text:
    PECOS & N. T. RY. CO. et al. v. WELSHIMER.
    (No. 644.)
    (Court of Civil Appeals of Texas. Amarillo.
    Oct. 24, 1914.)
    1. Appeal and Eebok (§ 909) — Review-Questions op Faci>-Evidence.
    In an action for the death of a railway em-ployé, claimed to have been caused by falling from a brake step, due to the presence thereon of wet and slippery paint, where the overshoes which the employé was wearing and the brake platform were introduced for inspection of the jury, but no witnesses testified that there was fresh or undried paint on the board, the evidence was that there was no indication of any one slipping, on the platform, and the witness who had the board for inspection testified that it was then in that condition, though the jury, from an inspection of an article, must of necessity acquire a certain amount of information which they may treat as evidence, the court could not assume, in support of a verdict for plaintiff, that the jury found paint on the board, or indications evidencing a slip, though it appeared that there was paint on the overshoes.
    [Ed. Note. — Por other cases, see Appeal and Error, Cent. Dig. § 3675; Dec. Dig. § 909.]
    2. New Trial (§ 72) — Grounds—Weight oe Evidence.
    Where there are facts which a jury should pass on, the court should submit the case to them; but if their verdict is not supported by evidence, or is against the great preponderance of the evidence, it should grant a new trial.
    [Ed. Note. — Por other cases, see New Trial, Cent. Dig. §§ .146-148; Dec. Dig. § 72.]
    3. Appeal and Error (§ 1177) — Review-Questions oe Pact.
    While an appellate court must indulge every reasonable presumption in favor of a verdict, if in its opinion the verdict is contrary to the evidence, or against such preponderance of the evidence that it ought not to stand, a new trial must be awarded.
    [Ed. Note. — Por other cases, see Appeal and Error, Cent. Dig. §§ 4597-4604, 4606-4610; Dee. Dig. § 1177.]
    4. Trial (f 232) — Instructions — Sufficiency— Ordinary Care.”
    In an action for the death of a railway em-ployé, who fell from a car in front of a moving train, an instruction that if, at the time a switchman discovered the presence of deceased upon the track, he used ordinary care to signal the engineer to stop the engine, and if the engineer used ordinary care to bring the train to a stop, to find for defendant, was properly refused, since, while the duty of those operating a train upon the discovery of a person in peril in its path is to use ordinary care, “ordinary care” in such a case consists of a very high degree of diligence, and requires the use of every means in the power of thosp in charge of the train to prevent injury, and the instruction was not sufficiently full to inform the jury as to the character of diligence required.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 524, 525; Dec. Dig. § 232.

    For other definitions, see Words and Phrases, First and Second Series, Ordinary Care.]
    5. Master and Servant (§ 291) — Actions for Injuries — Instructions — Ordinary Care.
    Though, in an action for the death of a railway employé, who fell in front of a moving train, the facts as to his peril were uncontro-verted, a charge should have given the jury the hypothesis upon which they were to measure what would be ordinary care, since it is the duty of the jury to decide what acts under given circumstances constitute ordinary care.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1133, 1134, 1136-1146; Dec. Dig. § 291.]
    6. Master and Servant (§ 291) — Sufficiency of Evidence — Discovered Peril.
    In an action for the death of a railway em-ployé, who slipped and fell in front of a moving train, it was not necessary to show by direct and positive evidence that the engineer had knowledge of deceased’s peril to justify the submission of discovered peril, if there were facts and circumstances sufficient to create a reasonable belief on the part of the engineer as to deceased’s danger.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1133, 1134, 1136-1146; Dec. Dig. § 291.]
    7. Trial (§ 194) — Instructions—Weight of Evidence.
    In an action for the death of a railway em-ployé, who slipped and fell in front of a moving train, an instruction that if a switchman, when he discovered deceased’s presence on the track, used ordinary care to signal the engineer to stop, and if the engineer used ordinary care tb bring the train to a stop, to find for defendant, was properly refused, as, while this might be all that they could have done, it may not have been ah with'in their power, and ordinarily it should he left to the jury to determine whether they did what ordinary care required, and the thing that should have been done under the circumstances.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 413, 436, 439-441, 446-454, 456-466; Dec. Dig. § 194.]
    8. Trial (§ 256)^Instructions — Necessity of Requests.
    In an action for the death of railway em-ployé, who slipped from a car in front of a moving train, an instruction that if he was employed as engine foreman, and knew that the duties he assumed were dangerous, and if he, in stepping on or off the brake steps, by reason of his negligence allowed his foot to slip off the step, etc., was not necessarily reversible error, though his negligence would in itself diminish the recovery, notwithstanding his ignorance that his duties were dangerous, since defendant should have made a proper request to submit these issues disjunctively, if they should have been so submitted.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 628-641; Dec. Dig. § 256.]
    9. Master and 'Servant (§ 296) — Actions for Injuries — Instructions—Contributory Negligence.
    While an instruction that contributory negligence will defeat a recovery may not be an error prejudicial to an employé of which he can complain, the better practice is to follow the statute (Yernon’s Sayles’ Ann. Civ. St. 1914, art. 5246h), providing that contributory negligence merely diminishes the damage in proportion to such negligence.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1180-1194; Dec. Dig. § 296.]
    10. Trial (§ 252) — Instructions—Conformity to Evidence.
    In an action for the death of a railway em-ployé, alleged to have been due to the failure to discover and remove wet paint on a brake platform, which caused the employé to slip and fall, an instruction ■ which confined defendant’s negligence to the negligence of the employés operating and controlling a switch train was properly refused, where there was no evidence that it was the duty of the switching crew to inspect the cars.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 505, 596-612; Dec. Dig. § 252.]
    11. Master and Servant (§ 248) — Actions for Injuries — Injuries Avoidable Notwithstanding Contributory Negligence.
    Contributory negligence on the part of a railway employé, who slipped and fell in front of a moving train, would neither defeat a recovery nor diminish the amount thereof, if those in charge of the train discovered his peril in time to have prevented the injury, since, upon discovering the danger, a new duty arose, and the failure to use ordinary care to discharge that duty rendered-the employer liable.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 801-804; Dec. Dig. § 248.]
    12. Trial (§ 194) — Instructions—Weight of Evidence.
    An instruction which was on the weight of the evidence, and in the nature of a comment on the effect which should be given the testimony, was properly refused.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 413, 436, 439-441, 446-454, 456-466; Dec. Dig. § 194.]
    Appeal from District Court, Potter County; Jas. N. Browning, Judge.
    Action by Elta Welshimer, administratrix, against the Pecos & Northern Texas Railway Company and another. From a judgment for plaintiff, defendants appeal.
    Reversed for new trial.
    Terry, Cavin & Mills, of Galveston, and Madden, Trulove & Kimbrough and F M. Ryburn, all of Amarillo, for appellants. Syn-nott & Underwood, of Amarillo, for appellee.

