text:
    HORTON & HORTON v. HARTLEY et al.
    (No. 6698.)
    (Court of Civil Appeals of Texas. Galveston.
    Oct. 21, 1914.
    Rehearing Denied Nov. 19, 1914.)
    1. Death (§ 13)—Nature of Action—Requisites—Personal Default.
    Rev. St. 1895, art. 3017, cl. 2, provides that an action for death may be maintained when the death of any person is caused by the wrongful act, negligence, unskillfulness, or default of another. Reid, that a person cannot be charged thereunder for the death of another, caused by the act or omission of the agents or servants of the persons sought to be charged, but only foi- death .resulting from the latter’s immediate act or omission, or for the default of some agent representing him in the performance of a nondelegable duty.
    [Ed. Note.—For other cases, see Death, Cent. Dig. § 48; Dec. Dig. § 13.]
    2. Master and Servant (§ 107)—Death of Servant—Safe Place—Changing Place.
    The rule requiring a master to furnish his servant with a safe place in which to work, and holding him liable for injuries caused by a failure to perform such duty, does not apply to cases in which the work being done by the servant is constantly changing, requiring constant renewal of precautions against danger.
    [Ed. Note.—For other cases, see Master and Servant, Cent. Dig. §§ 199-202, 212, 254, 255; Dec. Dig. § 107.]

      3. MASTER AND SERVANT (§ 278) — DEATH OF Servant — Negligence.
    Decedent, having represented to defendant that he was competent to superintend a sewer construction gang and was especially competent to sheath and brace sewer walls as the work progressed, was employed as foreman of a gang and given charge of the construction of a section of defendant's sewer work. Defendant provided sufficient and proper material with which to brace the sides, and instructed decedent to use all that was necessary and if there was an insufficient supply at any time to demand more from defendant’s teamster. Decedent was killed by a cave-in while endeavoring to brace the sides of the sewer after notice that they were dangerous, and that the sides were about to cave in. ITe made no attempt to escape after he was notified of the danger, but, though others had refused to go into the trench, insisted that the place was safe. Reid, that there was no actionable negligence on defendant’s part, and that decedent assumed the risk.
    [Ed. Note. — Eor other cases, see Master and Servant, Cent. Dig. §§-954, 956-958, 960-969, 971, 972, 977; Dec. Dig. § 278.]
    Appeal from District Court, Harris County; A. E. Amerman, Special Judge.
    Action by Evelyn K. Hartley and others against Horton & Horton. Judgment for plaintiffs, and defendant appeals.
    Reversed and rendered.
    Andrews, Streetman, Burns & Logue and Campbell, Sonfield, Sewall & Myer, all of Houston (W. L. Cook and Leon Sonfield, both of Houston, of counsel), for appellant. John Charles Harris, of Houston (Harris & Harris, of Houston, of counsel), for appellees.

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

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

   McMEANS, J.

George F. Horton, doing business under the firm name of Horton & Horton, was engaged in the construction of a sewer system in the city of Houston, .and P. M. Hartley, the husband of Evelyn K. Hartley, and father of Sydnia C. Hartley, was, on the 30th day of April, 1913, in the employment of said Horton, and on the date name was killed while engaged in the service for which he was employed, by the caving of earth into an excavation then being made for a sewer. This suit was instituted in the district court of Harris county by the said Evelyn K. Hartley and Sydnia C. Hart-ley to recover damages for his death. The grounds of negligence charged against defendant and upon which a recovery is sought are: (1) In failing to use ordinary care in furnishing the deceased a safe place in which to work and in failing to properly brace the sewer; (2) in failing to furnish the deceased with suitable material to properly sheath and support the sides of the sewer; (3) in failing to, employ properly skilled workmen to construct the side planking and supporting • cross timbers; (4) in failing to furnish a sufficient quantity of planking and cross timbers of sufficient strength to prevent the sewer from caving; (5) in not properly. inspecting the planking and cross timbers both before and after they were placed in the sewer; (6) in permitting deceased to work in a place not sufficiently planked, sheathed, and braced; (7) in not providing a ladder or other means of escape for deceased from the sewer; (8) in not stationing a competent person to give warning to deceased of sudden danger of the earth caving in while he and his men were working in the sewer; and (9) in delegating to an incompetent and inexperienced employé the duty of furnishing a sufficient quantity of suitable timbers and planking to properly brace the sewer, and in delegating to such employs the duty of passing upon the sufficiency and quantity of timber required for use' in the sewer. The defendant answered by general denial and pleas of assumed risk and contributory negligence. He further pleaded that the character of work being done at the time when and the place where deceased met his death was such that conditions were constantly changing and such that it was incumbent upon deceased and his gang to make safe their own place of work. The case was tried before a jury, and resulted in a verdict and judgment for plaintiffs for $10,000, from which the defendant has appealed.

Appellant’s first assignment of error is as follows:

“The trial court erred in overruling defendant’s amended motion for a new trial upon the ground specified in paragraph 1 of said motion, which is as follows: ‘This being an action under the Texas death injury statute, growing out of the death of plaintiff’s decedent, P. M. Hartley, and being an action against a natural person, George F. Horton, doing business under the firm name of Horton & Horton, he being the sole owner of said business, the verdict of the jury was contrary to and not supported by the evidence, for there was no evidence of personal or individual negligence on the part of George F. Horton proximately causing the death of said Hartley.’ ”

By his first proposition he asserts that:

“This being an action to recover damages on account of the death of plaintiff’s decedent, and being an action against George F. Horton individually, it was essential to a recovery that there be evidence showing, or tending to show, negligence on the part of said George F. Horton individually, as distinguished from negligence of his servants or agents, as the proximate cause in law of the death of said Hartley.”

By another proposition under the first assignment he contends that, there being no evidence to sustain a finding of negligence on the part of George F. Horton individually, the court should have granted the motion for a new trial. '

The undisputed evidence in the record establishes .the following facts: Defendant George F. Horton, doing business in the firm name of Horton & Horton, was engaged in the construction of a sewer system in the city of Houston. The work was quite extensive, and he had a great many employes, who worked in gangs, each gang having a foreman. P. M. Hartley, representing himself to have had considerable experience in sewer construction, applied to defendant for work, and was employed by defendant and placed as foreman over a gang that was excavating for a sewer at tlie intersection of Crosby and San Felipe streets in said city. 1-Iis duties as foreman and the character of the work being performed under his direction, as told by the defendant in testifying, and his testimony is uncontradicted, were as follows:

“His, Hartley’s, duties in that employment were to excavate and sheath that hole, his trench. I will describe in detail the work in one of those holes, so the jury will understand what kind of work it was, and the manner in which it was carried on. Mr. Hartley was excavating in what is known as an open cut or trench; he would dig it out, then sheet and go on down; it was just an ordinary trench right across the street, a big ditch; he sheeted and cross-sheeted all the way down in order to keep it from caving in; that was his work, and his duty was to excavate it, dig it out and sheet it. He had the help of his men in .order to do that work * * * and at the time he met his death * * * had 12 to 14 men working under him at that work. Mr. Hartley himself had supervision and control over his men, absolutely, * * * and directed the details of thcs work of sheathing and bracing and the excavating that was going on in the place where ho was working; he had full control, absolute charge. I held Mr. Hartley responsible for the safety of that work and for the sufficiency of it. The conditions, of course, were changing daily, or hourly, on that work. * * * You can readily see that a man excavating, he would go down, maybe, three to six feet in a day, it just depended on the digging and the number of men engaged, and the obstacles * * * that they met with, and of course they would sheet as they would dig out, going along, and the conditions were constantly changing down there every day then.”

The extent of the sewer work in which defendant was then engaged covered a distance of about six blocks, and the work was divided into about five or six units, each unit having a foreman in charge, that in charge of the deceased being the one which caved in on him and caused his death; and each foreman was held responsible for the proper construction of the particular unit under his supervision. Defendant did not know the details of the work being done by deceased and his gang, except in a general way. On some days he would not visit the place and on others he would visit it two or three times a day, and on such occasions would ask the deceased as to the progress of his work and whether he needed anything. He was not present at the time of the cave-in, but had been there about 20 minutes before, and returned to the place about 20 or 30 minutes after the accident happened. He says:

“I know of my own knowledge that no timber broke in that cavc-in; there was not a timber broken. I know that because X was there when it was being excavated.”

The instructions given by defendant to deceased in regard to keeping sufficient material on hand at all times were, in the defendant’s own language, “to see that there was always plenty of material cu hand, order it ahead, keep plenty-of material on hand, and in ease of shortage to go to the teaming foreman and have him get it from any other place on the job — always have it there.’’ At the time of deceased’s employment the defendant told him:

“What I want is a man that can take charge of a piece of work and get results; what 1 want is results, and I want somebody that can get work out of men, and can sheath a hole”

—to which deceased replied:

“If there is anything I am good at it is sheathing. I worked for a railroad long enough to learn bracing, and while I was in Beaumont that was my duty; I had the night shift in Beaumont, and I excavated and sheathed the place, and in the daytime they built the sewer.”

