text:
    SMITH et al. v. TIPPS.
    (No. 1355.)
    (Court of Civil Appeals of Texas. Texarkana.
    Dec. 3, 1914.
    Rehearing Denied Dec. 10, 1914.)
    1. Vendor AND Purchaser (§ 285) — Action fob Recovery of Land — Pleading—Sufficiency.
    A petition by a transferee of vendor’s lien notes which contains merely a prayer that title to the land be divested out of the vendor, who had refused to convey his superior title to the transferee, and the purchaser, without stating why such judgment should be rendered, does not support a judgment awarding the land to him as against the vendor and the purchaser.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 800-807; Dec. Dig. § 285.]
    2. Vendor and Purchaser (§ 261) — Vendor’s Lien Notes — Enforcement—Recovery of Land — Election of Remedies.
    A transferee of vendor’s lien notes and grantee of the superior title of one of the two vendors may not demand a judgment for the notes and a foreclosure of the lien, and for a rescission of the sale and recovery of the land, but he must elect his remedy, and in the absence of an election the court cannot elect for him, nor give him alternative relief, in the absence of a proper pleading in the alternative.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 074-686, 688-695; Dec. Dig. § 261.]
    3. Pleading (§ 251) — Petitions — Amendments — Construction.
    A petition, amended petition, and second amended petition cannot be construed together to support a judgment, where they do not conform with District and County Courts Rules 13, 14 (142 S. W. xviii), providing that a party amending his pleadings shall point out the instrument with its date sought to be amended as original petition, and amend by filing a substitute complete in itself, and that unless the substituted instrument shall be set aside on exceptions for a departure, the instrument for which it is a substitute shall not be regarded as a part of the pleadings.
    [Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 734, 735; Dec. Dig. § 251.]
    Appeal from District Court, Rusk County; W. C. Buford, Judge.
    Action by John M. Tipps against Clem Smith and another. From a judgment for plaintiff, defendants appeal.
    Reversed and remanded for new trial.
    By their deed dated November 1, 1906, J. E. Watkins and R. I-I. Hightower, in consideration of the execution and delivery to them by appellant Clem Smith of his three promissory notes for $100, interest, and attorney’s fees, each payable, respectively, November 1, 1907, 190S, and 1909, conveyed the SO acres of land in controversy to said Smith. By the terms of both the deed and the notes the vendors’ lien was retained on the land to secure the payment of the latter. November 7, 1908, Watjdns and Hightower transferred the notes to B. K. Johnson, who, joined by one Moore, on December 14, 1912, assigned same to appellee. Before the notes were assigned to Johnson, Smith made a payment of $10 on same, and while Johnson owned them made a payment of $30 thereon. No other payment was ever made on the notes. By an instrument dated January 25, 1912, Hightower conveyed the superior title remaining in him as one of the vendors of the land to appellee. Watkins refused to make such a conveyance to appellee. This suit was commenced by appellee by a petition filed May 1, 1913. As so commenced, it was to recover on the notes and to foreclose tlie vendors’ lien to secure their payment. Neither appellee’s original petition nor the original answer of Smith thereto is a part of the record on this appeal, but it seems Smith interposed as a defense to the suit a plea that the notes were barred by the four-year statute of limitations, and that appellee thereupon filed his “first amended origina) petition,” in which be alleged that while it was true that the notes which matured in 1907 and 190S were barred, the one which matured in 1909 was not barred at the time he commenced his suit. In this amended petition he undertook to adopt “each and every allegation set out in his original petition,” and prayed the court, “as in his original petition, for a foreclosure of his vendors’ lien notes and for a sale of said property to satisfy same, and if the court should hold that the notes due November 1, 1907, and November 1, 1908 are barred by the statute of limitations, that he have judgment against the defendants as prayed for in his original petition on the $100 note due November 1, 1909, and that after the satisfaction of said note the balance of said premises be appropriated and the title to same be declared in this plaintiff, or so much thereof as the court may hold plaintiff is justly entitled to, * * * . and that plaintiff would further ask that the title to the entire SO acres of land described in plaintiff’s original petition be declared to be in plaintiff herein, or so much thereof as the court may see proper to render, and that plaintiff have judgment against the defendants, and each of them, for his debt, for the possession of said land and premises, interest, and attorney’s fees as prayed for in hi's original petition,” etc. Afterwards ap-pellee sought by a plea filed for that purpose to make Watkins a party defendant in the suit, and for judgment devesting title out of him and vesting same in appellee, and then filed a “second amended petition,” in which, without alleging any facts entitling him to such relief, or any relief, he asked “that the deed conveying the land for which the notes herein sued on were given * * * be canceled, and the title to the said 80 acres of land described in plaintiff’s original petition, to which reference is here made, be declared to be in plaintiff herein in fee simple.” In neither of the amended petitions was the land in controversy .described otherwise than by reference to the original petition, which, as before stated, is not a part of the record here. This appeal is by Smith alone from a judgment awarding the land to ap-pellee as against him and as against Watkins.
    Strong & Arnold, of Henderson, for appellants. W. M. Futch and Jas. Y. Gray, both of Henderson, for appellee.

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

   WILLSON, C. J.

(after stating the facts as above). If the allegations in the see-ond amended petition alone should be looked to in determining the question made as to the sufficiency of the pleadings to support the judgment, it is manifest the answer must be in the negative; for no facts showing ap-pellee to be entitled to recover the land, or to relief of any kind, are stated in that petition. It contains merely a prayer that title to the land be devested out of Smith and Watkins and vested in appellee, without stating why such a judgment should be rendered. Doubtless appellee intended the petition to be construed as a part of his first amended petition, and perhaps of his original petition. If it should be so construed, the judgment still could not be said to be warranted by the pleadings; for it would then appear that appellee was in the attitude of asking both a judgment for the debt evidenced by the notes and a foreclosure of the lien retained, and for a rescission of the contract of sale out of which the debt originated. He might be entitled to the one or the kind of relief, according to the facts, but certainly he was not entitled to recover on the notes and to also recover the land. As, in the absence of an election by him as to whether he would seek a recovery on the notes and so affirm the contract whereby the land was sold to Smith, or would seek a recovery of the land and so disaffirm that contract, or of proper pleading in the alternative, the court could not elect for him nor give him alternative relief, it is not believed the judgment could be held to be supported, if all appellee’s pleadings should be construed to gether, as he seems to have intended they should be.

His pleadings, however, could not bis so construed without ignoring rules governing in the trial of cases in district courts. Hule 13 (142 S. W. xviii) provides that the party amending his pleadings “shall point out the instrument, with its date, sought to be amended, as ‘original petition’ * * * and amend such instrument by preparing and filing a substitute therefor, entire and complete in itself,” etc., and Rule 14 provides that “unless the substituted instrument shall be set aside on exceptions for a departure in pleading, or on some other ground, the instrument for which it is substituted shall no longer be regarded as a part of the pleading in the record of the cause, unless some error of the court in deciding upon the necessity of the amendment, or otherwise in super ■ seding it, be complained of, and exception be taken to the action of the court, or unless it be necessary to look to the superseded pleading upon a question of limitation.” And see Wilson v. Vick, 51 S. W. 45; Dunlop v. Dunlop, 130 S. W. 715; Ry. Co. v. Halsell, 98 Tex. 244, 83 S. W. 15.

Because the judgment is without support in the pleadings, it will be reversed, and the cause will be remanded for a new trial.


source: Caselaw Access Project

author: WILLSON, C. J.