      l*'or other cases 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

   HUFF, C. J.

This is an appeal from a judgment for the sum of $4,250, in favor of ap-pellee, administratrix, as damages, resulting from the death of F. G. Welshimer, her husband, against the appellants, the Pecos & Northern Texas Railway Company and the Southern Kansas Railway Company of Texas. The trial court submitted two of the grounds upon which appellee relied for the right of recovery: (1) That the deceased, F. G. Welshimer, fell from a brake step and was caused to fall therefrom because of the wet, undried, and slippery paint thereon, and that the paint thereon at the time was wet, undry, and slippery, and was thereby rendered unsafe and dangerous for use, and that the appellants were negligent in failing to discover tlie unsafe and dangerous condition of said step in time to have removed such wet and slippery paint, and in failing to discover and remove such paint before the deceased stepped thereon; and (2) after deceased fell from the step to the ground in front of the moving train that he was in a dangerous and perilous position, and that appellants’ servants in charge of and operating the train discovered and knew of his dangerous and perilous position in time to have stopped the train and prevented his injury and death by the use of the means at their command, and by the exercise of ordinary care.

Appellants asked the court to peremptorily instruct the jury to return a verdict in their favor, excepted to the general charge of the court, and assigned error to the action of the court in refusing to grant a new trial, because they assert there is no evidence in the record authorizing a recovery. In this case the overshoes, which the deceased was wearing at the time he was killed, together with the brake platform, were introduced for the inspection of the jury. Counsel for appellee assert:

“The overshoes and the step being before the jury and not before this court, and showing at least some fresh paint, this court must presume that they in themselves were sufficient to prove that fresh paint caused the fall.”

We ¡are unable to find in the testimony of the witnesses who described the appearance of the board before the jury that there was fresh or undried paint on the board. The record indicates that by the question propounded counsel assumed that there was wet or undried paint, but the witness denies the condition suggested. The question here presented by counsel has been one of embarrassment to the appellate courts. Where real evidence has been resorted to, as in this case, and the verdict of the jury has been assailed because the evidence does not support it, should the verdict, having for its support only the view of the jury, be permitted to stand, when it is contrary to other evidence, or not supported by other evidence? “Where the existence or external quality or condition of a material object are in issue, or are relevant to the issue, the inspection of the thing itself produced before the tribunal is always proper.” Wigmore on Evidence, § 1151. The courts of this state have in various cases recognized this rule. Hays v. Gainesville, etc., 70 Tex. 602, 8 S. W. 491, 8 Am. St. Rep. 624; Linch v. Paris Lumber Co., 80 Tex. 23, 15 S. W. 208; Gulf, C. & S. F. Ry. Co. v. Boyce, 39 Tex. Civ. App. 195, 87 S. W. 395; St. Louis & S. P. Ry. Co. v. Mathis, 101 Tex. 342, 107 S. W. 530.

We think a jury, from an inspection of an article, must of necessity acquire a certain amount of information which they may treat as evidence in the case. Thompson on Trials (2d Ed.) § 902, suggests that a true solution of this difficult question is that cases of this character stand on appeal or error on a special footing; that although what jurors may have learned through view is evidence to be considered by them, yet, on the ground of public policy, .a reviewing court should set aside a verdict based purely on view, unless it is supported by substantial testimony delivered by sworn witnesses. It is necessary to have at least the testimony of one sworn witness. This view of the question is supported by some of the courts. City of Topeka v. Martineau, 42 Kan. 387, 22 Pac. 419, 5 L. R. A. 775, and we think the Massachusetts courts hold substantially the same. Tully v. Fitchburg Ry., 134 Mass. 499. In order to support the verdict in this case, wet and slippery paint must be shown to have been on the brake platform at the time deceased fell. The evidence is that there was no indication of one slipping on the brake platform. The witness who had the board at the trial for inspection testified that it was then in that condition. It is possible for the jury to have found that the condition of the board was not as described at the trial, but it is not at all probable. If the witness had not correctly stated its then condition, appellee could easily have shown that fact by sworn testimony. We do not believe we are authorized to assume that the jury found the board at the trial with wet or undried paint, or indications on its surface of a step in such paint, evidencing a slip, simply because of the verdict of the jury. The fact that deceased had paint on his foot does not, we believe, authorize the inference that there was paint on the step, and from that inference authorize the presumption that appellant was negligent in failing to discover and remove it.

