author: LANE, J.

text:
    EQUITABLE LOAN SOC. v. TAYLOR BROS. JEWELRY CO.
    (No. 7249.)
    (Court of Civil Appeals of Texas. Galveston.
    Nov. 10, 1916.
    Rehearing Denied Nov. 23, 1916.)
    Chattel Mortgages &wkey;»225(2) — Sale oe Mortgaged Property — Liability.
    Under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 5660, prohibiting sale or removal of mortgaged personalty from the county, and because all persons are presumed to have notice of a recorded chattel mortgage, the pledgee of a ring for a loan to chattel mortgagor of the same, on sale of the ring on the mortgagor’s default, to a person outside the county, is liable as for conversion.
    [Ed. Note. — Eor other cases, see Chattel Mortgages, Cent. Dig. §§ 468-470; Dec. Dig. <&wkey; 225(2).]
    Appeal from Harris County Court, at Law; C. C. Wren, Judge.
    Action by Taylor Bros. Jewelry Company against the Equitable Loan Society and W. W. McDonald. The suit was dismissed as to McDonald, and from judgment for plaintiff the remaining defendant appeals.
    Affirmed.
    Sochat & Dipper, of Houston, for appellant. E. T. Chew, of Houston, for appellee.
   LANE, J.

This suit was instituted by Taylor Bros. Jewelry Company, appellee, against the Equitable Loan Society, appellant, and W. W. McDonald, and in its petition alleges that on the 1st day of August, 1914, W. W. McDonald was indebted to it in the sum of $330; that to secure the payment of said debt said McDonald made, executed, and delivered to appellee a mortgage on a certain diamond ring, which said mortgage was duly registered, as required by law, on the 4th day of August, 1914; that while said McD/onald still owed appellee $247.10 of said indebtedness and while said mortgage was still a valid subsisting unsatisfied lien upon said diamond ring, appellant obtained possession of said ring, sold the same to a nonresident of this state and thereby converted and placed the same beyond the reach of appellee, without its consent, to its damage in the sum of $247.10, for which it prayed judgment.

Appellant, one of the defendants in the lower court, answered and say that on the 8th day of April, 1915, it was engaged in the business of a pawnbroker; that it was regularly licensed as such, and that it is still such; that on said 8th day of April, 1915, it did sell to one R. Levy a certain diamond ring for $135 in the manner and form as required by law of pawnbrokers, which said ring had theretofore been pledged to it by W. W. McDonald for a loan of $125; that it does not admit or deny that said ring, so sold by it to Levy was the ring mortgaged-by McDonald to appellee; that if it was the ring upon which appellee held a lien appellant had no notice of the existence of such lien; that said ring was of the value of $125, and no more. And in conclusion appellant says that it did not convert any property upon which appellee held a lien, that it only sold whatever right or title it had acquired by the law of this state governing pawnbrokers, and that in so doing it did not act in derogation of any of the rights of appellee, and that it did not know of any claim of ap-pellee, and that appellee did not notify it of any such claim until long after said ring was regularly sold; that said sale was made in legal manner, and that said ring was sold for a reasonable sum. It being admitted' that W. W. McDonald was insolvent, he was dismissed from the suit.

The cause was tried by the court without a jury, and judgment was rendered in favor of appellee against appellant for the sum of $247.10. From such judgment the Equitable Loan Society has appealed.

The undisputed evidence shows that W. W. McDonald was indebted to appellee on August 1,1914; that he gave appellee a mortgage on the ring in question at that time; that said mortgage was duly registered as required by law on the 4th day of August, 1914; that there was still due and unpaid on said indebtedness of McDonald to appellee the sum of $247.10 at the time this suit was brought; that said mortgage at that time was a valid, subsisting, unsatisfied lien on said ring; that prior to the 8th day of April, 1915, appellant loaned McDonald $125, and took the ring in question in pawn to secure the payment of said loan; that McDonald made default in the payment of said loan, and that on the 8th day of April, 1915, appellant, as a licensed pawnbroker, sold said ring to one R. Levy, a resident of New York, for $125, after advertising the same in manner and form as required by law relative to pawnbrokers, and that appellant thereafter in proper time made proper report of such sale as required by law of pawnbrokers, and that all the proceeds of such sale were applied to the payment of the lohn made by appellant to McDonald and costs incident to such sale.

Appellant contends, however, that the judgment rendered against it on the matters alleged and facts proven is not supported by the law of this state, for the reason that when any person procures a loan from a pawnbroker and places a pledge in the possession of such pawnbroker to secure such loan, and thereafter the pawnbroker sells such pledge in manner and form as required by law relating to pawnbrokers, such pawnbroker sells only his interest in the pledge, and does not sell in denial of the rights of the holder of a prior mortgage on the property pledged and sold, although said mortgage wais properly registered before the pawnbroker took such property in pledge; that such pawnbroker sells and the purchaser buys only such rights in the property sold as the pledgee and pawnbroker had, and therefore the purchaser buys subject to the prior lien and such sale by the pawnbroker does not constitute a conversion of the property sold by the pawnbroker. In support of its contention appellant cites us to Wootton v. Wheeler, 22 Tex. 338; Robinson Bros. & Co. v. Veal, I White & W. Civ. Cas. Ct. App. § 311; Raysor v. Reid & Smith, 55 Tex. 266; Sparks v. Pace, 60 Tex. 298; and Gammage v. Silliman, 2 Willson Civ. Cas. Ct. App. § 14.

By an examination of the cases cited it will be seen that the causes of action declared upon therein arose prior to the passage of article 5660, Revised Civil Statutes of this state (passed in 1879), which provides that no person making a mortgage shall remove the property mortgaged out of the county, nor sell or dispose of the same without the consent of the mortgagee, and in case of any violation of the provisions of such article the mortgagee shall be entitled to the possession of the property and to have the same then sold for the payment of his debt, whether due or not.

The cases cited by appellant tend to support its contention, but we do not think they will apply to the facts of the present case since the enactment of the article of the statute mentioned and especially in view of the fact that the mortgage given by McDonald to appellee, among other things, contained the following:

“I agree that I will use said property carefully, and that I will not sell, hypothecate, mortgage, or dispose of the same, nor suffer it to he removed beyond the confines of Harris county, Texas, or to pass out of my control and possession.”

Appellant is charged with the knowledge of the law, and it had constructive knowledge of the registered mortgage held by ap-pellee, and of its provisions, and cannot be heard to say that it had no such knowledge. Having such knowledge at the time it took possession of said ring, and at the time it disposed of the same to Levy, a nonresident of Harris county, and thereby openly violated the rights of appellee as expressed in both the article mentioned and the terms of the mortgage, it should be held to have converted said property to its own use.

The decisions of our courts rendered since the passage of article 5660 in 1879 are against the contention of appellant, and support the judgment of the trial court. Buffalo Pitts Co. v. Stringfellow-Hume Hdw. Co., 61 Tex. Civ. App. 49, 129 S. W. 1161; Eouts v. Ayres, 11 Tex. Civ. App. 338, 32 S. W. 435; Bailey v. Culver, 175 S. W. 1083; Nunn v. Padgitt, 161 S. W. 921; Adams v. Johnson, 51 Tex. Civ. App. 583, 113 S. W. 176; Scaling v. First Nat. Bank, 39 Tex. Civ. App. 154, 87 S. W. 715, and cases cited. Writ of error refused, Lowe v. Wing, 56 Wis. 31, 13 N. W. 892; Hunter v. Abernathy, 188 S. W. 269; Western Mortg. Co. v. Shelton, 8 Tex. Civ. App. 550, 29 S. W. 494.

In the last case cited the court says;

“We believe the view of the law entertained by the court below (same as here contended for by appellant) as expressed in this charge would have been correct previous to the adoption of our chattel mortgage statute in 1879, in the absence of a special provision in the contract prohibiting such sale; but it will be observed that, both by the terms of the mortgage contract in this case and by the act of 1879, such disposition of the mortgaged property was prohibited.”

We find no error in the trial of this ease in the court below, and therefore the judgment therein rendered is affirmed.

Affirmed.
      ii&wkey;For other eases see same topic and KEY-NUMBER, in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: McMEANS, J.

license: Public Domain

text:
    HOUSTON BELT & TERMINAL RY. CO. v. HARDIN LUMBER CO.
    (No. 7220.)

    (Court of Civil Appeals of Texas. Galveston.
    Oct. 18, 1916.
    Rehearing Denied Nov. 23, 1916.)
    1. Railroabs <&wkey;350(13) — Action foe Collision — Contributobt Negligence — Taking Case from Jury.
    In an action against railroad for damages to an automobile from a collision, the evidence to have authorized the court to take the plaintiff’s contributory negligence from the jury must have been such that there was no room for ordinary minds to differ as to the conclusion to be drawn from it.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. § 1166; Dec. Dig. &wkey;350(13).]
    2. Appeal anb Error <&wkey;1001(l) — Question of Fact — Verbict.
    A finding of the jury upon testimony that warranted it is conclusive upon the Court of Civil Appeals.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3928-3933; Dec. Dig. &wkey; 1001(1).]
    3. Raileoabs <&wkey;350(33) — Damage from Collision — Question for Jury — Discovereb Peril.
    In an action against a railroad to recover damages to an automobile from a collision with defendant’s locomotive, held, on the evidence, that the trial court did not err in submitting the issue of plaintiff’s discovered peril to the jury.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. § 1191; Dec. Dig. <&wkey;350(33).]
    ! 4. Trial &wkey;>256(l) — Instructions—Request.
    Where the charge was correct as far as it went, the defendant, if desiring a fuller charge upon the question presented, should have requested such instruction by a special charge, and, where it did not do so, its assignments of error thereon could not be sustained.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 628, 633; Dec. Dig. &wkey;256(l).]
    Appeal from District Court; Harris County ; Wm. Masterson, Judge.
    Action by the Hardin Dumber Company against the Houston Belt & Terminal Railway Company. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Andrews, Streetman, Burns & Logue, and W. L. Cook, all of Houston, for appellant. Gill, Jones & Tyler and Hugh Potter, all of Houston, for appellee.

      Application for writ of error pending in Supreme Court.