Being asked by defendant if he thought he could take the gang and excavate across San Felipe street and hold it, he said he did. The principal directions given to deceased by defendant were to “Sheath up, don’t excavate too much before you sheath.” '

The excavation at-San Felipe street .crossing was to be carried to the depth of 32 feet and had reached a depth of about 20 feet when the cave-in occurred. The witness Fahr, one of the foremen of a gang working in another section of the sewer, testified: That he was present when the accident happened. That just immediately before it occurred deceased was standing on a ranger extending across the sewer about 12 or 15 feet from the surface—

“and he said: ‘Fahr, pass me up a stiff leg, I want to put in a brace,’ and I said, ‘How are conditions down there, Mr. Hartley?’ and he said, ‘Conditions are all right,’ and he says, Y will put in a brace across here for precaution,’ and I says, ‘Well if there is anything dangerous let us know,’ * * * and he said, ‘If there was any danger here I wouldn’t be in here, if there is any danger just come up, 1 can let you know in time so you can get up.’ Well I never paid any more attention to him then, and went on with my work further down in the hole; and all of a sudden the crash came.”

Brantley Monroe, who was working under the direction of the deceased, testified that when the cave-in occurred he was about 10 feet above the deceased and out of reach of the cave-in; that he had been within reach of it just before.

“How I happened to get out of there was, I saw the sand slip from the side, and X came out. Mr. Hartley called me down to him to bring him two pieces of five foot sheathing. Well 1 went on down to him, and just as I was going down I saw a little slip of sand, and I told him I didn’t think it was necessary for us to stay down here; that I couldn’t do him any good, and I came out, and he told me I was ‘too darned scared; that the hole had done all it was' going to do; that there was no danger.’ I told Mr. Hartley I did not want to stay in there; I did that because I did not want to stay in there, as it looked dangerous to me, and I told him that; I got out, but Mr. Hartley stayed in it.”

Philip Taylor, who at said time and place was working under deceased, testified:

“Mr. Hartley told me to go down there and get everything straight. I tried to got down there and save the hole in case it slipped, in getting in the braces as quick as wo could. That was above where the accident happened, and the soil commenced slipping, and I got out of the way, up above, and Mr. Hartley came ) down and looked and said: ‘All right; it is all right, no danger; everything is all right. And he says, ‘¿land me that stiff leg down there, * * * and he said, ‘Gome up and put it up, and I said, ‘No, sir,’ and he called some man when I told him I was not going up there, and just as they got it [the brace] started across, why,' it just crashed right in. The reason I got out was because it looked dangerous, was slipping down, and I didn’t want to take any chances. Mr. Hartley, at that time, was trying to put that stiff leg across there. He said it was perfectly safe, but he was going to put the stiff leg across there so it would sure be safe.”

Francisco Sanches, also an employé of defendant and working under the control of the deceased at the time of the accident, testified:

“Before it happened it was' caving in, but I did not know it was falling in. I had told Mr. Hartley 10 minutes before that it was caving in. When I told him that Mr. Hartley told some negroes to bring him a stiff leg; he was going to place that stiff leg in that part that was caving in, so it would be stronger and to keep it from caving in. There was new lumber used there, and it was stronger, and he was going to put that there so it would be stronger. Mr. Hartley was up above when I told him it was going to cave in, he was standing on the side of the hole, outside. After that Mr. Hartley went down with this man to put this stiff leg in there.”

Ed Needham had been superintendent of sewer construction, but about a week before the death of deceased he was relieved of this position and placed as foreman of a gang working at another place, occupying a position similar to that of deceased.

Rason was timekeeper and materialman for defendant, and was authorized by defendant to order such material as was needed in the progress of the work. If deceased or any other foreman wanted particular material, such as timber for bracing or lumber for sheathing, he would generally ask Rason for it, and the latter would then go 'to the warehouse to see what material was on hand, and if there was not enough there that he thought was needed, he would order it. He sometimes passed upon that question. He had held the position about seven months pri- or to the accident. Prior to his employment by defendant he had no experience in sewer construction, nor in passing upon lumber or timber or such questions, had never worked in a lumber yard and up to the time of the trial knew nothing about first or second class lumber, nor about the kind and quality of lumber that is needed to brace the side of an excavation 25 feet below the surface. He visited the place of accident shortly after the cave-in, and testified:

“I, myself, saw Hartley down in there and I saw the timbers all crushed in there and the dirt.”

He further said:

“On the day of the accident to Mr. Hartley there was material on hand to be used for work in that particular hole; there was a g-ood pile of that material there; there was a sufficient quantity, I believe. There was a quantity there of each land used in the hole; it was close up so they could see it. If Mr. Hartley, in the usual course of things, came to me and told me that he did not have a certain kind of material, and I found that he did not have it, if he wanted it right away, I would go right near by to the other excavation there and get it. The occasion never arose where' I failed to get material for him; I always got it for him. I do not know whether there was a request for material by Mr. Hartley on the day of this accident, 1 couldn’t remember; there was none made to me. They very seldom had to make a request to me, because I always kept the stock up.”

The witness Ed Needham, also a foreman, testified:

“My duties as foreman were to see that the work went on right, and handle the men to the best advantage to do the work, to see that it was timbered up and sheathed for the safety of the men, so as not to cave in, and to prevent any accident. I had all of the excavations to attend to; that is how far I was intrusted with the duty of attending to such work. I had also to attend to the sheathing after excavating, and that is how far I was intrusted with that work. It was entirely up to me to supervise the work of my men, and I was also intrusted with the duty of getting materials for that work.”

John Needham, another foreman, testified:

“That work I was doing required sheathing and excavating; I had all that to do, the bracing and sheathing and all. I had a gang of men helping me, and my gang and I did that work. The extent of my duty toward supplying material was, if the material was not there, I gave orders to supply me with the material necessary. I directed the matters of placing the sheathing and bracing; that was left up to me completely; all of it left up to1 me, and that is true of all the other foremen, so far as I know. I did state that I ordered material. When I needed material, and couldn’t find the superintendent, and the timekeeper came along, I ordered from him, either the timekeeper or superintendent; I would order from either. I would tell them I would need material.”

The witness McElwee, who had many years experience in excavating and sewer construction, testified that:

“In my opinion, as a sewer foreman of six or seven years’ experience, if that sewer had been properly braced and sheathed with a sufficient number of rangers and cross timbers of sufficient strength the sewer could not have caved.”

It is undisputed that defendant did not go into the excavation in question to inspect it and see if the braces and sheathing were properly put in to prevent the sides caving, nor did he provide ladders for the men to climb in case of the happening of such an accident, nor did he station any one there to watch and warn Hartley and his men of impending danger from caving, nor did he inspect the timbers either before or after they were placed in the trench.

This action is based upon the provisions of article 3017, Revised Statutes of 1895, which, in so far as applicable here, reads as follows:

“An action for actual damages on account of injuries causing the death of any person may be brought in the following cases: * * * 2nd. When the death of any person is caused by the wrongful act, negligence, unskillfulness or default of another.”

It is now too well settled to require discussion, or to do more than cite some of the authorities which so hold, that under this provision a person is not liable for the act or omission of his agents, causing death, but death must result from his own immediate act or omission. Sullivan-Sanford Lumber Co. v. Cooper, 105 Tex. 21, 142 S. W. 1168; Commerce Cotton Oil Co. v. Camp, 105 Tex. 130, 145 S. W. 902; Hargrave v. Vaughn, 82 Tex. 347, 18 S. W. 695; Hugo, Schmeltzer & Co. v. Paiz, 104 Tex. 563, 141 S. W. 518.

In order to authorize a recovery in this case it was incumbent upon the plaintiffs to prove that the death of P. M. Hartley resulted from some wrongful act, negligence, un-skillfulness, or default of defendant Horton, or some agent representing him in the performance of some nondelegable duty. Has this been shown? We think not. Deceased had had considerable experience in doing the very work he was employed by Horton to do. In making application' for employment he represented that he had been doing like work, that he understood bracing, and that if there was anything he was good at it was sheathing. It is manifest that the walls of the sewer caved for want of sufficient sheathing and bracing. It is further apparent, and it is made clear by the testimony of the witness, McElwee, that the sewer would not have caved had it been properly braced and sheathed with timbers of sufficient strength. If this was not done, was the omission due to the wrongful act, negligence, unskillfulness, or default of Horton, or his alter ego? We think not. As to.those working under Hartley, he was, in the circumstances above detailed, the alter ego of Horton, and had any of them been killed by the eave-in an entirely different case would be before us. Here the excavation, sheathing, and bracing were under Hartley’s direction, and the sufficiency of the props, supports, and the times for placing them in the trench were committed to Hartley’s judgment. There is no evidence that he was not furnished with sufficient quantity of suitable material to make the work safe as it progressed, but, to the contrary, that such material was furnished to him. If the material was not on the ground he only had to apply for it in order to get it, but the testimony shows that a sufficient quantity was on the ground. He thought even up to the time that the earth fell upon him that the walls were sufficiently braced and sheathed to be safe, for this is what hq told his employes when ‘they refused to enter the sewer to assist him in putting in the additional brace. Whose fault was it, then, that the walls caved in? Certainly not the defendant’s, for he had not reserved to himself the duty, in so far as Hartley was concerned, to see that the work was carried on properly, or of inspection, but all this was committed to Hartley. We are unable to perceive, in what particular Horton was remiss in any duty he' owed Hartley in the circumstances.