We believe the trial court in this case should have granted a new trial. The appellants had a right to a trial by a jury, and, if there are facts which a jury should pass on, it was the duty of the court to submit it for their findings; but if their verdict is not supported by the evidence, or is against the great preponderance of the evidence, it was the duty of the trial court to grant a new trial. It is our duty to indulge every reasonable presumption in favor of the verdict of the jury and the action of the trial court, and, having done so, if in our opinion the verdict is contrary to the evidence, or against such a preponderance of the evidence that in our opinion it ought not to stand, it is then our duty to award a new trial. After a careful perusal of the evidence in this case, we are forced to the conclusion that the verdict should not stand. Patrick v. Smith, 90 Tex. 267, 38 S. W. 17. We do not feel that we should hold as a matter of law in this case that there is no evidence, but we do hold the verdict contrary to the evidence, and against such a preponderance of the evidence that our duty is clearly to award a new trial.

. That part of the fourth assignment assailing the fourth paragraph of the court’s charge on discovered peril, and the proposition thereunder, will be overruled. Ft. Worth & R. G. R. Co. v. Bowen, 95 Tex. 364, 67 S. W. 408.

The fourth assignment further presents error to the action of the court in refusing specially requested charge No. 8, which is:

“You are instructed that, if you believe and find from the evidence that at the time switch-man E. O. Smith discovered the presence of Welshimer upon the track he used ordinary care to signal the engineer to stop the train, and further find that after the receipt of such signal the engineer used ordinary care to bring the train to a stop, and find they were not in other respects guilty of negligence, then you will find for defendant.”

Under the facts of this case, we believe the court correctly refused this instruction. The duty of those operating a train, upon the discovery of a person in peril in its path, is to use ordinary care, but in such instance the standard of duty requires greater diligence than in ordinary cases; that is, in a situation of such imminent peril, ordinary care would consist in a very high degree of diligence. Railway Co. v. Hodges, 102 Tex. 524, 120 S. W. 848. This requested charge, instructing the jury, if the brakeman discovered Welshimer upon the track, and used ordinary care, etc., is not in our opinion full enough to inform the jury of the circumstances from which they are to determine the character of diligence required. If they should find that Welshimer was upon the track, and no more, the jury would likely determine a less degree of diligence was required in order to constitute ordinary care than they would if they had found the switch-man then knew of his peril. If the switch-man, when he discovered the deceased on the track, then knew of his peril, ordinary care required a high degree of diligence, which the courts of this state hold imposed the duty of using every means in the power of the operators to prevent injury. Railway Co. v. Breadow, 90 Tex. 26, 36 S. W. 410; Railway Co. v. Staggs, 90 Tex. 458, 39 S. W. 295. The same criticism may be applied to that portion of the charge referring to the engineer. It may be contended that the facts in this case were uncontroverted as to the peril of the deceased. If so, yet the charge should have given the jury the hypothesis upon which they were to measure what would then be ordinary care, since it is their duty to decide what acts, under given circumstances, constitute ordinary care.

There is no direct evidence that the engineer then knew of the peril of the deceased. To establish such knowledge by this record, resort must be had to the facts and circumstances then surrounding the engineer. As we understand, one of the appellants’ contentions is that there is no evidence showing such knowledge on the part of the engineer. Our Supreme Court, in the case of Railway Co. v. Reynolds, 103 Tex. 31, 122 S. W. 531, said:

“Eurther objection is made to the charge because it did not require that the employés should have ‘realized’ the danger, but made it suffice to raise the duty defined if they had ‘reasonable ground to believe and it was apparent to them’ that plaintiff was in danger. For practical purposes we think a person must be treated as knowing such a fact when he has reason to believe it and when it is apparent to him. When facts are seen by those operating an engine which ought to produce the conclusion in the ordinary mind, they must act upon them. No other rule could be practically applied.”

Again, the Supreme Court, in discussing the evidence necessary in cases of this kind, said:

“To make a case on this theory, there must be affirmative evidence, direct or circumstantial, tending to show knowledge of the fall.” Railway Co. v. Haltom, 95 Tex. 112, 65 S. W. 625.

So we take it there need not be direct and positive evidence to show knowledge, but it will be sufficient to submit the question if there are facts and circumstances sufficient to create a reasonable belief on the part of the engineer of the danger of the deceased. If, however, the jury should find the engineer did not know of the danger in time to have averted the injury, appellee cannot recover if the switchman did all he could then do, and used all the means then at hand, to avert the injury. The cases cited by appellee we do not think contrary to this holding. In Railway Co. v. Hodges, supra, the fireman knew of the danger. The engineer did not; but the fireman took no precaution to prevent the injury. The railway company was held liable because of the fireman’s failure to use ordinary care. In the case of Railway Co. v. Scarborough, 104 S. W. 408, Frank Ash, the switchman, knew of the danger in time to have stopped the train, but made no effort to do so; the engineer did not know of the danger. In that case the railway company was held liable for the want of ordinary care on the part of the switch-man. The negligence in these two eases was that of the fireman and switchman, which authorized the recovery.

We are not disposed to approve charge No. 8, on the further ground that the jury were told, if the switchman used “ordinary care to signal,” and the engineer “to bring the train to a stop.” This may be all they could have done, or it may not. It may have been all within their power. As a rule this should be left to the jury, whether they did what ordinary care required and the thing that should have been done under the circumstances. Railway Co. v. Reynolds, 103 Tex. 31, 122 S. W. 531.

The fifth assignment assails the seventh paragraph of the court’s charge. The court instructed the jury:

If you believe Welshimer “was employed as engine foreman, and that he knew that the duties he assumed were dangerous, and that he, in stepping on or off the brake step of the ear, by reason of negligence on his part, allowed his foot to slip off the said brake step,” etc.