   McMEANS, J.

The Hardin Lumber Company brought this suit against the Houston Belt & Terminal Railway Company to recover damages to an automobile owned by plaintiff, alleged to have been occasioned by a collision between said automobile and a locomotive operated by the employes of defendant on its railway track. The collision is alleged to have occurred at the intersection of Rice street and Walker avenue, in the city of Houston, at which place the locomotive was running upon the railway track in a westerly direction on Walker avenue and the automobile, driven by B. R. Hardin, an agent of the plaintiff, was proceeding in a southerly direction on Rice strqet. It is also alleged that when Hardin first saw the locomotive, he was within about 10 feet of the railway track, and that the locomotive was then about 150 feet distant, and approaching the crossing at the rate of about 25 miles per hour; that Hardin, observing the imminent danger, endeavored to stop the automobile, but, on account of the very short space between himself and the railway track, was unable to do so, and, realizing this, he attempted to hurry across, with the result that the locomotive struck the automobile just in front of the rear wheel on the left side, causing the damages alleged in the petition. Recovery is predicated upon the negligence of the defendant in the following particulars: (1) The locomotive was being run by the servants of defendant at a rate of speed in excess of that allowed by the ordinances of the city of Houston, viz., 6 miles per hour; (2) the locomotive bell was not rung as required by said ordinances; and (3) “that the defendant, by and through its agent, failed to stop the engine, and even failed to stop its speed, when it became cognizant of the perilous position of the plaintiff therein, but wantonly, negligently, and carelessly, and wholly without fault of the plaintiff, proximately caused the collision and consequent damages and injuries to the automobile. * * * >» The defendant answered by general denial and a plea of contributory negligence of plaintiff’s agent, tbe driver of tbe automobile, to the effect: (1) That be failed to keep a proper lookout before endeavoring to cross tbe track; (2) that be failed to take any precautions as be attempted to cross tbe track, though having adequate knowledge of tbe surroundings and of the danger; and (3) that be negligently and carelessly continued tbe automobile in motion at a careless and reckless rate of speed after seeing, and being in a position to have seen, tbe approaching locomotive in time to have, stopped and avoided injury. Tbe case was tried before a jury, and resulted in a verdict and judgment for plaintiff for $1,022, from which tbe defendant has appealed.

Tbe appellant admits, and we find, that tbe evidence is sufficient to raise tbe issue of tbe negligence of tbe operatives of tbe locomotive in running tbe locomotive at a greater speed than allowed by tbe ordinances of tbe city of Houston, and also in failing to ring tbe locomotive bell; and tbe action of tbe court in submitting these issues to tbe jury is not attacked by any assignment of error in this court.

Appellant, by its first assignment of error, complains of tbe action of the court in refusing to give a special instruction asked by it, peremptorily directing a verdict in its favor. It contends, in this connection, • that it conclusively appears from tbe evidence that tbe driver of tbe automobile, plaintiff’s agent, was guilty of contributory negligence as a matter of law, barring recovery, in one or more of tbe respects alleged in tbe defendant’s answer.

Before this court can say that any of tbe alleged acts of the driver on tbe occasion in question was contributory negligence as a matter of law, such acts must have been in violation of some law, or that tbe facts were undisputed and admitted of but one inference regarding .the care of tbe party in doing tbe acts in question. In other words, to have authorized tbe court to take the question from the jury, tbe evidence must have been of such character that there was no room for ordinary minds to differ as to tbe conclusion to be drawn from it. Lee v. Railway, S9 Tex. 588, 36 S. W. 63.

We have carefully examined the evidence in tbe record bearing upon tbe question of the' contributory negligence of tbe driver of the automobile in tbe respects alleged in tbe defendant’s answer, and have concluded, and so find, that tbe evidence, while sufficient to raise tbe issue, was not undisputed, but was of such character as to admit of a finding by tbe jury that tbe driver was free from contributory negligence in tbe respects charged in tbe defendant’s answer, and.as tbe jury found against tbe defendant upon tbe issue, upon testimony that warranted it, their finding is conclusive upon this court. Tbe assignment and tbe several propositions thereunder are overruled.

Tbe second assignment complains of tbe action of tbe court in submitting tbe issue of discovered peril, tbe contention being, in effect, that the evidence adduced upon this issue was not sufficient to take tbe case to tbe jury.

Hardin, tbe driver of tbe car, testified, in substance, that be was travelling south on Rice street at about tbe speed of 10 or 12 miles per hour, and that when be reached a point 10 or 12 or possibly 15 feet from the railway track be saw the locomotive, then at a distance of about 150 feet from the crossing, and coming at a rate of speed of about 25 miles per hour; that, realizing the danger of a collision, be put tbe automobile into reverse and tried to stop, but that, on account of tbe street being wet and slippery, tbe wheels slipped and tbe automobile continued its forward motion; that, seeing be could not stop in time to avert a collision, be put tbe automobile in forward motion and tried to burry across, but without success, and the collision resulted. He further testified that there was no slacking of tbe speed of tbe locomotive from tbe time be first saw it until tbe impact, and that be was watching tbe locomotive from tbe time be first saw it until the collision occurred. He further testified:

“They apparently didn’t see me at all, * * * I sat there listening, and I said, ‘Ain’t he ever going to see me; ain’t he ever going to stop?’ but he just kept on coming down there, and never did see me.”

Tbe evidence sufficiently shows that at tbe time tbe locomotive and automobile reached points from which the operator of each could have seen tbe other, there was nothing to obstruct the view of tbe engineer, and be testified that be was keeping a lookout on tbe side of tbe track from which tbe automobile was approaching, but that be did not see tbe automobile until be was within Í5 feet of it, and that be then threw tbe brakes into emergency and used all tbe means at bis command to stop before striking tbe automobile, but could not stop. He further testified that when be discovered tbe automobile, be was traveling at a speed of 6 or 8 miles per hour, and that at that rate of speed be could have stopped in .the length of bis engine. There was other testimony from which tbe jury might have concluded that tbe ioeomotive, if going at the rate of 6 miles per hour, could have been stopped in tbe space of 8 or 10 feet, and still other testimony that it could have been stopped within 15 or 20 feet. But the locomotive did not, in fact, stop after tbe collision until it bad run 75 feet, according to tbe testimony of one witness, 100 feet according to tbe testimony of another, and 150 feet according to tbe testimony of a third. Two witnesses testified that tbe automobile was knocked 30 or 40 feet up tbe track from tbe crossing.

Tlie jury was not compelled to credit all the testimony of the engineer or reject it all, but it was within their province to give credence to a part of. it and reject the rest. It was within their province, therefore, to say that the engineer spoke the truth when he testified that he was keeping a lookout on the side from which the automobile approached the crossing, and to reject that part of his testimony to the effect that he did not discover the automobile and the danger to it and its occupant until he was within 15 feet of it. There being an absence of obstructions to his vision from the time he might hare seen the impending catastrophe had he been in the exercise of proper watchfulness, and the jury having the right to believe that part of his testimony in which he said he was keeping a lookout, it was within their province to say that he did actually discover the automobile and realized the danger at a time when, by the use of the means at hand, he could have stopped and avoided the collision. Again, the jury had the right to say that the statement of Hardin, the driver, that the engineer never did see him was merely conjecture upon his part, arising from the fact that he was in plain view of the locomotive, and that, although the danger was patent, there was no diminution of the speed of the locomotive. Again, the jury might have accepted as true the statement of the engineer that he did not, in fact, discover the automobile until he was within 15 feet of it, and that he was then going at a rate of speed of 6 or 8 miles per hour, and yet have discredited his statement that he used all the means at his command to stop and avoid the collision, in view of the testimony of another witness that a locomotive, moving at that rate of speed, could have been stopped in 8 or 10 feet, thereby avoiding a collision, or in view of the statement of still another witness that it could have been stopped in 15 or 20 feet, thereby reducing the speed of the locomotive so as to have allowed the automobile to safely cross the track ahead of the locomotive by a narrow margin, or, in case of a collision, probably minimizing its effect; it having been shown by the testimony of another witness that the locomotive did not in fact stop until it had run a distance of 75 feet, and by that of another that it ran 100 feet, by another that it ran 150 feet, and by others that the automobile was knocked by the impact a distance of 30 or 40 feet.

From the consideration of the foregoing, we are of the opinion that the court did not err in submitting the issue of discovered peril; and the second assignment and all propositions thereunder are overruled.

The court’s charge is not subject to the criticism presented in the third assignment. The charge is correct as far as it went; and, if defendant desired a fuller charge upon the question presented, it should have requested such instruction by a special charge. The assignment cannot be sustained.

We deem the fourth assignment to be without merit, and it is overruled without further comment.

We find no reversible error in the record, and the judgment of the court below is affirmed.

Affirmed.

      &wkey;For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HENDRICKS, J.

text:
    McKAY v. McKAY et al.
    (No. 1041.)

    (Court of Civil Appeals of Texas. Amarillo.
    Oct. 11, 1916.
    Rehearing Denied Nov. 22, 1916.)
    1. Appeal and Error <&wkey; 1011(1) — Review-Findings of Fact.
    Where the testimony is sufficient to raise an issue, though considerably mooted, it is the duty of the Court of Civil Appeals to adopt the finding of the trial court on the issue.
    [E'd. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3983-3988; Dec. Dig. <&wkey;> 1011(1).]
    2. Evidence <&wkey;122(3) — Persons — Declarations of Deceased — Execution of Deed.
    In an action to cancel a deed from husband to wife, declarations of the deceased grantor, made to the lawyer who made the deed just prior to its preparation and execution, that he wanted the deed prepared because he would “have no peace” unless he did it, were admissible as part of the res gestae to prove a condition of mind of the deceased in the free assertion of his own will, and that the will of the wife was substituted for his.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. § 340; Dec. Dig. &wkey;122(3).j
    3. Cancellation of Instruments <&wkey;43 — Pleading — Issues.
    In an action to cancel a deed from husband to wife an allegation in the petition that the wife, at a later date, entered into a written agreement to care for the husband while he lived, to procure another deed, with a general denial, was not sufficient to raise as a litigated issue the question of ratification of the prior deed,- by another provision in the contract.
    [Ed. Note. — For other cases, see Cancellation of Instruments, Cent. Dig. §§ 96-99; Dec. Dig. &wkey;>43.]
    4. Contracts <&wkey;lll — Consideration — Resumption of Marital Relations.
    An agreement for the resumption of marital rights as part of the consideration for a deed made by a husband to his wife, being a right to which a husband, especially as the injured party, was entitled to without bargain, was void and rendered the whole contract, including an agreement for ratification of a prior deed, illegal, since public policy will not permit a party to enforce a promise obtained by an illegal promise although connected with another which is legal.
    [Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 515-520; Dec. Dig. <&wkey;lll.]
    Appeal from District Court, Hemphill County ; C. Coffee, Special Judge.
    Suit by G. B. McKay and others against Alice McKay to cancel two deeds of conveyance. From a judgment canceling one of the deeds, defendant appeals.
    Affirmed.
    H. E. Hoover and Hoover & Dial, all of Canadian, for appellant. Baker & Willis, of Canadian, for appellees.