The rule requiring the master to furnish the servant a safe place in which to work and holding him liable for injuries caused by a failure to perform such duty has no application under the facts of this case, for such rule does not apply to cases in which .the work in which the servant is engaged is of such a nature that the conditions of the place of work are constantly changing. Adams v. Lignite Co., 138 S. W. 1178; Producers’ Oil Co. v. Bush, 155 S. W. 1032; Labatt, Master & Servant, p. 2466. The work in its very nature was one of constant change. An excavation was being made, and progressed from three to six feet a day. The work was to be performed at the bottom of the trench, which grew deeper daily, and the sheathing and bracing had to progress with the excavation.

If the place was an unsafe one in which to work, it was so because of the performance of the very work Hartley was employed, to perform, and his failure to properly sheath and brace the sewer walls as the work progressed. There is not a scintilla of testimony to support the allegations that Horton neglected to furnish suitable material to properly sheath and support the sides of the sewer, but on the’ contrary the evidence is clear, we think, that the quantity and character of the timber necessary to be used was committed to the judgment of deceased, and that he was supplied with such material as he demanded. If it be contended that because the cave-in could not have occurred if the walls had been properly sheathed and braced with sufficiently strong material, therefore the caving itself showed that such material had not been used, and therefore had not been furnished to deceased, we think it is a clear answer to say that the evidence showing that deceased had the right to call for and procure suitable material, .and that he always received such material as he asked for, the manner of doing the work having been committed to his supervision, his failure to use such material reflects more his want of judgment and experience than it does any neglect in that regard on the part of Horton. Nor is there merit in the claim that Horton was guilty of negligence in not properly inspecting the planking and cross timbers both before and after they were placed in the sew-er. This was a matter especially committed to the deceased and a work which he undertook to supervise, and if there was negligence in this regard it was that of the deceased and not of the defendant.

It is not perceived how the failure of defendant to provide a ladder to be used by Hartley and his men, or the failure to station some person at the work to give notice of an impending cave-in, could have been the proximate cause of the death of Hartley. He was not killed because of a want of means of exit, but because after he was told of the danger of the earth’s caving, he did not seek to escape, but placed bimself immediately where the caving earth would fall upon him in a laudable effort to prevent the very thing that happened, but there is nothing to indicate that had a ladder been provided he would or could have used it as a means of escape. A watchman, had one been provided, could not have given notice of conditions then existing that Hartley was not already aware of, not only from what the witness Sanches and other employes told him, but from his personal inspection. If it were conceded that the matter of furnishing suitable material had been delegated to an incompetent and inexperienced employ®, this was not a proximate cause of Hartley’s death, for the reason that it was nowhere shown by the evidence that deceased had not been furnished with suitable material, further than that the sheathing and braces gave way when the earth caved, the evidence showing that none of the timbers were broken. True the witness Bason says that he “saw the timbers all crushed in there and the dirt,” but he did not say that the timbers, were broken, and in the face of the positive testimony that none were broken, we cannot believe that the witness meant to convey any other idea than the language he used would imply that the dirt and timbers were crushed into the excavation by the cave-in.

In our view of the law as applied to the facts, we conclude that plaintiffs are not entitled to recover. We have reached this conclusion after mature deliberation and investigation of the authorities relied upon by the plaintiffs; and, while it is unfortunate that the plaintiffs may not be remunerated for the great loss sustained by them in the death of the husband and father, it appears to us that it is our plain duty to reverse the judgment of the court below in their favor, and to render judgment here for the defendant, and it has been so ordered.

Beversed and rendered.


source: Caselaw Access Project

author: BAINEY, C. J.

license: Public Domain

text:
    STATE EXCHANGE BANK v. SHIVE & KEYS MILL & GRAIN CO.
    (No. 7204.)
    (Court of Civil Appeals of Texas. Dallas.
    Oct. 31, 1914.)
    Chattel Mortgages (§ 173) — Claims oe Third Persons — Attachment — Right oe Action.
    A mortgagee, who has, by the terms of his mortgage, the right to take immediate possession of the mortgage chattels on default of payment, has the right to prosecute an action for the trial of the right of property against one who attaches the mortgage chattels.
    [Ed. Note. — Eor other cases, see Chattel Mortgages, Cent. Dig. §§ 307, 309, 316-326; Dec. Dig. § 173.]
    Appeal from District Court, Ellis County; E. L. Hawkins, Judge. *
    Action by the Shive & Keys Mill & Grain Company against Acklin Bros., in which the State Exchange Bank intervened, claiming the attached property under the chattel mortgage. Prom a judgment for the plaintiff against the claimant, the claimant appeals.
    Beversed and remanded.
    Will Hancock, of Waxahachie, and Led-better, Stuart & Bell, of Oklahoma City, Okl., for appellant. Supple & Harding, of Waxa-hachie, for appellee.

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

   BAINEY, C. J.

This is an action for the trial of the rights of property. On December 16, 1912, appellees, Shive & Keys Mill & Grain Company, a partnership composed of W. E. Shive and J. D. Keys, as plaintiffs, instituted suit in the district court of Ellis county, Tex., against Acklin Bros., as defendants, to recover $1,055.29 and costs of suit, and caused a writ of attachment to issue in said suit, which writ was levied by the sheriff of Ellis county, Tex., upon six horses, valued by said sheriff at $1,200. Appellant, State Exchange Bank, claimant, presented to said sheriff its claimant’s bond and affidavit, both executed in' accordance with law, and said sheriff turned over said personal property to appellant. Claimant filed issues claiming it was entitled to the immediate possession of said property by virtue of the terms of a certain chattel mortgage executed and delivered to it by Acklin Bros., to secure the payment of two promissory notes due it by said Acklin Bros., on which was still owing about $7,300, then past due.

Appellee filed its motion praying judgment against claimant on the facts stated in said issues tendered, for the reason that the issues tendered by it showed that claimant was a mere lienholder, and not in possession of said property when levied on by virtue of said attachment. It further tendered the issue that the debt claimed by the appellant was fictitious and without consideration, and that said indebtedness and mortgage were fraudulent and void and made for the purpose of defrauding, hindering, and delaying creditors. The court held that, claimant not being in possession of the property at the time of levy, it was not entitled to prosecute this suit, and sustained appellee’s motion, and rendered judgment for appellee without hearing evidence on the issue as to the fraudulent execution of the notes and mortgage for the purpose of defrauding creditors.

This is a companion ease to Bank v. Smith, decided last term of this court, which is reported in 166 S. W. 666, wherein it was held that a mortgagee, having, by the terms of the mortgage, the right to take immediate possession of the property on default of payment, has a right to prosecute an action for the trial of the right of property, and said cause was reversed and remanded that the issue of fraudulent execution of the notes and mortgage might be determined. Por the same reason the judgment in this case is reversed, and cause remanded.

Beversed and remanded.


author: PLEASANTS, C. J.

text:
    BUFFALO BAYOU CO., Inc., v. LORENTZ.
    (No. 6130/6824.)
    (Court of Civil Appeals of Texas. Galveston.
    Nov. 13, 1914.)
    Appeal and Error (§ 573) — Record—Transcript — Statement op Facts.
    Rev. St. 1911, art. 1924, provides that, when an appeal is perfected, the official stenographer shall transcribe his notes in question and answer form, and file the same with the clerk of court, to be jjaid for by the party ordering it. Section 2070 provides that, upon filing such transcript, the appellant shall prepare therefrom a statement of facts, or, on his request, the official stenographer shall prepare a statement of facts in narrative form. Section 2072 (Acts 32d Leg. c. 119, § 13 [Vernon’s Sayles’ Ann. Civ. St. 1914, art. 2072]) provides that nothing shall prevent the parties from preparing statements of facts independent of the official transcript. The party appealing from a judgment where the testimony below was taken down as prescribed by article 1924, without requesting any transcript in that form or in narrative form, prepared a statement of facts to which appellee did not agree, but which was approved and ordered filed. Held, that article 2072 only meant that the parties might agree to dispense with the official transcript, but did not give the appellant the right to require appellee to pass upon such statement, which would not be considered as a statement of facts.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2560, 2562-2564, 2566; Doe. Dig. § 573.]
    Appeal from Harris County Court; Clarlc O. Wren, Judge.
    Action between the Buffalo Bayou Company, Inc., and H. Lorentz. Judgment for Lorentz, and the Buffalo Bayou Company, Inc., appeals. The statement of facts filed by appellant was stricken on motion, and appellant moves for a rehearing and reinstatement.
    Motion overruled.
    John Charles Harris and Harris & Harris, all of Houston, for appellant. Thomas S. Taliaferro, of Houston, for appellee.