If the deceased was negligent in stepping on or off, or in letting his foot slip off the brake step, lie would be guilty of contributory negligence, wbicb, if it concurred with, tbe negligence of tbe appellant, would diminish tbe recovery. This would be true, whether he knew or did not know the duties he assumed were dangerous. This charge, however, is not necessarily reversible error. If the issues should have been submitted disjunctively, appellants should have made a proper request therefor. Railway Co. v. Hill, 95 Tex. 629, 69 S. W. 136.

Complaint is also made that the charge is defective because the jury were instructed a recovery could not be had if deceased was guilty of contributory negligence. Contributory negligence is not a defense which would defeat recovery, but it will diminish the damage in proportion to the amount of negligence attributable to such employe. Article 5246b, Vernon’s Say les’ Ann. Civ. St. 1914. We believe, however, the courts have held that a charge to the effect that contributory negligence will defeat recovery is such an error as does not injure the employer, and of which he cannot complain. The better practice, however, is to follow the statute and the rule allowing the diminution of damages for contributory negligence.

The sixth assignment of error is on the refusal of the court to give the sixth special charge. This charge was properly refused, for the 'reason that it confined the negligence to the employés operating and controlling the switch train. The negligence alleged and submitted to the jury was the failure to discover and remove wet paint on the brake platform. There is no fact showing there was any duty on the switching crew to inspect the cars. The charge, if it had confined the contributory negligence to those alleged and which concurred therewith, gave the proper rule ior diminishing the damages. We think one or the other of special charges set out under assignment No. 7 should have been given.

We wish to call attention to the error in paragraph 7 of the court’s charge against appellee, that portion of which is, after stating if deceased was guilty of contributory negligence, the jury were instructed:

“You will find for the defendants, notwithstanding you may believe that defendants’ agents and servants were guilty of negligence in failing to use ordinary care to discover the wet and slippery paint, if any, on the brake platform in question, and that they were guilty of negligence in failing to stop the train in time to prevent his injury, after he fell from the brake step.”

Contributory negligence on the part of the deceased would not defeat a recovery, if the employSs discovered the peril of the deceased within time to have prevented his injury or death; and we believe, also, this would be true with reference to diminishing the recovery. Upon discovering the danger a new duty arises, and the failure to use ordinary care to discharge that duty renders the principal liable. The eighth assignment is overruled.

The ninth assignment we think should be overruled, because the requested charge is on the weight of the evidence, and is in the nature of a comment on the effect which should be given the testimony.

The tenth assignment is overruled.

The eleventh assignment is overruled. The facts stated by Catron as to his experience in handling an engine we believe were sufficient to authorize him to give an opinion as to the distance in which an engine could be stopped.

The twelfth assignment is overruled. We think there was no error in overruling appellants’ plea in abatement.

The case will be reversed, for the reasons above set out.


source: Caselaw Access Project

author: JENKINS, J.

license: Public Domain

text:
    NORTON et al. v. LEA et al.
    (No. 5264.)
    (Court of Civil Appeals of Texas. Austin.
    Oct. 21, 1914.)
    1. Appeal and Error (§ 759) — Assignment op Ekeoe — Beiep.
    An assignment of error not correctly copied in the brief will not be considered on appeal.
    [Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. § 3094; Dec. Dig. § 759.]
    2. Appeal and Erbor (§ 544) — Assignments op Error — Bill oe Exceptions.
    Assignments of error complaining of rulings of the court to which there is no bill of exceptions in the record will not be considered on appeal.
    [Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. §§ 2412-2415, 2417-2420, 2422-2426, 2428, 2478, 2479; Dec. Dig. § 544.]
    3. Mortgages (§ 226) — Deed as Mortgage —Breach op Contract — Issues—Evidence op Value.
    Where, in an action for the proceeds of land deeded to defendant as security for a debt, and sold by defendant to a bona fide purchaser, the measure of plaintiff’s damages was the consideration received by defendant when he sold the land, less the debt secured, with interest, evidence that the purchaser obtained a loan in a certain amount on the land was properly excluded as immaterial.
    [Ed. Note. — For other cases, see Mortgages, Cent. Dig. §§ 457, 611-617; Dec. Dig. § 226.]
    4. Mortgages (§ 37) — Deed as Mortgage-Evidence.
    In an action by the grantor in a deed given as security to recover the proceeds received by the grantee from a sale of the land, less the debt, evidence that the. value of the land at the time of the execution of the deed greatly exceeded the amount defendant claimed to have paid for it was admissible on the issue whether it was intended as a mortgage.
    [Ed. Note. — For other cases, see Mortgages, Cent. Dig. §§ 97-107; Dec. Dig. § 37.]
    5. Evidence (§ 113) — Competency—Value op Land.
    Evidence as to the value of land in 1902 was admissible on the question of its value in 1905, where the witness testified that he was acquainted with the value from 1902 to 1905, and that there was no material change during such time.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 259-296; Dec. Dig. § 113.]