      Application for writ of error pending in Supreme Court.

   HENDRICKS, J.

The appellees McKay, the surviving brothers and sisters of Hugh McKay, deceased, sued Alice McKay, the appellant and surviving .wife of Said Hugh McKay, for the purpose of canceling two certain deeds of conveyance, executed by Hugh McKay, the deceased husband, in his lifetime, to his wife, Alice McKay. .

The principal grounds for cancellation of said instrument are, in substance, that, at the time of the execution of the deeds of conveyance, Hugh McKay had become so enfeebled in intellect that he did not fully comprehend the effect of the instruments so executed by him, and that in such condition his wife, Alice McKay, dominated the disposition of said property in her favor, substituting her mind for his to the extent that her acts constituted undue influence.

The trial court found, without the aid of a jury, that the property in controversy — the east one-half of section 152, block 41, H. & T. C. Ry. Co. survey, and all of section No. 151, block 41, H. & T. C. Ry. Co. survey, in Hemphill county, Tex. — constituted the separate estate of the deceased husband, Hugh McKay, at the time of the conveyance of same to his wife, Alice McKay. 'The court also found that on the 1st day of November, 1900, the date of the execution and delivery of the conveyance to the half section of land in controversy herein, and the first in point of time, Hugh McKay’s mind was feeble to the extent that he was susceptible of being unduly influenced to “transact business matters in such manner as not to reflect his will but the will and desire of his wife, whose influence he was under”; and also found that the mind of McKay was “overcome by excessive importunity on the part of defendant, Alice McKay, and that said act. and deed did not express the will and desire of said Hugh McKay, but the will of Alice McKay, and that he would not have executed the same except for the weak and feeble condition of his mind, and undue influence of Alice McKay over his will power.”

The deed to section 151 (the whole section) ‘ was executed and delivered by Hugh McKay to his wife on the 12th day of September, A. D. 1910.

Contemporaneous with the execution of the last conveyance, on the 12th day of September, 1910, Hugh McKay, the husband, and Alice McKay, his wife, executed what is designated in this record as a postnuptial agreement, purporting to be a settlement and adjustment of certain property rights as well as the disturbed marital rights, between said parties.

Subsequent to the execution of the first deed to the half section above mentioned, and prior to the execution of the second deed to the whole section, and the accompanying postnuptial agreement, Hugh McKay had instituted in the district court of Hemphill county an action for divorce against his wife, Alice McKay, also praying for a cancellation of the first deed of conveyance above mentioned. In the postnuptial agreement Hugh McKay agreed to dismiss said suit and also affirmed the first deed of conveyance as valid. The postnuptial agreement also contains this provision:

“The said Alice McKay agrees to take the said Hugh McKay back as her lawful and wedded husband, and to keep and care for him through life, in sickness and in old age, and to see that his wants are provided for, and that he receives the comforts of life, in a manner in keeping with his station in life.”

In said agreement it was also provided:

“That any property belonging to the separate estate of either shall not be sold or conveyed without such sale and conveyance being agreed to and joined in by both. * * * ”

The particular instrument also recited that Alice McKay had provided “some means from her separate estate,” which had been used for the advancement of the community estate as well as for the separate estate of her husband, and in consideration of all of said matters Hugh McKay agreed to convey to the wife, as her separate estate, all of section No. 151, above described.

The trial court found that the deed to the half section was obtained by undue influence, but concluded as to the conveyance by McKay to his wife of the whole section No. 151, subsequently executed:

“That the evidence fails to show that undue influence was brought to bear upon him to cause the execution of said deed, or that it was not his will, as expressed therein.”

He, however, found additionally that Hugh McKay remained under the influence of Alice McKay from the time of the execution of the first deed, and that the ratification instrument, executed at the time of the second deed, affirming the first deed, was the expression of the will of Alice McKay, and that Hugh McKay would not have executed said instrument except for the undue influence of the wife. Judgment was rendered for Mrs. McKay for the whole section, but in, favor of the heirs for the half section.

This record fails to disclose the exact age of Hugh McKay at the time of the execution of said instrument, but it is to be inferred that he was of an age between 70 and 80 at said dates. The age of the wife is not shown, nor can the same be inferred.

The principal presentation of error by the appellant, Mrs. McKay, addressed to the action of the trial court in canceling the deed to the half section, is, in effect, that there was not sufficient evidence to support the judgment so rendered. The assignment also assumes the form that such judgment is “contrary to the great preponderance of .the evidence.”

The attorney who represented Hugh McKay in the preparation of said instrument testified that, prior to the time of the execution of the deed, McKay solicited him to prepare the same; that he then refused to act in the matter; that subsequently McKay came to his office and informed him that Mrs. McKay, at the home, wished to see him; that, accompanied by McKay, he, went to the home and in conversation with Mrs. McKay for a considerable period of time, in the presence of Mr. McKay, with reference to the instrument, she “insisted that he should mate it and gave her reasons therefor.” “The conversation lasted quite a while; Mrs. McKay urging him to make the deed, and Mr. McKay saying nothing. * * * He left with me, insisting that he should make the deed, saying that he would have no peace unless he did it.” Another portion of this witness’ testimony is as follows:

“Mr. McKay said very little. What he did say — I cannot recollect the words, * * * except that he was not consenting. * * *

At the trial, 'on account of the testimony of opposition witnesses, it became a controverted issue as to the condition of Hugh McKay’s mind addressed to the question of feebleness of intellect, and the trial court, as stated, found as a fact that:

“Hugh McKay’s mind was weak and feeble to the extent that he was susceptible of being unduly influenced to transact business in such a manner as not to reflect his will, but the will and desire of his wife.”

Without reproducing the testimony, we find that the same was sufficient to raise the particular issue, though considerably mooted. It is our duty to adopt the finding of the trial judge on the issue.

However, it is insistently and forcibly urged by appellant’s counsel that the case, on the facts, not being one of dementia or mental ineompetency, to the extent that the instrument would be void ab initio, the testimony of Judge Baker, with reference to the conversation and manifestations in Mrs. McKay’s home, coupled with the declarations of McKay, were insufficient to cancel the deed. This testimony is assailed as to its probative forc-e, as well as to its competency.

Chief Justice Brown, in the case of Rankin v. Rankin, 105 Tex. 456, 151 S. W. 529, says that:

“The general rule on this point is thus expressed: ‘Where the execution of a will is proved in the mode required by law, the declarations of the testator, made before or after the execution of the instrument, are not competent to prove fraud, duress, or forgery, or to disprove the execution — they are hearsay, merely. But such declarations, made at the time the instrument was executed, are admissible as part of res gostse. The rule upon these points is the same in the case of wills that it is in the case of deeds.’ ”

It is to be inferred from Judge Baker’s testimony that proximately immediately following the instructions of McKay to draw the deed he prepared the instrument, and that the same was executed. He said McKay left tne house with him, insisting that he make the deed, and that' he would have “no peace unless he did,” and that he (Baker) went to the office, wrote the deed, and then Mcrvay told him he wanted his will written. We infer they went together to the office.

The case of Beaubien v. Cicotte, 12 Mich. 486, reveals this condition: Matthias Bouleau, a gardener in Beaubien’s employment, was permitted to testify to a conversation held with Beaubien shortly before his death, in which the deceased expressed regret at having married, and stated that he was not master at home; “that he was afraid of his wife, and was compelled to submit to her demands, or otherwise there would be trouble in the house.” We infer that the statements wore made shortly before the execution of the deed, and the question was one of capacity and of undue influence. Justice Campbell said:

“It has been held generally that, the declarations of a testator concerning his feelings in regard to different persons áre the best evidence of his real sentiments, where they are made sincerely and unreservedly. His feelings toward his wife, and towards relatives of his own who would be affected by such testamentary provision, * * * must necessarily be inquired into in order to get at the true state of the case.”

A New York case is quoted, in which it is said:

“It is abundantly settled that upon either of these questions (either insanity or strength of intellect connected with fraud) the declarations of the testator, made at or before the time of the execution of the will, are competent evidence.”

The Supreme Court of Alabama, in the case of Roberts v. Trawick, 13 Ala. 68, quoting the syllabus, which fairly reflects that part of the opinion, held:

“The declarations of a testator, made before and at the time of the execution of the will, or so shortly thereafter as to form a part of the res gestee, and necessarily connected with it, may be received, to prove fraud or undue influence in its execution.”

Schouler on Wills, vol. 1, § 243 (5th Ed.), sustains the same doctrine.

The case of Rankin v. Rankin, 105 Tex. 451, 151 S. W. 527, supra, limits the effect of evidence of this character to proof condition of mind when the declarations are connected with the act and not declarations thereafter made in connection therewith; nor are the declarations received as proof of the truth of the statement, but as reflecting the condition of intellect and mental attitude, relevant, whether such condition of mind is susceptible of being overborne — at least we so construe the effect of said case.

The testimony of Baker establishes the fact of insistence by Mrs. McKay of her husband for the execution of a deed, and that McKay then sat in the room not consenting to its execution; that he yielded on account of a condition of mind, whether the fact was false or true, that he would have no peace unless he made the deed.

