs appeal.
    Reversed and remanded.
    Kenneth Bain and A. P. McKinnon, both of Floydada, for appellants.
    T. F. Houghton and B. B. Greenwood, both Of Floydada, for appellee.
   HUFF, C. J.

This suit originated in the Justice court, and upon appeal is brought to this court. The appellants, C. A. Alexander and Fred Dickert,' sued appellee, T. F. Anderson, for damages, originally joining H. F. Casebeer, hut subsequently dismissed him from the suit. The cause of action alleged is that appellants owned a section of land on which was a certain house, also 25 cedar posts, and 264 feet of lumber built into the fence adjoining the house on the premises; that appellee entered upon the premises on or about the 20th day of September, 1917, and without the consent of appellants removed therefrom the house and fence and converted the same to his use and benefit, setting out that the total value of the property so taken was $150, giving the items. Appellants also allege that on the 15th day of June, 1916, they entered into a contract with appellee Anderson, for the purchase of said section of land, at which time the house and fence were on the premises as fixtures, and [ sold to appellants as such; that on the date of the contract Anderson executed to appellants a deed to the land, which was subsequently delivered to them; that they had no notice that the house and fence were subject to removal or that he did not own the same, but that appellee removed the house and fence, or caused the same to be done, thereby breaching his contract, for which act he was liable for the damages sued for. Ap-pellee, after general and special exceptions, and general denial, pleaded in answer:

That there was a contract of sale entered into by appellee and appellants, through their agent, J. W. Fawver, “that by fraud, accident, or mistake the improvements sued for were not mentioned in said contract, but said improvements were fully reserved by this defendant at the time he listed said land with the then firm of Fawver & Seale, a firm composed of J. W. Faw-ver and J. A. Seale, and was fully understood and reserved and was not noticed until after the contract was executed, and when plaintiff came out to close the deal the matter of improvements sued for was fully discussed, and plaintiffs and J. W. Fawver and this defendant went out and went over the land for the purpose of seeing and investigating just what improvements did not belong to said land, as it had been explained to them on the day they first went to look at the land before any contract was ever made for the sale of the land.”

The court instructed the jury to find for appellants if there was no fraud, accident, or mistake in the execution of the contract, but if the appellee reserved the improvements in the deed before the execution of the contract, and if it was not binding upon ap-pellee, then to find for him. This was the only issue submitted by the court.

The facts show that on the 15th day of December, 1916, appellants entered into a written contract with appellee for the purchase of the land and premises in question. There was no mention made of the improvements here in question in the written contract, and no mention of them further than the agreement to convey the land and premises by good and sufficient deed, together with an abstract showing a good, merchantable title. The contract was signed by ap-pellee and by Alexander & Dickert, by J. W. Fawver. A deed appears to have been delivered to appellants for the land some two weeks after the contract was executed. This deed is not in evidence or its terms shown. There appears to be no contention that there was a reservation of the improvements in the deed.

At the time of negotiating for the land, the appellants lived in Hill county and went to Floyd county, where this land is situated. Fawver and his firm had the land listed with them by appellee, Anderson, for sale. They procured the appellants as purchasers of the land and took them on the land to show it to them. Both he and the appellants testify that he did not tell appellants that the improvements did not go with the land. Faw-ver testified, at the time of stating the terms of the sale to appellants, he did not know the improvements did not go with the land, and there was no such reservation mentioned to him by appellee in listing the land for sale. The appellants, after looking at the land, returned to Hill county, and after reaching there wired the agent, Fawver, that they would take the land on the terms stated to them by the agent, and that he could draw up the contract on such terms and sign their names thereto. The contract was so drawn and signed, and appellants put up $1,000 as forfeit, which was to be applied on the cash consideration. In about two weeks after the contract was executed, they returned to Floyd county, paid the balance of the cash consideration, $8,000, and executed four notes for $960 each, for the deferred payment, and assumed about $4,000 due on the land to a third party. Both appellants testify that, when they went to Floyd county to conclude the matter, they then learned for the first time that appellee claimed the improvements did not go with the land and that he so stated to them. They both testify they did not reply to his statement, but considered that they had a contract for the improvements, duly executed, and that they had placed up a $1,000 forfeit. Anderson swears the improvements in question did not belong to him and that he so told Fawver, the agent, with whom he listed the land, and instructed him to reserve them in the trade. His two sons corroborate him in this statement, claiming to have been present when their father so instructed the agent. One of the sons also testified that, when appellants were first on the land to look at it, they asked him what improvements went with the land, and that he then told them the improvements in question did not belong to the land. The facts show, when the contract was drawn and signed, appellants, or either of them, were not present, but only Anderson, Fawver, and the lawyer drawing the instrument. Appel-lee testified that when it was drawn up Fawver told him the contract contained the full agreement and said it was just like he had the land listed, and that he (appellee) relied on the contract reserving the shack and lot, and that he thought the reservation was in the contract until some time after he signed it.- He also testified he was a very poor reader, but admits that he did read the contract, and also admits that Fawver also read it over to him. He admits that the contract in evidence was the contract signed by him and “guess it is just like it was when I signed it.” Anderson and his two sons also testified that, when appellants came back to close up the trade after making the contract, he told appellants the improvements were not to go with the place, and that appellants requested that they go out on the land and see just what the improvements were, and that they did go, and that he showed them the improvements, and that they said this was all right, and that they would go back and close up. This is denied by the appellants. They claim that they relied on the contract and did not agree to the reservation and did not go to the land for the purpose of discussing the improvements, as above stated.