      6. Witnesses (§ 240) — Examination—Lead-, ing Question — Discretion.
    An objection that a question is leading is addressed to the trial court’s discretion.
    [Ed. Note. — For other cases, see Witnesses, Gent. Dig. §§ 795, 837-839, 841-845; Dec. Dig. § 240.]
    7. Appeal and Eeeoe (§ 1051) — Haemless Eeeoe — Evidence.
    The admission of immaterial testimony of defendant as to his statement to one plaintiff was harmless, where the same fact otherwise appeared in the record from a letter written by such plaintiff, and was not controverted by other testimony.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4161-4170; Dec. Dig. § 1051.]
    8. Appeal and Eeeoe (§ 1068) — Haemless Error — Instructions.
    Any error in an instruction on the measure of damages in the event that plaintiffs recovered was harmless, where the verdict' was for defendants.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4225-4228, 4230; Dec. Dig. § 1068.]
    9. Moetgages (§ 226) — Deed as Moetgage —Breach of Contract — Measure of Damages.
    Where a deed is executed as security for a debt under an agreement that the grantee shall have the revenues from the land until it is sold, in lieu of interest, and that he shall sell and account to the grantors for the proceeds in excess of the debt, and where the grantee refuses to account for an excess for which the land is sold, the measure of the grantors’ damages, in the absence of fraud in the sale, is the consideration received by him, less the debt secured, with interest on the excess.
    [Ed. Note. — For other1 cases, see Mortgages, Cent. Dig. §§ 457, 611-617; Dec. Dig. § 226.]
    10. Evidence (§ 383) — Recitals op Consid-eeation — Effect.
    In a grantor’s action for the value of land conveyed as security for a debt and sold by the grantee, recitals of consideration in the deeds executed by the grantee, though admissible as a circumstance to show the value of the land, were not conclusive.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1660-1677; Dec. Dig. § 383.]
    11. Vendob and Pubchasee (§ 239) — Bona Fide Puecbasebs — Rights of Foemee Gr antoes — Feaud .
    That one grantor was induced to execute the deed by representations of his son and co-grantor, to whom he intrusted the transaction, that he had a verbal understanding that the deed, though absolute on its face, was intended as a mortgage, was not ground for avoiding the deed as against one who purchased from the grantee without knowledge of such representations, where the only fraud practiced, if any, was by the son.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 583-600; Dec. Dig. § 239.]
    12. Trial (§ 252) — Instructions—Evidence —Laches.
    Where the evidence did not raise the issues of laches and stale demand, it was error to instruct that plaintiffs had only a reasonable time in which to assert their claim, and that in determining what was a reasonable time the jury should consider ,all the circumstances of the case, though such issues were presented by the defendants’ pleadings.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 505, 596-612; Dec. Dig. § 252.]
    13. Mortgages (§ 37) — Deed Given as Mortgage — Evidence of Prior Agreement —Probative Effect.
    In an action by grantors in a deed given as security for the proceeds of a resale of the land by the grantee, less the debt, evidence of an agreement made between one grantor and the grantee' before execution of the security deed was admissible as a circumstance to prove that the deed was executed in accordance therewith, but was not conclusive evidence thereof.
    [Ed. Note. — For other cases, see Mortgages, Cent. Dig. §§ 97-107; Dec. Dig. § 37.]
    Appeal from District Court, Robertson. County; J. C. Scott, Judge.
    Action by Lora Norton and others against P. J. Lea and others. From judgment for defendants, plaintiffs appeal.
    Reversed and remanded for new trial.
    W. W. Ballew and R. S. Neblett, both of Corsicana, and F. A. Woods, of Franklin, for appellants. Rice & Davis and Richard Mays, all of Corsicana, for appellees.

      For other cases 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

   Findings of Fact.

JENKINS, J.

In 1902 F. W. Norton and his son, W. H. Norton, purchased 900 acres of land in Robertson county, a large portion of which was in cultivation, for $16,000, $11,200 of which they borrowed from appel-lee, due January 1, 1906, with interest at the rate of 10 per cent, per annum, payable annually, to secure which they executed a deed of trust on said land. On March 19, 1903, they borrowed from appellee an additional sum of $1,518.85, due January 1, 1904, to secure which they executed a chattel mortgage on the teams and implements on said farm. W. H. Norton took charge of the farm and ran it during the years 1903 and 1904, but, on account of the boll weevil, did not make anything, and was not able to meet the interest on the indebtedness, nor the principal on the $1,518.85 debt. On January 1, 1905, the Nor-tons executed what appeared upon its face to be a deed to said land for the recited consideration of $10,000 cash, and the cancellation and delivery of said two notes, amounting in the aggregate to $12,718.65, exclusive of interest. In fact, no cash consideration was paid for the execution of said deed, but said notes were surrendered. The indebtedness of the Nortons to appellee at that time was $13,500. This transaction was consummated on the part of appellee by B. L. Davis, of the firm of Rice & Davis, attorneys at law at Corsicana, Tex., where the Nortons lived. W. H. Norton was the active agent in this transaction on behalf of himself and father, who knew nothing about the transaction, except what his son told him. On January 10, 1905, W. H. Norton, for the recited consideration of $1, executed a bill of sale to appellee for all of the teams, implements, and feed on said farm. Appellee ran the farm until February 25, 1909, when he sold the same to B. L. Herring for the recited consideration of §50,000. The true consideration received by appellee from Herring was 8 sections of land in Crane county, Tex., vendor’s lien notes on 4 other sections in Crane county for $17,920, for which he subsequently accepted a deed to said land, making in all 12 sections of land, and Herring’s note for $7,320. There was no testimony introduced as to the value of the Crane county lands, except that of appellee, who testified that they were worth not exceeding $2 per acre. W. H. Norton died March 20, 1908. Lora Norton was his widow, who, pending this suit, married W. H. White, one of the appellants. The other appellants are the children of W. H. Norton, deceased, and his wife, Lora Norton.

Issues Raised by the Pleadings.

Appellants alleged that the deed from the Nortons to appellee was executed in trust under the following circumstances and for the following purposes, to wit: That appellee should take charge of the farm, teams, implements, etc., and cultivate and manage the same as he saw proper, and was to have all of the rents and revenues from the same in lieu of the interest on $13,500 owing appellee by the Nortons; that he was to put the farm in first-class condition, and afterwards to sell the same and pay over to the Nortons the amount received therefor, less said sum of $13,500; that appellee sold said land February 25, 1909, to B. L. Herring, and, in fact, received land and money for said land of the aggregate value of $55,960, and refused to account to appellees for any portion thereof; that the present value of the 900-acre tract of land is $100,000. They pray for the recovery of the present value of the land, less their indebtedness to appellee of $13,500, and in the alternative for the amount received by appellee, less said indebtedness.

The defendant Herring alleged that he was an innocent purchaser for value. The undisputed evidence showed this to be true. The court so charged the jury, who returned their verdict accordingly, and as to this there is no complaint on the part of appellants.

The appellee pleaded a general denial, and alleged that the Nortons, being unable to pay their indebtedness due to him, in September, 1904, requested an extension until January I, 1905, to give them an opportunity to sell the farm, if they could, for more than their indebtedness to appellee, and if they failed to do so by January 1, 1905, they would deed the land and execute a bill of sale to appellee for the personal property in satisfaction of such indebtedness; that, having failed to make such sale, they executed the deed and bill of sale in accordance with said agreement, and delivered possession of said land and personal property to appellee, without any agreement, promise, or understanding other than that said deed and bill of sale vested absolute title in appellee; that said notes were surrendered and said debts canceled ; and that this was the sole consideration for the execution of said deed and bill of sale. Appellee also pleaded the two and four year statutes of limitation, laches, and stale demand.

The jury returned a general verdict in favor of appellee, and judgment was entered in accordance therewith.

Opinion.

Appellants’ assignments of error from 1 to 9, inclusive, relate to the admissibility of evidence. The second assignment is waived. Appellee objects to the consideration of the first assignment, for the reason that the same is not correctly copied in appellants’ brief, and to the fourth and seventh assignments, for the reason that no bill of exception as to the action of the court on the matters complained of appears in the record. These objections are sustained. Appellee objects to the consideration of the remainder of said assignments for the reason that they are not briefed in accordance with the rules. Should we strictly enforce the rules, all of these exceptions would be sustained, but we have considered said exceptions, and find them without merit.

The third assignment is that the court-erred in sustaining the objection to the testimony that Herring obtained a $12,000 loan on the 900-acre tract in 1909, offered as a circumstance to show the value of said tract at that time. The value of that tract in 1909 was not a material issue, for the reasons set forth in a subsequent portion of this opinion. For the same reason the objection to the admission of the testimony of the witness Brown, complained of in the fifth assignment, was harmless error.

Testimony as to the value of the land in 1905 was admitted without objection, and correctly so, in that, if it could be shown that its value at that time was greatly in excess of what the appellee alleged that he paid for it, it would tend to support appellants’ allegation that the deed from the Nortons to appellee was intended as a mortgage.

The sixth assignment complains of the admission of the testimony of A. S. Lane as to the value of the land in 1902. This was not error, inasmuch as Lane testified that he was acquainted with the value from 1902 to 1905, and that there was no material change in such value during that time; the change being that its value was about $2 per acre less on January 1, 1905 than it was in 1902. The objection stated in the eighth assignment is that the question was leading. This was a matter in the discretion of the court, and the explanation of the judge to this bill shows that he did not abuse his discretion in this regard. The testimony of appellee as to his statement to Mrs. Norton was immaterial, but harmless; and, besides, the fact stated otherwise appeared in the record from a letter written by Mrs. Norton, and was not controverted by any other testimony in tlie record.

The eleventh assignment of error is as follows:

“If your verdict is for the plaintiffs, you will find for them in such sum as would be the difference between the amount of indebtedness due by the Nortons to Tea January 2, 1905, and the reasonable market value of the proceeds received by the said Lea by the sale of the land to Herring on February 25, 1905, and the sale value of the personal property conveyed to the said Lea, and by said Lea sold, together with 0 per cent, interest on said amount and the difference from February 25, 1909, the date of the sale to said Herring to the present time.”

Appellants’ proposition under this assignment is as follows:

“The charge of the court complained of under the eleventh assignment of error was erroneous in this: That it did not submit the correct issue made by the pleadings and the evidence.”

We are at a loss to know what, in appellants’ opinion, was the correct measure of damages, inasmuch as they did not ask a special charge on this issue, and do not plainly state in their brief what they contend was the correct measure of damages. Even had the charge been erroneous in this regard, it would not be cause for reversal, inasmuch as the jury were instructed to find the amount of damages only in the event they found for the plaintiffs. They did not so find; hence they never reached the consideration of the amount that appellees were entitled to recover. But in view of another trial of this ease, we will here state our views as to the proper measure of damages as to the 900-acre tract of land.

Appellants allege, in substance, that thd deed to said land was intended as security for a debt -of $13,500, owing by the Nortons to appellee; that appellee was to have the revenues arising from said land until the same was sold, in lieu of the interest on said debt, and that appellee was to put the farm in first-class condition, and sell the same and account to the Nortons for the proceeds of such sale in excess of such indebtedness; that appellee had sold said land for an amount in excess of such'indebtedness, and had refused to account for such excess.

Appellants alleged that the present value of the 900-acre tract was $100,000, and prayed for said amount, less the indebtedness. This was not the measure of their damages. It is true that it was held in Boothe v. Fiest, 80 Tex. 145, 15 S. W. 799, and affirmed in Mixon v. Miles, 92 Tex. 318, 47 S. W. 967, that, where a trustee sold the land to an innocent purchaser in violation of his trust, the cestui que trust could recover the value of the land at the time of the trial, less the indebtedness. Such we understand to be the law, under the facts of those cases. The allegations in Boothe v. Fiest were that the deed to Boothe was intended as a mortgage, and that he sold the land in violation of such trust. The court said:

“If the deed made by the plaintiffs was intended to take effect only as a mortgage, his sale of the land without the consent of the plaintiffs was a fraud upon their rights." (Italics ours).