The testimony of other witnesses establishes the fact of feebleness of mind and susceptibility to influence. If the declarations, as a part of the res gestse, are admissible to prove a condition of mind as a handicap in the free assertion of his own will, the issue, found by the court, was sustained. We admit the force in a proper case of the case of De Garca v. Galvan, 55 Tex. 57, cited by appellant, and which could be reinforced by the case of Henry v. Phillips, 105 Tex. 406, 151 S. W. 533, by Justice Dibrell, to the effect that incompetent declarations cannot form the basis of a finding in an appellate court, notwithstanding their presence in the record without objections. However, this1 record is different.

It is also insisted that the postnupital agreement, on account of the ratification clause in the same, reaffirmed the deed to the half section which the trial court canceled. At the argument, it was mooted whether appellant could raise ratification on account of not having pleaded the same. Appellant’s answer was merely a general denial, but it was insisted by her counsel that plaintiffs pleadings sufficiently averred the ratification agreement for the purpose of cancellation to the extent that the general denial produced the issue.

Paragraph A of plaintiffs’ pleading is as follows:

“Plaintiffs allege that, at the time said deed to said whole section was executed, Alice McKay, for the purpose of deceiving the said Hugh, entered into a written agreement, promising to care for said Hugh while he lived, and thereby procured said deed and at the same time influenced the said Hugh to make his will in her favor as to his whole estate.”

We are clear that this pleading with a denial did not raise the question of ratification as a litigated issue before a court and jury.

There is an interesting phase of the question, in this: It is noted that the postnup-tial agreement recites:

“The said AliGe McKay agrees to take said Hugh back as her lawful and wedded husband and* to ,keep and care for him through life.

We construe this as an agreement for the resumption of marital rights along with other purposes as a part of the consideration for the conveyance of the whole section.

It is to be inferred from the agreement, as well as from the testimony of the witnesses, that there had been an estrangement and sepáration between husband and wife. If McKay was bargaining for a resumption of his marital rights, something which in law he was entitled' to without a bargain, such a consideration, we have no doubt, independent and alone, would be void and stamp a contract as illegal.

“Public policy forbids that the performance of such duty may be made the subject of barter and sale. The law fixes and regulates the marital relation on public considerations, and will not allow the parties to discard and renew it for money.” Kesler’s Est., 143 Pa. 386, 22 Atl. 892, 13 L. R. A. 581, 24 Am. St. Rep. 560.
“It is not a mere personal right affecting only the parties to the marriage, but a right which is an incident of the status of marriage, * * * and which must be exercised upon considerations arising from the nature of the right. It is given to the injured party to be used in the interest of justice and of society. It is as much against public policy to restore interrupted conjugal relations for money, as it is to continue them without interruption for the same consideration.” Merrill v. Peaslee, 146 Mass. 460, 4 Am. St. Rep. 336.

Justice Walker said, in the case of Roberts v. Frisby, 38 Tex. 220:

“I do not know how far a husband will be morally bound by a postnuptial contract in which he hires his wife to live with him, but the legal obligation cannot be recognized in this court.”

The case of Copeland v. Boas, 68 Tenn. (9 Baxt.) 223, 224, 40 Am. Rep. 89, decided by Judge Turney, is the same as the Roberts-Erisby Case on the facts, announcing the same principle. In studying this question, we find cases, where an innocent and injured spouse, in consideration of a dismissal of divorce suit, agrees to resume the marital relations and condones the fault of the other, receives something valuable for such action, the consideration is upheld, as it is an agreement to do something which the law does not compel the injured party to do. If the record here speaks anything, the husband is shown to be the injured party, according to the .testimony of New, the officer; the acts testified to by him, evidently, in part, producing the divorce suit.

We think the record shows that a dominant part of the consideration to McKay as a part of the contract was the resumption of his marital rights, though blended with other considerations probably legal.

“If any part' of a consideration is illegal, the whole consideration is void, because public policy will not permit a party to enforce a promise which he has obtained by an illegal act or an illegal promise, althoúgh he may have connected with this act or promise another which is legal.” Seeligson v. Lewis, 65 Tex. 215, 216, 57 Am. Rep. 593; Wegner Bros. v. Biering & Co., 65 Tex. 506; Reed v. Brewer, 90 Tex. 144, 37 S. W. 418; Edwards County v. Jennings, 89 Tex. 618, 35 S. W. 1053.

If such a position is sound, a court -of equity should not enforce the ratification contract.

It is argued that the trial court, in finding the deed to the whole section valid, and in pronouncing the accompanying postnuptial agreement void, produced such a contradictory finding of fact as to leave the matter undetermined relative to that phase of the case; also, that if he found the deed valid, thereafter made to the whole section, on account of the issue of undue influence not having been sustained as to that conveyance, the accompanying -postnuptial agreement should also be valid.

Under more appropriate conditions and in a different condition of record, the argument of appellant would have considerable force; however, the manner in which we view the record, we deem the issue as to the agreement of ratification wholly immaterial.

Upon the whole, the judgment of the trial court, canceling the deed to the half section —the only land involved in this court— should be affirmed, and it is so ordered.
      ¿&wkey;For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: BROOKE, J.

text:
    ZEISS v. FIRST STATE BANK et al.

    (No. 63.)
    (Court of Civil Appeals of Texas. Beaumont.
    Oct. 26, 1916.
    Rehearing Denied Nov. 23, 1916.)
    1. Mortgages &wkey;>209 — Trustees—Duty oe.
    A trustee in a deed of trust becomes the special agent of both parties, and must act with absolute impartiality and fairness.
    [Ed. Note. — For other cases, see Mortgages, Cent. Dig. §§ 466-468; Dec. Dig. &wkey;>209.]
    2. Mortgages. <&wkey;369(3) —j Foreclosure — Sales — Vacation .
    A sale by a trustee to foreclose a deed of trust will be set aside if there is proof of undue advantage.
    [Ed. Note. — For other cases, see Mortgages, Cent. Dig. § 1094; Dee. Dig. <&wkey;>369(3).]
    3. Mortgages <&wkey;360 — Foreclosure — Authority of Trustee.
    In making a sale under a deed of trust, the trustee must abide by and comply with the terms of the deed, but incidental matters outside of its terms are left to his discretion.
    [Ed. Note. — For other cases, see Mortgages, Cent. Dig. § 692; Dec. Dig. <&wkey;360.]
    4. Mortgages <&wkey;>369(7) — Foreclosure—Vacation — Burden of Proof.
    The grantor in a deed of trust who sues to set aside a sale made by the trustee has the burden of proving that the trustee abused his discretion, acted unfairly, or took undue advantage of him.
    [Ed. Note. — For other cases, see Mortgages, Cent. Dig. §§ 1097,1098; Dec. Dig. &wkey;369(7).]
    5. Mortgages <&wkey;369(2) — Foreclosure—Vacation.
    A deed of trust authorizing sale by the trustee in case of nonpayment of the note secured did not give the grantor the right to be present at the sale or make it incumbent on the trustee to postpone the sale until he could arrive. Nevertheless the trustee notified the grantor of the date of the sale, and shortly before the sale the trustee was requested to postpone it until after 10:40, so that the grantor could arrive. Anticipating an effort to enjoin the sale, the trustee refused to delay, and the property was sold a few minutes before the grantor arrived. The price was somewhat inadequate, but there was no showing that the grantor would have made a higher bid, or that he had the power to protect his interests. Belct, in view of the fact that the grantor was involved, and had stated that he could not even pay the interest, and the sale was in all respects regular, it will not be set aside on account of inadequacy of price coupled with the refusal of the trustee to delay until the grantor could arrive.
    [Ed. Note. — For other cases, see Mortgages, Cent. Dig. § 1094; Dec. Dig. <&wkey;>369(2).]
    Appeal from District Court, Liberty County; J. Llewellyn, Judge.
    Action by George P. Zeiss against the First State Bank and another. On plaintiff’s death the action was revived by his administrator, A. W. Umland. From a judgment for defendants, plaintiff appeals.
    Affirmed.
    Stevens & Stevens, of Houston, for appellant. E. B. Pickett, Jr., of Liberty, for ap-pellees. ' -

      writ of error pending in Supreme Court.

   BROOKE, J.

This suit was instituted in the district court of Liberty county, Tex., by George P. Zeiss, as plaintiff, against the First State Bank of Liberty, J. F. Richardson, and Wirt Davis as defendants. George P. Zeiss having died about the 8th day of August, 1914, his administrator, A. W. Um-land, made himself a party plaintiff, by appropriate pleadings, and proceeded to prosecute the suit. This action was instituted for the purpose of setting aside a sale under a certain deed of trust, which was executed by George P. Zeiss and another to secure the First State Bank in the sum of $5,000. J. F. Richardson was the trustee named in the deed of trust.

The case was tried before the court without a jury, and verdict and judgment rendered in favor of the defendants. The defendant Wirt Davis having filed a cross-action against the plaintiff, judgment was also rendered in favor of the said Wirt Davis upon his cross-action against the plaintiff for the land in controversy. A. W. Umland, administrator, by order of the court, was permitted to prosecute the suit. The said A. W. Umland, administrator of the estate of George P. Zeiss, deceased, has appealed from the judgment of the district court.

It might be well to say also that the deed of trust in question was made by George P. Zeiss and another on February 15, 1913, to secure a note for $5,000, due 90 days thereafter, with interest at 10 per cent. The note was not met at maturity, nor was any interest ever paid on it. A sale by the trustee was not made until April 7, 1914. The land was bid in by the appellee Wirt Davis, but the trustee made the1 deed to the First State Bank, and then the bank deeded same to Davis, and, while said bank was named as a payee in the deed, and as the beneficiary in the deed of trust, the’appellee Wirt Davis in fact furnished the money which was loaned Zeiss.

Appellant assails the action of the lower court in rendering judgment for the defendants for the reason that he says the proof of the case having shown that on the day of the alleged sale by the trustee, before 10 o’clock a. m., the said trustee, J. F. Richardson, and parties representing the béneficiary in the deed of trust were requested by George P. Zeiss and his attorneys not to sell the land until the -said Zeiss could arrive at Liberty on a train which reached that place at 10:30 a. m. standard time, April 7, 1914, and that said trustee and the defendants unduly hastened the sale of said land, in order to make the same before the said George P. Zeiss could be present, and the evidence having further shown that the trustee and the defendants declined to inform the agents and attorneys of said Zeiss when said sale would take place, and the evidence having further shown that the said trustee, according to his own testimony, was acting solely as the agent of Wirt Davis and the First State Bank, and that he abused his duties as a trustee in not affording the said Zeiss an opportunity to be present at said sale; and the evidence having further shown that the land was sold to the said Wirt Davis for the sum of $1,700, when it was, at the time of said sale, in cash worth not less than $4,000, and there being some question as to whether or not the said sale took place within the hours prescribed by law, solar time, hence the court erred in rendering judgment for the defendants, and a new trial should be granted.

The first proposition urged is that the trustee in the deed of trust becomes the special agent of both parties, and must act with absolute impartiality and with fairness to all parties concerned. The second proposition is that a sale for an inadequate price by a trustee will be set aside if there is proof of undue advantage. We think the propositions are correct legal propositions, and we are constrained to inquire whether any undue and unfair advantage was obtained over the appellant in making said sale. However, we are confronted at the outset with the judgment of the court, in which these issues are determined against the appellant.

It is also true that in making a sale under a deed of trust the trustee must abide by and comply with the terms of the deed, but incidental matters outside of its terms are left to his discretion, and that the grantor in the deed of trust, who sues to set aside the sale made by the trustee, has the burden of proving that the trustee abused his discretion by acting unfairly with, or has taken some undue advantage of him, and that thereby he has suffered material injury. No proof was submitted that the slightest loss was suffered on account of any act of the trustee, and the attack is based on the fact that the sale was not deferred or postponed until George P. Zeiss could be present and attend the same. However, there is no testimony that the said Zeiss, if in fact present, could or would have bid and paid for the land a sum greater than the land really brought under the trustee’s sale. The deed of trust provides as follows:

“The State of Texas, County of Liberty.
■ “Know all men by these presents: That I, George P. Zeiss, of Houston, in the county of Harris, and state of Texas, for and in consideration of the sum of one dollar to me cash in hand paid by J. F. Richardson, of Liberty county, in the state of Texas, trustee, the receipt whereof is hereby acknowledged, and in further consideration of the debt and trust hereinafter mentioned, have granted, sold, and conveyed, and by these presents do grant, sell, and convey, unto the said J. F, Richardson, trustee, and to his successor or substitute in this trust, and to his and their assigns forever, all and singular the following described property situated, lying, and being in the county of Liberty and state of Texas, viz.: Parts of the Jacob E. Self headright league described as follows: [Description of land by metes and bounds.]
“To have and to hold the herein described premises, together with all and singular the rights and appurtenances thereto in any wise belonging, unto the said J. F. Richardson, trustee, and I do hereby bind myself, my heirs, executors, and administrators to warrant and forever defend all and singular the said premises unto the said J. F. Richardson, trustee, to his. successor or substitute, and to his and their assigns forever, against any person whomsoever lawfully claiming or to claim the same or any part thereof, in trust, however, for the following purposes and upon the following conditions, viz.: If the said George P. Zeiss shall well and truly pay off and discharge at" the maturity thereof, according to the tenor and effect thereof, one certain promissory note made by George P. Zeiss and W. J. Zeiss payable to the order of the First State Bank of Liberty and described as follows: [Here follows note for $5,000, dated 2/15/1913, and due 90 days after date, signed by Geo. P. Zeiss and W. J. Zeiss] — with interest thereon from maturity until paid at the rate of' 10 per cent, per annum, said interest payable as it accrues at the office of said bank, then this conveyance shall become null and void, and these presents shall be released in due form at my expense. But in case of default or failure to observe and keep any of the covenants hereof by the grantors herein, then and in that event the said trustee is hereby authorized and empowered, and it shall be his special duty, at the request of the payee or any holder of any of the above-described notes, to sell the above-described property to the highest bidder for cash at the courthouse door of the county in which said property or any part thereof is situated, at public outcry, between the hours of 10 o’clock a. m. and 4 o’clock p. m. on the first Tuesday in any month, after having given notice of such sale by posting up written or printed notices at three public places in said county of Liberty and state of Texas, and all of which said notices shall have been, posted for at least twenty days next before the day of sale, and after such sale to make the purchaser or purchasers hereunder good and sufficient deeds in the name of the grantors herein, conveying the property so sold to the purchasers in fee simple, with genera] warranty of title, and to receive the proceeds of said sale and to apply the same as follows: First, to the payment of all necessary costs and expenses incident to the execution of said trusts, including a fee to the trustee of 5 per cent., to be estimated upon the amount realized at said sale; second, to the payment rateably of the said note then unpaid principal and accrued interest (it being understood that when default shall be made in the payment of any of said note or any installment of interest on said note, or a failure to pay any state, county, or city taxes assessed upon said property, after the same by law becomes delinquent, all the others shall become at once due and payable, at the option of the holder or holders thereof); third, the remainder, if any there shall be after the payment of all said costs and expenses, and the principal and interest of said note, shall be paid to me the said George P. Zeiss or to my heirs, assigns, or legal representatives. In case of death of the said J. F. Richardson, trustee, or of his refusal, failure, or inability for any reason within five days after such request by the holder or holders of said note as above stipulated to make said sale or to perform said trusts, then the legal holder or holders of said note or any of them may appoint in writing a substitute trustee, who shall thereupon succeed to all the estate, rights, powers, and trusts hereinbefore granted to and vested in said J. F. Richardson, trustee. And it is further specially agreed by the parties hereunto that in any deed or deeds given by any trustee or substitute duly appointed hereunder. any and all statements of facts or other recitals therein made as to the nonpayment of the money secured, or as to the request to sell, the time, place, terms of sale, and property to be' sold having been duly published, or as to any other act or thing having been duly done by any trustee, or substitute, shall be taken by any and all courts of law and equity as prima facie evidence that the said statements or recitals do state facts and are without further question to be accepted. And George P. Zeiss, the said grantor, does hereby ratify and confirm any and all acts that the trustee or substitute or his successor in this trust may lawfully d.o in the premises by virtue hereof. Erasures and interlineations made and approved before signing.
“Witness my hand this 15th day of February, A. D. 1913. Geo. P. Zeiss.”

It may be noted that there is no provision in the deed of trust giving Zeiss the right to be present at the sale, nor making it incumbent npon the trustee to postpone the sale until he could arrive, nor does the deed of trust provide that Zeiss be notified when the sale is to take place. But the trustee did, in fact, mail him a copy of the notice of sale, which was posted. This is admitted by all parties.

It might be well to give a resumé of the testimony.

O. E. Stevens testified:

That on the morning of the day of the sale, about 8 o’clock, he telephoned from Houston to Mr. Richardson, the trustee, at Liberty, “to know if he couldn’t put the sale off until Mr. Zeiss came here, but he didn’t know and didn’t promise to do it.” “I was under the impression that it was necessary at that time to advertise it [the sale] in the newspapers, and I wanted that information from him. I concede now that under the terms of the deed of trust that wasn’t necessary, because it didn’t so provide in the deed of trust.” “Zeiss wanted to leave'Houston at 9:10, which was to arrive here at 10:35 or 10:40, and he couldn’t have reached here before that time after I communicated with the trustee.”

O. P. Stevens further testified that two or three days before the sale he telephoned E. B. Pickett, Jr., who was attorney for Wirt Davis and the First State Bank, to inquire about the sale, and was told by Pickett “that the sale would have to go on as advertised, and no one told Mr. Zeiss that the sale would not take place on that day.” O. F. Stevens also testified that at the time of the trustee’s sale the land was worth about $4 per acre, and he figured that there were about "1,150 acres in the clear. Mr. Zeiss did not speak to him about having a member of his firm present at the sale to buy the land, although one member of his firm was in Liberty that day, “and I communicated with him, but Mr. Zeiss did not tell me to have him at the sale to buy that land for him.”

■ F. M. Stevens testified that C. F. Stevens phoned him from Houston on the day of the sale, and asked him to request Mr. Richardson to put off the sale until Mr. Zeiss could arrive on the 10:30 train; that he then requested Mr. Richardson to wait, and Richardson said he would have to see Mr. Pickett and Mr. Davis, “that they were running it, and he couldn’t give me any satisfaction, and didn’t say whether he would wait or what he wóuld do, I asked him to let me know when he sbld it,, and what time he was going to sell it. He never did tell me, and I was watching the sale, and my recollection is that I was in the drug store, and I didn’t hear any sale called out.”

J. F. Richardson, the trustee, testified:

“I made this sale at the instance of the First State Bank and Mr. Davis, and at that time I was a director of the Bank. It was after 10 o’clock when we sold the land, and we were not afraid to wait until after the train came because of an injunction; I laughingly told you we wasn’t going to wait and take a chance on him coming with an injunction. We didn’t hurry it up for that reason; we pulled it off on time. I can’t tell you whether if we hadn’t been afraid of an injunction that we would have waited or not. I remember you asked me if we were going to sell the land on that day, and I told you ‘Yes,’ and Fred asked me to postpone it until after the train came. You telephoned to me and asked me to wait until the train came, that you and he were coming; I understood that you were coming with him. I don’t know whether you came that day or not. I was acting for Mr. Davis in the sale of that land. Davis and I offered to take over his bank at Waller and put it on its feet and take care of the First National in Houston for him, but his refusal to do that had nothing to do with expediting the sale of this land. I acted for Mr. Davis in making the sale of this land. I was not acting for Mr. Zeiss. I couldn’t act for him, because I was the trustee, and selling it under Mr. Davis’ directions. Yes, sir; I guess I was acting for Mr. Zeiss also. I was the trustee, and acted as trustee as the law directed.”

E. B. Pickett, Jr., testified that he drew the notices of sale after Mr. Richardson had been requested to make the sale by the First State Bank, and also by Mr. Wirt Davis; that he personally knows that Wirt Davis-advanced the sum of $5,000 on the note. The deed of trust at first was intended for the First State Bank, but before the transaction was closed he, as attorney for the bank, advised against the loan by the bank, because Mr. Zeiss was on too much paper, and thereupon Wirt Davis advanced the money. He further testified:

That a few days before the sale took place Mr. Stevens telephoned him and asked what would be done about having the Zeiss land sold under the deed of trust, “and I simply told him that the sale would be gone ahead with just as advertised, that we couldn’t postpone it any longer. I thought we had given Mr. Zeiss all the chance he could ask, and I tried to make it as emphatic as I could so he would understand that there would be no more delay.”

E. B. Pickett, Jr., further testified:

That he remembers distinctly that the sale-by the trustee “was made just a few minutes before that train came; can’t tell how many minutes before, but my recollection is that I saw Mr..Zeiss before I got back to my office; am quite sure it wasn’t made more than ten. minutes before that train came; hardly think that long.”

J. F. Richardson also testified:

. That the train referred to arrived at Liberty on that day at 10:40 a. m. (the regular schedule being 10:35 a. m.), so he learned by inquiry of the railroad agent. “I remember of making the sale of this land on the 7th day of April, 1914, and the train came in shortly after we left the courthouse; couldn’t state how many minutes, but I met Mr. Zeiss right out there on the-square as I came out of the courthouse.”

And there was evidence that the sale occurred in the usual manner by being announced in the usual way and formally cried out and bid off in the usual way.

E, B. Pickett, Jr., testified that the value of the land at that time was $3 or $4 per acre if the title was entirely clear. Also he testified:

That he does not know if Mr. Davis was at the -sale, hut he bid in the land. for him, and that “he considered that Mr. Richardson was acting for all parties just as the law puts that obligation on him, to act with fairness, and not take advantage of any one and treat both parties alike.”

A. W. Umland testified:

That the land is worth at least $4 per acre, and he thinks that he, as administrator of the estate, could sell it for $4 per acre cash. “I know about Mr. Zeiss’ 'business at that time, and he could have paid more than $1,750 for the land then. Could not say just exactly what he could have paid for it, couldn’t give any specific amount, but I know enough about his business at that time to know that he could have prevented the land being sacrificed at that figure.”

That testimony he gave on direct examination. On cross-examination he testified:

“That was just four months before Mr. Zeiss died. It is a fact that he was in very straitened condition financially,. and practically everything that he had was tied up. I don’t know whether he had been asked time and again to pay this, and that he had promised to do so, but failed; don’t know anything about it. I know that he could have paid more than $1,750 for the land at the time it was sold, because .the cash he had on hand at that time was more than that. When he died there was only $2,500 on hand in the bank, and the deposits ran over $20,000, but two or three weeks before he died there had been some unusually heavy, withdrawals. I don’t know whether Mr. Zeiss" two or three-weeks before he died had an appointment to meet Wirt Davis and Frank Richardson to make a part payment on this note or not. * * * The liabilities of the estate are about four times the assets, and under forced sale it would crowd the estates to pay 25 cents on the dollar.”

Again, on direct examination, he testified-

“But in April, 1914, which was 15 months ago, conditions were much better, before the war. At the time of this sale I would say that Mr. Zeiss was solvent. If he had lived he could have worked it all out all right, but dying at the time he did left him in pretty bad shape. I think his assets at the time of this sale were ■equal to his liabilities.”

He further testified on cross-examination:

“The inventory that I filed shows an excess •of assets over liabilities, . and the inventory included everything, so far as I know. Yes, sir; there was some $18,000 or $20,000 owing to the Houston banks, but I don’t know whether most of that is in Liberty county stuff that is worthless; don’t know whether the Finley stuff that we hold is worthless. I have never estimated that. I never had no knowledge of any of it until after his death.”

And J. F. Richardson testified:

That he and Wirt Davis, at Mr. Zeiss’ request, had met him at Houston after they “had written him' two or three letters and couldn’t get a reply in regard to what he would do, and Mr. Davis made an appointment with him and met him at the Brazos Hotel, and we met him there and had a talk with him, and we-offered to- take care- of tMs paper if- he would- pay the interest up on. it, and add a little more additional security, and he said it was an impossibility for him to even pay the interest.”

In the case of Givens v. McCray, 196 Mo. 306, 93 S. W. 379, 113 Am. St. Rep. 736, the court says:

“The mere fact that the property conveyed by deed of trust is sold in gross is not per se sufficient to avoid the sale; and no case that' I am aware of has gone to that length. There must be some attendant fraud, unfair dealing, or abuse by the trustee of the confidence reposed in him, or some resulting injury from a sale, made in this way, in order to obtain the aid of a court of equity to divest a title thus acquired. In the very nature of things some latitude of discretion ought in this regard to be allowed the trustee; indeed the very instrument conferring the power contemplates this, ■and so long as his acts are free from any suspicion or bias, and that discretion is not arbitrarily nor unsoundly exercised, those acts will be exempt from equitable interference.”

In the case of National Loan Co. v. Dorenblaser, 30 Tex. Civ. App. 148, 69 S. W. 1019, the court says:

“The' statute requires notice of sales under deeds. of trust to be given by posting written or printed notices thereof in three- public places in the county where the sale is to take place, one of which shall be at the door of the courthouse of the county” — citing Fisher v. Simon, 95 Tex. 234, 66 S. W. 447, 882; Marshton v. Yaites, 66 S. W. 867. “The posting of the notices in this case, one at the courthouse door, one on a telephone pole near the northwest corner of the courthouse square, and the other on a telephone pole near the northeast corner of the said square, .was practically one place, and such posting was<not at three public places, as contemplated by the statute. The price for wMch the lot sold being grossly inadequate, the irregularity in giving the notice of sale was sufficient to set aside the sale by the trustee.
“It was in the discretion of the trustee, under the terms of said deed of trust, to sell the property as a whole, pr in separate .parcels, and the exercise -of such discretion in- selling the whole lot, instead of in. parcels, will not be cause for setting aside the sale, unless it operated as an injury to opposing interests.. The evidence fails to show that a better price would have been realized by selling in a different manner, or that a different result, beneficial to opposing interests, would have accrued. We therefore conclude that the evidence fails to show an abuse of discretion by th,e trustee in selling the lot as a whole.”

It will be seen that.tbig sale was set asióle not alone on account of the inadequacy of price*-hut on account .of the-irregularity in the posting’and that said posting was not at. three public places as contemplated by the statute.

In the case of Evants v. Erdman, 153 S. W. 930, the court says:

“In'this connection we desire to state that mere inadequacy of price paid for the lots''is not alone sufficient to set the sale aside, unless that act,is supplemented by proof of bad faith, mistake, or undue advantage taken tif ignorance or weakness of those whose property rights are affected by the sale”—citing Hudgins v. Morrow, 47 Ark. 515, 2 S. W. 104.

-Continuing,-the court says:

“When plaintiff proved a sale under execution by introducing a. valid judgment in execution, .together with- a sheriff’s, deed, all apparently regular, if there was any illegality or irregulai-7 ity rendering .the proceedings .void, it. was the duty of appellee to assume the burden of .establishing such facts; and the same rule applies to a sale by a trustee under a power contained in a trust deed” — citing Maverick v. Salinas, 15 Tex. 57; Kennedy v. Walker, 188 S. W. 1115.

Umland, the administrator, testified that at the time of Mr. Zeiss’ death his bank had on hand only about $2,500 with which to pay off debts amounting to more than $2,500, and, in addition, he .was indebted to banks in Houston in the sum of $18,000 or $20,000, and that the liabilities of the estate were about four times the assets, and that under forced sale it would crowd the estate to pay 25 cents on the dollar, and he admitted that Mr. Zeiss was in very straitened conditions financially, and practically everything was tied up. See Hampshire v. Greeves, 104 Tex. 620, 143 S. W. 147; Givens v. McCray, 196 Mo. 306, 93 S. W. 374, 113 Am. St. Rep. 736; Green Co. v. St. Louis Mutual Building Co., 196 Mo. 358, 93 S. W. 1111; Seip v. Grinnan, 36 S. W. 350; Hudgins v. Morrow, 47 Ark. 515, 2 S. W. 104; Am. & Eng. Enc. of Law, vol. 28, p. 1005; Klein v. Glass, 53 Tex. 37; Jones v. Pratt, 77 Tex. 210, 13 S. W. 887; Smith v. Perkins, 81 Tex. 157, 16 S. W. 805, 26 Am. St. Rep. 794; Georgi v. Juergen, 66 S. W. 873.

In Jones v. Pratt, supra, the court says:

“An inadequacy of price is not by itself sufficient to require the sale to be set aside. It is so great as to require it to be set aside' if even slight irregularities attending the sale had been proved. But when such irregularities are not proved, they should not be sought after and created by the court in order to avoid the sale. Such a course would be destructive of execution sales. Confidence in such sales must be preserved. When they are authorized and properly conducted, great inadequacy of price alone will not be held cause for vacating them.”

We have carefully examined the record and appellant’s assignment of error and the propositions thereunder. The assignment is overruled. Finding no error in the action of the lower court, we are of the opinion that this cause should be affirmed.

It is so ordered.
      ¿&wkey;For other cases see same topic arid KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    TEXAS FIREWORKS CO. v. GUNN.

    (No. 7246.)
    (Court of Civil Appeals of Texas. Galveston.
    Oct. 26, 1916.
    Rehearing Denied Nov. 16, 1916.)
    1. Master and Servant &wkey;>279(5) — Injuries to Servant — Negligence oe Master — Evidence — Sufficiency.
    Evidence held sufficient to sustain finding of negligence on the part of the foreman employed by the master in manufacture of fireworks in furnishing a mixture whose qualities were unknown, in directing the injured servant to strike the powder a hard blow and in allowing unnecessary quantities', of explosives to collect in the room.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 978; Dec. Dig. <&wkey;279(5).]
    2. Master and Servant <&wkey;>107(7) — Injuries to Servant — Negligence of Master.
    There is no negligence in the mere fact that the master employed explosives in the manufacture of fireworks, but he is not thereby discharged. from using reasonable care, which demands increased watchfulness and greater caution in proportion to the dangerous nature of the instrumentality employed.
    [Ed. Note. — For other cases, see Master and Servant, Cent.. Dig. § 202; Dec. Dig. &wkey;> 107(7).]
    3. Master and Servant <&wkey;278(3) — Injuries to Servan^Negligence of Master.
    Facts tending to show negligence on the part of the master in creating conditions alleged to have caused the injuries are not negatived by the fact that an explosion of fireworks in .process of manufacture was unusual or extraordinary.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 958; Dec. Dig. &wkey;> 278(3).]
    4. Trial &wkey;>133(6) — Argument of Counsel-Cure of Error.
    Error, if any, in permitting counsel to argue, in a servant’s action for injuries by explosion of fireworks, in process of manufacture, that in another place there had been such an explosion and the master had been held liable in damages therefor, is cured by a specific instruction to the jury to disregard it.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 316; Dec. Dig. &wkey;>133(6).]
    Appeal from District Court, Harris County; Wm. Masterson, Judge.
    Action by F. M. Gunn against the Texas Fireworks Company. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Walter E. Monteith and Andrews, Street-man, Burns & Logue, of Houston, for appellant. Atkinson, Graham & Atkinson, of Houston, for appellee.

      Application for writ oí error pending in Supreme Court.

   LANE, J.

This suit was instituted in the district court of Harris county by F. M. Gunn, hereinafter called “appellee,” against Texas Fireworks Company, a corporation, to recover for personal injuries suffered by him while at work for appellant, which he alleges was caused by reason of an explosion of certain fireworks and other explosive matter on account of the negligence of said appellant company. Judgment was rendered for appellee for $1,645.

In appellee’s petition it is in substance alleged that as an employé of appellant he was working' under the direction and orders of one Wallace Clark, who was the foreman of appellant; that under the direction of said foreman he was, at the time of the explosion which caused his injuries, engaged in filling eases or cartridges with powder furnished to him for that purpose by said foreman, which said powder would explode from the effect of a blow; that he was put to work in filling said cartridges in a very small room; that at said time he was inexperienced in the performance of such work; that he had been engaged at such work for a period of three days only prior to his injuries and had no knowledge of the properties or dangerous character and quality of the powder so furnished to him, or of the work being performed; that said foreman knew^ or by ordinary diligence could and should have known, that said powder was a dangerous explosive and that the same would explode if struck a hard blow; that neither said foreman, nor anyone else, gave him any information as to the dangerous qualities of said powder, nor instructions to be careful in handling the same, but, on the contrary, said foreman directed him, while he was filling one of said cartridges with said powder, to strike the powder harder than he had been striking it, so as to fill said casing or cartridge more firmly; that, in obedience to said directions, he did strike said cartridge with greater force; that the force of said blow caused said cartridge, to explode with great force; that said explosion ignited a large quantity of other combustible and explosive matter and material, which said foreman had negligently permitted to accumulate and remain in said small room where he was performing his work, in close proximity to where he was at work; that all of said combustible and explosive material ignited and exploded, and that by reason of such explosion he suffered serious and permanent bodily injuries (setting out specifically the nature thereof); that by reason of said personal injuries he had suffered damages in the sum of $10,000; and that in addition to said personal injuries and damage he had suffered damage by reason of loss of time, and payment of necessary medical and doctors’ bills, in the sum of $693, for all of which he prayed judgment. He further alleged that said alleged negligent acts of said foreman was the proximate cause of all of his said injuries and damages.

Appellant answered by general and special denial of all the allegations of appellee’s petition, alleged assumed risk and contributory negligence by appellee, and that the accident was unavoidable and one which could not have been foreseen in the exercise of ordinary care.

The cause was tried before a jury, which returned a verdict in favor of appellee for the sum of $1,645. This verdict was approved by the court and judgment entered accordingly.

Appellant’s main contention for a reversal of the judgment of the trial court is that there was no evidence sufficient to support the finding by the jury of negligence upon the part of appellant in any of the particulars pleaded by appellee. Under this contention it submits the following propositions:

“(1) There was no evidence sufficient to support a finding by the jury of negligence upon the part of the defendant in furnishing to the plaintiff the powder with which plaintiff was working.
“(2) There was no evidence to support a finding by the jury of negligence upon the part of Wallace Clark in giving the direction to plaintiff to hit the powder with greater force.
“(3) There was no evidence sufficient to support a finding by the jury of negligence upon the part of the defendant in permitting other material to accumulate in the room where plaintiff was working.
“(4) There being no evidence sufficient to support a finding by the, jury of negligence upon the part of the defendant in furnishing to the plaintiff the powder with which he was working, or, through Wallace Clark, in directing the plaintiff to tamp the material harder, or in permitting other material to accumulate in the room where the plaintiff was working, and there being no other grounds of negligence submitted, the verdict is manifestly without support in the evidence.”

In determining the question as to whether the evidence was sufficient to authorize the court to submit the question of negligence on the part of defendant in the particulars alleged, and to support the finding of the jury on that issue, it is only necessary to examine the testimony which tends to support the same, which we will undertake to do.

The undisputed evidence shows: That the formula usually used by the defendant company in making “Niagara Falls” was a mixture of potash, aluminum, fine and flitter, meal powder, shellac, and dexterine; that the process of making such fireworks consisted in filling a shell or easing four or five inches long and about the size of a broomstick in diameter, with the formula above described, which was made up by the officers and employés of the appellant company ; that when this mixture was placed in the shell or easing it’would be tamped with a wooden stick about eleven or twelve inches long, by inserting the same in the shell and forcing it against the material by use of a hammer. At the time of the explosion which caused the injuries to appellee, he had been working for appellant for about two weeks, but had been engaged in making “Niagara Falls” only three days. He was inexperienced in such work and had no knowledge of the composition of the material used therein, nor the dangers incident to making said “Niagara Falls.” On the occasion in question, appellee, F. M. Gunn, had filled one or two shells when Wallace Clark, who was foreman of said appellant company, with authority to hire and discharge employés of said company, and under whose immediate direction and orders appellee was working, and who had put him to making “Niagara Falls,” took the filled shells to test them so as to determine whether or not they would give the proper effect. During this process of testing, Wallace Clark added to said mixture being used certain material until the mixture was as he wanted it. Then after appellee had filled a shell with the mixture as added to, said Clark told him to tamp it harder than he had been tamping it, for the purpose of packing it more firmly. As appellee struck one of the shells, in obedience to the instructions of said foreman Clark, it exploded and ignited other combustible and explosive material which Wallace Clark had brought into the small room, about six by eight feet in size, which was being used as a place in which to manufacture fireworks; that this material so allowed to accumulate was ignited by the explosion of said shell and exploded with great force; that by reason of such explosion appellee was badly and dangerously burned.

A. E. Gunn testified that he was told by A. P. and Wallace Clark, officers of appellant company, that the material used in making fireworks was dangerous; that he had seen them test the material used in making same, by striking it with a hammer; and that it always popped or exploded, except one time when they said it was not strong enough.

Wallace Clark testified that it was not customary in the manufacture of fireworks to leave a lot of explosive material in the room where the same was being made.

Dr. Tilson testified that meal powder contains sulphur, charcoal, and saltpeter; that if chlorate of potash and meal powder were mixed together it would explode; that the scientific opinion among those who knew the danger of handling a combination of potash, sulphur, charcoal, and saltpeter is that it is more dangerous than handling ordinary gunpowder, because chlorate of potash is not a constituent of ordinary gunpowder, because it is more explosive, is a more violent explosive than gunpowder. Mixed with sulphur and these other elements, it is regarded as a particularly dangerous material to handle where it is subject to concussion.

Mike Zabo testified:

That he had been at work nine years in the fireworks business, two years for defendant. That ‘‘chlorate of potash will not explode by itself. You can mix something with it that has sulphur in it to explode. If you mix sulphur with it, or something that, has sulphur with it, you make it explode by rubbing it hard or hitting it hard. If you hit it hard, it explodes. If you rub potash, it explodes just as if you had hit it hard. The safe way to handle it is if a man works easy with it. It is dangerous anyway, and it is dangerous no matter how you handle it. You have to be careful with it; potash, I mean. In filling the cartridges with material for fireworks, they tap easy anything that has got potash in it. If you have not got any sulphur in it, you can tap it; but, if there is sulphur in it, you have to handle it easy. I have never tried it with as much as two or three ounces of it; I did not want to take chances. If I know it is dangerous, I stay away from it. I know it is dangerous because I know what the chemical is. I know potash. If there is too much of it, a man cannot hit it, because he might get his head blowed.”

Appellee, P. M. Gunn, testified that he had had no experience in the manufacture of fireworks and that he knew nothing about the dangers incident thereto, and that he had been engaged in such work three days prior to the explosion.

A. P. Clark testified that he was secretary and treasurer of appellant company; that the potash he used was chlorate of potash; that if you put sulphur and carbon with chlorate of potash it will make a mixture which will be exploded by concussion; that charcoal is a carbon; that a mixture having ingredients like sulphur, charcoal, and potash together would probably explode by concussion ; it would be as dangerous as any fireworks are dangerous, and he would not like to use it.

The appellee, P. M. Gunn, also testified that just before the explosion Wallace Clark made additions to the powder furnished to him with which to make “Niagara Palls,” and said that it was what he wanted, but that he did not know “what in the hell he had in it.” This expression was made by Wallace Clark just before the explosion. He also testified that the entire explosion was instantaneous, all at the same time; that it blew him out of the door and about 20 feet from where he was standing.

Prom the undisputed evidence and testimony of witnesses above stated, the jury, under proper instructions, was authorized to find:

First, that the mixture or powder prepared by appellant’s foreman, Wallace Clark, and given to appellee to make “Niagara Palls,” contained potash, carbon, and sulphur, and that such mixture or powder would explode from the effect of a blow.

Second, that the mixture or powder so given by Clark to appellee, just before the explosion, was not the formula which had been generally used by appellant in making such fireworks, but, on the contrary, was a mixture made up by said Clark by adding other ingredients thereto to such an extent that he did not know just what it contained.

Third, that said Clark negligently directed appellee to tamp the mixture, so given by him to appellee, harder than he had been tamping it, and that in obedience to said directions appellee did so tamp it, and that by reason thereof the shell being filled and tamped by appellee exploded.