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

   PLEASANTS, C. J.

At a former day of this term, on motion of appellee, we struck out the statement of facts filed by appellant in this cause. Appellant has filed a motion for rehearing and for reinstatement of the statement of facts. We deem the questions presented by the motion of sufficient importance to require discussion and a statement of our conclusions thereon. The testimony adduced upon the trial in the court below was taken down in question and answer form by an official stenographer appointed by the court under the provision of article 1932 of the Revised Statutes. No transcript of the testimony in question and answer form was made and filed by the stenographer as required by article 1924 of the statutes, and no request for such transcript was made by appellant, nor was any transcript in narrative form prepared by the stenographer as provided by article 2070 of the statutes, nor any request therefor made by appellant. In proper time counsel for appellant prepared, or caused to be prepared, a statement of facts, and presented same to counsel for ap-pellee, and requested that he agree that said statement was a full and correct statement of all the material facts proven on the trial. Appellee’s counsel declined to agree to the statement, and requested counsel for appellant to have a statement of facts prepared by the official stenographer in accordance with the provisions of the statute before cited. Appellant’s counsel refused this request, and presented to the trial judge the statement of facts prepared by him. The judge examined and approved the statement, and ordered it filed as a part of the record, after certifying that the parties had failed, to agree upon a statement of facts. The statement prepared ’by appellant’s counsel was made in duplicate, and a copy thereof filed in the court below. The other copy was sent up and filed with the record in this case as a statement of facts.

In his motion for rehearing counsel for appellant says that he deliberately failed and refused to comply with the provisions of the statute above cited because he did not desire to pay the stenographer’s fee provided by the statute, and had the right, under article 2072 of the statute, to prepare a statement of facts .independent of the stenographer’s notes or transcript.

Article 2072 of the Revised Statutes, which is the same as section 13 of the general ste-nograi>her’s act passed by the Legislature in 1911 (Acts 1911, p. 264), contains the following provision:

“Nothing in this act shall be so construed as to prevent parties from preparing statements of facts on appeal independent of the transcript of the notes of the official shorthand reporter.”

We cannot agree with learned counsel for appellant that this provision of the statute permits an appellant, without the consent of the appellee, to ignore the provisions of the statutes above cited, which direct how a statement of facts shall be prepared in cases in which the testimony has been taken down by an official stenographer. We think the provision only means that the parties may by agreement dispense with the official stenographer’s report and prepare a statement of facts from their own recollection of the testimony, and does not give to an appellant the right to require the appellee to pass upon a statement prepared by the appellant independent of the stenographer’s report.

Article 1924 provides, in substance, that in ease an appeal is perfected from the judgment rendered in any case, the official stenographer shall transcribe his notes in question and answer form and file the same with the clerk of the court; said transcript to be paid for by the party ordering the same on delivery.

Article 2070 provides that, upon the filing of transcript as provided in article 1924, tine 'party appealing shall prepare or cause to be prepared from the transcript pled hy the official shorthand reporter a statement of facts. It is further provided in said article that the official shorthand reporter shall, when requested by the party appealing, prepare from the transcript filed by such reporter in accordance with the provision of article 1924 a statement of facts in narrative form and deliver same to the party appealing.

These provisions of the statute, we think, clearly show that it was primarily the intention of the Legislature to require the appellant or party appealing, if he desired a statement of facts, to have it prepared in the manner directed in said articles, but realizing that in many cases in which the material facts were few and, if not undisputed, were established by the great preponderance of the evidence it would unnecessarily add to the expense of the parties to have the statement prepared as directed in said article, provided in article 2072 that it was not intended by the provisions of the preceding articles to prevent the parties from preparing a statement of facts independent of the stenographer’s transcript. A statement of facts' prepared by the parties necessarily means an agreed statement of facts, and the provisions of the statute as to the manner of preparing a statement can only be disregarded by agreement of the parties. These conclusions are not in conflict with the opinion of the Court of Appeals for the Third District in the case of Ferguson v. Kelly, 41 Tex. Civ. App. 338, 91 S. W. 805. That case was an original application for mandamus presented in the appellate court by an appellant in a cause which had been appealed to said court from the district court of Denton county to compel the clerk of the district court to include in the transcript of said cause a statement of facts prepared and filed by the district judge. No objection to the statement of facts appears to have been made by the appellee, who was not a party to the proceedings. The district clerk refused to include it in the transcript on the ground that the testimony had been taken down by an official stenographer, who was ready and willing to prepare and deliver a statement of facts to appellant, but no demand or request therefor had been made. The only question before the court was whether or not the district clerk should be required to include in the transcript sent up by him the statement of facts prepared by the district judge. The decision turned upon the construction of articles 3, 4, and 5 of the stenographer’s act of 1905, which is different from the present statute, and tie court held that, by the express terms of said act, if no transcript in narrative form of the stenographer’s notes was filed, the provisions of the act requiring such transcript to be sent up as the statement of facts did not apply, and it was the duty of the clerk to copy in his transcript of the proceedings the statement of facts prepared and filed by the district judge. We think it clear that this decision has no bearing upon the question presented by* the instant case.

We think appellee in this case had a right to require appellant to furnish a statement of facts prepared in accordance with the provisions of the statutes above cited, and that he was not required to agree to or pass upon a statement prepared independent of the official stenographer’s report, and such statement, though approved by the trial judge, cannot, over appellee’s objections, be considered by us as a statement of facts. The motion for rehearing and to set aside the order striking out the statement of facts is overruled.


author: JENKINS, J.

text:
    HUFSTUTLER v. WESTERN UNION TELEGRAPH CO.
    (No. 5386.)
    (Court of Civil Appeals of Texas. Austin.
    Oct. 14, 1914.
    Rehearing Denied Nov. 25, 1914.)
    1. Appeal and Erbor (§ 1091) — Review-Appeal from Intermedíate Court.
    On appeal from the county court, where there is nothing in the record to show what were the pleadings in the justice court, it will be presumed that they were the same as in the county court.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4302-4311, 4331; Dee. Dig. § 1091.]
    2. Appeal and Error (§ 1091) — Review-Appeal prom Intermediate Court.
    On appeal from the county court, it will be presumfed that the oral pleadings in the justice court , were in conformity with the account sued on and the citation issued thereon.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4302-4311, 4331; Dec. Dig. § 1091.]
    3. Justices op the Peace (§ 206) — Appeal-Amendment op Pleading.
    Defective pleadings in a justice court may be amended in the county court, if the amended pleadings do not set up a new cause of action.
    [Ed. Note. — For other eases, see Justices of the Peace, Cent. Dig. §§ 800-806; Dec. Dig. §. 206.] '
    4. Justices op the Peace (§ 206) — Review— Amended Pleadings.
    Where, by the third amended pleading in a county court on certiorari to a justice court, the other pleadings are abandoned, it is immaterial that it sets up a new cause of action.
    [Ed. Note. — For other cases, see Justices of the Peace, Cent. Dig. §§ 800-806; Dec. Dig. §. 206.]
    5. Justices of the Peace (§ 206) — Certio-rari — Amended Pleadings.
    In an action for failure to send a telegram, brought to the county court by certiorari to a justice court, an amended petition, changing those allegations only which affected the measure of damages, does not state a new cause of action.
    [Ed. Note. — For. other cases, see Justices of the Peace, Cent. Dig. §§ 800-806; Dec. Dig. § 206.]

      6. Justices oe tiie Peace (§ 206) — Certi-orari — -Pleadings—General Demurrer.
    In an action for failure to send a telegram, where the amended petition in the county court, on certiorari to a justice court, fails to distinctly allege the manner and extent of plaintiff’s damage, but .such matters appear inferentially, the petition is not subject to a general demurrer, though such petition would 'be demur-rable in a court of record.
    [Ed. Note. — Eor other cases, see Justices of the Peace, Cent. Dig. §§ 800-806; Dec. Dig. § 206.1
    Appeal from Lampasas County Court; M. M. White, Judge.
    Action by T. J. Hufstutler against the Western Union Telegraph Company. Prom a judgment of the county court, on certiorari from the justice court, overruling a general demurrer and dismissing the case, plaintiff appeals.
    Reversed and remanded.
    H. P. Lewis and Word & Walker, all of Lampasas, for appellant. Arch Grinnan, of Brownwood, for appellee.

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

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

   JENKINS, J.