The allegations were the same in Mixon v. Miles. In Oliver v. Piatt, 3 How. 401, 11 L. Ed. 653, in commenting on the proposition that the cestui que trust, where the mortgaged property has been unlawfully sold, may at his option recover the proceeds of the sale, or hold the trustee personally liable, the court said:

“The option, in such case, * * * is * * * given to the cestui que trust for the wisest purposes and upon the wisest public policy. It is to aid in the maintenance of right and the suppression of meditated wrong.”

But if the allegations of appellants’ petition are true, appellee had the right to sell the land, and therefore did not commit a fraud upon the rights of appellants when he sold the same. On the contrary, in so doing he was carrying out the agreement made at the time of the execution of the conveyance to him as a part of the consideration therefor. His wrong, if any, was not in selling the land, but in refusing to account to appellants for the proceeds of such sale. It is not alleged that he sold the land for less than its value at the time of the sale. Had he done so for the purpose of defrauding the appellants that would raise an issue which is not in this case.

For the reasons above stated, we hold that, if the deed was intended as a mortgage, appellants’ measure of damages is the consideration received for the land, less the indebtedness secured by such mortgage, with legal interest on the excess.

Appellants do not sue for the recovery of the Crane county lands received by ap-pellee for the 900 acres, but, in the alternative, for the value of said land, in the event they be not permitted to recover for the value of the 900-acre tract at the time of the trial. But they contend that the value of the Crane county land is to be fixed by the recitals in the deeds to the same executed to appellee. These recitals were admitted as a circumstance to show the valué of such lands, but they are not conclusive. Appellants, by waiving their option to recover the Crane county lands, and seeking to hold appellee personally responsible, have elected to recover the value of the proceeds of the sale at the time of such sale, and this means the true value of the lands received at.the time of the sale, plus the vendor’s lien note received by appellee, which he has since collected.

Appellants assign error upon the refusal of the court to give the following special charge requested by them:

“As to the plaintiff F. W. Norton, you are instructed to find for him one-half the amount, if any, received by P. J. Lea for the sale of the personal property and the Robertson county land, with 6 per cent, interest thereon from the time that the property was sold by Lea, after deducting the amount of Lea’s debt against the property at the time the deed was made by Norton to Lea.”

The grounds upon which this requested charge is based are.that W. H. Norton told-F. W. Norton at the time he signed the deed that he (W. H. Norton) had a verbal understanding with Lea that the deed was intended as a mortgage, and that F. W. Norton did not sign the bill of sale to the personal property. There is no pretense that appellee, or his agent, B. W. Davis, had any knowledge that such representation was made by W. H. Norton to F. W. Norton. There was no accident or mistake on the part of F. W. Norton; he knew at the time that he signed the deed that it was absolute upon its face. No fraud was committed upon him by appellee. If any fraud was committed upon F. W. Norton, it was by his son and co-owner, to whom he intrusted said transaction. We do not think that such fraud, if any, would be a ground for avoiding his deed. Appellants cite no authority in support of their contention. Had the requested charge applied to the personal property only, it would have presented an issue that is not raised by the record herein, and which consequently we are not called upon to decide.

We overrule all of appellants’ othér assignments of error, except the tenth and twelfth.

The tenth assignment is as follows:

“The court erred in that part of the second paragraph of the charge to the'jury as follows: ‘Unless you believe from the evidence that the Nortons had only a reasonable time in which to assert their claim, and that they waited an unreasonable time in which to assert the same, and in determining what is a reasonable time, you will take into consideration all of thfe circumstances of the case.’ ”

The court had in the preceding portion of the charge instructed the jury, in effect, to find for plaintiffs if they found that the deed was intended as a mortgage.

Appellee pleaded the two and four year statutes of limitations and laches and stale demand on the part of appellants, but the evidence did not raise these issues; hence it was error to give the charge above set out.

The twelfth assignment of error is as follows;

“The court erred in giving in charge to the jury the fourth special charge asked by defendant as follows: ‘You are further instructed that if you believe from the evidence that the agreement between Lea and Will Norton, if any, as to Norton’s selling the land and retaining such amount, if any, over Lea’s debt, was to run until from about September to January 1, 1905, at which time the Nortons were to pay off their indebtedness to Lea by deeding the property to Lea, then you will find for the defendant Lea.”

This charge is based upon the testimony given in appellee’s behalf to the effect that W. H. (Will) Norton made such an agreement with appellee. Such testimony of the prior agreement with W. H. Norton was admissible as a circumstance tending to prove that the deed was executed in accordance therewith, but the charge of the court makes this circumstance, if proven, conclusive evidence as to such fact. In this there was error.

On account of the errors in the charge of the court as complained of in the tenth and twelfth assignments of error, this cause is reversed and remanded for a new trial.

Reversed and remanded.


author: HENDRICKS, J.

text:
    CANODE v. SEWELL et al.
    (No. 684.)
    (Court of Civil Appeals of Texas. Amarillo.
    Oct. 10, 1914.)
    Adpeai, and Error (§ 561) — Record — “Statement oe Facts Independent oe the Transcript oe the Notes oe the Reporter” — Preparation.
    Under Acts 32d Leg. c. 119, J 5 (Vernon’s Sayles’ Ann. Oiv. St. 1914, art. 1924), providing that on appeal the official shorthand reporter shall transcribe the testimony in the form of questions and answers and file it with the clerk of the court in duplicate, the original copy to be paid for by the party ordering it, section 6 (article 2070), providing that upon the filing of such transcript the appellant shall prepare a statement of facts in duplicate, but that the official reporter upon request shall prepare, from the transcript filed as provided in section 5, a statement of facts in narrative form in duplicate, and section 13 (article 2072), providing that nothing therein shall prevent the parties from preparing statements of facts independent of the transcript of the notes of the official reporter, where appellant, without ordering any transcript of the testimony in the form of questions and answers, and without any such transcript having been prepared or filed, procured the official reporter to prepare a narrative form of statement of facts, which was agreed to by the parties and approved by thé trial judge, and which was presumably prepared from the notes taken at the trial, and not from any transcript thereof, the reporter did not act officially in preparing such transcript, but unofficially as the agent of appellant, ana the statement constituted a “statement of facts independent of the transcript of the notes of the reporter,” as permitted by section 13.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 2494; Dec. Dig. § 561.]
    Appeal from District Court, Potter. County; Jas. N. Browning, Judge.
    Action between H. P. Canode and Mrs. Carrie Sewell and others. From the judgment, Canod^ appeals. On motion to strike out statement of facts.
    Motion overruled.
    Capps, Cantey, Hanger & Short and David B. Trammell, all of Ft. Worth, Cooper & Merrill, of Houston, and Lumpkin & Harrington, of Amarillo, for appellant. Jones & Miller and L. C. Barrett, all of Amarillo, and J. L. Penry, of Dallas, for appellees.