license: Public Domain

text:
    FINDLAY v. LUMSDEN.
    (No. 1350.)
    (Court of Civil Appeals of Texas. Texarkana.
    Nov. 21, 1914.
    Rehearing Denied Dec. 3, 1914.)
    1. Judgment (§ 101) — Defaults—Pleading TO SUPPORT. '
    A petition good as against general demurrer will sustain a default judgment.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 168-170; Dec. Dig. § 101.]
    2. Judgment (§ 101) — By Default — Pleading to Sustain.
    In an action on notes, a petition which prayed for judgment against the “plaintiff”- for the sum due is not bad on general demurrer and will sustain a default judgment; the pleader obviously having used “plaintiff” when he meant to use “defendant.”
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 168-170; Dec. Dig. § 101.]
    3. Attachment (§ 209) — Process—Notice.
    Where the property of a nonresident was attached, a judgment foreclosing the attachment is not bad because neither the notice served upon nor the copy of the petition delivered to the nonresident showed that an attachment had been applied for, issued, or levied, or described the property attached.
    [Ed. Note. — For other cases, see Attachment, Cent. Dig. §§ 675-687, 690, 691; Dec. Dig. § 209.]
    4. Judgment (§ 17) — Process to Sustain.
    No personal judgment can be rendered against a nonresident upon whom constructive service was had, and whose property was attached.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 25-33; Dec. Dig. § 17.]
    Error from District Court, Morris County; W. T. Armistead, Judge.
    Action by C. A. Lumsden against J. H. Findlay. There was a judgment for plaintiff, and defendant brings error.
    Reformed and affirmed.
    Defendant in error was the plaintiff in the court below, and hereinafter will be so designated. Plis suit was on promissory notes in his favor made by plaintiff in error, who hereinafter will be referred to as defendant, for sums amounting to $500, besides interest. In his petition plaintiff alleged that defendant resided in the state of Tennessee. The prayer in said petition was as follows:
    “Wherefore, premises considered, plaintiff prays that defendant be cited as a nonresident as provided by law, and on a trial of this cause he have judgment against plaintiff for the amount of said notes with interest and costs of suit, together with a foreclosure of attachment lien on any property of the defendant situated in the state of Texas seized under attachment by plaintiff herein, and such other relief both general and special as plaintiff may be entitled to in law or equity.”
    Notice of the filing of the suit was given to defendant November 27, 1913, by the delivery to him in said state of Tennessee of a notice issued November 24, 1913, as authorized by article 1869, Vernon’s Sayles’ Statutes, together with a certified copy of plaintiff’s petition. The statement in the notice served on defendant of the nature of plaintiff’s demand did not show that a part of the relief sought by plaintiff was the foreclosure of a lien he might acquire on property belonging to defendant by the levy of a writ of attachment thereon.
    On the day, to wit, November 24, 1913, plaintiff filed his petition, he procured the issuance of writs of attachment, which there-afterwards, to wit, on December 1, 1913, and December 12, 1913, were levied on certain lands as property belonging to defendant.
    Defendant having failed to answer the suit, judgment by default was, on December 16, 1913, rendered against him for the sum and interest sued for, and foreclosing the liens claimed to have arisen by the levy of the writs of attachment on the lands referred to, and directing the sale thereof in satisfaction of the judgment. Pending a sale of the land as so directed, this writ of error was sued out by defendant.
    Chas. S. Todd, of Texarkana, for plaintiff in error. Mahaffey, Thomas & Hughes, of Texarkana, for defendant in error.

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

   WILLSON, C. J.

(after stating the facts as above). It will be noted that the prayer in the petition was for judgment against the plaintiff for the sum due on the notes. It is urged that the petition therefore was not sufficient to support the judgment by default against the defendant. The contention is overruled. So obvious an error on the part of the pleader could not have misled the defendant. And, besides, a petition good as against a general demurrer will sustain a judgment by default. Graves v. Drane, 66 Tex. 658, 1 S. W. 905; Matthews v. Boykin, 40 S. W. 845. It is plain the petition here was not subject to such a demurrer because of the mistake in question. It probably was not even subject to a special exception on that ground (1 Abbott’s Trial Brief, p. 90); for the use of the word “plaintiff” was so manifestly an error, and the use of the word “defendant” so plainly intended instead, that the court should “give the pleading the force which the proper word would have given it if the mistake had not been made.” Fry v. Colborn, 17 Ind. App. 96, 46 N. E. 351.

Neither the notice nor the copy of the petition served on defendant showed either “that an attachment had been applied for, issued, or levied, nor described the property seized.” It is insisted the notice, therefore, was not sufficient to support the judgment, so far as it foreclosed a lien claimed against the land levied upon. The law, it seems, is to the contrary of this contention. Milburn v. Smith, 11 Tex. Civ. App. 678, 33 S. W. 910. The case cited was one of trespass to try title. The plaintiffs were the heirs of Mil-burn, and, as such, claimed title to the land. The defendant, through mesne conveyances, claimed it under a sale made by virtue of an execution issued on a judgment of a justice court against Milburn. Milburn, at the time the suit resulting in the judgment was instituted, and ever afterwards, was a resident of another state. The notice to him of the suit was by the publication in a newspaper of a citation to him as a person whose residence was unknown. In the citation no mention was made of an intention on the part of the plaintiff to sue out a writ of attachment. After the publication of the citation the plaintiff sued out such a writ on the ground that Milburn was a nonresident of the state, and had it levied on the land. The judgment against Milburn was by default. It recited the issuance and levy of the writ of attachment. It was insisted that the purchaser at the sale made by virtue of the-execution issued on the judgment did not acquire the title to the land, because, among other reasons:

“The defendant was beyond the territorial jurisdiction of the court, and no jurisdiction over his person was obtained,” and that “no jurisdiction to subject the land was acquired, because the publication of notice was made before the levy of the attachment, and at a time when the court had no jurisdiction of any character.”

In support of the contentions made in that case it was asserted that the court acquired no sort of jurisdiction before the attachment was levied, and that the publication, made when there was no jurisdiction, could not be effective to convey notice to the defendant. In overruling the contentions, the court said:

“But the answer is that jurisdiction is acquired only by taking several steps — the institution of suit, the issuance and levy of the attachment, and the compliance with the law regulating publication of notice. Until these things, essential to jurisdiction, have all been done, the power to render judgment is not obtained. It cannot be said that the appropriate proceedings taken before attachment are void; for they are things required by law to give jurisdiction, as well as the attachment. All are essential, and when all have concurred, and not before, the power is complete. Property may be seized under the writ and brought within the power of the court; but where publication is required before judgment can be rendered, the court cannot proceed to judgment without it. The absence of the levy would defeat the notice, and the absence of the notice would defeat the attachment. The mere fact that one precedes the other, if this is authorized by the statute, and is due process of law, cannot prevent the jurisdiction from becoming complete when both concur. It is sometimes said that the question of jurisdiction is to be determined by the answer to the inquiry whether or not the court had power to take the first step. But, in cases like' this, jurisdiction over the thing to he affected by the judgment does not arise until all of the steps which the law makes essential have been taken. To strike down any of the proceedings, because they were had before the power was rendered complete, would leave the court powerless to acquire, jurisdiction at all. If the statute required the publication to follow the levy, it may be true that publication made before the levy would be ineffective, because it would not be a compliance with this requirement. But we find no such provision. The statute regulating attachments authorizes their issuance either at the commencement oí the suit or at any time during its pendency ' (Rev. Stat. 1879, art. 154), and the same provision is made with reference to service of process by publication (Rev. Stat. 1879, art. 1235).”

After discussing the question further, the court, in the opinion quoted from, said:

“Unless required by statute, it certainly cannot be necessary to inform him (defendant) of the fact that his property has been seized; for the seizure is due process of law and gives notice of itself. Under our statute, both writs of attachment and citations by publication contain data by which they are connected with the suit in which they are issued, and with each other. A defendant, seeing one, can, by the information which it furnishes, easily find the other. One notifies of the character of the demand, the time and place when and. where it will be heard, and when he shall present his defense; and the other informs him of the seizure of his property. They cannot, in the nature of things, be made exactly contemporaneous, in thqir execution; and the fact that one precedes the other is not a fundamental objection, and cannot, unless in violation of the statute, defeat the jurisdiction. * * * As to the proposition that, if issued before the attachment, the notice must show the purpose to attach, we think it is sufficient to say that, if publication before the levy does not charge defendant with notice, it would not inform him of such purpose, and, if it does notify him of its contents, it would inform him of the suit, and of the liability of his property, to attachment, and of its taking the subsequent seizure would inform him.”

We have quoted at such length from the opinion in the Milburn Case because we think all that was there said is applicable to this case and conclusive of the contention made here.

Plaintiff does not claim, and could not (Pennoyer v. Neff, 95 U. S. 714, 24 L. Ed. 565) that by the service of the notice on defendant in Tennessee the court acquired power to render a personal judgment against him for the amount due on the notes sued on. Therefore the judgment will be so reformed as to deny plaintiff a recovery on the notes, and to affirm it in all other respects.


author: HARPER, C. J.

text:
    FIDELITY & DEPOSIT CO. OF MARYLAND v. ALBRECHT et al.
    (No. 360.)
    (Court of Civil Appeals of Texas. El Paso.
    Dec. 3, 1914.
    Rehearing Denied Dec. 24, 1914.)
    1. Bankruptcy (§ 205) — Eight of Trustee— Merger oe Mortgage Lien.
    . H., while owner of the legal title subject to a trust deed to secure debts due beneficiary, mortgaged the property to an indemnity company. The beneficiary of the trust deed was declared a bankrupt, and H., to wipe out his indebtedness to the estate, which was a great deal more than the security, deeded the property to the trustee in bankruptcy, who sold it to others for full price. The trustee in the trust deed also deeded the property to the trustee in bankruptcy. Held that, though the title of the mortgagee and mortgagor vested in the trustee at the same time, there could not be a merger of the mortgage lien, as it was to the advantage of the trustee and his grantees to keep 'the lien alive, to defeat the lien of the indemnity company.
    [Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 234, 303; Dec. Dig. § 205.]
    2. Mortgages (§ 336) — Junior Mortgage-Private Sale under Senior Mortgage.
    A junior mortgagee is not injured by a private sale under a senior mortgage, which called for a public sale, where the property could not be sold within many thousand dollars of the debt secured.
    [Ed. Note. — For other cases, see Mortgages, Cent. Dig. § 1024; Dee. Dig. § 336.]
    Appeal from District Court, Harris County; N. G. Kittrell, Judge.
    A suit to foreclose a mortgage by the Fidelity & Deposit Company of Maryland against Henry Albrecht and others. From a decree for defendants, complainant appeals.
    Affirmed.
    Gill, Jones & Tyler, of Houston, for appellant. E. P. & O. K. Hamblen, of Houston, for appellees.