This suit was brought by appellant in justice court to recover "damages on account of appellee’s failure to send a message when requested so to do after being, paid for same. The pleadings in the justice court were oral. Appellant recovered judgment for $175. The case having been removed to the county court by certiorari, appellant filed in writing his first, second, and third amended original petitions and his first supplemental petition. Appellee excepted to said third amended original petition: (1) Because it set up a new and different cause of action from that set up in appellant’s first and second amended original petitions. (2) Because it appeared upon its face to set up a new and different cause of action from that set up by plaintiff in the justice court. (3)Same as first. (4) Same as second. (5) General demurrer. The court overruled the general demurrer, sustained all of the special exceptions, and dismissed the case,

Appellant filed a supplemental petition verified by his attorney, in which it is alleged that every allegation in said amended petition was pleaded orally in the justice court. There is nothing else in the record to show what were the pleadings in the justice court, and, in the absence of such showing, it will be presumed that they were the same as in the county court. Threadgill v. Shaw, 130 S. W. 707. In the absence of proof to the contrary, it will be presumed that the oral pleadings in the justice court were in conformity with the account sued on and' the citation issued thereon. Each of these show that appellant’s cause of action was the failure of appellee to send a certain telegram therein set out. If the pleadings in the justice court were defective, they could be amended in the county court, provided such amendment did not set up a new cause of action. McSpadden v. Eads, 163 S. W. 634.

The third amended original petition does not set up a different cause of action to that set up in the first and second amended petitions; and, if it did, it would be immaterial, as those pleadings were abandoned by filing the third amended original petition.

We gather from appellee’s brief that it insists that a different cause of action was set up in each of the amended original petitions, for the reason that in the first appellant alleged that he had contracted with Seurlock for one car of beef cattle, class, number, and weight not given; in the second he alleged that such contract was for a ear of beef cattle, consisting ‘ of 35 head, being fat cows, steers, and heifers (cows of the average weight of 600 pounds, two year old steers of the weight of 600 pounds, yearlings of the weight of 400 pounds); third the same, but alleges a different date as to when the contract was made, and the amount of damages is differently alleged. These allegations are not as to appellant’s cause of action, which was the alleged negligent failure of appellee to send the telegram, but as to Ms measure of damages, and had such discrepancy occurred between the third amended original petition and the oral pleadings in the justice’s court, they would have been immaterial. It is the office of an amendment to correct errors or supply omissions (Smith v. McGaughey, 13 Tex. 468), and, to do so, it must necessarily state some matter differently from the statements made in the pleading amended.

The third amended original petition would perhaps be subject to a general demurrer in a court of record, in that it does not distinctly appear therefrom in what manner and to what extent appellant was damaged by the failure of appellee to send the telegram. It is not explicitly stated how much the cattle would have cost appellant had they been shipped to him, and how much he would have received for them. Nor is it distinctly stated that the party to whom he sold the cattle would not have taken them had the telegram been sent to Seurlock on October 7th, when it is alleged appellee offered to send it, nor that Seurlock would not have shipped them at that time, or, if he had done so, that additional expense for holding them would have been incurred by appellant, or, if the party to whom he had contracted the cattle had refused to take them, he could not have sold them at Lometa to an equal advantage. These matters appear inferentially and are sufficient as against a general demurrer, under the liberal rules of pleading in justice courts. Threadgill v. Shaw, supra.

For the reasons stated, the cause is reversed and remanded for a new trial.

Reversed and remanded.


author: TALBOT, J. R. A;

text:
    INSURANCE CO. OF NORTH AMERICA v. O’BANNON.
    (No. 7174.)

    (Court of Civil Appeals of Texas. Dallas.
    Oct. 17, 1914.
    Rehearing Denied Nov. 28, 1914.)
    1. Insukance (§ 328) — Forfeiture — Title oe Interest oe Insured — Construction.
    In a policy insuring a dwelling house, the provisions that it should be void if the interest of the insured was other than an unconditional and sole ownership, or if the dwelling was on ground not owned by the insured in foe simple, referred to the date of the issuance of the policy and not to subsequent changes in the title or ownership, so that it was not avoided by a subsequent sale of the ground on which it stood, and the divestiture of insured’s title thereto.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 794-822, 825; Dec. Dig. § 328.]
    2. Insurance (§ 146) — Construction Against Forfeiture — Standard Policy.
    Where any reasonable construction can be placed on provisions of an insurance policy that will prevent a forfeiture, that construction should be adopted, and the rule applies as well to standard policies.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 292, 294-298; Dec. Dig. § 146.]
    3. Insurance (§ 328) — Forfeiture—Change of Title or Interest — Construction.
    Insured obtained a policy on his dwelling providing that it should be void upon any change in his interest or title in it by'voluntary act or otherwise, and thereafter conveyed the land by warranty deed, without express reservation of title to the dwelling, and received from the grantee a writing stating that the insured should have the right to the dwelling and a reasonable time to remove it, not extending beyond February 1, 1913; the balance of the consideration to be paid upon its removal. Thereafter and before the time fixed for removal it was burned. Held, that while insured’s title to the dwelling was conditional upon removal within the time fixed, and he had no title after such time, yet, on the facts, there was no forfeiture, since the object of such provision was to avoid the policy upon any change of interest giving insured a greater temptation to destroy it or less interest and watchfulness in protecting it, and the change, if any, in his interest or title was not of such a character; and since the provision as to payment of the balance on removal left him the owner whether it was removed by him or by the grantee, and merely guaranteed removal within the time fixed or reimbursement to the grantee for any expense of delay in removal.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 794r-S22, 825; Dec. Dig. § 328.]
    Error from District Court, Grayson County; W. J. Mathis, Judge.
    Action by R. A. O’Bannon against the Insurance Company of North America. Judgment for plaintiff, and defendant brings error.
    Affirmed.
    Locke & Locke, of Dallas, for plaintiff in error. Jones & Hassell, of Sherman, for defendant in error.

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

       Application for writ of error pending in Supreme Court.

   TALBOT, J. R. A;

O’Bannon brought this suit against Insurance Company of North America to recover $1,245.42 under a fire insurance policy issued by the defendant in Ms favor on a one-story frame dwelling in the city of Sherman, totally destroyed on January 17, 1913. The policy was for $1,300, but by a partial fire loss occurring in November, 1912, had been reduced to the amount mentioned. The company defended on the ground that certain conditions of the policy had been breached by a sale of the property to the trustees of the independent school district of the city of Sherman on December 26, 1912, 22 days before the fire, and that the plaintiff’s loss was less than the amount claimed. The plaintiff alleged a waiver by the local agent. The court refused to permit any inquiry into the amount of the plaintiff’s loss. At the conclusion of the evidence the defendant requested a peremptory instruction in its favor, which was refused, and the defendant excepted. Thereupon the court peremptorily instructed a verdict for the plaintiff, and, such verdict being returned by the jury, judgment wa's entered thereon in favor of the plaintiff for $1,264.10. The defendant moved for a new trial. The motion was overruled, and the defendant thereupon prosecuted a writ of error to this court for the revision of the judgment.

There is little or no dispute about the facts. The defendant in error, O’Bannon, acquired the land with the dwelling situated thereon about 1908. The policy of insurance sued on was issued January 7, 1912, for a period of three years. The dwelling insured was destroyed by fire January 17, 1913. About a year before the fire the trustees of the independent school district of the city of Sherman desired additional ground for school purposes. Several sites were considered, and, among others, the plaintiff’s property. Negotiations with him were then begun for the purchase of his property, and after they had developed favorably plaintiff was cautioned not to disclose it. To this he agreed. On December 26, 1912, the plaintiff and his wife delivered to W. H. Lucas, G. S. Ellis, J. F. Holt, R. G. Piner, R. E. Strange, H. O. Harrington, and Silas Hare, as trustees of said independent school district, and to their successors in office for the use and benefit of the public free school of said city of Sherman, a general warranty deed to the property in question. There was no express reservation in this deed of conveyance of the house covered by the policy in suit or other improvements situated on the land, but upon the 'delivery of the deed the secretary of the trustees of said independent school district or school board delivered to the plaintiff in part payment for the property a warrant for $4,500 and a written instrument as follows:

“The State of Texas, County of Grayson.

“Whereas, by deed of this date R. A. O’Ban-non and Annie O’Bannon Conveyed certain property, fully described in said deed, to W. H. Lucas, G. S. Ellis, J. F. Holt, R. G. Piner, R. E. Strange, H. O. Harrington and Silas Hare, trustees of the independent school district of the city of Sherman, Grayson county, Texas; and
“Whereas, the consideration recited in said deed is a cash consideration of nine thousand dollars, and the grantors in said deed therein " acknowledge full payment of said .amount; and
“Whereas, the contract and understanding actually made and had between the grantors and grantees in said instrument was that the grantors should have the right to retain all buildings on said premises and should have a reasonable time to remove them therefrom and that the sum of forty-five hundred dollars should be paid to the grantors by the grantees upon delivery of deed and the remainder when said buildings should be removed, it not being desired to encumber said deed with said qualifications :
“Now, in consideration of the premises this instrument is executed for the purpose of evidencing such facts, and it is here recited that, notwithstanding the recitations in said deed, but the sum of forty-five hundred dollars is and was paid upon the delivery of said deed, and the remaining forty-five hundred dollars shall be paid to said grantors upon the removal of said buildings from said premises, to do which they shall have a reasonable time, but in no event to be longer than 1st day of February, 1913.
“Witness our hands this December 26, 1912.
“R. G. Piner, Secretary.'
“R. A. O’Bannon,
“Annie O’Bannon,
“By J. W. Hassell, Agent.”

At the time of the fire, the house had not been removed from the land described in the deed of plaintiff and wife to the school trustees, but was destroyed while situated thereon. In reference to what had been done towards its removal, the plaintiff testified, ¡so far as is material, as follows: !

“At the time of the fire no work had been done towards the removal of the house from the ground on which it was situated with reference to the house itself, except that the price was agreed on with the house moving contractor in reference to moving the house to a certain lot; the price had been agreed upon for placing one or two sections of the house on a lot, and some figures discussed in reference to moving a section to a lot, the choice of which was in abeyance between my wife and myself. As to whether a contract had been entered into for moving the house, will say, a contract to this effect was made. The man was to come Monday morning following the fire (which occurred on Friday), and put the house on rollers and make his preparatory moves, and we were to decide by the time he got the house to the property line where to place it. I was in correspondence with a number of heirs for a piece of property near there, and had drawn a contract and submitted it to them for their signature under which they were to allow me to place the house on their property under certain conditions — that I was to move it off if I did not' buy. A death in the family had disturbed their affairs, and they did not know where they were. I could not get anything definite about it, and was going to put the house there, and chance it. The man was to put the house on rollers the Monday following the fire to clear the lot as soon as possible. At the time of the fire I had in mind two locations to which the house might be moved. One was the one involved in this heirship. I had not actually decided to which one I would move it. I had not entered into a written contract or an oral contract for" the removal of it to either one of ‘those places. We had submitted a contract to the heirs with reference to that property on which we desired to place the house. It was our first choice. I had sent to them a form of contract. That contract had not been signed. That contract was never returned to me signed. It had probably been on the road a couple of days when the fire occurred. The matter was dropped and nothing done with it. I had a telegram from one party showing a divergence of opinion between the heirs ás to what their action would be in reference to it. As to whether I was going to take some chances on removing the house on the land, will say, I want to answer that question fully. It calls for another answer. I would like to leave out the word ‘chance.’ Unless I had a contract with the parties, I would not put the house on the property. I had other arrangements if they failed, even though the house was on rollers.”

The policy sued on contains, among others, the following provisions:

“This entire policy * * * shall be void * * * if the interest of the insured be other than unconditional and sole ownership; or if the subject of insurance be a building on ground not owned by the insured in fee simple; * * * or if any change, other than by the death of an insured, take place in the interest, title, or possession of the subject of insurance (except change of occupants without increase of hazard), whether by legal process or judgment or by voluntary act of the insured, or otherwise.”

The plaintiff in error contends: (1) That the effect of the three provisions of the policy quoted above is such that the policy is void if at the time of the fire the ground on which the dwelling stood was not owned by the plaintiff in fee simple, or if the plaintiff’s interest in the dwelling was not the sole and unconditional ownership thereof; (2) that the undisputed evidence showed that after the policy issued a change occurred in the interest, title, or possession of the insured in the “subject of insurance,” whereby he ceased to own in fee simple, or otherwise, the ground on which the dwelling stood, and for that reason the policy was void; (3) that the undisputed evidence showed that a change occurred in the interest or title of the insured in the dwelling whereby such interest or title became and remained to the time of the fire other than the unconditional ownership thereof, and for that reason the insurance ceased and the plaintiff cannot recover.

On the other hand, the defendant in error contends that the first two provisions of the policy, the one declaring that the “entire policy, shall be void if the interest of-the insured be other than unconditional and sole ownership,” and, the.other, that the policy shall be void “if the subject of insurance be a building on ground not owned by the insured in fee simple,” have reference to the date of the contract of insurance, and not to any subsequent date, and that while the third, to the effect if any change, other than by the death of the insured, take place in the interest, title, or possession of the subject of insurance (except change’ of occupants without increase of hazard), the policy should be void, relates to changes subsequent to the date of the policy, yet no change in plaintiff’s interest, title, or possession of the subject of insurance, namely, the dwelling insured, took place by reason of the transaction in question, or that no such change therein occurred that worked a forfeiture of the policy. There are decisions both ways on the question, but we prefer to follow those holding that the two first provisions referred to relate to the ownership of the property at the date of the issuance of the policy, and not to subsequent changes in the title or ownership. This we regard as a reasonable construction of the language of said first two provisions of the policy, and that such was understood to he their meaning by the parties is made clear, it seems to us, by the third provision or condition which provides for the effect of future changes in the title. That the first two provisions refer to the present and not to the future, and relate to facts as they exist at the date of the policy, is affirmed, among others, by the following authorities:. Collins v. London Assur. Corp., 165 Pa. 298, 30 Atl. 924; Rosenstock v. Mississippi Home Ins. Co., 82 Miss. 674, 35 South. 309; Southern Cotton Oil Co. v. Prudential Fire Ass’n, 78 Hun, 373, 29 N. T. Supp. 128; Parsons, Rich & Co. v. Lane (In re Millers & Mfrs. Ins. Co.) 97 Minn. 98, 106 N. W. 485, 4 L. R. A. (N. S.) 231, 7 Ann. Cas. 1144.

The more difficult • question, and the one which has given us some trouble, is whether or not there was such a change, subsequent to the issuance of the policy sued on, in plaintiff’s interest or title to the dwelling insured, as avoided the contract of insurance. That the insurance did not cease because of the sale of the ground on which the dwelling stood and the divestiture of plaintiff’s title thereto, we are fully persuaded. The question then is: Did any such change take place in the plaintiff’s title to or interest in the dwelling covered by the policy of insurance issued to him by the transaction in question, as forfeited his rights under said policy?

The rule is almost, if not quite, universal, that if any reasonable construction can be placed on provisions of an insurance policy such as those under consideration that will prevent a forfeiture, such construction should be adopted. Of course, the court should not, and will not, “by a strained construction engender a doubt, and then resolve it against the insurer.” The rule of construction referred to applies, it seems, to the modern standard policy. It is so stated by Mr. Vance in his work on Insurance, at page 430. lie says:

“It has been contended that inasmuch as the law compels the use of the standard policy, and will not allow any variance from it, excepting in certain limited particulars, the insurer cannot be regarded as selecting the terms of the contract and subjected to an unfavorable rule of construction on that account. This contention, however, has been held to be without merit, for the terms of these statutory policies were chosen with reference to the construction given by the precedent cases to similar terms in other policies, and therefore ought to be regarded as being used in the sense of their previous construction. It is also apparent from an examination of the instruments themselves, as well as the history of their adoption, that their terms were really chosen by the underwriters, with particular reference to their own interests.”

And so in this connection, and as applicable to such a policy, he states that “any doubtful terms are always construed in favor of the insured.”

The deed executed and delivered by the plaintiff and wife to the .trustees of the independent school district of the city of Sherman when read and construed, as it must be, in connection with and in the light of the contemporaneous instrument executed by the parties and set out above, operated, as a conveyance only of the ground on which the dwelling insured was situated; the said dwelling by the terms of said contemporaneous instrument being reserved by plaintiff. But it is expressly provided in said instrument that the insured building shall be removed from the premises within a reasonable time, and not later than February 1, 1913. As has been shown, the dwelling of the defendant in error was destroyed by fire on January 17, 1913, a short time before the expiration of the time limit for its severance or removal from the ground sold, and the insurance company asserts that under the well-settled law as applied generally to such contracts his title to the dwelling was contingent upon its removal from the premises by February 1, 1913, and therefore during the life of the policy a change in his title from that of unconditional to conditional occurred which vitiated the .insurance. In support of this theory, a few cases in which the question has arisen with respect to buildings, and many in which it arose with respect to standing timber, have been cited, wherein it was held that the title in such cases is conditional upon removal by the date stipulated in the contract; that is, that no right or title exists in the grantee, or person reserving the buildings or timber, after the expiration of the time specified in the deed or contract. It is conceded, however, that the decisions are not uniform on the subject, but, admitting such to be the rule according to the. weight of authority, we are not prepared to say that it should be enforced under the facts of this case and plaintiff’s policy declared forfeited. As declared in Ayres v. Hartford Fire Ins. Co., 17 Iowa, 176, 85 Am. Dec. 553, cited by the plaintiff in error, and other cases:

“The object of the insurance company by this clause (namely, providing against change of interest, title, etc.) is that the interest shall not change so that the assured shall have a greater temptation or motive to burn the property, or less interest and watchfulness in guarding and preserving it from destruction by fire. Any change in, or transfer of the interest of the assured in the property of a nature calculated ta have this effect is in violation of thé policy.”

And it logically follows tliat the converse of this proposition is true; that is, if the change in the interest or title of the assured in the property is not of a nature calculated “to increase the motive to burn or to diminish the motive to guard the property from loss by fire, the policy is not violated.” Was • the change, if any, in the interest or title of the plaintiff in the dwelling insured by the defendant company, of such a character as to place him under a greater temptation to burn it or to lessen his interest and watchfulness in guarding and preserving it from destruction by fire? This question, we think, should be answered in the negative, and our reasons for declaring that such should be the answer are fairly expressed in the case of George Fletcher v. Commonwealth Insurance Co., 18 Pick. (Mass.) 419. In that case the plaintiff obtained insurance against fire on his storehouse without disclosing the fact that it stood on land of another person under an agreement terminable, at the pleasure of such person, upon six months’ notice. There was no inquiry made by the insurers of the plaintiff in regard to his title. The question was whether or not the plaintiff, by his failure to inform the insurance company that his building stood on land of another and the nature of Ms tenure, concealed from it facts material to the risk. In holding against this view the court, among other things, said:

“Now it is contended the land belonged to another, that there was a right reserved for the owner to cause the plaintiff to remove his store in a certain time, and, as his tenure was such, he would be less careful of the property and so the risk would be greater than it would be if the plaintiff owned the land as well as the building. We think this is more ingenious than substantial. If in truth the plaintiff owned the land upon which his building stood, it might be that he wished to have a new framed store instead of the old one, and it would be within the region of possibility that he would not be so likely to take as good care of the old one as he would if it were sa new one; and he might honestly omit to state his desire to substitute a new store for the old. But such a suggestion of such an omission, although quite as likely to affect the risk, could not be a foundation sufficient to support a verdict avoiding the policy for concealment.”

So, in the instant case, for like reasons, it may be said, we think, that the contention of the insurance company to the effect that the sale of the land on which plaintiff’s dwelling stood, with a reservation of the dwelling under an agreement to remove it from the land within a specified time, subjected him to a greater temptation or motive to burn the house or cause him to have less interest in preventing the destruction of it by fire, “is more ingenious than substantial”; more imaginary than real.

But the defendant in error contends, in effect, that though it is the general rule in contracts of the kind under consideration that the right to the buildings is lost upon failure to remove them within the time fixed the parties may contract otherwise, and that they have done so in this instance. The proposition of law here asserted is a sound one and applicable, we are inclined to think, to the facts of this case. The consideration expressed in the deed from plaintiff to the school trustees is. $9,000 paid and received, but the collateral contract by which the plaintiff excepted from said deed the improvements situated on the land conveyed stipulated not only that the plaintiff reserved the insured building and that he must remove it from the premises by February 1, 1913, but declared in effect that, notwithstanding the recitation in the deed to the contrary, only $4,500 were in fact paid upon the delivery of said deed, and that the remaining $4,500 of the purchase money should not be paid until the removal of the building from the land. Evidently, the withholding of the payment of this amount of the purchase money of the land until the severance of the buildings therefrom and the recitation of such agreement in the collateral contract was not for the purpose of evidencing a purchase partly for cash and partly on a credit for the short time fixed for the removal of the building; but manifestly, we think, such action was taken by the parties to guarantee the removal of the buildings by the plaintiff within the time agreed bn, and, in the event of his failure to do so, to furnish the school trustees ample security or means for reimbursing themselves for any outlay or expense they might be put to in having the buildings removed, and for recouping themselves as such trustees in damages for the delay occasioned in the removal of said buildings. If this was the intention of the parties, and clearly it was,' it evidences the fact, as argued by plaintiff’s counsel, that notwithstanding the stipulation that plaintiff was to remove the buildings by the 1st of February, 1913, and its legal effect, standing alone, if such it was, to change plaintiff’s unconditional ownership of the dwelling to a conditional or defeasible one, the buildings were not to revert and become as a part of the realty the property of the school trustees. The evidence is clear and uncontroverted that the buildings situated on the land were not wanted by the school trustees and regarded by them as an incumbrance and detriment to the interest of the school they represented, and that they, as trustees, or otherwise, were in no event to become the owners of said buildings, but that they were in all events to be removed from the land. It follows that no change in plaintiff’s interest in or title to the dwelling insured occurred after the issuance of the policy sued on, and that he was the unconditional and sole owner of it at the time of its destruction by fire, for by a fair and reasonable construction of the contract he was -to remain the owner of the dwelling insured, whether removed by him or the school trustees. This effectually disposes of tlie appeal, and neither the question of the insufficiency of the evidence to raise an issue of waiver presented in appellant’s brief, nor any other question discussed by counsel, need be noticed.

Our conclusion is that the proper judgment has been rendered in the case, and it is affirmed.

Affirmed.


author: HARPER, C. J.

text:
    IRVIN v. JOHNSON et al.
    (No. 350.)
    (Court of Civil Appeals of Texas. El Paso.
    Nov. 12, 1914.)
    1. Judgment (§ 435) — Vacation — “Dibect Attack.”
    A suit to set aside a judgment at a subsequent term is a “direct attack” thereon, and if a meritorious defense is shown and complainants were prevented from establishing it by acci.dent, fraud, or mistake, or other circumstances not imputable to their own fault or neglect, their application should be granted, though only a prima facie case of injustice is made to appear.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. §| 7S5, 821, 822; Dec. Dig. § 435.

    For other definitions, see Words and Phrases, First and Second Series, Direct Attack.]
    2. Judgment (§ 432) — Vacation—Suit in E quits' — Neglect.
    Where complainants were notified by their counsel to come to court for the trial of a certain action, but they refused to do so, and, after one postponement had been granted to enable complainants’ counsel to get them, judgment was rendered against them by default, evidence that the district judge stated to one of the complainants, who was an ignorant negro, that “the case would never be any more,” and that defendant would not get the relief demanded, did not justify complainants in refusing to come to court in response to their counsel’s summons, and was therefore not ground for vacation of the judgment in equity.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 816, 818, 819; Dec. Dig. § 432.]
    3. Judgment (§ 461) — Default—Vacation-Insanity.
    In a suit to set aside a default judgment, any evidence, however remote, which would have a tendency to establish mental weakness on complainant’s part such as would excuse his failure to appear at the time the case was called for trial, was admissible.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 892, 893, 895; Dee. Dig. § 461.]
    4. Trial (§ 192) — Noncontboveeted Issue— INSTRUCTIONS.
    Where the execution of a deed by complainants to defendant was not a controverted issue, the court could have charged the jury that they did so execute it.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 432-434; Dec. Dig. § 192.]
    5. Evidence (§ 106) — Reputation.
    Where the regularity of a notary’s acts in taking the acknowledgment of a deed are attacked, evidence concerning the notary’s reputation is admissible.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 177-187; Dee. Dig. § 106.]
    6. TRIAL (§ 260) — Instructions—Request to Charge — Instructions Given.
    It is not error to refuse requests to charge, the substance of which is covered by instructions given.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 651-659; Dec. Dig. § 260.]
    7. Cancellation op Instruments (§ 43)— Pleading — Issues and Proof.
    Where a deed was sought to be set aside for fraud only, the question whether a consideration was paid for the conveyance was immaterial.
    [Ed. Note. — For other cases, see Cancellation of Instruments, Cent. Dig. §§ 96-99; Dec. Dig. § 43.]
    8. Appeal and Error (§ 216) — Issues—Submission — Request to Charge.
    An assignment complaining of the submission of the question of limitation, an issue in the case, could not be considered on appeal where there was no special charge requested embodying the applicable law.
    [Ed. Note. — For other cases, see Appeal and Error, Dec. Dig. § 216; Trial, Cent. Dig. § 627.]
    Appeal from District Court, Harris County; Wm. Masterson, Judge.
    Suit by James Johnson and others against W. H. Irvin to set aside a judgment and cancel a deed and recover certain real property. Decree for complainants, and defendant appeals.
    Reversed and remanded.
    S. H. Brashear and Ellis P. Collins, both of Houston, for appellant. Van Velzer & Lewis and D. E. Simmons, all of Houston, for appellees.

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

   HARPER, C. J.

This was a suit by Sarah Johnson and by James Johnson and Fannie Johnson (the last two suing by themselves and through Sarah Johnson as next friend), plaintiffs (appellees herein), against W. H. Irvin, defendant (appellant herein), brought to set aside a judgment, and to cancel a deed, and for title and possession of certain premises. Judgment was rendered for the plaintiffs, setting aside said judgment and deed, and defendant has perfected this appeal.

November 13, 1900, a deed regular on its face was signed (by mark) by James and Fannie Johnson, purporting to convey to W. H. Irvin, reciting consideration of $400 and other valuable considerations, lot No. 7 in block 23, Baker’s addition to Houston; same being duly acknowledged before E. S. Phelps and placed of record. In December, 1911, said Irvin took judgment against said James and Fannie Johnson for the property sued for in this case, and thereafter dispossessed them under writ of possession. Whereupon, in March, 1912, this suit was filed to set aside the said judgment, to cancel the aforesaid deed, and for possession. The plaintiffs in this suit charging that the deed was acquired by fraudulently representing to the John-sons that they were signing a receipt for money loaned instead of a deed; that they were ignorant, senile negroes, unable to understand the provisions of the document sign-eel; and, further, that the judgment was taken by Irvin when they were not present in court; that their absence was excusable for the reasons set up in her petition which will be revealed in the discussions hereinafter. Upon the trial, the cause was submitted to jury upon special issues, which, with the answers thereto essential to this inquiry, are as follows:

“Was the failure of James Johnson and Fannie Johnson and Sarah Johnson to appear in court upon the trial of said cause No. 33879, on December 6, 1911, due to their excusable neglect? It was.
“State whether the deed from said James and Fannie Johnson dated November 12, 1900, to W. H. Irvin, was procured by the said W. H. Irvin by fraudulent representations made by him to the said James and Fannie Johnson? Tes.
“At the time of the execution of the instrument from James and Fannie Johnson to W. H. Irvin, did James and Fannie Johnson believe and intend that said instrument was to be a receipt for money, or was same intended by them to be a deed? Receipt.
“Did defendant Irvin and notary, Ed. S. Phelps, explain said deed or instrument to said Johnson and wife to be a receipt or a deed? Receipt.
“Did the said Johnson and wife so believe and act upon the representations of said defendant Irvin and said notary, Phelps? Yes.”

By Ms first, sixth, and seventeenth assignments, plaintiff urges that the court erred in not giving peremptory instructions for defendant, because, the suit having been pending several years.with full knowledge of appellees, it was their legal duty to keep advised of all proceedings, that there is no evidence that they were deceived or misled by appellant, or that they relied upon anything said or done by him in consequence of which they failed to appear when the judgment was taken.

This is a direct attack upon the judgment, and as to such judgment the rule of law seems to be settled that, when a judgment has been rendered against a defendant and at a subsequent term he applies by bill in equity, for a new trial, alleging a meritorious defense, as in this case, and showing that he was debarred from establishing it by accident, fraud, or mistake or other circumstances not imputable to his own fault or neglect, the application should be granted, although only a prima facie ease of injustice is made apparent in the application. And it has been held that the assurance of a district judge to a defendant in a civil suit warranted the defendant in believing that no action would be taken in his cause. Lanius v. Shuber, 77 Tex. 24, 13 S. W. 614; Beck v. Avondino, 20 TEx. Civ. App. 330, 50 S. W. 207.

The question for this inquiry is whether appellees have shown such facts as entitled them to have the case reopened. Bearing in mind the rule above quoted, the record unquestionably discloses that appellees had a meritorious defense; but were they debarred from establishing it by accident, fraud, or mistake, or other circumstance not imputable to their own fault or neglect?

Appellees urge that the statement of the former trial judge, Hamblen, as testified to by appellee James Johnson, was sufficient excuse for them not appearing. The statements, as they appear in the record are, “Judge Hamblen told me Mr. Irvin wouldn’t get my home;” and further, “He said the ease would never be any more.” It is not likely that a trial court made any such statements about a pending ease; but, if he did, the appellants were amply warned that such statements were not true by their admissions that their counsel had sent them word to come to court for the trial by two or three different people, and several witnesses testified that they in person notified them to be there, and their attorney testified that the case was at one time postponed on account of his inability to get his clients into court, and that he made repeated efforts to get them, to come to court and they refused. Such facts do not show that their failure to be present at. the trial of the cause was unavoidable, nor is there any evidence of fraud which induced them to remain away, or that the acts of the opposite party were in any way the cause of their failure to be present and present the defense. Nevins v. McKee, 61 Tex. 412; Merrill v. Roberts, 78 Tex. 28, 14 S. W. 254. Courts must be governed by facts ■—not fancies—-in holding for naught deeds or their own decrees, else no one can know when his property rights are settled.

The trial court upon such showing should not have reopened the case.

But appellees urge by cross-assignment that the trial court erred in sustaining an objection to testimony of physician and other witnesses concerning Johnson’s mental condition.

The bill as to the physician’s testimony is qualified by the court to the effect that the examinations made were after this suit was filed; therefore, self-serving, etc. As the record presents the case here, the mental condition of the plaintiffs at the time the case was tried, and at the time the deed was executed, were matters of defense, and their mental condition at the time the judgment by default was taken against them is the only thing suggested by this record which would bring them within the rule “without fault upon their part,” to excuse them for absence from the trial, and, upon another trial, any evidence, however remote, which would have a tendency to establish mental weakness such as would excuse, at the time the cause came up for trial, should be admitted, and the issue passed upon by the jury. Edwards v. Edwards, 14 Tex. Civ. App. 87, 36 S. W. 1080; Lindly v. Lindly, 102 Tex. 135, 113 S. W. 750.

Since the second assignment complains of the action of the court in refusing to expressly charge the jury that the issue of insanity was not an issue in the case after excluding the testimony, it is disposed of by wbat is stated aboye. Also, tbe twenty-ninth.

The third complains of refusal to submit the special instruction, "Do you or not believe that James and Fannie Johnson signed (by their mark) the deed to W. H. Irvin?” This was not a controverted issue, but was admitted, and the court could have charged the jury that they did so execute it.

The fourth complains of refusal of special charge, the subject-matter of which was submitted and resolved in appellant’s favor. The fifth — same.

The eighth, ninth, tenth, and eleventh complain of the admission of testimony over the objection of appellant, in which there was no error.

The twelfth charges that the court erred in excluding testimony as to the reputation of the notary who took the acknowledgment. If, upon another trial, the regularity of the acts of the notary in taking the acknowledgment are attacked, such evidence in support of his reputation should be admitted.

The thirteenth complains of the refusal to submit special charge requested. The only material issue incorporated in it was submitted, viz., the burden of proof, in the main charge. The question of whether a consideration was paid was not material under the pleadings, because the deed was sought to be set aside for fraud.

This disposes of the fourteenth, twenty-fifth, and twenty-eighth assignments, as they complain of special charges upon consideration.

As to the fifteenth assignment, the matters in special charge requested were sufficiently covered by the general charge of the court.

The sixteenth to the twentieth, and the twenty-second, twenty-third, twenty-fourth, and twenty-sixth complain in some form of the special issues submitted, and in the action of the court in entering judgment therein. If there was error, it is not likely to occur upon another trial.

The twenty-first complains of the submission of the question of limitation. This is an issue in the ease by the pleading and evidence; but there was no special charge requested embodying the law applicable, so the assignment cannot be considered.

The twenty-seventh complains of the submission of issue No. 19. When read with the eighteenth and others, there is no error apparent.

For the reasons given, the cause must be reversed and remanded for another trial, and it is so ordered.

Reversed and remanded.


text:
    INTERNATIONAL & G. N. R. CO. v. TATE.
    (No. 5387.)
    (Court of Civil Appeals of Texas. Austin.
    Oct. 28, 1914.
    Rehearing Denied Nov. 25, 1914.)
    1. Appeal and Error (§ 500) — Record — Matters Presented for Review.
    The giving and refusing of instructions cannot be reviewed, where there is no bill of exceptions relating to the action of the court in thes& matters.
    [Ed. Note. — For other cases, see Appeal and Error, Gent. Dig. §§ 2295-2298; Dec. Dig. § 500.]
    2. Appeal and Error (§ 544) — Exceptions, Bill op — Necessity op Allowance or Settlement.
    Under Rev. Oiv. St. art. 2003, providing that it shall bo the duty of the party taking any bill of exceptions to reduce it to writing and to present it to the judge for his allowance and signature, objections to the court’s charge appearing in the record could not be treated as a bill of exceptions, where they did not appear to have been presented to the judge and there was nothing to show that the court’s attention was ever called thereto.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2412-2415, 2417-2420, 2422-2426, 2428, 2478, 2479; Dec. Dig. § 544.]
    Appeal from Falls County Court; W. E. Hunnieutt, Judge.
    Action between the International & Great Northern Railroad Company and Louis Tate. From a judgment for Tate, the railroad company appeals.
    Affirmed.
    Neff & Taylor, of Waco, for appellant. Spivey, Bartlett & Carter, of Marlin, for ap-pellee.

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

   JENKINS, J.

The only assignments of error in this ease relate to the charges given and the special charges requested and refused.

There is no bill of exception in tbe record relating to tbe action of the court in these matters, for which reasons none of appellant’s assignments can be considered. Art. 2061.

There is in the record what purports to be “objections of defendant .to the court’s charge.” But this cannot he treated as a bill of exceptions. It does not appear to have been presented to the judge trying the case (article 2063, R. S.), and there is nothing in ■the record to show that the court’s attention was ever called to such objections (Railway Co. v. Battle, 169 S. W. 1048, and Railway Co. v. Feldman, 170 S. W. 133, not yet officially reported).

For .the reasons stated, the judgment of the trial court is affirmed.

Affirmed.

RICE, J., not sitting.