Fourth, that at the time of explosion ap-pellee was inexperienced in making such fireworks, was ignorant as to the contents of the powder furnished him to make the same, that he had no warning from any one as to the dangers incident to handling such powder, nor had he from any source any knowledge of the danger usually incident to the making of such fireworks.

Fifth, that prior to said explosion which injured appellee, the said Wallace Clark had brought and deposited considerate quantity of combustible and explosive material into the small room in which appellee was making “Niagara Falls” in close proximity to where appellee was at work, and that said combustible and explosive material was ignited by the explosion of the shell upon which he was .working, and caused the same to explode and burn, and that by reason thereof appellee was seriously and dangerously burned.

Sixth, that said explosion was the result of negligence on the part of Wallace Clark, in all the particulars alleged, and that such negligence was the direct and proximate cause of appellee’s injuries.

This being true, we think such evidence was amply sufficient to authorize the court to submit, and the jury to find, negligence on the part of Wallace Clark, superintendent and foreman of appellant, in all three particulars alleged, although appellant offered evidence tending to rebut the same.

There is, of course, no negligence in the mere fact that appellant employed explosives in the manufacture or making of fireworks, for such is the usual and necessary method by which said fireworks are manufactured; but the fact that such dangerous materials may be used without exposing the master to a charge of negligence does not by any means imply that he is discharged from ordinary obligation to use reasonable care to protect his servant against injury therefrom. Indeed, reasonable care demands increased watchfulness and greater caution in proportion to the dangerous nature of the instrumentality employed. The negligence charged in this case is not founded upon the mere fact that appellant used explosives in the prosecution of its work which under some conditions and circumstances might explode, but upon the theory: (1) That appellant furnished appellee with a mixture from which he .was to make fireworks, the exact qualities of which were unknown to the master, without using that degree of care required of the master under the existing circumstances so as to protect the servant from probable danger; (2) that its foreman directed the servant to strike the powder so furnished a hard blow without having first analyzed or tested the same so as to determine whether or not it would likely explode by reason of said blow, and to.avoid probable injury to the servant thereby; and (3) that its foreman negligently accumulated an unnecessary quantity of explosives in the small room used by appellee in making said fireworks. The determination as to whether or not appellant was guilty of negligence in the particulars alleged was for the jury. For this court to say as a matter of law that the acts of appellant’s foreman in doing the three things alleged as negligence was not negligence would, in our judgment, be a very serious encroachment upon the province of the jury. It is no answer to appellee’s charge to say that no such explosion had ever before 'occurred. The facts tending to show negligence on the part of appellant in creating the conditions as alleged is not negatived by the fact that the explosion was an unusual or extraordinary occurrence. Waters Pierce v. Snell, 47 Tex. Civ. App. 413, 106 S. W. 170; McGray v. Ry. Co., 89 Tex. 168, 34 S. W. 95; Railway Co. v. Cassady, 184 S. W. 180; Brown v. West Riverside Coal Co., 143 Iowa, 662, 120 N. W. 732, 28 L. R. A. (N. S.) 1260; Ruling Case Law, vol. 2, § 50, p. 695.

The conclusions above expressed fully answer the main contention of appellant, and it is therefore overruled.

What has been said in the discussion of appellant’s first and main contention also disposes of the contentions made by assignments 2, 3, 4, 5, 6, 7, 8, and 9.

By appellant’s tenth assignment complaint is made of so much of the trial court’s main charge which reads as follows:

“Now, if you believe from a preponderance of the evidence * * * that the defendant _ was negligent in furnishing powder of such highly explosive character that it would explode by force of a blow, if it did, or that the defendant’s servant in charge of plaintiff was guilty of negligence in directing plaintiff to strike said powder with increased force, if he did, or if defendant permitted a large quantity of explosives to accumulate in a small room in which plaintiff was working, if he did, and that when said cartridge that plaintiff had exploded, if it did, and you further believe that it ignited other explosives in said room, if any there were, and thereby increased the original heat of the explosion, if it did, and largely increased the injuries to the plaintiff herein, if it did, * * * then you will find for the plaintiff and assess his damages as hereinafter directed.”

Following that portion of the court’s charge complained of, the court instructed the jury as follows:

“If you find from the evidence that the defendant was guilty of negligence in any, or all, of the particulars above alleged, but that said negligence, if shown, was not the proximate cause of the plaintiff’s injuries, if any, as such term has been hereinafter defined, or if you believe from the evidence in this case that plaintiff’s injuries, if any, were the result of an unavoidable accident which could not have been foreseen in the exercise of ordinary care upon the part of the defendant, then you are instructed that in any, all, or either of these events the plaintiff cannot recover, and if you so believe you will return your verdict for the defendant.”

After a careful examination of the charge of the court as a whole, we have reached the conclusion that it fairly presents the issues as made by the pleadings and evidence, and that that portion of the same complained of did not probably result in injury to appellant. The tenth assignment is overruled.

Counsel for appellee in argument to the jury made use of the following language:

“In San Francisco, Cal., several years ago, there was an explosion of a powder factory which blew up and killed every employé working therein, and no one was able to assign any cause for the explosion; but notwithstanding this the owners of the factory were made to pay damages.”

Appellant makes this argument the ground of its eleventh assignment of error.

Upon objection to such argument being made, the court instructed the jury that such argument was improper and that they must not consider the same in arriving at their verdict. Appellant contends that, nothwith-standing the instructions of the court, such argument is cause for a reversal of the judgment of the trial court, because it was calculated to excite the prejudice of -the jury or furnish the jury a reason for a verdict other than on the evidence. This contention cannot be sustained. A judgment will not be reversed for improper remarks of counsel, where the jury were specially instructed by the court that the remarks were improper and not to consider them in considering their verdict, and neither the size of the verdict nor anything else in the record indicates that the jury, were improperly influenced by the1 remarks. It will be presumed that the jury were men of ordinary intelligence, and that they obeyed the instructions of the court. M., K. & T. Ry. Co. v. Lightfoot, 48 Tex. Civ. App. 120, 106 S. W. 395; Banner v. Thomas, 159 S. W. 105; Radford v. Lynn, 65 Tex. 471; Beaumont Tr. Co. v. Dilworth, 94 S. W. 355.

The undisputed evidence with reference to the injuries and damages suffered by appel-lee was as follows:

Dr. Jones testified:
“I treated F. M. Gunn in May, 1914. When I went to see him, I found he had been badly burned over his face and arms. * * * Both arms and hands were burned clear from the end of the fingers up to his shoulder. His left arm was burned worst, but they were both burned. His condition at that time looked to be serious. * * « His eyeg were practically closed, and his whole head was swelling up. * * * His hands, it seemed the bones were all torn on them. * * * His arms here, you could see between the bones. * * * His face sloughed off, too. I thought he was going to lose his nose, but it grew back again. His ears were pretty badly burned. The right ear was the worst burned. It was burned clear around, and it all sloughed off, and we had to build up the flesh again. * * * I don’t see how it could be any worse pain for anybody than that. It was just a condition where the human body was subjected to the greatest suffering it possibly could be. * * * I can’t say the number of times that I saw him, but it was right around four weeks. We had a trained nurse there, day and night. I think the services of a trained nurse were necessary to save his life, because I worked with him day and night, and it was a hard pull to get him through; there is no question about that. It was a bad case. * * * I spent two or three hours a day with him, in the dressing. * * * He could not have lived over 36 hours without that attention. I charged $150 for my services. I considered that a very reasonable charge. I made about fifty visits of from one to three hours. From what I know of his injuries they are to a certain extent permanent. * * * He does not look like the same fellow he did. * * * His muscles never will be what they were before. * * * The muscles of his arms are weakened. We would say it would be a kind of atrophy of the muscles. After being burned, it cut off the blood vessels, and the muscles did not develop again. * * * The blood vessels are all burned pff from the surface, * * * and in this case never will be regained, because those blood vessels never will be replaced. * * * I did not give any hope that it would be like it was normally. Nature will provide to a certain extent, but it will not bring back to the normal. That is utterly impossible.”
A. F. Gunn testified:
“The plaintiff is my son. Mr. Howe was the trained nurse I employed. I agreed to pay him $30 a week. He charged me $90 for 21 days’ services. I employed Dr. Jones to attend to my son, who charged me $150. He waited on him something like five weeks. Something like $60 was spent for drugs and medicines. Dr. Arnold’s bill was $15. My son was earning $10 a week when working for the Texas Fireworks Company. My son was not able to work until December following.”
Plaintiff testified as follows:
“In that explosion I was burned on my hands and face and arms and on my stomach in two or three places. The effect of the burn on my left arm was such that I have not got more than one-half of the strength in it now that I have had in it. It tingles all the time, and I wake up at nights and have to rub it. * * * The effect of the burn bn my left hand is such that I can hardly use the fingers on it at all. * * * My right hand and arm were burned all over. My eyes, since the accident, are weaker than they were. * * * I can’t read at night at all. My right ear is injured. I don’t know, but there is a buzzing in there all the time, and about once a month I can hear that explosion the same as the day it exploded. Before I was hurt I weighed from 158 to 162 pounds. After I had partially recovered from the injury I had fallen to 117. * * * If I go to such manual labor as I used to do, I can’t do it at all, because I have not the strength in this left arm as I used to have. I suffered for about five weeks after the injury to me, and the extent of my suffering was pretty bad. There was five days of that time I was blind and could not see anything. Then there were about four days after that that they kept the rag on my eyes. * * * My arm still hurts me. I lost every one of my finger nails on both hands. The.explosion burned my face all over. You can see two or three streaks across here yet. I was 23 years old August 7, 1915. I lost from the 22nd of May, 1914, until February, 1915, as a result of this injury. I lost about nine or ten months’'time because of the injury.”

The judgment for appellee was for $1,645 only. There is nothing in the record tending to show that the jury was Improperly influenced in behalf of appellee by reason of the remarks of counsel, complained of. The eleventh assignment is overruled.

The record discloses no error committed by the trial court in the trial of this cause. The judgment of the lower court is affirmed.

Affirmed.

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