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

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

   HARPER, C. J.

The Fidelity &• Deposit Company of Maryland, plaintiff below, instituted this suit against W. S. Hipp for $3,376.35, and against Henry Albrecht, Miss Kate Scanlan, and Andrew Dow to foreclose a mortgage lien on certain lots in the city of Plouston, Tex., executed by the said Hipp in favor of the said fidelity company, alleging that said Albrecht, Dow, and Scanlan were claiming an interest in said mortgaged property, and prayed for judgment against Hipp for his debt, and foreclosure against all parties.

Defendants Albrecht, Scanlan, and Dow, in their answer, disclaimed as to certain lots included in the mortgage, and, as to the balance, answered by general denial, not guilty, and for special plea alleged: That prior to the execution of the plaintiff’s mortgage one House held valid mortgage liens on the property to secure a debt of $27,169.96, and that pláintiff’s mortgage is secondary thereto. That after the record of plaintiff’s mortgage, but before the execution of the particular bond upon which the indebtedness from Hipp to plaintiff arose, Rice, trustee in bankruptcy, of the estate of said House, then bankrupt, acting under the orders of the bankrupt court, had a settlement with Hipp of said $27,169.96 and an additional indebtedness of Hipp to the bankrupt estate aggregating in all, about $149,000. In said settlement Hipp transferred the real estate in controversy, certain other property not covered by plaintiffs mortgage and certain personal property in payment of all said indebtedness. That at the time of said transfer all of the real estate transferred was worth less than $20,600, and that thereafter the defendants, Dow, Albrecht, and Scanlan, purchased from the trustee in bankruptcy, the lots now in controversy. And they further alleged that, if a sale were made of the property under the deed of trust to satisfy, said debt, it would not bring enough to do so.

By supplemental petition, plaintiff replied by general denial not guilty and, especially, that if the mortgages held by the House estate were prior liens to plaintiffs, that they were satisfied and canceled in the settlement between Hipp and the trustee. ■ Therefore, no longer constituted a lien upon the property, but were merged into the legal and superior title.'

The case was tried before the court without a jury, and on July 28, 1913, resulted in a judgment for plaintiff against defendant W. S. Hipp for $4,186.45, with 5 per cent, interest from date of judgment, and costs of suit, and in favor of the defendants Albrecht, Dow, and Scanlan, and intervener, Otis K. Hamblen, denying plaintiff’s foreclosure against the lots claimed by said defendants and intervener, respectively, and quieting the title of said lots as against plaintiff’s claim, and for costs incurred by said defendants and intervener. From which this appeal is perfected. ■

Finding of Facts.

A. Key and wife executed a deed of trust to T. G. Dunn, trustee, for use of T. W. House. That W. S. Hipp and said Key as partners and individually also executed a deed of trust in like form as above. Said two deeds of trust covered the property in controversy, in this suit, except such as ap-pellees herein have expressly disclaimed. That said two deeds of trust were given to secure all indebtedness then owing by said firm of Hipp and Key to said House, as well as all indebtedness said firm might thereafter incur with said House within two years after the dates of said deeds of trust. That Key and wife thereafter deeded the property to Hipp, subject to said two deeds of trust, and as part of the consideration, Hipp assumed and agreed to pay all indebtedness of the firm of Hipp & Co. to said House, and House released Key from liability thereon. This deed was dated October 19, 1903.

October 10, 1905, and February 14, 1906, Hipp mortgaged this same property, described in plaintiff’s petition, to appellants — two separate mortgages — to indemnify against liability on account of bonds theretofore executed for said Hipp, as well as such as might thereafter be executed.

October 17, 1907, House was adjudged a bankrupt in United States court. J. S. Rice was appointed trustee of the bankrupt estate and administered it as such. That at the time House was adjudged a bankrupt Hipp was indebted to him in the sum of $120,000. That said trustee took charge of the assets of said bankrupt estate, and held the indebtedness against Hipp as secured claims based upon the two deeds of trust above mentioned. That January 3, 1910, the indebtedness from Hipp to House was evidenced by four 6 per cent, notes, amounting to $27,169.96, and the balance of said $120,-•000 was incurred after September 1, 1905.

Pursuant to au order of bankrupt court the trustee had a settlement with Hipp of said indebtedness, wherein Hipp transferred certain personal property and the realty in controversy in this suit, to said trustee, in settlement of the $120,000.

Pursuant to this settlement, Hipp and wife executed a deed for this property and other property to the trustee, all of which was worth less than $120,000. April 23, 1910, upon an order of court the trustee executed his deed for this property and other property to the trustee, all of which was worth less than $120,000. April 23, 1910, upon an order of court the trustee executed his deed for the property to defendants, Albrecht, Dow, and Scanlan. Piled for record January 20, 1910.

It is agreed between the parties hereto that on June 26, 1910, plaintiff executed a bond indemnifying said Hipp to the Galveston, Harrisburg & San Antonio, and "same was delivered without payment of freight.

It is agreed that the fidelity company had no actual notice at the time of the execution of said bond that Hipp had made the conveyance, above mentioned, to Rice, nor that Rice had conveyed to defendant.

That on March 19, 1912, Hipp defaulted in his obligation to the railway company, in the sum of $3,376.25, and it is agreed that this is the sum Hipp is due the appellants, fidelity company, and is embraced in the bonds executed. All prior liens to appellants were settled by the trustee in bankruptcy.

The trial court made the following finding of fact: That at the time said Dow, Albrecht, and Scanlan took the conveyance of the property in controversy, they relied on the statement of 1-Iipp that Hipp had ceased business relations with plaintiff, and neither owed nor would incur any debt to plaintiff that would be secured by plaintiff’s mortgage, and consequently, there was no intention on the part of said trustee or said purchasers, at that time, to preserve for protection against plaintiff’s intervening lien the liens formerly held by the House estate on the property in controversy, nor was there any intention to transfer said House estate liens to defendants for their protection against plaintiff’s lien, nor was there any intention on the part of said trustee to preserve said liens, at the time 1-Iipp transferred said property to the trustee, for the protection against plaintiff’s intervening lien, but in both instances the purchaser thought they were getting a clear title, free of any incumbrance, and without any expectation that the property would be liable for intervening liens.

Appellant, by its many assignments and propositions thereunder, ■ asserts the general proposition of law, that when the title to land and the mortgage debt becomes vested in the same person, the mortgage is merged in the title, and, therefore, no longer constituted a lien upon the lots, if in fact, there was no intention to keep the lien alive as a protection against the junior lien. And, the trial court having found that there was no intention to keep the lien alive, appellant contends that merger is complete, and therefore 'it is entitled to foreclose its junior lien.

Whilst this rule of law applies in cases where the facts .justify it, we think the facts of the instant case bring it within the rule announced in Silliman v. Gammage, 55 Tex. 370:

“That when the estates of the mortgagee and mortgagor are united in the former, he has in equity an election to keep the mortgage title on foot, and that whenever it is his interest, by reason of some intervening title, * * * it will not at law be regarded as merged. This is based upon the presumption, as a matter of law, that the party must have intended to keep on foot his mortgage title, when it was essential to his security against an intervening title, or for other purposes of security; and it is no matter whether the parties, through ignorance of such intervening title or through inadvertence, actually discharged the mortgage and canceled the note, and really intended to extinguish them. Still, on its being made to appear that such intervening title existed, the law would presume conclusively that the mortgagee could not have intended to postpone his mortgage to the subsequent title.”

This is not a case of the mortgagee obtaining the superior title, but first, the title was taken in the name of a trustee, as such, for the purpose of conveniently subjecting the assets of the bankrupt, House, to the payment of the debts. It therefore clearly appears to the interest of the estate that he (the trustee) must keep alive the prior liens, that he might obtain the full value of the property when sold by him under the order of the court, for the mortgagor’s debt to the bankrupt estate was greatly in excess of the value of all the property transferred in settlement thereof, and when appellees purchased from the trustee it was clearly to their interest to keep alive the mortgage liens of House, as against subsequent liens, for they paid full value for the property.

But the equity in this case is clearly revealed in the fact that if there had been a foreclosure of the mortgage and a sale made thereunder, that the property would not have brought within many thousand dollars of the amount of Hipp’s debt for which it was given to secure. Therefore, the appellant wa,s not injured by the fact that the mortgagor and trustee elected to apply the property to the settlement of the debt by private contract, rather than by public sale as provided in the mortgage. Bank v. Strauss, 29 Tex. Civ. App. 407, 69 S. W. 86; Huggins v. White, 7 Tex. Civ. App. 563, 27 S. W. 1066; Kearby v. Hopkins, 14 Tex. Civ. App. 166, 36 S. W. 513; Willis v. Heath, 18 S. W. 801; Watson v. Markham, 33 Tex. Civ. App. 476, 77 S. W. 660; Bank v. Ackerman, 70 Tex. 320.

The assignments are therefore overruled, and the cause affirmed.


author: HODGES, J.

text:
    SMITH et al. v. MOORE et al.
    (No. 1344.)
    (Court of Civil Appeals of Texas. Texarkana.
    Nov. 12, 1914.
    Rehearing Denied Nov. 19, 1914.)
    1. Habeas Corpus (§ 99) — Custody of Infants— EItness of Parents — Sufficiency of Evidence.
    In habeas corpus by the parents of a child born prior to their marriage to recover its custody from the father’s sister, _ evidence held, insufficient to support a finding that the father was not a fit person to have the custody of the child, and, on the contrary, to show that the fitness of the parents to rear the child was equal to that of the sister and her husband.
    [Ed. Note. — Eor other cases, see Habeas Corpus, Cent. Dig. § 84; Dec. Dig. § 99.]
    2. Habeas Corpus (§ 99) — Custody of Infants — Giving Preference to Parents.
    Where a child born shortly before the marriage of its father and mother was given to the latter’s sister to prevent the facts becoming known to other members of his family, but shortly after the marriage the parents abandoned their efforts to conceal the facts and sought to recover the custody of the child, and their fitness to rear it was fully equal to that of the sister and her husband, the father being better able financially to support the child than the sister’s husband, the court in Rabeas corpus erred in awarding the custody to the sister, since, while the welfare of the child will be considered in disposing of its custody, where other things are equal, the natural parents, though they have voluntarily parted with the child, should be given its custody.
    [Ed. Note. — Eor other cases, see Habeas Corpus, Cent. Dig. § 84; Dec. Dig. § 99.]
    3. Habeas Corpus (§ 99) — Custody of Infants — Sufficiency uf Evidence.
    In habeas corpus by the parents of a child born out of wedlock to recover its custody from the father’s sister to whom the parents had delivered it for the purpose of concealing the facts from other members of the father’s family, and with the intention of selling out and moving to some part of the country where its illegitimacy would not be known, evidence held insufficient to support a finding that the child was virtually abandoned by its parents when turned over to the sister and her husband.
    [Ed. Note. — For other cases, see Habeas Corpus, Cent. Dig. § 84; Dec. Dig. § 99.]
    Appeal from District Court, Harrison County.
    Habeas corpus by Mary Smith and husband against Nora Moore and husband. From a judgment in favor of defendants, complainants appeal.
    Reversed and rendered.
    Lane & Lane, of Marshall, and W. B. Skinner, of Mt. Vernon, Mo., for appellants. Beard & Davidson, of Marshall, for appellees.

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

   HODGES, J.

On October 18,1913, Knowles and Mary Smith, husband and wife, instituted this suit by writ of habeas corpus against Herman and Nora Moore to recover the custody of Herman Smith, an infant then a little more than 15 months of age. The facts show that Herman Smith is the child of Knowles and Mary Smith, but was born out of wedlock. At the time of its birth the father and mother wfere engaged to marry each other, and did marry about a month later, and have lived together as husband and wife continuously since that time. The birth of the child occurred on June 30, 1912, at the home of Mrs. Smith’s sister in Missouri, about 30 miles from Mt. Vernon, near which place resided the parents and other relatives of Knowles Smith, and where he had previously made his home. The sister mentioned above kept the child about a week, and, being unwilling to keep it longer, so notified its mother. It was then carried by the latter to her mother in Kansas, where it was kept about another week. The mother of Mrs. Smith, being old' and infirm, declined to keep it longer, on account of her physical condition, and the child was again taken possession of by its own mother. On August 17, 1912, after the complainants were married, Smith wrote the following letter to Mrs. Nora Moore, his sister and one of the ap-pellees herein, who was at that time residing at Marshall, Tex., asking her to take the child:

“Mt. Vernon, Mo., Aug. 17, 1912.
“My Dear Sister Nora: I am going to write you Nora, asking a great favor of you, something that almost kills me to ask of you, but believe that you will help me for a while at least. Now Nora listen you know I am married to M., and all with my own free will, and Mary had a baby boy before we were married, and Nora this baby is in Kansas now. I have never seen it only when it was born, and Mary and the doctor tell me it is allright and a well baby boy, and I have heard you say you wish you had one, and I have got to do something soon and very soon, and Nora I don’t feel like I could bring it here now for a while at least and disgrace my poor old mother and all the rest. If some one will keep him until I sell out or get shed of what I have then I could leave here and stay away. Now Nora, if you will help me for six months or if you will take him for a while and learn to love him you may keep him as long as you live and then I will see to him or if you will help me out for a while I will reward you for what you have done. My folks here need never know where you got him Nora. I won’t feel hurt' at you in the least if you don’t do anything, but please help me if you feel like you can. Talk to Herman about this and see if he is will to help me out, if he isn’t I wouldn’t want you to take him. I will be to all expenses for the child. Now answer me as soon as possible for I must do something at once and if you will help us Mary will come and bring him soon and if you want to meet her at the depot she could turn right around and come home and if you should meet her on the way I will settle for your fare. Help is what I want Nora. I believe that it has a good mother. You know we are all likely to be misled. Now I will appreciate anything you can do, and if you cannot do anything I am not sore at you. I ask you to never mention this to any one but Mary and me would no where it was if you had him Nora. If you should take him for a while and get sick she will come and wait on you. Answer as soon as possible.
“Your brother, Knowles.”

Mrs. Moore and her husband replied to this letter consenting to receive and take the child into their home, and by arrangement met Mrs. Smith in Texarkana, where the child was delivered to them. The testimony shows that the babe was then in a very emaciated condition, and there appeared to be little hope that it would live; but by careful nursing and prompt medical attention it soon gained strength and developed into a healthy child, and Mr. and Mrs. Moore became exceedingly fond of it.

After their marriage the complainants moved to a farm belonging to Smith near Mt. Vernon, Mo., where they have since resided. The record shows that during the next two months there was some correspondence between the parties regarding the condition and welfare of the baby. This correspondence discloses strong parental affection and a longing on the part of the mother to have the child with her. It was finally arranged that Mr. and Mrs. Moore should visit Mrs. Moore’s relatives in Missouri and take the child with them. This they did about June, 1913. When complainants saw their child, they requested that they be allowed to keep it, and that Mr. and Mrs. Moore surrender whatever claim they had to it. Mrs. Moore declined, claiming that the complainants had agreed when she took charge of the child that she might keep it permanently in the event she learned to love it. It appears that an altercation followed between Mrs. Moore and Knowles Smith, in which the latter used some violence towards his sister. The witnesses differ as to just what took place at the time, but it is admitted that Mr. and Mrs. Moore finally agreed to surrender the custody of the child if they were permitted to take it back to their home in Texas and explain to their friends why they did not keep it. There was testimony showing that this course was the result of a family conference participated in by the father and mother of Mrs. Moore and Smith and one of their sisters. Moore and wife, however, testified that they gave their consent under coercion; that at the time they had no intention of keeping the promise to send the child back, but had agreed to do so through fear of Smith because of threats of personal violence made by him. Upon the arrival of Mr. and Mrs. Moore at their home, the latter wrote the following letter:

“Marshall, Texas, June 16, 1913.
“Knowles and Mary: We arrived in home yesterday at three o’clock everything here looked good to us, had a very hard trip home, little Herman was sick all the way with a hot fever. Every one on the train was nice to us. He is much better to-day, meant to have the Dr. this morn, but don’t think he needs him, gave him a dose of castor oil last night. Well every one was glad to see us home again and say don’t know how we will get along without the ■boy, he was so glad to get home, he knew just as well as we did he was home, has been so sweet and good ever since we came. Herman was sick last night, didn’t go to work this morning. Knowles I do sincerely hope you and Mary are feeling better than when we were there, I am not sorry now I came home for it would have had to be settled some time, but now I feel like I have done all that I can do and when you all feel like you can do without him no longer, you and Mary come and make us a visit and we will make it as pleasant for you as we can and have no hard feelings towards each other.”

About a month later she wrote another letter to her brother, positively declining to surrender the child, saying that she had consulted a lawyer since reaching home and was advised that she could not legally be deprived of the child’s custody. This letter also conveyed the information that after returning to Marshall they had adopted the child. It further referred to a balance of $115 due them for money which they had expended for the benefit of the child. It appears that Smith had agreed some time previous to reimburse them for such items, but had theretofore sent only $35. Smith subsequently through an agent made formal demand for the child, and at the same time tendered this balance. Both the request for the child and the tender of the money were refused, and this suit followed. After a full hearing, the court.below refused the prayer of Smith and wife, and directed that the child remain in the custody of the appellees.

The court filed his findings of fact, in which he embodied, in substance, those which have been stated. He found in addition, however, that Mary Smith, the mother, had declined to further care for her child when it was delivered to the defendants at Texarkana, and that this virtually amounted to an abandonment on her part and that of her husband; that Moore and wife took the child with the understanding that if they learned to love it it was to be theirs for all time. He concluded as a matter of law that the best interests of the child — moral, physical, and from an educational standpoint — demanded that it remain in the custody of the foster parents. Complainants’ counsel requested the court to make further findings of fact, and to that end propounded a series of questions, which were answered. The last probably furnishes the true reason for the judgment rendered, and is as follows:

“The court is of the opinion that Mary Smith would be a proper party to have charge of this child, so far as her part of such an undertaking would be concerned — -at least so if not under the influence of her husband. But the conduct of Knowles Smith in this whole matter has been of such a character that the court is of the opinion that the welfare and best interests of the little boy asked for by the plaintiffs demand that he be not placed in the custody of Knowles Smith and his wife, Mary Smith, 'but in the care and custody of Nora and Herman Moore, and it is so ordered.”

The testimony is uncontradicted that Knowles Smith is a young man between 30 and 40 years of age and bears an excellent reputation in the community where he resides. He is a farmer and a deputy sheriff, owns his own home, consisting of about 80 acres of land and worth between $4,000 and $5,000. He' also owns the necessary stock, farm supplies, and implements required to operate a plantation of that size. His income is said to be about $100 per month. There is nothing whatever in the record to question his fitness in any respect to have the custody of the child, unless it be certain transactions to which Mrs. Moore testified. She stated that during her visit to Missouri in June, 1913, Smith became angered with her because of her refusal to part with the child, and struck her in the mouth with his fist, knocking her down, after which he choked her. Her father and sister, who were present at the time, deny that violence to that extent was used, and give a different account of the affair. They say that Smith became angered with his sister because of her conduct in failing to burn some letters which he had written her; that her manner was such as to irritate him; and that he struck her on the mouth with two of his fingers. They deny that he knocked her down or choked her. According to their version, she was the aggressor. Mrs. Moore admits that both her father and sister are good people and bear good reputations. These two witnesses are corroborated by Smith himself and his wife. Mrs. Moore further testified that about three years prior to the trial her brother told her that on one occasion he had taken his father by the collar and1 threatened to kill him. These were the only circumstances, aside from the unfortunate transaction preceding the birth of the child, which in any way reflected upon the fitness of either Smith or his wife to have its custody. Mrs. Moore admitted that Smith was “all right when unmolested.” She doubtless meant that he was a good man when not angered or aroused by some cause. The testimony shows that Mr. and Mrs. Moore are both good people and bear excellent reputations in their community. They have been married a number of years, and have no children of their own. They own property estimated at about $2,000 in value. Mr. Moore is employed in the railway shops at Marshall, Tex., as a carpenter, and earns a monthly salary of from $70 to $85.

Taking the evidence in its entirety, the fitness of the complainants to rear the child is fully equal to that of the respondents; in fact, in some respects better, if we compare their financial conditions. Under these facts, we think the court erred in not awarding them the custody of their child.

We are referred to the following Texas cases as supporting the judgment rendered in the court below: Legate v. Legate, 87 Tex. 252, 28 S. W. 281; Peese v. Gellerman, 51 Tex. Civ. App. 39, 110 S. W. 197; Plahn v. Dribred, 36 Tex. Civ. App. 600, 83 S. W. 867; Pittman v. Byars, 45 Tex. Civ. App. 46, 99 S. W. 1033; Schneider v. Schwabe, 143 S. W. 265; Ball v. Smith, 156 S. W. 576. These have all been carefully examined, and we do not think they warrant the judgment rendered.

In Peese v. Gellerman, Plahn v. Dribred, and Ball v. Smith, the mothers of the children had died, and their fathers were making applications for custody after second marriages. In each instance the court found as a fact, upon evidence the sufficiency of which was not questioned, that the moral surroundings of the child in the home of the parent, either on account of the character and reputation of the father or of the stepmother, would not be good.

In Pittman v. Byars the court does not state the facts with sufficient fulness to enable us to determine just what was the controlling reason.

In Schneider v. Schwabe the mother had married a second time, and sought the custody of her two children after several years-of separation only as a pretext, so the court found, for securing the control of a small amount of money belonging to them. It was further shown in that'case that the mother had married a second husband, and a large family of children had accumulated, and the income of the husband was inadequate for their proper maintenance and education. The court concluded that the children in question would probably Be neglected if given into the charge of the mother and stepfather.

The Legate Case was presented on certified questions, and among those propounded was the following:-

“Where the father and mother have, by written agreement, fully and finally relinquished their right to the custody of their infant daughter, three months old in favor of another, at a time when the mother was unable to give proper attention to the child on account of illness from which she was expected to die; and the-child has been formally adopted by the person to whom such custody was given; and where,, on habeas corpus trial, it is shown that the person having custody of the child is in every respect qualified to care for the child and provide for it; and it is also shown that the father and mother are also qualified in every way to care for and raise the child — should the child, after it has been cared for tenderly and lovingly for nearly two years by its foster parents, be taken from their custody and given over to 'the custody of the natural father and mother?”

After holding that the custody of a child is. not legally a subject-matter of contract, and. that the state, though recognizing the parents’ natural right to its custody, has the superior right to determine where the child: shall be placed, Judge Denman, who rendered the opinion, said that such matters-were to be determined by the trial court - upon the issues of fact in each particular case. He says:

“Ordinarily the law presumes that the best interests of the child will be subserved by allowing it to remain in the custody of the parents, no matter how poor and humble they may be, though wealth and worldly advancement may be offered in the home of another. Where,. however, a parent, by writing or otherwise, has voluntarily transferred and delivered his. minor child into the custody and under the control of another, as in the case ’at bar, and then seeks to recover possession of the child by writ of habeas corpus, such parent is invoking the ■ exercise of the equitable discretion of the court to disrupt private domestic relations which he - has voluntarily brought about, and the court will not grant the relief, unless upon a hearing of all the facts it is of opinion that the best interests of the child would be promoted. thereby.”

The facts of that ease, as stated in the opinion of the Court of Civil Appeals, which is reported in 29 S. W. 212, show that the ■child in controversy was the infant of parents who were very poor; that the mother at the time she parted with its custody was in a bad state of health and -was not expected to live. Her health to some extent was subsequently restored, but still remained delicate, and she was unable to perform all of the duties that would be required of her in the care and .attention of the child in connection with her other domestic duties. The foster parents of the child, on the contrary, were shown to be people of excellent moral and social standing, and were well able to give the child many advantages which it could not obtain if placed in the custody of its parents. Judge Finley, among other things, said this in referring to Mr. and Mrs. Wheeler, the natural parents:

“But, owing to their’ strained financial circumstances, the nature of Mr. Wheeler’s employment, and the condition of Mrs. Wheeler’s health, these opportunities and advantages will necessarily be limited, and her life will be to some extent one of privation and toil; and, unless Mrs. Wheeler is relieved to some extent of the burden of household labors and cares that are already too heavy for her weak condition, * * * the child will, in all probability, within a few years, be without the constant personal parent’s care that she will with reasonable certainty receive until her maturity in the home of the Legates.”

It will be observed that there the ability of the parents to provide for the welfare of the child was called in question and furnished the chief reason for refusing them its custody.

The last expression of our Supreme Court to which our attention has been called is found in State ex rel. Wood v. Deaton, 93 Tex. 243, 54 S. W. 901. In that case a mother had parted with her child soon after the death of her husband, solely on the ground of her inability to provide for it. She subsequently married, however, and then sought to recover possession of her child. The testimony showed that the foster parents took the child with the understanding that they were to keep it, and they had retained its custody for several years; that they were people of exemplary habits and were well able to care for and educate the child and to give it such advantages as its social condition demanded. It was also shown that the mother and stepfather of the child were people of good reputation and standing, and were also willing and able to give the child all needed advantages. The facts presented a case in which there was probably an equality of fitness in the contending parties to discharge all the duties required for the welfare of the child! The question then was: To whom should the court, in the exercise of its discretion, award the custody? The district court refused the prayer of the natural pai'-ents and awarded the child to the foster parents. This judgment was affirmed by the Court of Civil Appeals. The Supreme Court, however, reversed and rendered judgment directing that the child be delivered to its mother. In the course of the opinion, which was rendered by Justice Brown, the Legate Case is referred to and discussed. While not overruling that opinion, it is said that a careful examination will’ show that it was not there intended to justify the holding of the trial court in the case then being-considered. Justice Brown then quotes at some length from State v. Richardson, 40 N. H. 275, which we think lays down the principle that should govern in this case. 1-Ie announces the conclusion that where all things are > equal, although the natural parent had voluntarily parted with her child, she should be given its custody.

In legal effect the facts in this case are much like those in State ex rel. Wood v. Deaton. The finding of the ’court that Smith was an unfit person is not only unsupported, but is opposed to the undisputed evidence. Neither is the finding that the child had been virtually abandoned by its parents when turned over to Moore and wife at Texarkana supported by the record. The evidence does show that soon after its birth the complainants endeavored to conceal that fact from Smith’s family, and it was for that purpose only that they called upon Mr. and Mrs. Moore to take charge of the child. It is undisputed that Smith had determined to sell out his property in Missouri and take his wife to some distant country where the illegitimacy of the child would not be known, but that he failed to find a purchaser and finally concluded to remain at his old home. It is also shown that his relatives soon became aware 'of the birth of the child, and there appeared to be no further effort to conceal it. According to Moore’s testimony, he and his wife took thfc baby reluctantly and told the mother at the time that she could have it back if she called for it within six months. According to the testimony of Mrs. Smith, she did not intend to part with her child for all time; she regarded its custody by Mr. and Mrs. Moore as only temporary, and was looking forward to the time when she and her husband would move to some other country and take the child with them. In saying that the welfare of the child will be consulted in disposing, of its custody, the courts do not mean that no consideration whatever will be given to the claims of the parents. The attachment of foster parents is based almost entirely upon association; that of the natural parents upon a God-given instinct. Parental affection, which finds its chief-reward in the care and society of the offspring, has some claim on the conscience of courts.

The judgment of the district court is therefore reversed, and judgment here rendered awarding the custody of the child to the appellants.


author: WALTHALL, J.

text:
    PRINCE et al. v. TAYLOR.
    (No. 352.)

    (Court of Civil Appeals of Texas. El Paso.
    Nov. 12, 1914.
    On Rehearing, Dec. 24, 1914.)
    1. Master and Servant (§ 305) — Injury by Automobile — Agency of Driver.
    If a chauffeur, acting within the scope of his general employment, as driver, undertook to operate a family car, through the owner’s inexperienced son, though instructed not to, it is the act of the owner, and in a suit for resulting injury it is unnecessary to further show the son’s agency than to show that the chauffeur permitted and assisted him to drive at the time and place of the accident.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1223, 1224; Dec. Dig. § 305.]
    2. Appeal 1 and Error (§ 1033) — Harmless Error — Instructions.
    In a suit for injury to a pedestrian by an automobile, defended on the ground of contributory negligence, defendants could not complain of an instruction in their favor if plaintiff stepped back to avoid a street car, and so put himself in the path of the automobile so that those in charge could not, by exercise of ordinary care, stop it and guide it away before he was struck, as on these facts defendants would not have been entitled to a verdict without a further finding that his stepping back was the proximate cause of the injury.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4052-4062; Dec. Dig. § 1033.]
    3. Municipal Corporations (§ 706) — Use oe Streets — Injury by Automobile — Instructions.
    ^n a suit for injury to a pedestrian by an automobile, the court was requested to tell the jury to find for defendants if, as the automobile rounded the curve at a street intersection, a street car started to make the turn and the rear end swung outward toward a woman causing her to step back into the path of the automobile, and the driver to avoid striking her turned the car and struck plaintiff, and if the street car causing her movement was the sole proximate cause of plaintiff’s injury to find for defendants, regardless of defendants’ negligence in driving the automobile, so as to necessitate a sharp turn from the woman. Held, that it was not error to refuse the request because it withdrew the issue as to whether defendants were negligent in driving at all at that place under the circumstances.
    [Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. § 1518; Dec. Dig. § 706.]
    4. Trial (§ 260) — Request for Charge — Issue Presented by General Charge.
    No error can be predicated on the refusal of a request as to an issue sufficiently presented by the general charge.
    [Ed. Note.- — For other cases, see Trial, Cent. Dig. §§ 651-659; Dec. Dig. § 260.]
    5. Municipal Corporations (§ 705) — Use of Streets — Injury by Automobile — Mistake of Judgment as Defense.
    A mistake of judgment as to the competency of the driver of an automobile, however honestly made, is not a defense to a suit for injury caused by his negligence*
    [Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. •§§ 1515-1517; Dee. Dig. § 705.]
    6. Damages (§ 208) — Personal Injury — Question for Jury.
    Evidence of personal injury, from which it may be inferred from an opinion of a physician that plaintiff could not do active work, justified submission of future diminished capacity to earn money as an element of damage.
    [Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 54, 64, 68, 132, 144, 145, 205, 220, 533, 534; Dec. Dig. § 208.]
    Appeal from District Court, Harris County ; N. G. -Kittrell, Judge.
    Suit by Joe H. Taylor against H. Prince and another. From a judgment for plaintiff, defendants appeal.
    Affirmed, and motion for rehearing overruled.
    Andrews, Streetman, Burns & Logue, Fisher, Campbell & Amerman, W. L. Cook, and Jno. A. Mobley, all of Houston, for appellants. Gill, Jones & Tyler, of Houston, for appellee.

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

       writ of error pending in Supreme Court

   WALTHALL, J.

In this case the plaintiff in the trial court, Joe H. Taylor, now ap-pellee, sued the defendants, H. Prince and his son, Harry Prince, appellants, for damages for personal injuries which he alleges he sustained by reason of the negligence of the defendants proximately causing his injuries. Briefly stated, the plaintiff alleges in his petition that he was struck by an automobile owned by defendant H. Prince, which at the time of the accident was being driven on Texas avenue in the city of Houston, or just at the corner of 'Main street and Texas avenue in said city. The petition alleges that his being struck by the automobile and the consequent injuries to him, of which he complains, were caused by negligence for which H. Prince would be liable, upon the following grounds: That at the time of the accident the car causing the injury was being driven by Harry Prince, son of H. Prince, either upon his own responsibility or under the direction of one Schell, whom H. Prince had employed as chauffeur and placed in charge of the automobile, with authority to drive same upon the streets of Houston, for the use and benefit of H. Prince’s family, of which it was alleged Harry Prince was a member, and that Harry Prince was likewise placed in charge of the machine by H. Prince, with authority to operate it. The petition alleged that Harry was an inexperienced and incompetent driver of tlje machine, and that Schell, in charge of the machine, negligently turned the car over to Harry and permitted him to operate same with resultant injury to plaintiff. The petition alleges that the injuries to plaintiff were proximately caused by negligence in one or more of several respects: (1) By Harry, as H. Prince’s agent, negligently operating the car, either in violation of the city ordinance, or by failure to exercise ordinary care; (2) by Schell, the chauffeur, and H. Prince’s agent, participating in such negligent operation of the car; (3) by negligence of the chauffeur in turning the car over to Harry Prince, an incompetent and inexperienced operator. The damages claimed are predicated upon suffering, mental and physical, lost time, and diminished capacity to labor and earn money.

Defendant H. Prince answered by general demurrer, general denial, and special pleas, in substance: (a) That, if plaintiff was struck by an automobile owned by H. Prince, same was intrusted exclusively into the hands of a competent chauffeur, and, unless at the time of the accident same was being operated by said chauffeur, it was not being operated under the authority or for the use and benefit of H. Prince; (b) that plaintiff was himself guilty of negligence contributing to cause his injuries; (c) that the injuries to plaintiff were proximately caused by an intervening agency, in that, it being Saturday afternoon, with the streets crowded, a street car of the Houston Electric Company had been stopped at the corner, or near thereto, just before making the turn from Texas avenue into Main street, which street car prevented the passage of pedestrians who were going in the direction in which plaintiff was going; and that said street car suddenly started around the curve at that point, causing persons who were then and there near said street car to suddenly step backward or otherwise in the path of the moving automobile, in order to avoid the rear end of said street car, which swung outward toward such persons as the street car took the curve; and that the driver of the automobile, under such circumstances, undertook to turn said automobile so as to avoid striking and injuring such persons so moving out of the path of said street car; and that in doing so said automobile was caused to come in contact with plaintiff, if plaintiff was struck by said automobile. It was alleged that the starting of the street car, with the consequent moving of pedestrians to avoid its outward swing, was the sole proximate cause of injuries to plaintiff; there being no negligence of any persons for whom the defendant H. Prince would be liable on the occasion.