The first assignment will be overruled. We think there was no error in refusing to consider the exception to the answer of the appellee, filed and presented after the pleadings had been read to the jury; at least, no such error as to require a reversal of the case under the pleadings and circumstances immediately surrounding the ruling of th$ court thereon.

Assignments 3, 4, and 5 assail the action of the court in submitting to the jury the question of fraud, accident, and mutual mistake in executing the contract, for the reason it is asserted there was no evidence raising such issue. In this we think appellants are correct. There was no reservation in the contract. There is no fraud shown which induced the appellee to sign the contract or deed. He shows by his testimony that he did not rely upon the representations of Fawver that the contract contained such reservation, but, on the contrary, he read the contract for himself and had it read to him. Appellee says he was not a good reader, but he does not show he could not understand when he did read, or that he could not understand when it was read to him. When a party undertakes to ascertain for himself the contents of an instrument, he will be charged with its stipulations, and the fact that fraudulent representations were made will not justify him in relying upon them; but he will be charged with the terms of the contract. Newman v. Lyman, 165 S. W. 136 (3); James v. Doss, 184 S. W. 623; Wright v. Bott, 163 S. W. 360. The facts establish that Fawver was the agent of the appellee in procuring appellants as purchasers for the land, and took them on the land and gave, them the terms. He did not represent to them at that time that there was to be a reservation. While he was so acting, he was the agent of appellee, and what he did and said, in so far as appellants were concerned at that time, was the act of appellee. Appellants accepted! the terms offered on the land, and all the terms of the contract were therefore made between appellee and appellant. The writing but spoke the agreement as made. The mere manual act of writing the contract did not confer upon Fawver the power to make a contract with different terms. He was only authorized to sign the names of the appellants to the contract which had been theretofore agreed upon. What the agent may have known prior to that time did not charge the appellants therewith. If he knew the reservation was to be made, he learned that fact as the agent of appellee, and not as the agent of appellant. If he dealt fraudulently with his principal, the appellants were not charged with it. There was no accident in omitting the reservation from the contract because it was not intended to be included. There was no mutual mistake because appellants never agreed to the reservation, and further there could have been no mistake on the part of appel-lee because he read and had read to him the contract, and he certainly, under such circumstances, would be charged with the knowledge that the contract contained no such reservation. He was unwilling to rely upon the representations of its contents as made by Fawver, but undertook for himself to ascertain the terms of the contract by reading and having it read.

The eighth assignment complains at the refusal of the court to give that part of the third requested instruction, which is to the effect that appellants would not be charged with Fawver’s knowledge of the reservation, if not communicated to them before entering into the contract. This proposition we believe to be correct. In placing apitellant’s name to the writing by Fawver, he was performing a mere ministerial act, which gave him no authority from appellants to make a contract or a different one to the one theretofore agreed upon. They had made the contract with him while he was standing in the place of appellee, and he had no authority to evidence by writing any other contract than that which was made while acting for appellee. Bank v. Bland, 189 S. W. 546 (6); Michaelis v. Nance, 184 S. W. 785 (3, 4); Storms v. Mundy, 46 Tex. Civ. App. 88, 101 S. W. 258. The doctrine of notice to the agent will be imputed to the principal is confined to those cases where the agent acquires his knowledge in the transaction of his principal’s business. Knowledge which .an agent has acquired in.business other than his principal’s camjot be imputed to the principal. Texas Loan Agency v. Taylor, 88 Tex. 47, 29 S. W. 1057; Kauffman v. Robey, 60 Tex. 308, 48 Am. Rep. 264; Teagarden v. Godley Lumber Co., 105 Tex. 616, 154 S. W. 973. The evidence clearly shows Fawver was appellee’s agent and not the appellants’ when he was notified the improvements were not to go with the land. In this case the improvements were clearly fixtures and passed with the fee. . There was no allegation or proof that the fixtures were placed on the land under such circumstances as would made them personal property. The evidence may suggest that they might have been placed there by some other person under some sort of arrangement; but just what such arrangement was is not disclosed, so we cannot determine that they were placed on the land under such circumstances as would make them personal property. If in fact the house belonged to some one else, it might be that appellants, with notice of such fact, or right, before they paid the purchase money, could not defeat the true owner out of the property. This we do not attempt to determine, however, or decide at this time; but such fact ought not to defeat appellants in a recovery of pro tanto damages for breach of the contract. When the deed was executed, it related back to the date of the contract and fixed the right of appellee and appellants under the contract as of that date. Armstrong v. Gifford, 196 S. W. 723; Holloman v. Bishop, 197 S. W. 1000. It is the general rule that the conveyance of land by deed containing no reservation of fixtures passes title thereto to the purchaser, regardless of a parol verbal sale or disposition of such fixtures. Brown v. Roland, 92 Tex. 54, 45 S. W. 795; Potter v. Mobley, 194 S. W. 205. There is, however, a class of cases where property is placed on land under a previous arrangement, by which the right to remove it from the landi is given, which treat such property as retaining the character of personalty. However, this record only presents for our decision the issue of fraud, etc., which was submitted to the jury, which we hold to have been error.

We are also inclined to think the second assignment should be sustained. The testimony of Casebeer, with reference to a statement made to him by Fawver, after the contract and deed had been executed, to the effect that the house and fence did not belong to the land, etc., was objected to, and presented by bill of exception. This-statement could not affect the contract and deed already executed. It was not admissible as impeachment of Fawver’,s testimony, to the effect that when the land was listed with him for sale there was no such reservation made by appellee. The mere fact that he was renting the land for appellants after ■they had purchased it did not make it admissible to impeach their conveyance of the property.

The judgment will be reversed, and the cause' remanded.
      <§=s>For'other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      ®=sFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes