author: GRAVES, J.

text:
    HOUSTON & T. C. RY. CO. v. LAWRENCE.
    (No. 7441.)
    (Court of Civil Appeals of Texas. Galveston.
    June 28, 1917.
    Rehearing Denied Oct. 4, 1917.)
    1. Railroads <&wkey;282(5) — Injuries to Persons — Ineants—Gontbibutoky Negligence —Capacity to Understand Danger.
    In a suit for injuries to a child 13 years of age invited to climb onto and ride on a moving box ear, evidence held, to warrant a finding that the child lacked capacity to understand the danger, and .that he was not guilty of contributory negligence.
    2. Railroads <®^282(4) — Injuries to Per-s'o ns — Negligen cei — Evidence.
    ' Where negligence charged is the permitting of plaintiff’s son to ride on a freight train by a brakeman, evidence of efforts, at a time such child was not present, to prevent children boarding defendant’s trains was immaterial.
    3..Damages <&wkey;'99 — Injuries to Child — Measure op Parents’ Damages.
    To determine damages of a parent for injury to a child, the expense of feeding and clothing is not to be deducted from the value of his services, since the parent has to feed and clothe the child anyway.
    4. Damages <&wkey;132(12) — Injuries to Child-Damages op Parent.
    Verdict for $4,500 held not excessive damages to a parent for loss of the arm of a 13 year old,boy, where the suit was not brought until the child was 21.
    Appeal from District Court, Harris County; J. D. Harvey, Judge.
    Suit by Mrs. Ella Lawrence against the Houston & Texas Central Railway Company. Judgment for plaintiff and defendant appeals.
    Affirmed.
    Baker, Botts, Parker & Garwood and Mc-Means, Garrison & Pollard, all of Houston, for appellant. Presley K. Ewing, of Houston, and Ewing Werlein, of New Orleans, La., for appellee.
   GRAVES, J.

This is one of those none too frequently presented cases in which the mutually exchanged courtesies between opposing counsel, and their fairness with each other and the court, enables us, in stating the case, to appropriate at will from either brief such recitations of fact as are deemed essential, practically without change; that privilege will accordingly be availed of:

Earl Lawrence, a boy of about 13 years of age, while riding upon a train of freight cars of appellant, attempted to ascend to the top of a box car from a coal car in which he then was, and in so doing, fell therefrom in such a way that his left arm was run over by the wheels, necessitating amputation near the shoulder. His mother, the appellee, Ella Lawrence, a widow, brought the suit to recover of the appellant for the loss of his services and earnings during Ms minority, laying her damages at $5,000. A trial before a jury resulted in a verdict and judgment for the appellee for $4,500, from which the appellant, after its amended motion for a new trial had been overruled, has duly presented this appeal.

The gravamen of Mrs. Lawrence’s complaint was that the injury to her child, he being then, from immaturity, of insufficient age and discretion to understand and appreciate the attendant dangers, was proximately caused to him on the particular occasion by two separate acts of negligence of the defendant, through its specified servant, one of the switchmen; first, in negligently permitting the boy to board the moving freight train, with knowledge that he was about to do so, although he could easily, it was alleged, by warning or sign of disapproval, have kept the child off; and, second, in negligently inviting and permitting the boy, by beckoning to him while he was riding in a coal car, to climb on the adjacent box car, whereby, attempting to do so, he fell and lost his arm.

Probably the most directly relevant portion of her petition specifying the negligence charged was the following:

“That plaintiff’s said son and his companions, on boarding said car on the occasion in question, got into an empty coal car, and while they were so riding there, one of defendant’s said employes, being a switchman, who was on a box car, beckoned to and invited plaintiff’s said son and his companions to go on said box car, which was westward of said coal car; to do which they had to climb up where the switchman was while the train was in motion; that pursuant to said invitation so given by said switchman, and because thereof, plaintiff’s said son and his companions undertook to go where said switchman was. on top of said box car; that one of the companions of plaintiff’s said son succeeded in doing so, but the attempt of plaintiff’s said son so to do, and 'while to that end he was climbing on said box car, he slipped, lost his hold, and fell between the cars of said train, when the wheels thereof passed over his left arm, cutting it off just below the shoulder joint; that at the time of said injury to plaintiff’s said son he was a minor, of immature years, to wit, only 13 years of age, without intelligence or discretion, and without experience sufficient to understand and appreciate the danger of boarding and riding said train, or the danger of undertaking to go on said box ear where said switchman was in the manner he attempted to do; that it was hazardous and dangerous and not reasonably safe for one of the immature years of plaintiff’s said son to board and ride said train as he undertook to do on the occasion in question, and it was especially dangerous and hazardous for one of his immature years to undertake to climb onto said box car, as invited to do by said switchman, and as he attempted to do on the occasion in question.”

Appellant’s special answer was that the boy was a trespasser upon its train, and was guilty of contributory negligence.

The case was submitted to a jury on special issues, and the jury found: (1) That one of the defendant’s employés, serving it as switchman on the train in question, beckoned to Earl Lawrence to come from the flat car on which he whs riding to the box cár, while the train was in motion; (2) and that such going onto the box car was dangerous for a boy .of Earl’s age and intelligence at that time; (3) that Earl at that time was of insufficient age and discretion to understand and appreciate tire danger to Mm in going onto tlie box car under the attending circumstances; (4) that the act of such switch-man in beckoning to him to come oMo the bos car was a failure to exercise such care to prevent danger to him as a person of ordinary prudence would have exercised toward him under like circumstances; (5) that the want of such care on the part of such switch-man was a proximate cause of Earl’s alleged injury; that is, a cause without which such injury would not have happened, and from which that injury or some like injury might reasonably have been anticipated as a natural and probable consequence; (6) that Earl, in attempting to go onto the box car in the manner in which he attempted to do so, exercised such Care as might reasonably have been expected of, that is, that would ordinarily be exercised by, a boy of his age and intelligence at that time, under the same or similar circumstances; (7) that one of defendant’s employ<Ss ■ serving it as switchman' on the alleged train saw Earl on the occasion in question, and realized that he was about to get aboard of such train; (8) that the boarding and riding on the cars of such train was dangerous for a boy of Earl’s age and intelligence at that time; (&) that at that time Earl was of insufficient age and discretion to understand and appreciate the danger to him of boarding and riding on such train under the attending circumstances;. (10) that such switchman, when he saw Earl about to board the train, failed to exercise such care to prevent him from boarding and riding on the train as a person of ordinary prudence would have exercised towards him under like circumstances; (11) that the want of such care on the part of such switchman was a proximate cause of Earl’s alleged injury; and (12) that Earl, in boarding and riding on the train in question, was in the exercise of such care as might reasonably have been expected of, that is, as would ordinarily be exercised by, a boy of his age and intelligence at that time, under the same or similar circumstances.

Appellant attacks the judgment mainly upon a contention which may be thus epitomized : That the great weight and preponderance of the evidence established the fact to such a degree as to render any other conclusion wrong, that Earl Lawrence was of such age and intelligence as that he could and should have appreciated the danger of boarding the coal car and of attempting to climb from it to the box car, while the train was in motion, and that his proven acts in both instances, under the circumstances shown, were such as á person of ordinary prudence similarly situated would not have done, and constituted such negligence upon Ms part as would preclude a recovery by his mother, in the absence of a showing that the switchman who permitted him to board the coal ear and invited him to climb therefrom to the box car, had authority so to do.

Such, we think, is the essence of the questions raised by the first four assignments, though predicated upon different rulings of the court. The single proposition deducible is that, in legal effect, the evidence was not sufficient to show that Earl Lawrence was of insufficient age and discretion to understand and appreciate, or to use appellant’s exact language, that he did not have the capacity to appreciate, the dangers from which Ms injury resulted, wherefore the court should have given appellant’s requested peremptory instruction, or else should have set the verdict aside. The litigants both concede, not only that the issue as to whether a child of Earl Lawrence’s age at the time of this injury has sufficient discretion, or capacity, to understand and appreciate the danger, is ordinarily a question of fact for the jury, but that here the burden of proving that fact was upon appellee; indeed, she predicated her right of recovery solely upon the claim that her son; Earl, was without the necessary capacity, understanding, and appreciation of the danger, and acknowledged the burden of establishing it as necessary to make out her case. These deductions reduce the issue as to mental capacity thus joined upon this appeal to practically one clear-cut question, and its determination is, we think, decisive of every question presented, except that as to excessiveness of the verdict.

After a most painstaking examination of the testimony, we are unable to agree to the contentions of appellant, but think the evidence amply sufficient to support the jury’s findings as to the lack of capacity of appellee’s son. Deeming it unnecessary, no attempt will be made to catalogue in detail the body of evidence upon which the jury based its findings, but a few of the more salient if not the controlling facts may be mentioned. While it seems to us there was little, if any, materiality in the matters relating to how, or under what circumstances, Earl got upon the coal car, the fact nevertheless remains that he was there, and what is of vastly more if not sole importance here is, that he attempted, under the conditions next recited, to' go therefrom onto the box car.

In reference to Ms attempt to pass from the one ear. to the other, the following facts were established with so little uncertainty or contradiction as to be practically without dispute: That the boy at the time of Ms injury was one month past 13, and small for his age; that appellant’s negro switchman was sitting on the box car immediately in front of the coal car into which Earl, with one or two' other boys, and with the switch-man’s full knowledge, had gotten and was riding; that this switchman had known these boys before; was friendly with them; and when he saw them in the coal car, he beckoned to them with his hand to come on up from there to the box car where he was, while the train was in motion; that when he did that, Earl, following one of- the companion boys, started across, but in making the effort, slipped and fell between the two cars and was injured; at this point he himself testified in substance: That if the switchman had halloaed at him and his companions, told them not to get on, or anything of that kind, or if he had objected to their getting aboard, witness would not have gotten aboard the train; but the switchman did not make any objection to his getting aboard. That if the switchman had not beckoned to him and his companions to come onto the box car from the flat car, he would not have gone onto that box car or attempted to do so. That he had before then ridden on the cars, going over to the cotton mills, on the trains of the defendant, the same way, and on these occasions the switchman connected with the train, including the one who beckoned them to come onto the box car, had seen him do so without objection, and that had objection been made he would have stayed off. That when the switchman beckoned to them to come on the box car, he did so; “didn’t think the switchman would call me into danger, and I saw the other boys go over there, and I thought I could go over all right. If I had known that it was dangerous for me to go onto that box car, I would not have gone.” That the. box car was five or six or seven feet higher than the coal car, somewhere along there. That the coal car and box car were coupled together, the former with sides about 24 inches high; could not say how far the cars were apart; and in getting from the coal car to the box car one would have to step on the outside of the coal car, and stand on the railing or board on the coal car, about two feet high, and step over; but did not remember how he did, only that he reached for the grabiron, the handhold, and the next thing he remembered he was being pulled out from under the train.

The trial occurred about 8 years after the accident; the jury had before them the injured boy; two of his companions on the coal car at the time of the injury, all of them grown men; his mother, with her detailed evidence as to what the boy was and could do before his injury; the man who pulled him from under the wheels and took him to the hospital; the claim agents of appellant, who took written sworn statements from the boys immediately following the occurrence, together with such statements; brakemen and others of its employés in charge of the train at the time; they were thus afforded a full opportunity, by the standards of ordinary intelligence, to gauge the reaches of this boy’s ability and capacity to understand and appreciate the danger of what he undertook to do, in the circumstances under which he attempted it.

When they have thus said that he did not have such capacity, this court would not feei at liberty in the state of this record, and under our decisions, to say, as a matter of law, either that there was no evidence to support their finding, or that the evidence was conclusive to the contrary. Cook v. Houston Direct Navigation Co., 76 Tex. 353, 357, 358, 13 S. W. 475, 18 Am. St. Rep. 52; M., K. & T. Ry. Co. of Texas v. Rodgers, 89 Tex. 675, 680, 681, 36 S. W. 243; M. K. & T. Ry. Co. of Texas v. Tonahill, 16 Tex. Civ. App. 625, 627, 630, 41 S. W. 875, 877; Id., 54 S. W. 419, error refused; and Tex. & Pac. Ry. Co. v. Mother, 5 Tex. Civ. App. 87, 94, 24 S. W. 79.

This conclusion necessitates the overruling of the' first four assignments.

No prejudicial error is disclosed by the fifth, sixth, and seventh assignments, for the reason that the appellee based her right to recover solely upon the negligent acts of the particular switchman on the specified occasion in permitting her child to go into such dangers, instead of preventing him from doing so, and testimony, in effect, that about the time Earl was hurt, on occasions at which he was not present, and as to which it is not claimed he had knowledge, the defendant had taken steps, through its employés, to prevent children boarding or riding on its trains as Earl was doing at the time of his injury, was, we think, wholly immaterial. The three named assignments are therefore overruled without further discussion.

The eighth and last assignment of error complains that the verdict is excessive for want of evidence to show that Earl Lawrence would have earned until he reached the age of 21 the sum of $4,500, only a single ground apparently being assigned, that is, that the verdict was for the full amount of liability under the most favorable view of the evidence, without taking into consideration the expense of educating, supporting, and maintaining the boy.

If, under a fair construction, this assignment only raises the one objection to the amount of the verdict that the jury did not take into consideration the expense of educating, feeding, and clothing the boy, and we are much inclined to think that its effect, the assignment would raise no legal issue, as applied to the facts of this case, because the damages recoverable by a parent for injuries to a minor child, not resulting in death, are not restricted to the value of the services of the child during his minority, less the expense of feeding and clothing; this is so for the reason that the expenses of feeding, clothing, and educating the minor during his minority devolve upon the parent anyway, and such expenses in the present case were not shown to have been diminished, but rather increased, by the injury. T. & P. Ry. Co. v. Morin, 66 Tex. 133, 18 S. W. 345.

But even if the assignment does properly raise the question of the sufficiency of the evidence to sustain the amount found by the jury, we think it equally not well taken, because the award rested upon ample support in the testimony; indeed, the assignment itself is almost, if not quite, an admission that the evidence, when considered from the most favorable viewpoint for appellee, and without deduction for the expenses above discussed, justified a verdict up to the amount awarded. • At any rate, we hold that it did, and hence this court would not be justified in revising the judgment on that account, either in whole or in part.

Finding no reversible error in the record, all assignments are overruled, and the trial court’s judgment is affirmed.

Affirmed.
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source: Caselaw Access Project

author: PLEASANTS, O. J.

license: Public Domain

text:
    HOUSTON BELT & TERMINAL RY. CO. v. WOLKARTE.
    (No. 7423.)
    (Court of Civil Appeals of Texas. Galveston.
    June 22, 1917.
    Rehearing Denied Oct. 4, 1917.)
    1. Masteb and Sebvant &wkey;>288(16) — Negligence — Assumption oe Risk — Evidence.
    Testimony of a car repairer that he had never worked with electricity, and that he was ordered to pick up a wire off the track of dg-fendant torn down by a wreck, and did not know it was a live wire, was sufficient to make the question of assumption of risk one for the jury.
    2. Masteb and Sebvant &wkey;5286(41) — Duty to Wabn — Evidence—Question eob Juey.
    Whether a foreman was negligent in ordering plaintiff to remove a wire torn down by a wreck, without warning him as to the danger, where plaintiff testified that he had never worked with electricity, and did not know the wire was a live one, held properly a question for the jury.
    3. Masteb and Sebvant &wkey;>278(20) — Supebi-ob Knowledge oe Masteb — Assumption oe Risk.
    Evidence held sufficient to support a finding that defendant railroad’s foreman, a master mechanic, had a knowledge superior to an em-ployé as to whether a wire torn down by a wreck was a live wire.
    4. Masteb and Sebvant <&wkey;>280 — Reliance on Mastee’s Supebiob Knowledge — Evidence.
    Evidence held to support a finding that a servant relied on the supposed superior knowledge of a foreman as to the safety of picking up a live wire tom down by a wreck on defendant’s track.
    Appeal from District Court, Harris County; Henry Dannenbaum, Judge.
    Suit by Edward G. Wolkarte against the Houston Belt & Terminal Railway Company. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Andrews, Streetman, Burns & Logue, Coke K. Burns, and W. L. Cook, all of Houston, for appellant. L. E. Blankenbecker, of Houston, and Ewing Werlein, of New Orleans, La., for appellee.
   PLEASANTS, O. J.

This suit was brought by appellee against appellant to recover damages for personal injuries suffered by him and alleged to have been caused by the negligence of appellant.

In substance, plaintiff alleges in his second amended original petition, upon which he went to trial, that the complained-of injuries were produced by electricity, which passed into his body by reason of his having seized with his hand a fallen live wire, under orders from his superior in the employment of the defendant. He alleges inexperience on his part in handling electric wires, and complains of the order alleged to have been given by the foreman, and of the method by means of which the removal of the wire was undertaken, asserting that the Light & Power Company should have been called on for assistance, and that this injury or some similar injury ought reasonably to have been anticipated, tie alleges the wire was pulled down by the defendant’s wrecking machine, engaged in clearing one of the main line tracks which had been blockaded by a wreck, and plaintiff was one of the members of the wrecking crew. He claims he did not know the wire was alive or dangerous, and claims that a person of ordinary care would have obeyed the order under the same or similar, conditions. Tr., pp. 2-7.

The defendant demurred to the material allegations in plaintiff’s pleadings,’ and denied all of same. It also alleged that the plaintiff and his fellow members of the wrecking crew were engaged in interstate commerce at the time of the accident in question, in that they were cleaning up a wreck which obstructed a track over which regularly moved trains engaged in the carriage of freight and passengers in interstate commerce, particularly between the state of Texas and the state of Louisiana. It was further alleged, in this connection, that the wrecked car which was being removed from the track at the time the wire in question fell to the ground was a part of a train of cars containing interstate commerce, particularly goods being moved from points in the state of Texas to and beyond the state of Louisiana.

Defendant pleaded assumed risk in the following language:

“For further and special answer, if answer be required, defendant says that plaintiff should recover nothing by his suit, because the injuries sustained by him, if any, were proximately caused, and not otherwise, by risks, dangers, and hazards which- he assumed. In this connection, defendant shows the court that the danger of suffering injury by contact with the wire in question was a danger open, patent, and obvious, resulting from the operation of a plain, natural law, and the same was a danger which said Edward G. Wolkarte fully understood and appreciated, . as he did also the means of avoiding such danger; and said danger and the means of avoiding same must necessarily have been well known, understood, and appreciated by said plaintiff if he was then and there in the exercise of ordinary care in and about the work he was doing. Furthermore, said Wolkarte was in as favorable position to know and appreciate the danger as was any alleged vice principal of the defendant; and defendant shows that any person, though of immature years, and discretion, would necessarily have appreciated the danger of taking hold of a live wire with the bare hands.”

Defendant also pleaded contributory negligence in the following language:

“For further and special answer, if answer be required, defendant shows that plaintiff was guilty of contributory negligence, in that he took hold of the wire in question, which was charged with electricity, with knowledge that same was so charged, which action on his part was contrary to what would have been done by a person of ordinary prudence under the same or similar circumstances; and defendant pleads that the negligence of said Wolkarte was either the sole proximate cause of any injuries he sustained, or, in the alternative, that such negligence was a contributing cause, which should operate to diminish any damages he might recover.”

The trial in the court below with a jury resulted in a verdict and judgment in favor of plaintiff in the sum of $2,500.

The evidence shows that, at the time of his injury, appellee was in the employment of appellant in the capacity of car repairer, and was working with a wrecking crew of appellant, replacing upon the track and repairing cars in a freight train on appellant’s road which had been derailed.

The following agreement was entered of record during the trial:

“It is agreed by and between the parties to this suit that the track upon which the wreck, referred to in the evidence, occurred, was the main line track of the Houston Belt & Terminal Railway Company, over which trains in interstate commerce moved from Texas to Louisiana, and vice versa; and also that this particular train that was wrecked was an interstate train.”

The wreck occurred on the night of August 23, 1914. The crew of which appellee was a member reached the scene of the wreck about 9 o’clock p. m. on said date. Mr. Jacobs, the master mechanic for appellant, was in charge of the crew and directed the work. He had authority to discharge appellee if his orders were not obeyed. Upon reaching the place of the wreck, the wrecking crew went to work under the orders of Jacobs, getting the wrecked cars out of the way and clearing the track. Appellee was at work under one of the ears adjusting some appliance for moving the car when he heard an order given to the wrecking engine to back up. He at once came from under the car, and when he got out he saw a wire fall from the engine across the track. Jacobs ordered appellee’s brother, J. R. Wolkarte, to cut tbe wire and get it off the track. This order was obeyed, and J. R. Wolkarte after cutting the wire took one end and carried it to one side of the track, and Jacobs called upon appellee to come with him and take the other end off the track. Appellee obeyed the order and he and Jacobs took hold of the wire for the purpose of removing it.

The wire, which was a telegraph or telephone wire, was charged with electricity, and "Vioth of them received a shock. Jacobs let loose the wire and ran and was not injured, .but appellee was unable to let go and was badly burned and severely shocked. Tbe extent of his injuries and the reasonableness of the compensation allowed therefor by the jury are not questioned in this appeal.

Appellee testified that he did not know where the wire came from, and did not know it was a live wire when he took hold of it. He further testified:

“I am a skilled ear repairer. As car repairer I never have seen any electricity around the cars. I have never been engaged in electrical work, only to shave poles out on Commerce street; but they didn’t have no wires where I was shaving the poles. I have never in my life done any electrical work, or had any dealing with electricity. I have never had to handle electrical wires at any time, outside of this one occasion. As to what I thought about that wire, whether it was alive or dangerous, when my brother, John Wolkarte, cut the wire in two, Jacobs ordered me to go with him and get hold of the same wire my brother had in his hand, and I was led to believe he knew what was in that wire, and what he was doing, and I had full confidence in Mr. Jacobs as a master mechanic, and I went forward with him and picked it up not knowing or believing it was dangerous; if it had been dangerous I never would have taken hold of it.”

Jacobs knew that the wire was charged with electricity when he ordered appellee to assist Mm in removing it. There was testimony contradicting appellee’s statement that he did not know, when he took hold of the wire, that it was a “live wire.” In a former trial he testified that when his brother cut the wire he stood on a dry piece of wood and used a felt hat to protect Ms hand when he took hold of the wire. In this trial he explained this statement by saying that he did not see his brother on the wood and use the hat, and his testimony on the former trial as to those facts was based on what his brother had told him after the accident occurred.

The verdict of the jury, which was returned upon special issues, finds the following facts:

“(1) That plaintiff was injured substantially as alleged m his petition. (2) That the defendant s toreman, Jacobs, in the course of Ms services for defendant, gave to the plaintiff an order or direction to take hold of the wire in question. (3) That such' act on his part was negligence towards plaintiff; that is, a failure to exercise towards plaintiff such care as a person of ordinary prudence would have exercised under like circumstances. (4) That such negligence on the part of the foreman, Jacobs, was a proximate cause of alleged injury to plaintiff; that is, a cause without which the injury would not have happened, and from which the injury or some like injury might reasonably have been anticipated as a natural and probable consequence ; in other words, a person of ordinary prudence, situated as was Jacobs on the occasion in question, could reasonably have anticipated injury to the plaintiff, or to such person as might -respond to an order to take hold of the wire, as a result of suqh order. (5) That Ed. Wolkarte did not know that the wire was a live wire prior to the time he took hold of it. (6a) That neither the risk nor danger to plaintiff of suffering injury by contact with the wire in question was a risk or clanger open, patent, and obvious to him before he took hold of it. (6b) That neither tbe risk nor danger to plaintiff of suffering injury by contact with the wire in question was a risk or danger fully understood and appreciated by Mm before he took hold of it. (6c) That neither the risk nor danger to plaintiff of suffering injury by contact with the wire in question was one that must necessarily have been known, understood, and appreciated by him before he took hold of it, if in the exercise of ordinary care in and about the work he was doing. (7) That, in taking hold of the wire, Ed. Wolkarte relied upon supposed superior knowledge of Jacobs with reference to the danger of doing so. (8) That the danger of taking hold of the wire in question, at the time plaintiff was instructed to take hold of it, was not a danger as easily ascertained and understood by the plaintiff, Wolkarte, as by Jacobs, the master mechanic, under the existing circumstances. (8a) That a person of ordinary prudence situated as was Ed. Wolkarte on the occasion in question, and immediately prior to the time he seized the wire, would not necessarily have believed it was dangerous to take hold of same. (9) That the act of the plaintiff in taking hold of the wire was not negligence on his part, under the attendant circumstances; that is, there was no failure on his part to exercise such care as a person of ordinary prudence would have exercised under the same or similar circumstances.”

The first assignment of error complains of the refusal of the court to instruct the jury to return a verdict for the defendant, on the. ground that upon the facts of this case plaintiff, as a matter of law, assumed the risk of the danger which was the proximate cause of his injury. By the second assignment complaint is made of the refusal of the court to instruct a verdict for defendant upon the ground that the evidence does not raise the issue of any negligence on the part of the defendant which proximately caused the injury to plaintiff. Neither of these assignments can he sustained.

The evidence clearly raises the issue of whether plaintiff knew that the wire was “live” when he took hold of it upon the order of Jacobs, a vice principal of appellant.

When the evidence does not conclusively establish that the risk was known to ’ the plaintiff, or was open and obvious to common observation, or that, in the performance of his duty at the time of the accident, he must, in the exercise of ordinary care, necessarily have discovered 'the danger, the issue of assumed risk is a question of fact to be determined by the jury. We think the evidence warranted the jury in finding against defendant’s plea of assumed risk. The evidence also authorized the jury to find that Jacobs was negligent in ordering plaintiff to take hold of a wire which he knew to' be charged with electricity, without warning plaintiff of the danger of handling the wire. The master and servant do not stand upon equal footing even when they have equal opportunities to discover the danger. The subordinate position of the servant and his duty to obey the master gives him the right to rely, to some extent at least, upon the superior knowledge and skill of the master, and to assume that he will not be ordered into a place of danger. Ry. Co. v. Carter, 47 Tex. Civ. App. 309, 104 S. W. 910; Beck v. Texas Co., 105 Tex. 303, 148 S. W. 295; A. L. Clark Lumber Co. v. Northcutt, 95 Ark. 291, 129 S. W. 88; Telephone Co. v. Evetts, 188 S. W. 289; Marshall v. Ry. Co., 107 S. W. 883.

The remaining assignments of error complain of the seventh and eighth findings of the jury, above set out, that plaintiff in taking hold of the wire relied upon the supposed superior knowledge of Jacobs, and that the danger of taking hold of the wire was not as easily ascertainable by plaintiff as it was by Jacobs. These findings are attacked on the grounds that there is not evidence to sustain them, and that each of them is against the overwhelming weight and preponderance of the evidence. We think the evidence is sufficient to sustain both of these findings, and neither of them is so against the weight and preponderance of the evidence as to justify this court setting it aside.

It follows from the conclusions above expressed that the judgment of the court' below should be affirmed, and it has been so ordered.

Affirmed.'
      other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HARPER, C. J.

text:
    GUARANTY TRUST CO. OF NEW YORK v. GREEN.
    (No. 727.)
    (Court of Civil Appeals of Texas. El Paso.
    Oct. 11, 1917.)
    1. Appeal and Error <&wkey;1041(l) — Erroneous Finding — Harmless Error.
    Even if the court erred in finding that the amended pleading set up a new cause of action, it was immaterial, in view of the holding hereinafter that defendant was not a party to the suit at the time citation was issued.
    2. Judgment <&wkey;>944 — Foreign Judgment-Validity — Evidence.
    In a suit on a foreign judgment, held, under the evidence, that the trial court was justified in finding that defendant was not a party to the suit at the time judgment was entered against him, and that the judgment was a nullity for want of jurisdiction.
    Appeal from District Court, Jones County; Jno. B. Thomas, Judge.
    Suit by the Guaranty Trust Company of New York against Willie W. Green. Judgment for defendant, and plaintiff appeals.
    Affirmed.
    G. M. Shelton, of Hamlin, for appellant. Joe C. Randel, of Hamlin, for apipellee.
   HARPER, C. J.

This suit originated in the district court of Jones county, Tex., wherein the plaintiff, appellant in this cáse, Guaranty Trust Company of New York, trustee, sued the defendant, Willie W. Green, upon a foreign judgment obtained in the state of Missouri for the sum of $1,335.20, and was tried before the court on the 2d day of August, A. D. 1916, a jury having been waived, and the court rendered judgment in favor of the defendant, Willie W. Green, and against the Guaranty Trust Company, appellant herein, for all costs of suit. The plaintiff thereafter filed its appeal bond, appealing said cause to the Court of Civil Appeals for the Second Supreme Judicial District, at Ft. Worth, Tex., and the cause is now transferred to this court for hearing.

The trial court made the following findings of facts and conclusions of law:

“First. Plaintiff showed that on the 13th day of February, 1914, Stephen H. P. Pell, Howland H. Pell, and Charles A. Kipple, copartners, doing business under the name of S. H. P. Pell & Co., as plaintiffs, filed suit against W. M. Green in the circuit court of the city of St. Louis, Mo., for the sum of $1,243.38; that upon the filing of said petition a writ of summons was issued by the clerk of said court to the sheriff of St. Louis, commanding him to summons W. M. Green to appear before the judge of said circuit court on the first Monday in April, 1914; that the sheriff, intending to serve W. M. Green, as shown by his return on the citation on the 13th day of Febraary, 1914, executed the writ by delivering to Willie W. Green a copy of the writ and petition in the city of St. Louis; Mo.; that on May 12, 1914, the plaintiffs in said cause in said circuit court, by leave of the court, filed their amended petition, setting up the fact that Willie W. Green was the actual defendant in said suit and not W. M. Green, and setting up a different cause of action than alleged in their original petition.
“Second. That W. M. Green and Willie W. Green are two separate and distinct persons, and both residents of Texas, and never resided in the city of St. Louis, nor state of Missouri.
‘‘Third. That at the time of the service on Willie W. Green in the city of St. Louis, Mo., there was no case pending against him in any of the courts of Missouri; and that after the amended petition was filed making him a party to the suit he was not served with notice nor_ citation and knew nothing of the suit against him until after judgment had been rendered against him, to wit, on September 9, 1915, being the judgment sued upon herein; that thereafter in June, 1916, the defendant Willie W. Green was demanded to pay said judgment, which was the first time that he knew or had any knowledge that said suit and judgment was against him.
“Fourth. That said judgment was taken by default against the said Willie W. Green, and without Ms appearance in person or by attorney, and without his knowledge of said suit.
“Fifth. The court further finds as a fact that S. H. P. Pell & Co., the original plaintiffs in the case in the said circuit court of Missouri, went into bankruptcy, and that the Guaranty Trust Company of New York, trustee of said bankrupt, was substituted as plaintiff in said cause before judgment, and that said judgment was entered for said Guaranty Trust Company, as trustee.
“Sixth. That on September 9, 1915, the circuit court of the city of St. Louis, Mo., rendered judgment in favor of the Guaranty Trust Company, trustee, against the said Willie W. Green for the sum of $1,335.20, and is the judgment sued upon herein.
“The court concludes as a matter of law from the foregoing facts, as follows:
“First. Said judgment sued upon herein being a foreign judgment, rendered by default, and without personal service, is not a valid judgment and would not support a cause of action.
“Second. Said judgment being a foreign judgment, rendered without having any jurisdiction of the person of the defendant, Willie W. Green, is void and of no force and effect whatever.”

The third assignment is that the court erred in finding that the amended pleadings upon which judgment was rendered set up a new cause of action. In view of the holding hereinafter that the appellee was not a party to the suit at the time citation was issued, it is immaterial whether the amended petition set up a new cause of action.

Fourth assignment:

“Plaintiff assigns as error that portion of the court’s third conclusion of fact, wherein the court finds as a fact that at the time of the service on Willie W. Green in the city of St. Louis, Mo., there was no case pending against him in any of the courts of Missouri.”

The record discloses that the original petition filed in the circuit court of St. Louis, February 13, 1914, named W. M. Green defendant The citation issued and served same date was addressed to same party. At the April term, 1914, an amended petition was filed, setting up that the debt sued upon was contracted by W. M. Green & Son, a co-partnership composed of W. M. Green and Willie W. Green.

Following the filing of said amended petition, same term, the following motion was filed:

“Now come the plaintiffs in the above-entitled cause, and file this their motion to amend the summons and return in the above-entitled cause, as follows: (1) The summons as issued by the clerk commands the sheriff to summon the plaintiffs, instead of to summon the defendant, and in the same manner names the defendant as plaintiff instead of as defendant; and the summons should read: ‘We command you to summon Willie W. Green to appear,’ etc., ‘to answer the complaint of Stephen H. P. Pell, Howland H. Pell, and Charles A. Kittle, co-partners doing business under the name of S. H. P. Pell & Co.’ (2) The return of the sheriff on the above summons is as follows: ‘Executed this writ in the city of St. Louis, Mo., this 13th day of February, 1914, by delivering a copy of the writ and petition as furnished by the clerk to W. M. Green, defendant herein.’ By mistake the defendant in the original petition was named as ‘W. M. Green,’ when in fact he should have been named as ‘Willie W. Green’; that, in point of fact, the defendant, Willie W. Green, was actually served with a copy of the writ and petition, and is the defendant on whom the sheriff made service, and the sheriff’s return should therefore return service on the defendant, Willie W. Green. Wherefore plaintiffs move the court to order the summons, and the return thereon, to be amended in the particulars herein mentioned and set forth.”

At the June term, 1915, the court granted the motion to amend “the summon.” The clerk issued the citation to Willie W. Green and dated it February 16, 1914, and the return on this is dated February 13, 1914. ■

The question then is, was the trial court correct in finding as a fact from this evidence that Willie W. Green was not a party to the suit at the time judgment was entered? We think so clearly. It is evident that the father was the party against whom suit was intended to be filed, and that when it was discovered that he had not been served but another had been — the son- — as an afterthought this attempt was made to change the personnel of the party sued.

The first and second assignments charge that the court erred in its first and second conclusions of law, copied above. Since we hold that the trial court was correct in finding as a fact that the appellee, Willie W. Green, was not a party to the suit, it follows that the conclusions of law complained of are correct.

The circuit court of St. Louis, Mo., not having acquired jurisdiction, its judgment is a nullity. Redus v. Burnett, 59 Tex. 576.

The assignments are therefore overruled, and cause affirmed.
      (§£=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    FOOKE, WILKENS & LANGE v. HEFFRON.
    (No. 7412.)
    (Court of Civil Appeals of Texas. Galveston.
    June 19, 1917.
    Rehearing Denied Oct. 4, 1917.)
    1. Municipal Corporations <&wkey;621 — Building Ordinances — Validity — Powers op Council.
    Galveston ordinance making it unlawful, “except when otherwise ordered by the board of ' commissioners,” to erect any wooden buildings within certain limits, is'valid, and confers power upon the commissioners, by issuing a building permit, to authorize the building of a wooden structure within the limits specified.
    2. Injunction <&wkey;5 — Right to Remedy — Mandatory Injunction.
    The mere fact that plaintiffs’ fire hazard and rates of insurance were greatly increased by erection and maintenance of a building of wood on the adjoining lot under valid pei’mit did not entitle them, by mandatory injunction, to require the building to be torn down, especially when, with full knowledge in advance, they stood by and made no complaint until the building was finished.
    Error from District Court, Galveston County; Clay S. Briggs, Judge.
    Suit by. Focke, Wilkens & Lange against Isaac Heffron. Judgment for -defendant and plaintiff brings error.
    Affirmed.
    McDonald & Wayman, of Galveston, for plaintiff in error. Geo. Q. McCracken and Frank S. Anderson, both of Galveston, for defendant in error.
   GRAVES, J.

Plaintiffs in error filed this suit against defendant in error, alleging, in substance, that they were the owners of a building of the value of $60,000, located inside the fire limits of the city of Galveston, in which they kept and conducted a wholesale grocery house, carrying at all times merchandise to the value of approximately $100,000; that defendant had erected, and was maintaining on the adjoining lot, a building and its appurtenances constructed of wood, partially covered with thin sheets of corrugated iron, and that such building was erected in violation of ordinances of the city of Galveston, commonly known as the “Building Code,” prescribing the kind and character of buildings that might be erected within certain designated limits, known as the fire limits; that, by reason of the maintenance of such building, their property was subjected to a great fire hazard, and that the annual premiums on their insurance had, by reason thereof, been increased as much as $400. After setting forth the provisions of the ordinances, hereinafter quoted, and after pointing out the particulars wherein it was claimed the building failed to conform to the Building Code, they prayed for the issuance of a mandatory injunction requiring defendant to take down his building, or make it conform to the Building Code, and also asked for damages to the amount of their increased insurance premiums.

Defendant, among other things, answered, in substance, that he was granted a permit under the Building Code by the board of city commissioners of the city of Galveston, authorizing him to erect and maintain such building, and that pursuant to such permission, he erected the same; that the building did conform, in fact, to the permit granted, and to the Building Code, attaching to his answer as an exhibit a copy thereof; that plaintiffs had notice of .the commencement of j tile construction of the building complained of, and permitted defendant to construct the same without objection, and that they made no protest; and that, by reason of not having offered to reimburse defendant for the moneys expended by him in the erection of the building, they were not entitled to a mandatory injunction. The court found the facts to be substantially as thus alleged in this answer.

Trial was had before the court without a jury, resulting in a judgment in favor of defendant in error, and that plaintiffs is error take nothing by their suit. The latter have appealed.

Such further statement as is thought necessary will be made in what follows.

The main contentions of plaintiffs in error are presented under their first and second assignments, which may be somewhat abbreviated as follows:

(1) “The court erred in his failure to hold under the undisputed evidence that the building erected by defendant was not erected in violation of section 179 of said Code, in that said building is not inclosed on all sides with walls constructed wliolly of stone, brick, Portland cement, concrete, iron, or steel, but is a wooden frame building covered with thin sheets of corrugated iron.”
(2) “The court erred in refusing to grant plaintiffs a writ of mandatory injunction, requiring defendant to take down said iron-clad building, or to make the same conform to the Building Code of the city of Galveston, because it affirmatively appears from the court’s findings of fact that said building was erected within the fire limits of said city, and was constructed of wood, with a wooden roof, and covered with thin sheets of corrugated iron; is not inclosed on all sides with walls constructed wholly of stone, brick, Portland cement, concrete, iron, or steel, or other hard, incombustible materials, being therefore in violation of said ordinances, and subjecting defendant to criminal prosecution for the erection and maintenance thereof, and being a nuisance within the meaning of the law, and should have been ordered abated by the court.”

The trial court filed findings of fact and conclusions of law. No attack is made upon the former, but the latter are vigorously assailed. Prom the fact findings, this description of the building complained of is taken:

“The building is located about 6 or 9 feet west of plaintiffs’ property, extending parallel with the west walls of plaintiffs’ building, a distance of between 60 and 70' feet, being 30 feet wide and about 30 feet high from the ground, and about 25 feet from the floor of the building to the top of same, the building being built of wood and corrugated iron, being a one-story building with a floor about 6 feet above the ground, the floor being upheld and resting on wooden uprights 8x8 inches, about 6 feet long, and placed 6 or 8 feet apart; the roof being supported by 2x4 wooden uprights, about 2 to 3 feet apart, resting on the sills; the roof supports being built wholly of wood and covered on top with corrugated iron; the eaves of the roof extending over the wall on the sides next to plaintiffs’ property about 4 feet, and being uncovered underneath; the walls of said building consist of wooden uprights and sills, covered with corrugated iron.”

All the material averments by plaintiffs in error as to the ownership, location, values, and increased insurance upon their property and building, were found to be substantially true, as_ alleged.

The two sections of the Building Code around which this controversy in the main revolves, and which plaintiffs in error contend alone prescribe the kind of buildings that may be erected within the fire limits, except those especially named in succeeding sections, are here copied in full, omitting boundaries:

“Sec. 177. It shall not be lawful, except when otherwise ordered by the board of commissioners to erect, build, place, enlarge or repair any wooden building or structure, or any building or structure whatsoever, constructed of wood or with a wooden roof, or arrange, keep, locate or establish any lumber or wood yard, or place for the purpose of carrying on the business of lumber dealing, or for the storage of cord wood, except in quantities of less than twenty cords thereof, in this city within the following boundaries.”
“See. 179. Every building hereafter erected or altered within the fire limits shall be inclosed on all sides with walls constructed wholly of stone, brick, Portland cement, concrete, iron or steel, or if approved by the building inspector, other hard incombustible material; except that buildings covered by the following sections of this part, may be permitted if in the judgment of the building inspector the public safety is not endangered thereby.”

The sections referred to in the concluding sentence of 179, and following immediately in consecutive order after it in the Code, are sections 180 to 186, inclusive; of these, sections 180 to 183, inclusive, in effect, provide that, upon permits issued by the building inspector, and under' certain other prescribed conditions not deemed necessary to recite, the following specified kinds of buildings may be erected within the fire limits, to wit: (1) Grain elevators and coal packets, or elevators as usually constructed; (2) buildings for fair and exhibition purposes, towers for observation purposes, and structures for similar uses; (3) temporary one-story frame buildings for the uses of builders; (4) exterior privies and wood or coal houses not exceeding 150 square feet in superficial area, and 8 feet in height, etc.

Sections 184 to 186, inclusive, prescribe in detail the kind and character of construction required of frame buildings generally, whether located within or without the fire limits, with especial reference to their height, the manner of construction of walls, studding, floor and ceiling joists, and their position with reference to the lot or property lines.

We think it clear that the building in question was not one of the kinds specially named in any of these sections following 179; if, therefore, they are to be construed as not permitting the erection within the fire limits of any other kind of buildings of frame, or wooden, or part such construction, than those particularly enumerated therein, then de-I fendant in error was relegated alone to the special power conferred upon the board of commissioners by the excepting clause in section 177 for any authority to erect the building he did; because, as already shown, the court found that the walls of this building consisted partly of wood, and not wholly of stone, iron, etc., as required by section 179.

If this be the net effect of the Building Code, considered in its entirety, and the majority of the court think it is, this member only holding a contrary view, hereinafter stated, then the only hope of plaintiffs in error for relief by injunction was in showing the excepting clause of section 177 alone invalid upon its face, and the balance of that section valid; and this for two reasons: (1) If the whole section should fall, that is, if there were no restriction at all left upon what would otherwise be a perfectly reasonable and lawful use by an owner of his own property, that is, putting a corrugated iron building upon it, no injunction would lie to prevent such use; (2) if the excepting clause could not be declared void without invalidating the section as a whole, the result just stated would obtain.

But, upon the other hand, if all relevant sections of the ordinance, when considered together, may be interpreted as authorizing the erection within the fire limits of frame, or part frame, buildings generally, and not those only specifically named in sections ISO to 183, inclusive, “if in the judgment of the building inspector, the public safety is not endangered thereby,” as is last provided for in the quoted section 179, and the writer thinks such their proper construction, then defendant in error was not dependent for legal sanction of the erection of his building upon the exercise by the board of commissioners of the special power conferred, or attempted to be conferred, upon them in the italicized clause of section 177, and it would not be necessary to determine its validity; because the court found that he erected the particular kind of building he did, not only with the consent of this board, but also under a permit from the building inspector, and that the building was constructed under the direction and supervision of the inspector, and hence was directly authorized by section 179. Under the majority view of the meaning and effect of the Building Code, however, it becomes directly necessary to pass upon the validity of section 177 as it stands, and that question will now be considered.

Insisting that the excepting clause is absolutely void, and the remainder of section 177 valid and legal, plaintiff's in error further contend that this left the erection and maintenance of the building in direct violation of law, and a continuing nuisance, for the abatement of which the injunction asked would properly lie. And upon this one foundation only, the asserted right to injunction against the maintenance of that character of building in that place, that is, within the fire limits, is predicated; in other words, that the building was a nuisance because built partly of wood and partly of iron, and not wholly of stone, iron, or other incombustible material, as required by the only remaining valid parts of the Building Code; that is necessarily the position taken when boiled down, because there is neither allegation nor proof that the board of commissioners acted arbitrarily or discriminat-ingly in granting the permit to Ileffron, nor that his use of the building was objectionable.

The particular objection lodged against the attacked section of the ordinance is, that it fails to prescribe a uniform rule or test, applicable to all alike who may come within its terms; but is an attempt by the board of commissioners to reserve to themselves the arbitrary prerogative of granting special privileges, in that they may, at their own unbridled discretion or whim, without conforming to any fixed requirements, grant to one the privilege of erecting other than an all stone or iron, etc., building within the fire limits, and at the same time, under exactly the same circumstances, refuse it to another similarly situated.

In support of this position, in addition to several opinions from the courts of other states, the main authorities cited are the ease of Yick Wo v. Hopkins, 118 U. S. 356, 6 Sup. Ct. 1064, 30 L. Ed. 220, by the Supreme Court of the United States, and the able dissenting opinion of Chief Justice Davidson in Ex parte Broussard, 74 Tex. Cr. 338, 169 S. W. 660, by the Court of Criminal Appeals of Texas.

After a very careful consideration of the question and of the authorities relied upon, we have concluded that the ordinance is not subject to the attack thus made upon it. One very distinctive, if not controlling, difference between the two opinions just mentioned and the case at bar is that in both of them the ordinances complained of were so treated and administered by those in official charge as that actual discrimination of a pronounced type resulted; in the Yick Wo Case, against the Chinese as a class, prohibiting them from operating laundries in the city of San Francisco, Cal., on equal terms with others of different races; and in the Broussard Case, against the relator as an individual, in denying to him the privilege of keeping more than six cattle within 300 feet of a private residence in the city of Beaumont, Tex., while at the same time permitting 23 others of his fellow citizens to do that very thing under precisely the same conditions. Both the opinions referred to show these facts, and, upon them as a basis, very properly, we think, held the ordinances as so construed and administered discriminatory and invalid.

However, we think a much more nearly direct determination of the question presented in this case than was done in either the Tick Wo Case, or the dissenting opinion in the Broussard Case, supra, was made by the Supreme Court of the United St ates in the later case of Fischer v. St. Louis, 194 U. S. 361, 24 Sup. Ct. 673, 48 L. Ed. 1018. In that case the ordinance was:

“No dairy or cow stable shall hereafter be erected, built or established within the limits of this city without first having- obtained permission so to do from the Municipal Assembly.”

The court there had under consideration the bare question of the validity of the ordinance, considered aside from its actual operation and administration, no complaint having been made of any discrimination in its administration, just as is the situation in the case at bar. The validity of that ordinance was sustained by the court in an opinion which we have not found to have been since overruled.

Nor do we think, as is ably demonstrated in both the majority and minority opinions in Ex parte Broussard, that there is any conflict in doctrine between the Tick Wo and Fischer Cases; and especially would the doctrine of both be the same, we think, when applied to the undisputed facts here, where there was a total absence of any pretension of unfair or unlike treatment as between persons similarly situated.

Another marked difference between those cases and this is that in each of them the complainant himself had been directly discriminated against, and hence actually victimized by the unequal operation and administration of the law, whereas here, as already stated, no discrimination against any one was even charged, nor was it alleged that any one had ever been refused a like permit to that granted Heffron, but the position of plaintiffs in error with reference to the matter was- merely that they were the owners of adjoining property, and their fire hazard and rates of insurance therein had been greatly increased by the erection and maintenance of Heffron’s building upon the lot next to theirs. We cannot hold that this one fact, under all the conditions and circumstances shown here, entitled them, by the method of the mandatory injunction asked, to require him after completion to tear down his building and put up another of entirely incombustible material; especially when, with full knowledge in advance of what he was going to do, and unhampered opportunity to both see and know what he was doing throughout his- building process, they stood hard by and made no complaint of any sort until after his expense had been outlaid and his building completed, and then sought through the writ of injunction to have it razed.

Our conclusion that section 177 is not void upon its1 face obviates any necessity of determining the further contingent question suggested, as to whether a part of it could be held void without invalidating the whole. And it also logically results that, in our opinion, the trial court did not err in the following conclusion of law:

“That defendant, in the construction of said building, acted in accordance with the power and authority granted him by the board of commissioners of the city of Galveston, and under proper and valid building permit issued by the building inspector of the city of Galveston, all in accordance with the provisions of the said Building Code of said city.”

Accordingly, the erection and maintenance of the building being a lawful use of his own property by defendant in error, he could neither be deprived of such use by injunction, nor made to respond in damages by reason of its exercise.

From these considerations, it necessarily follows that all assignments must be overruled, and the judgment of the trial court affirmed, and it has been so ordered.

Affirmed.
      i&wkey;>For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: BOXCE, J.

text:
    PANHANDLE & S. F. RY. CO. v. PHILLIPS.
    (No. 1223.)
    (Court of Civil Appeals of Texas. Amarillo.
    Oct. 17, 1917.)
    Carriers <&wkey;212 — Delivery — Interstate Shipment — “Transportation.”
    In view of Interstate Commerce Act, § 1 (U. S. Comp. St. 1916, § 8563[2]), defining “transportation” to include services in connection with receipt, delivery, etc., the duty to deliver an interstate shipment of calves to the commission company to whom they were consigned was nondelegable, and where delivery could not be made in the pens of the consignee the duty of transportation was 'not fulfilled by delivery at the chutes of the stockyard company, which placed them in inaccessible pens where there were no facilities for feed or water.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Transportation.]
    Appeal from Hale County Court; Charles Clements, Judge.
    Suit by Jim Phillips against the Panhandle & Santa Fé Railway Company. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Terry, Cavins & Mills, of Galveston, Madden, Trulove, Ryburn & Pipkin, of Amarillo, and L. R. Pearson, of Plainview, for appellant. Mathes & Williams, of Plainview, for appellee.
   BOXCE, J.

This suit was brought to recover damages to a shipment of calves made by appellee from Plainview, Tex., to Kansas City, Mo. The usual allegations of negligent delay and consequent damages are made, and in addition it is alleged that the cattle were held in the unloading pens at Kansas City for a considerable time without feed and water. The principal complaint is based on the action of the court in the submission of the issue presented by the latter allegation.

It is shown that the stock pens at Kansas City are owned and operated by the Kansas City Stockyards Company, an independent corporation. Upon arrival of the stock at Kansas City the railway company sets the cars to the unloading chutes and the cattle are unloaded by the stockyards company. When the shipment is consigned to any of the commission companies engaged in the sale of cattle on this market the stockyards company deliver such cattle to the pens of the particular commission company to which the stock are consigned. These pens are also owned' by the stockyards company, but for convenience in yarding the cattle and exhibiting them for sale each commission company has set aside to its use certain pens. This has been the method of handling such cattle at Kansas City for many years. At the time of the unloading of appellee’s calves they could not be driven to the pens in use by the commission company to which they were consigned,, because the connecting alleys, etc., were full of cattle, the result of a congestion of cattle in the yards on the day of the arrival of this stpck. So that the calves were placed by the ü stockyards company in an overhead viaduct adjacent to the unloading chutes, where there were no facilities to feed or water them, and where they could not be shown to buyers. They remained in this viaduct for several hours until delivered to the pens of the consignee. Appellant insists that under these facts its duty ceased upon delivery of the .calves to the stockyards company. It is the duty of a railway company to provide reasonable facilities for unloading and delivering live stock accepted by it for transportation. In a great live stock market this duty would necessarily require the construction and maintenance of extensive pens into which live stock might be unloaded and from which delivery could be made. The obligation of delivery certainly would not be discharged by the mere unloading of the stock in pens that were inaccessible. This duty is a part of the “transportation,” and is therefore nondelegable, and if the carrier employs independent agents to perform it, the liability remains the same. Section 1, Interstate Commerce Act (section 8563 (2), West Publishing Company’s Compiled Statutes of United States, vol. 8, p. 9061); Covington Stockyards Co. v. Keith, 139 U. S. 128, 11 Sup. Ct. 461, 35 L. Ed. 73; Missouri Pacific Railway Co. v. Haynes, 72 Tex. 175, 10 S. W. 398; Hutchinson on Carriers, § 510. We do not think the facts detailed are sufficient to show that the duty of the railway company in the transportation of the cattle had been fulfilled upon the mere unloading of the cattle at the chutes of the Kansas City Stockyards Company, and the peremptory instructions so informing the jury requested by appellant were properly refused.

We have examined the assignments as to other matters, and find no reversible error presented.

Affirmed.


author: RICE, J.

text:
    HARDIN et al. v. WANSLEE et al.
    (No. 5804.)
    (Court of Civil Appeals of Texas. Austin.
    Oct. 10, 1917.
    Rehearing Denied Oct. 31, 1917.)
    1. Tenancy in Common <&wkey;15(3) — “Adverse Possession” — Exclusiveness of Possession.
    A tenant in common claiming title to land by adverse possession must show exclusive possession of the land, not merely possession with other members of the family against whom he asserts title, though he was exercising exclusive management and control and claiming title (quoting' Words and Phrases, Adverse Possession).

      2. Property <&wkey;12 — Divestment op Title— Declarations Disclaiming Ownership.
    One cannot divest himself of title to land by mere declarations that he does not own or claim any of it.
    Appeal from District Court, Travis County; Chas. A. Wilcox, Judge.
    Suit for partition by Fred Turner, next friend of Johnnie and Aileen Hardin, against John Wanslee and another. From a judgment for Wanslee, plaintiffs appeal.
    Reversed and remanded.
    Hart & Patterson, of Austin, for appellants. Jno. E. Shelton and Brooks, Hart & Wood-ward, all of Austin, for appellees.
   RICE, J.

This suit was brought by Fred Turner, next friend of Johnnie and Aileen Hardin, minors, against John Wanslee and Mary Caldwell for partition of three tracts of land situated on Onion creek, in Travis county, as well as for'rents thereof, claiming that they together owned an undivided one-third interest therein, and that John Wanslee and Mrs. Caldwell each owned an undivided one-third interest. Mrs. Caldwell filed a disclaimer, and John Wanslee interposed a plea of ten-year limitation, and also pleaded improvements in good faith. The case was tried before the court without a jury, who found in favor of John Wanslee on his plea of limitation, and judgment was rendered for him against appellants for the land in accordance therewith, and in favor of both for costs.

The court filed its conclusions of law and fact, which we adopt and are as follows:

“(1) Johnnie ' Hardin and Aileen Hardin, plaintiffs, are minors, Johnnie Hardin being now about 19 years of age, and Aileen Hardin being about 15 years of age.
“(2) Joseph Wanslee and wife, Polly Wanslee, were married in the state of Tennessee in the year 1852. During the same year they moved to Texas, and on December 15, 1852, Joseph Wanslee purchased the 220-acre tract of land involved in this suit, paying cash therefor.
“(3) Polly Wanslee, wife of Joseph Wanslee, died intestate on the 24th day of June, 1874, leaving surviving her, children of herself and Joseph Wanslee, the following: J. T. Wanslee, John Wanslee, Mrs. Mary Caldwell and Mrs. Amanda Hardin. At the time of the death of Polly Wanslee, all of the said children were living, as members of the family, with Joseph Wanslee and his wife upon the said 220-acre tract of land, and after the death of their mother continued to live on said place, as members of the family, with their father, Joseph Wans-lee, until his death, which occurred on the 29th day of August, 1882.
“(4) Joseph Wanslee left a will, in which he devised said 220-acre tract of land to his sons J. T. Wanslee and John Wanslee. After the death of Joseph Wanslee his daughters, Mrs. Mary Caldwell and Mrs. Amanda Hardin, acquiesced in the disposition of the property made by Joseph Wanslee in his will, the two sons assuming the burden of supporting the two sisters, and because of the arrangement so made said will was never probated.
“(5) J. T. Wanslee, John Wanslee, Mrs. Caldwell, and Joe Hardin, then a child, continued to reside upon said tract of land until the death of J. T. Wanslee, which occurred on November 17, 1884. Mrs. Hardin, the grandmother of plaintiffs herein, after the death of her father, Joseph Wanslee, resided upon said land, as a member of the family, with her brothers and sister up to about two months before the death of J. T. Wanslee, when she was sent to the insane asylum, she having become insane about one year previous to the death of J. T. Wanslee.
“(6) On the 1st day of January, 1883, the defendant John Wanslee and his brother, J. T. Wanslee, purchased the 95-acre tract of land involved in this suit, all of the consideration, for same having been paid before J. T. Wans-lee’s death. On August 11, 1884, J. T. Wans-lee and John Wanslee purchased the 117-acre tract involved in this suit for $300 cash and notes aggregating the principal amount $2,200, and at the time of the death of J. T. Wanslee no part of the principal of said notes had been paid.
“(7) During the last sickness of J. T. Wanslee he indicated to John Wanslee and Mrs. Caldwell his desire that his brother, John Wanslee, should pay the amount then due upon said 117-acre tract of land, and that his brother should own all of said land, and should continue to support his sisters and their families.
“(8) After the death of J. T. Wanslee, Mrs. Caldwell and her children, and Joe Hardin, who was then a child 12 years of age, continued to reside on said 220-acre tract of land, as members of the family, with, the brother, John Wanslee, he supporting them out of money derived from said tracts of land through his own labor and from rentals.
“(9) Mrs. Hardin, the mother of Joe Hardin, died in the insane asylum on the - day of - — , 1891. Joe Hardin, the father of plaintiffs, was born on the-day of-, 1872. He married Mary Hancock, mother of plaintiffs, on the 26th day of December, 1896. Soon after their marriage, Joe Hardin and his wife moved into a house situated on the 117-acre tract of land, and resided there for about four years, Joe Hardin cultivating a portion of said land; he paying no rent for a part of the land cultivated by him, and he paying rent to John Wans-lee for a portion of the land so cultivated.
“(10) About the - day of -, 1901, Joe Hardin and his wife separated, his wife removing from said premises, taking their youngest child; Joe Hardin and the child Johnnie Hardin moved to the residence of their uncle, John Wanslee, situated on the 220-acre tract of land, and continued to reside upon said place with said John Wanslee until the death of Joe Hardin, which occurred on the 21st day of July, 1903. The said Joe Hardin died intestate, leaving as his heirs the minor plaintiffs herein. The minor plaintiff Johnnie Hardin continued to reside with her uncle John Wanslee and her aunt Mrs. Caldwell for about a year and a half after Joe Hardin’s death, at which time the mother took said child from John Wans-lee’s custody.
“(11) Since the death of J. T. Wanslee the defendant John Wanslee has at all times been in possession of all three tracts of land involved in this suit, exercising the exclusive management and control of same, and claiming the title to same. He has at various times made valuable improvements upon each of said tracts of land, and has paid all taxes accruing thereon, all of said lands being assessed in the name of John Wanslee.
“(12) I find from the circumstances in evidence that Joe Hardin, the father of plaintiffs, during his minority and at all times after arriving at the age of 21 years, knew that his uncle, John Wanslee, was asserting title to all of the lands involved in this suit. I find from the facts and circumstances that the said foe Hardin at all times recognized and acquiesced in such claim of ownership on the part of John Wanslee.
“Conclusions of Law.
“I conclude that the statute of limitation began to Tun in favor of the defendant John Wans-lee against Joe Hardin, deceased, upon his arriving at the age of 21 years, and that the defendant John Wanslee has acquired title to the whole of said premises by virtue of said statute.”

Appellants contend by their several assignments that the judgment of the court is unsupported by the facts, in that the evidence failed to show that appellee had adverse possession of the premises in controversy for the period necessary to perfect title thereto under his plea of limitation, but, on the contrary, that he, together with appellants and other members of their family, occupied the premises during the entire time as one family, and therefore there was no adverse possession thereof on the part of appellee such as necessary to show ouster and perfect title by limitation; and this is the crucial point involved in this appeal.

It will be noted that in the eleventh finding of fact, the only one treating of this question, the court failed to find that appellee was in .exclusive possession of either or all of said tracts of land, but merely found that he was in possession thereof, exercising exclusive management and control of same, and claiming title thereto. This is not, in our judgment, sufficient, but in order to support the statute of limitation the party claiming title must clearly show that he was in exclusive possession of the land.

The facts on this issue briefly summarized show that from the death of Jos. Wanslee, in 1SS4, the family, consisting of his children and grandchildren mentioned in the court’s findings, including appellants’ father, lived upon the land as one family, and after the death of J. T. Wanslee continued to do so until the death of Jos. Hardin, father of appellants, during the whole of which time the family was supported and sustained by the proceeds of the farm under the management and control of appellee. It is true, the evidence does show that Joe Hardin frequently made statements to the effect that he did not own or claim any of the land in question, but this is immaterial, as a party cannot divest himself of title by mere declarations. He was reared by his uncle, who was the head of the family and occupied to-, wards him the position of father, and it is not shown that he had ever known what interest he had in the land, nor do the facts show that appellee ever expressly notified him that he claimed exclusive possession of it, except on one occasion immediately prior to his death, when he discussed the making of a will; nor did appellee ever oust or attempt to oust him from the premises, but permitted him to live thereon from the time of his birth until his death, he being supported, as well as other members of the family, from the proceeds arising from the land.

In order to sustain the plea of limitation, it is not only -necessary that the party relying thereon should show that he was in possession of the land in controversy, but it must also be shown that he was in exclusive possession of the premises. It is not sufficient, we think, merely to show that he occupied it in common with the others against whom he asserts title. Our statute on this ■subject (article 5675, ■ vol. 4, Vernon’s Civil Statutes) provides that:

“Any person who has the right of action for the recovery of any lands, tenements or heredit-aments against another having peaceable and adverse possession thereof, cultivating, using, or enjoying the same, shall institute his suit therefor within ten years next after his cause of action shall have accrued, and not afterward.”

And the decisions construing the expression “adverse possession” hold that such possession must not only be exclusive, but hostile as well. In Words and Phrases, vol. 1, p. 227, it is said:

■ “An adverse possession which will bar a legal title must be hostile and under a claim of title actual, open and notorious, exclusive and continuous,” citing a long line of cases in its support.

In 1 Cyc. vol. 1, p. 1024, title V, under the head of “Exclusive Possession,” it is said:

“The rule is broadly stated in a very considerable number of decisions that exclusiveness of possession is a necessary element of title by adverse possession; that possession must be exclusive, as well as hostile. In some decisions it is either held or said that the possession must he exclusive of all persons whatsoever, and no qualification of this doctrine is recognized by them. Nevertheless, this rule has been qualified -in some jurisdictions, at least to this extent, that a person may, while admitting title in the federal or state government, hold exclusive of all others.”

The text is supported by many authorities. See notes thereunder.

The possession of appellee was not sole and exclusive; he occupied the premises with other members of the family, including the father of appellants, without which title by limitation, it seems, cannot be sustained. In Ward v. Cochran, 150 U. S. 597, 608, 14 Sup. Ct. 230, 233 [37 L. Ed. 1195], it is said:

“Possession * * * not exclusive, but in participation with the owner or others, falls very far short of that kind of adverse possession which deprives the true owner of his title.”

See, also, Lloyd v. Rawl, 63 S. C. 219, 41 S. E. 312.

In Irvine v. Irvine (Ky.) 89 S. W. 193, a mother and son lived together on the land, and both claimed it by limitation against the other. The court does not discuss the ques'tion at length, but pointedly decided it by simply saying:

“It is shown without contradiction that the appellee lived upon this land from about the year 1870 until the institution of her action, and that appellant resided with her nearly all this time. Under these circumstances neither can claim title by adverse possession.”

In Whitman v. Aldrich, 157 S. W. 464, it is held that the plea of limitation is not available to parties who have been in possession as tenants in common with claimants of adverse interest. And in Wiley v. Bargman, 90 S. W. 1116, Judge Neill, rendering the opinion, held that occupancy by a tenant does not confer title by limitation where the tenant’s possession is not exclusive, but is shared in common with one who is in possession as tenant of another. In Larwell v. Stevens (C. C.) 12 Fed. 559, 2 McCrary’s Rep. 311, it is said:

“The possession, in order to avail the defendant, must be an exclusive possession; that is, he must not have held it within ten years prior to the commencement of the suit, in conjunction with one who was the real owner of it. If the real owner and the claimant of the possession, within ten years prior to the bringing of the suit, had joint possession of the premises sued for, such a possession will not avail this defendant. The possession follows the title, and, if the owner and others are in possession, the law considers the owner to have the possession.”

In White v. White, 52 Ark. 188, 12 S. W. 201, the facts are very similar to the case at bar, except the deed was to the son. The son lived and had his home with the father who controlled the place, and, as in the case under consideration, finally claimed title by limitation against his son. It was held that the father could not avail himself of the statute of limitation. In Quillen v. Betts, 1 Penn. (Del.) 53, 39 Atl. 595, it is said:

“In case of common possession by two or more persons, the law adjudges the rightful possession to him who has the legal title; and no length of holding in such case can give title by possession, against such legal title.”

The same rule is announced in Bartholomew v. Edwards, 1 Houst. (Del.) 17, Spicer v. Dashiells, 5 Boyce (Del.) 493, 94 Atl. 901, 902, and Lindsay v. Austin, 139 N. C. 463, 51 S. E. 990. In Boynton v. Miller, 144 Bio. 681, 46 S. W. 754, the husband purchased property with his wife’s money, but took the deed in his own name. After her death he claimed title by limitation. The court says:

“Nor docs the statute of limitations constitute a bar in this case. This proceeding was instituted in 1893, the wife having died * * * in 1885. Both husband and wife occupied the premises together; and there was no adverse possession, and consequently the statute could not run.”

The same principle is applied in Hume v. Hopkins, 140 Mo. 65, 76, 41 S. W. 784, where a stepdaughter claimed that she and her deceased mother paid for the property and the stepfather had the deed made to himself and wife. The court says:

“The fact that defendant, the daughter of Blrs. Haden* lived in the family during their lives, constituted no adverse possession.”

•In Ingalls v. Newall, 139 Mass. 268, 273, 30 N. E. 96, 97, one tenant in common built a boat and fish house, inclosed it with a wall, rented it and received the rents and paid taxes thereon, but the other cotenants used it as they found it convenient to do so. The court says:

“There was here no sole possession so long as the brothers of Joseph Ingalls were permitted to use the land and the structures, there being no exclusion of them.”

And it holds that such possession was not sufficient to support the statute of limitation. In Gafford v. Strauss, 89 Ala. 283, 7 South. 248, 7 L. R. A. 568, 18 Am. St. Rep. 111, it is said:

“Possession, to be adverse, so as to vest title in the possessor after the lapse of the requisite time, must be, not only open, notorious, and continuous, but also exclusive. It must operate to oust or disseise any other person who may claim title, or right of possession. In order to fall within the operation of the statute of limitations, the possession must be sufficiently exclusive to put the dispossessed claimant to his action or entry. This can never be the case, where the party having the title is in possession, though it may be joint. Two contemporaneous possessions of the same property, each adverse to the other, is a legal absurdity not conceivable. Hence when two persons are in possession, claiming under different and hostile rights, the law refers the possession to the party having the title.”

The same rule is stated in Barr v. Gratz, 4 Wheat. 213, 223, 4 L. Ed. 553; Washburn on Real Property, pp. 138, 139. In Hinton v. Farmer, 148 Ala. 211, 213, 42 South. 563, 564 (121 Am. St. Rep. 63), the wife at the time of her marriage was the owner of a tract of land, and from her marriage she and her husband lived on it until her death. While he was so occupying the place with her, he obtained a deed to it from a party who did not have title. After the death of his first wife, he married again and made a deed to the second wife, who after his death claimed the land by limitation against the heirs of the first wife. The court says:

“The theory of the defendant seems to be that the deeds should have been admitted as tending to show adverse possession of the lands by Hinton, the husband. If it be conceded that the husband, under any circumstances, can ac-' quire title to the lands of his wife by adverse possession, he certainly cannot do so by having a joint possession with her. One of the essential elements of adverse possession is that the possession must be exclusive. Two persons cannot hold the same property adversely to each other at the same time.”

In Towle v. Quante, 246 Ill. 568, 92 N. E. 967, it is said:

“Disseisin by plaintiff in error and adverse possession as against defendant in error cannot be made out by inference or implication. The proof to establish such disseisin must be strict, clear, positive and unequivocal. * * * Defendant in error must have been actually ousted of possession by plaintiff in error before the filing of the bill. A joint possession by two, even though the claim of each is adverse to the other, will not be a disseisin of one by the other. Where two are in possession the seisin follows the title and there can be no disseisin unless the rightful owner is altogether deprived of possession.”

In Washburn on Real Property (5th Ed.) vol. 3, p. 138, it is said:

“It is accordingly held that where two persons are in possession at the same time, under different claims of right, he has the seisin in whom is the true title. If there is a mixed possession, but neither can show a better title, neither can bring trespass against the other.”

In Washburn on Real Property, vol. 1, p. 63, the rule is again stated as follows:

“So if several persons have a mixed possession, as it is called, of land, and one of them has title to it, the seisin belongs to him only. * * * No one who has a seisin and title to land will lose his seisin by any entry by a stranger, so long as he retains the possession. Accordingly, if a man entered and made a feoffment, the owner being upon the land, the feoffment was void.”.

In Portis v. Hill, 3 Tex. 273, 279, it is said:

“In cases of cotenancy (joint tenancy, tenancy in common, and coparcenary), as the seisin and possession of * * * the other, or others, the mere fact of the uninterrupted possession of one tenant, or an uninterrupted possession which implies no expulsion of the other, is not an adverse possession; but, to constitute a disseisin and adverse possession in this case, there must be, in the language of the books, an actual ouster.”

In Gaylord v. Respass, 92 N. C. 553, 559, it seems that a stepson lived with his stepfather, but made no claim to his interest in the land, and it is said that:

“James P. Adams, the owner of a small fractional interest, has remained on the land with his stepfather and guardian, so that there has been no adverse holding by the latter against him. In case of a common possession by two or more the_ ownership draws to it the possession, and it is deemed to be in him who has the title. * * * The principle prevailing in such cases is so clearly stated in the opinion of Baron Rolfe in Daniel v. Woodruff, 10 M. & W. (Ex.) 607, that we transfer his words: ‘We are of the opinion that the intention was wholly immaterial, and that the effect of the entry must be ascertained upon legal principles, irrespective of the motives or meaning of the party by whom the entry was made. Where a party having a right of entry enters, it is not competent to him to repudiate any rights he may possess, and to say he has entered as a trespasser, or by some other than his real title. As soon as he has entered he is possessed, whetner he will or not, by virtue of every title which he had in him, and which he could assert by entry.’ The remark applies with equal force to a possession acquired and continued. Declarations of nonclaim, however often and persistently repeated, do not change the relation of the owner to the possession, which in spite of all attempted disclaimers is in him under and by virtue of his title.”

In McCammon v. Pettit, 3 Sneed (35 Tenn.) 242, it is said:

“We think it is very clear that neither defense can avail the defendants under the circumstances, for the plain and simple reason that there has not at any time been an adverse possession. This has been joint, and consen-tive in both and not exclusive or hostile in either. Under these circumstances, it has certainly never been held that either time would corrode or limitations bar a good title, whether equitable or legal. * * * If Pettit was in possession under his legal, the complainant was there with him under her equitable, title; both were in the enjoyment of the use of the land, and neither attempted or desired to oust the other. As the statute only begins to run when the possession becomes exclusive and hostile to all adverse titles, there was no point of time in this case when it should start upon its work of destruction of all opposing titles. Where two are in possession, the one having title and the other none, it will inure to the benefit of the former; but where both claim title, the possession is neutralized.”

In Fenton v. Miller, 94 Mich. 204, 215, 53 N. W. 957, 961, it is said:

“The mere possession by one cotenant is not sufficient to establish ouster and adverse possession, and especially where the cotenants are brothers and sisters. * * * Acquiescence by brothers and sisters in the possession of the homestead of their parents by another brother or sister, who is a tenant in common with them, is no evidence of ouster or adverse holding.”

See, also, Illinois Steel Co. v. Tamms, 154 Wis. 340, 141 N. W. 1011.

In Hatfield v. Richmond, 161 Ky. 352, 170 S. W. 951, 954, and Spencer v. O’Neill, 100 Mo. 49, 12 S. W. 1054, it is held that where a place is occupied by a family as a home, one member of it cannot acquire title by limitation against the others. So it is held in Wilson v. Sutton, 153 Ky. 96, 154 S. W. 394, that where a father and children occupy land together his possession cannot be adverse to them. And in Brumback v. Brumback, 198 Ill. 66, 64 N. E. 741, it is held that where a son resides with his mother upon the place, neither he nor his wife, to whom he had made a deed, can acquire title by limitation against his mother, who was a tenant in common with him, and this, though the son pays the taxes, appropriates the rents and makes improvements.

For the reasons stated, we hold that the court erred in concluding that appellee had acquired title to the land in controversy by limitation, because the evidence, in our judgment, fails to show adverse possession on his part. We therefore reverse and remand the case for another trial.
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author: JENKINS, J.

text:
    PENNSYLVANIA FIRE INS. CO v. STOCKSTILL.
    (No. 5800.)
    (Court of Civil Appeals of Texas. Austin.
    Oct. 3, 1917.
    On Motion for Rehearing, Oct. 31, 1917.)
    1. Escrows <@=>12 — Delivery — Passing oe Title.
    A deed deposited in escrow does not become operative, and passes no title, until the condition has been performed or the event has happened upon which it is to be delivered to the grantee.
    2. Insurance <@=>328(2) — Fire Insurance-Unconditional and Sole Ownership — Delivery oe Deed in Escrow.
    Where the vendor, who delivers a deed in escrow, has a fire policy on the house on the premises, which is destroyed by fire before the conditions of the escrow are performed by the grantee, the hazard from the fire not being increased, the right to recover on the fire policy is not forfeited, under its clause requiring unconditional and sole ownership.
    On Motion for Rehearing.
    3. Insurance <@=3654(1) — Fire Insurance — Unconditional Ownership — Change oe Title — Evidence.
    In an action on a fire policy requiring unconditional and sole ownership by plaintiff, vendor of the land, who delivered deed thereto in escrow, change of possession of the property from one tenant to another, the house having been occupied by a tenant when the deed was delivered, and so occupied when the fire occurred, was immaterial, except so far as throwing light on the issue of change of title.
    Appeal from District Court, Brown County; John W. Goodwin, Judge.
    Action by F. H. Stockstill against the Pennsylvania Fire Insurance Company. From judgment for plaintiff, defendant appeals.
    Affirmed.
    Crane & Crane, of Dallas, for appellant. Wilkinson & McGaugh, of Brownwood, for appellee.
   Findings of Fact.

JENKINS, J.

There is no contradiction in the testimony in this case. The evidence shows that appellee was the owner of a house an'd lot in Brownwood. Mrs. Emma Mayes, a feme sole, and Mrs. Flora Bowles, wife of Ernest Bowles, owned a farm in Brown county. J. L. Ellis, a land agent, acting for both parties, negotiated an agreement for the exchange of their holdings. Appellee’s attorneys, upon examining the abstract to the farm, objected to the title, in that it did not appear that a certain vendor’s lien note against the same had been paid, or that the lien had been released, and also that the deed to Mrs. Mayes omitted one of the calls in the field notes. At the request of Ellis, and upon his assurance that the deed would not leave his hands until those defects were remedied, appellee, on October 15, 1915, executed a deed to Mrs. Mayes and Mrs. Bowles to the town lot, and 'deposited the same with Ellis, to be held in escrow until said defects were cured.

Appellee owed about $200, secured by a mortgage on his lot. Mrs. Mayes and Mrs. Bowles, joined by her husband, on the date above stated executed a deed to the farm, and 'deposited the same with Ellis, to he held in escrow, and not to be delivered until the mortgage on the lot was released.

In anticipation that these defects would be cured, appellee put a party in possession of the farm, telling him that he had conditionally traded for it, and agreeing with him as to the rental for the ensuing year, in the event the trade was consummated, informing him that, if the trade was not consummated, lie would have; to look to Mrs. Mayes for a rental contract. This contract was upon the usual terms — a third of the grain and a fourth of the cotton. The tenant went into possession December 28, 1915.

Ellis collected the rent on appellee’s house for one month, and paid the same to Mrs. Mayes. It was in contemplation of all parties that this rent should be paid over to ap-pellee if the deal was not consummated.

None of the conditions upon which Ellis was to deliver the deeds to the respective parties were complied with, and he never delivered either of said deeds.

The house on appellee’s lot was insured by appellant for $1,000, and the same was totally destroyed by fire on January 2, 1916. The policy contained, among others, the following stipulations:

“The entire policy, unless otherwise provided by agreement indorsed hereon or added hereto, shall be void * * * if the interest of the insured be other than unconditional and sole ownership; * * * or if the subject of insurance be a building on ground not owned by the insured in fee simple; or if any change other than by the death of the insured take place in the interest, title, or possession of the subject of insurance (except change of occupancy without increasing hazard), whether by legal process or judgment or by voluntary act of the insured or otherwise.”

Upon the conclusion of the evidence the appellant requested the court to instruct the jury to return a verdict for defendant, and excepted to the refusal of the court to give said charge. The court peremptorily instructed a verdict for plaintiff, to which appellant duly excepted.

Opinion.

The defense in this case was that there had been a change in ownership and in possession previous to the fire. A deed deposited in escrow does not become operative, and passes no title, until the condition has been performed, or the event has happened upon which it is to be delivered to the grantee. R. C. L. 627; 16 Cye. 567-578; 11 Am. & Eng. Enc. of Law, 348; Insurance Co. v. Nowlin, 56 S. W. 198; Calhoun County v. Emigrant Co., 93 U. S. 124, 23 L. Ed. 828. We quote from the authorities above cited as follows:

“The rule is established by repeated decisions that, when a deed is delivered in escrow, nothing passes by the deed, unless the condition is performed.” Calhoun County Emigrant Co., supra.
“There is no change in the title or right of possession to the property, although the purchaser occupies it with the consent of the vendor in anticipation of completing the contract of sale and purchase. So when, in such case, the vendor has a fire insurance policy on a house situated on the premises, and the house is destroyed by fire while so occupied, and before the conditions of the escrow are performed, the hazard from the fire not being increased, the right to recover on the contract of insurance is not forfeited.” R. C. L. 628.

There was no evidence of any change of possession which increased the hazard. The house was occupied by a tenant when the deed was delivered in escrow, and it was so occupied when the fire occurred. This case is to be distinguished from cases where the grantee obtained an equitable title, or was in position when the loss occurred to have enforced specific performance of a contract to convey.

No error appearing of record, the judgment of the trial court is affirmed.

Affirmed.

On Motion for Rehearing.

Appellant insists that this case should be reversed on account of the change of possession. The change of possession was immaterial, except so far as it threw light upon the issue as to change of title. Appellant cites Fire Association v. Flournoy, 84 Tex. 632, 19 S. W. 793, 31 Am. St. Rep. 89. There was no escrow in that case. The issue was as to whether there was a lease or sale of the property. We quote as follows:

“The court instructed the jury, that the contract between Brady Bros, and Tickle & Black created a change in the title to the property. We think this a proper construction of the contract.” 84 Tex. 635, 19 S. W. 794, 31 Am. St. Rep. 89.

In Insurance Co. v. Clarke, 79 Tex. 25, 15 S. W. 166, 11 L. R. A. 293, cited by appellant, the court said that, if the mortgage was deposited in escrow until the wife’s signature could be obtained, it did not take effect as a mortgage.

Motion overruled.
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