After a careful examination of all of the evidence offered on the trial, we find that the following facts appear without dispute: First. That appellee was injured, and that his injuries were due to the collision of an automobile with his person on the date alleged. Second. That the accident occurred at the intersection of Main street and Texas avenue in the city of Houston, about 7 o’clock in the evening on a Saturday, a time when that place was and is always the most crowded place in the city, both in the matter of moving people and moving vehicles. Third. That the automobile which injured plaintiff was owned by H. Prince, was then being driven by his son, Harry Prince, under the supervision and direction of the chauffeur of H. Prince. Fourth. That the automobile had been purchased by H. Prince for the use of his family, and he, his wife, and his son Harry constituted his family. That his wife and son and two guests were taking a pleasure ride on the occasion in question. Fifth. That the car and chauffeur were subject to the wife’s orders. Sixth. That, for about two weeks, Harry had been learning to drive the car under the immediate tutelage of the chauffeur, and that on the occasion of the accident the chauffeur was sitting beside Harry, advising and directing him, and sounding the horn for him on occasion. Seventh. That defendant H. Prince knew that Plarry was learning to drive the car, and that he had been running the car, was present a number of times when the fact of Harry’s running the car was mentioned, had ridden in the car on at least one occasion when Harry was driving, and made neither protest nor comment. Mrs. H. Prince had ridden a number .of times when Harry drove, advising and directing him. Eighth. The legal limit of speed on Main street at and near the point of the accident was eight miles per hour, which had to be reduced to four miles per hour in turning corners. Ninth. It is undisputed that in turning the comer the automobile was exceeding the speed limit for turning corners, the speed being placed by Harry and the chauffeur at from five to six miles an hour, and the other witnesses varying up to twenty miles per hour. Tenth. It was undisputed that it was the moving automobile that injured plaintiff. Eleventh. The automobile was a five-passenger Packard, with a wheel base of 129 inches, which, with its overhang, would give the machine a total length of more than 12 feet. Twelfth. At the time of the accident, plaintiff had walked up Main street on the eastern sidewalk, and had just started across Texas avenue, toward the Binz Building, in the same direction and on the same side of Main street, when he was struck by the automobile, just as it turned the comer. Thirteenth. He was rolled or dragged several feet by the machine. The machine ran from 50 to 75 feet beyond the point of collision before the driver was able to stop it. Fourteenth. A lady, named Mrs. Walker, was badly injured by the same machine at the same time and place.

Appellant’s first assignment of error complains of the tenth paragraph of the court’s general charge, in that said paragraph instructs the jury that I-I. Prince would be liable for the negligent acts of Harry Prince, if any, in the operation of the automobile, without properly submitting to the jury anywhere in the charge the question of whether or not there were such relations between I-I. Prince and Harry Prince as would amount to an agency, permitting the application of the doctrine of respondeat superior. The paragraph of the charge complained of reads as follows:

“Guided by these instructions, if you believe from a preponderance of the evidence that the automobile was being run at such rate of speed and under such circumstances as, you have heretofore been instructed, constitutéd negligence, and you further believe that plaintiff was struck by an automobile belonging to defendant H. Prince, and that plaintiff was injured by being so struck, and believe that the negligence of those in charge of the car, or of either the chauffeur or Harry Prince, if negligence you find, was the proximate cause of plaintiff’s being injured, the plaintiff is entitled to recover; and, unless you find for defendants upon instructions given in other parts of this charge, you will return your verdict in his favor against either H. Prince or against Harry Prince, or against both, according as you find liability under instructions hereinafter given.”

The three propositions under this assignment are to the effect that, before H. Prince could be held liable for any negligence of Harry Prince, the evidence must either show as a matter of law, or raise the issue as a fact, that Harry was H. Prince’s agent, acting within the scope of his agency, in the operation of the car, and that the fact of Harry’s agency was an issuable fact and not undisputed to be stated by the court as a matter of law, and that it was prejudicial error, as the charge nowhere else presented to the jury appropriate instructions correctly informing them as to the circumstances under which H. Prince might be held liable for negligent acts of Harry Prince. If it were a necessary fact, to be shown before H. Prince could be made liable for the negligent act of Harry Prince in driving the car at the time and place of the accident, that H. Prince should have given Harry permission to drive the car, or should have given Schell, the chauffeur, permission to let Harry drive the car, the assignment would present a serious question, as both appellant’s answer and his evidence on the trial dispute the question as to his permission to any person other than the chauffeur to drive the car. However, he admits his ownership of the car; admits that Schell was his chauffeur, and at the time and place of the accident was in charge of the car; admits that the car was a family car, and that the family used it altogether, and that at the time of the accident the car was in charge of the chauffeur, and that his wife and Harry, with friends, were in the car and taking a drive; admits that the chauffeur was invariably under the instructions of his wife. Appellant defends the action against his liability for Harry’s negligence on the ground that he had given his chauffeur a general charge that no one else should drive the car.

In' the case of Burnett v. Oechsner, 92 Tex. 590, 50 S. W. 563, 71 Am. St. Rep. 880, the court, quoting from Railway v. Anderson, 82 Tex. 516, 17 S. W. 1039, 27 Am. St. Rep. 902, states the law to be that:

“To hold the master liable for the act of his servant, it is not necessary that the servant should have the authority to do the particular act. The act of the servant may be contrary to 1ns express orders, and yet the master may be liable. But the act must be done within the scope of the general authority of the servant. It must be done in furtherance of the master’s business,-and for the accomplishment of the object for which the servant is employed. For the mode in which the servant performs the duty he is engaged to perform, if wrongful and to the injury of another, the master is liable, although he may have * * * forbidden the particular act.”

To operate the family car of H. Prince on. a pleasure drive for the family was admitted to be within the scope of the general authority of the chauffeur, Schell. If he (Scholl), acting within the. scope of his general employment, as driver of the car, undertook to-operate the car through Harry Prince, although instructed by H. Prince not to do so, it would still be the act of H. Prince, and it would not be necessary to further show the agency of Harry Prince than to show the agency of Schell, that he permitted and assisted Harry Prince, as the undisputed evidence shows, to drive the car at the time and place of the accident. The above principié-is further illustrated in the case of Reid Auto Company v. Gorsczya, 144 S. W. 688. Could the owner of a car relieve himself of liability by instructing his driver not to drive the-ear at an excessive rate of speed and to exercise ordinary care or to drive on certain streets and not to drive on others, if a failure to obey instructions caused injury to others? We think not. No more could he by instructing his driver not to permit an inexperienced person to drive the car.

If we eliminate from tire case the idea that the general instruction of the owner of the-car to his chauffeur to the effect that no other person should operate the car, we then have presented the question of the owner’s liability for injury inflicted to another through the negligence of one put in charge of the car by the servant to perform the duties of the servant. It seems to us that the act of the servant in doing so would go to the mode in which the servant performs his-duty to the master.

From the principles announced in the cases above quoted, we think it quite clear that to render H. Prince liable for an injury inflicted on the appellee through the negligence of Harry Prince, in driving the car, with the knowledge, consent, and under the direction of Schell, and -while performing Schell’s duties, it would not be necessary that the evidence show agency of Harry Prince, separate and apart and independent of the agency of Schell. We overrule appellant’s first assignment of error.

The authorities above quoted, as we construe them, render it unnecessary for us to further discuss appellant’s second, third, and fourth assignments of error.

Appellant’s fifth assignment of error complains of the fourteenth paragraph of the court’s general charge, but copies the twenty-fourth paragraph. It is true, as stated in the assignment, that the paragraph complained of (the twenty-fourth) tells the jury to find for both defendants, if they should find that plaintiff stepped back to get out of the way of the swing of the car and that, in doing so, he put himself in the path of the approaching automobile, and at a time and place when and where those in charge of the ear could not by exercise of ordinary care, in the employment of the means at hand, stop the car or guide it away from the plaintiff, before he was struck, without submitting to the jury the question for them to determine whether the stepping back by plaintiff was the proximate cause of plaintiff’s injury. The charge was one of which the plaintiff might have complained, but not the defendants. The defendants would not have been entitled to a verdict if the jury had found for them every fact submitted to them in the paragraph, but the plaintiff would, in addition, be entitled to have the jury say, before they could find for the defendants, that the stepping back was the proximate cause of his injury. The assignment is overruled.

The sixth assignment complains of the refusal of the court to give requested charge No. 12. There was no error in refusing to give the charge. The charge requested the court to tell the jury to find for the defendant if they should believe from the evidence that, as the automobile was rounding the curve at the intersection of the streets, a street car then and there started in motion to make the turn from Texas avenue into Main street, and that the rear end of the street car swung outward toward Mrs. Walker, causing her to step back into the path of the moving automobile, and that the driver, in an effort to avoid striking Mrs.' Walker, turned the car from her and struck the plaintiff, and, if the jury should find that the start of the street car causing the movement of Mrs. Walker was the sole proximate cause of plaintiff’s injuries, the jury would return á verdict for defendants, and that regardless of any question of negligence on the part of defendants in driving the automobile at that time and place, so as to necessitate the sharp turn of the car from Mrs. Walker. The jury might have thought that it would not be in the exercise of ordinary care for defendants to undertake to drive the car at all at that place under the circumstances then existing. They would be the sole judges, and the charge, if given, would have withdrawn the issue from them.

The seventh assignment complains of the refusal of the court to give requested charge No. 6, to the effect that, unless they found that the speed of the car at the time and place of the accident was the proximate cause of plaintiff’s injury, it would be immaterial that the car was then exceeding the speed limit. The requested charge announces a correct principle of law; but we believe that paragraphs 10 and 11 of the general charge taken together sufficiently presents the issue to the jury, and the assignment is overruled.

Defendant in his eighth assignment complains of the court’s refusal to give requested charge No. 7 to the effect that, if the accident causing the injury arose out of Harry Prince’s improper and unsafe operation of the automobile, resulting from his inexperience as a driver, and not from his want of ordinary care in an effort to properly operate the car, and that Schell believed him to be competent, and that a person of ordinary prudence would have considered him competent under the same circumstances and permitted him to drive the car, plaintiff could not recover of appellant. The assignment is based on the theory that Harry was an employe of appellant, and that appellant exercised ordinary care in selecting Harry as a driver of the car, and that the injury to ap-pellee was occasioned wholly through Harry’s incompetence as a driver of the car at the time and- place of the accident.

The plaintiff’s answer does not tender such’ an issue as a defense, neither does the evidence. The plaintiff did assign as a ground of negligence Harry’s incompetence as a driver,, and the court submitted that issue to the jury in the seventeenth and eighteenth para- ■ graphs. If the law was as appellant suggests in the assignment, it would make appellee’s rights to recover depend entirely on what Schell thought of the competency of Harry as a driver of the ear. Suppose the appellant had thought .himself competent to operate the car, but in fact was not, and that his incompetence caused the injury, could it be said that his mistake of judgment as to his competence, however honestly made, would alone be a complete defense to an action for damages caused? We think not.

think the evidence of the plaintiff as to his present physical condition as a re-reof the injury, and Dr. Howard’s opinion, to the effect that if appellee’s knee at the time of the trial was still sensitive upon use, and that if appellee has to rest it upon a pillow at night, he could not- do active work, the court was not in error in submitting the matter of future diminished capacity to earn money as an element of damage as a probable result;

Finding no reversible error, the judgment is affirmed Affirmed.

On Rehearing.

Appellant H. Prince, in his motion for a rehearing, earnestly insists that this court was in error in overruling each of their nine assignments of error, and in their motion to reassert the same propositions contended for in their very able and exhaustive brief filed in this case. We have again reviewed the questions presented, but reach the same conclusions as in our former opinion, and, but for the fact that some of the statements made in the opinion are not as clearly stated as they might have been, we will further state some of the conclusions reached:

Appellants’ contention, ■ as stated in their motion for rehearing, is that the fact of ownership of an automobile will not be a ground of liability, nor will the fact that such automobile. was being used by the immediate family of a defendant be a ground of liability. That such use by the members of the immediate family might be a circumstance to be taken into consideration by a jury in determining the question of agency, but would constitute no independent ground of liability. If appellant’s statement contained all or even the salient facts shown in the record, we would concede the correctness of his proposition. The record shows, as stated in the original opinion, some facts additional, which ap: pellants seem to have either overlooked or deemed unimportant. The courts in many eases have held, as stated by appellant, in his motion, that if a member of the family, although operating the family vehicle, was operating it in his own behalf, and not in any of the uses for which the car was furnished by the father, and used without his consent, the father would not be liable for damage caused while being so used, on the ground solely that the car was a family ear and that the driver was a member of the family. There would be two essential elements absent — agency and the business of the father. In our original opinion, the undisputed evidence stated in the opinion discloses the facts that appellant had furnished the car as a family ear; that appellant, his wife, and Harry constituted the family; that appellant knew that Harry was learning to run the car on pleasure drives for the family, and made no protest; and that at the time of the accident the car was being used for the purpose for which the car was furnished by appellant. The chauffeur was employed by appellant, and, if the chauffeur had himself been driving the car, and in the use of the family at the time of the accident, there could be no question of the correctness of the charge, as to the chauffeur. The only question presented arises on the agency of Harry: Do the undisputed facts disclose that Harry was the agent of appellant, so that the fact of his agency could be assumed as a fact proved?

We need not here more fully restate the evidence or the facts which the undisputed evidence disclose. It would not only be unnecessary, but improper, for the trial court in the charge to have stated to the jury the undisputed evidence, or the facts established by the undisputed evidence. If, under the undisputed evidence, Harry was his father’s agent or servant in operating the car at the time of the accident, whether his agency arose independently of the chauffeur or was imputed to him through the chauffeur or the fact of his mother’s presence in the car and her necessarily implied consent to his driving the car, it would be immaterial. The paragraph of the court’s charge complained of could have assumed the fact of his agency, and need not have stated that the evidence established his agency, any more than it would have been necessary to tell the jury that the chauffeur was the agent or servant of appellant. It is true that agency is a question of fact to be found by the jury like any other fact; but if the elements which enter into and constitute agency are admitted, or the undisputed evidence disclose it, the fact of agency may be assumed or stated as a fact just as any other fact. Do the facts necessarily show Harry’s agency? In the case of Allen v. Bland, 168 S. W. 38, in which a writ of error was refused, the Court of Civil Appeals for the Seventh District quoted with approval the case of Birch v. Abercrombie, 74 Wash. 486, 133 Pac. 1020, 50 L. R. A. (N. S.) 59, as follows:

“It (the automobile) was being used in furtherance of the very purpose of his ownership and by one of the persons by whom he intended that purpose should be carried out. It was in every just sense being Used in his business by his agent. There is no possible distinction either in sound reason, sound morals, or sound law, between her legal relation to the parent and that of a chauffeur employed by him for the same purpose. The fact that the agency was not a business agency, nor the service a remunerative service, has no bearing upon the question of liability. In running his vehicle, she_ was carrying out the general purpose for which he owned it and kept it. No other element is essential to invoke the rule respondeat superior.”

Again, in the same case:

“It (the charge then being commented on) declared the use of the machine for the purpose for which it was owned, by the person authorized by the owner to so use it, a use in the owner’s business. It seems too plain for cavil that a father, who furnished a vehicle for the customary conveyance of the members of his family, makes their conveyance by the vehicle his affair — that is, his business — and any one driving the vehicle for that purpose with his consent, * * “ express or implied, whether a member of his family or another, is his agent. The fact that only one member of the family was in the vehicle at the time is in no sound sense a differentiating circumstance abrogating the agency. It was within the general purpose of the ownership that any member of the family should use it and the agency is present in the use of it by one as well as by all.”

In Stowe v. Morris, 147 Ky. 386, 144 S. W. 52, 39 D. R. A. (N. S.) 224 — a case somewhat analogous in facts to the case before us — the Supreme Court of Kentucky, speaking through Justice Winn, uses this language:

“The car, at the time of the accident, was driven by Robert Stowe, the 18 year old son of the appellant. With him in the car were his sister (and others named) friends of his sister. * * * The car was kept by the father for the comfort and pleasure of his family, including his son and daughter. They had the right to use it as often as they liked.”

The court held that the son, in using the car for the pleasure of himself and sister, with whom were friends, was a servant or agent of the father, not performing an independent service of his own, but the business of the father, making his father liable for his negligence in driving the car. The liability was not put on the ground of non-age of the son, but on the ground that the use of the car was in the furtherance of the father’s business and for which the car was used.

We construe • Daily v. Maxwell, 152 Mo. App. 415, 133 S. W. 351, to State tile same principal, that is, that, regardless of the age of the sop running the family vehicle for the pleasure of the family, with the consent of the father and within the scope of the family uses, would constitute the one operating the ear the agent and servant of the father. In our original opinion, we stated that the fact of the agency of Harry would be imputed to him through the chauffeur; that is, that the chauffeur was simply operating the ear through Harry, and that with the knowledge and consent of appellant, the trial court, in the paragraph complained of, may have assumed the agency of Harry on the ground stated in the cases above referred to. In the Allen v. Bland Case, above referred to, the court, after quoting from the Birch v. Aber-crombie Case and each of the others to which we have referred, uses this language:

“We think the authorities quoted above announce the correct rule of liability, and they are cited and adopted as announcing the law applicable to the facts of this case.”

We think there can be no question of the agency of Harry Prince under the undisputed facts, and adhere to our former ruling. If we are not in error in the view above expressed, we think the trial court correctly stated the law in the other paragraphs of the charge to which appellants’ motion applies.

.We overrule the motion.