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

   HENDRICKS, J.

In this cause the appellant, through one of its attorneys, requested the official stenographer to prepare a narrative form of a statement of facts, for the purpose of appeal., The appellant did not order from the official shorthand reporter a transcript of the testimony in the form of questions and answers, as contemplated by section 5 of the Act of 1911, and such transcript was neither prepared nor filed. The narrative form of the statement of facts was agreed to by the parties litigant and approved by the trial judge and ordered filed as a part of the record of the cause. A duplicate copy of the statement of facts is on file in the office of the clerk of the court in which the case was tried, as shown by the certificate of said clerk. Appropriate to the discussion of the question involved, we quote the following portions of the statute referable to proceedings for the purpose of appeal:

“In case an appeal is perfected from the judgment rendered in any case, the official shorthand reporter shall transcribe the testimony * * * in the form of questions and answers, certifying that such transcript is true and correct, and shall file the same in the office of the clerk of the court within such reasonable time as may be fixed by written order of the court. Said transcript shall be made in duplicate, * * * the original copy * * * to be paid for by the party ordering the same on delivery, and the amount so paid shall be taxed as costs.” Section 5, Act 1911; Gen. Laws, p. 265.
“Upon the filing in the office of the clerk of the court by the official shorthand reporter of his transcript as provided in section 5 of this act, the party appealing shall prepare or cause to be prepared from the transcript * * * a statement of facts, in duplicate. * * * stated in succinct manner and without unnecessary repetition. * * * It shall not be necessary to copy said statement of facts in the transcript * * * on appeal, but the same shall, when agreed to by the parties and approved by the judge, * * * be filed in duplicate with the clerk of the court, and the original thereof shall be sent up as a part of the record in the cause on appeal: Provided, however, that the official shorthand reporter'shall, when requested by the party appealing, prepare from the transcript filed by the official shorthand reporter, as provided in section 5 of this act, a statement of facts in narrative form, in duplicate, and deliver the same to the party appealing, for which said statement of facts he shall be paid by the party appealing the sum of fifteen cents per folio of one hundred words for the original copy. * * * ” Section 6, Act 1911; Gen. Laws, p. 265.

Section 13 of the act of 1911 (Gen. Laws, p. 268) - repeals all previous acts in conflict with the existing statutes, with the following recitation:

“Provided, however, that 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.”

An analysis of these sections, it will be seen, prescribes three methods for the preparation of a statement of facts on appeal:

First. When the transcript of the stenographer’s notes is ordered from the ’official shorthand reporter by the unsuccessful litigant, such litigant may prepare, or cause to be prepared, a statement of facts in duplicate for the purpose of appeal. In that event, the litigant, or any other person authorized by him, could prepare the statement from the transcript filed by the official stenographer.

Second. When the transcript of the stenographer’s notes has been ordered by the unsuccessful litigant from the official shorthand reporter and filed, the latter shall, “when requested by the party appealing, prepare from the transcript a statement in narrative form in duplicate,” for which the reporter “shall be paid by the party appealing the sum of fifteen cents per folio of one hundred words.”

Third. The parties may prepare a “statement of facts on appeal, independent of the transcript of the notes of the official shorthand reporter,” which, of course, means that the litigant is not required to order, or to be subjected to the expense of, the transcript of the notes, but may from memory, or from his own notes, or in any other manner, without the official transcript of the notes, prepare the statement of facts for appeal.

Articles 1923 and 1926, Vernon’s Sayles’ Texas Civil Statutes 1914, pp. 1254-1256, requires the stenographer to make certain transcriptions of the testimony; but, germane to the immediate subject under discussion, it is clear that the official stenographer may only be required “officially” to perform two things: First, prepare a transcript of his notes and file the same when ordered by the party appealing; second, when requested by the party appealing, he shall prepare from the transcript, which has been ordered filed, a narrative form of the statement, in the event the litigant does not desire to prepare his own statement, and for which the official shorthand reporter may charge 15 cents per folio of 100 words.

As stated in the instant case, the transcript of the notes was not ordered by the appellant, and hence none was prepared and filed by the official reporter. The official reporter did not prepare the statement of facts from any transcript of the notes, but merely wrote a narrative form of the statement of facts, we presume, of course, from his notes taken by him at the trial, which statement was agreed to by the parties and approved by the trial judge. This act of the stenographer was not his act as an official shorthand reporter, any more than the act of any other person who had the ability to read the original notes and prepare the statement. The statute does require him to make a narrative form of the statement from a transcript of his notes when ordered by the party appealing, but does not prescribe he shall prepare a narrative form of a statement of facts from his notes taken at the trial. The stenographer was acting unofficially as the agent of the party appealing, and when the statement was agreed to and approved by the judge it constituted, in this record, a “statement of facts on appeal independent of the transcript of the notes of the official shorthand reporter,” permitted to litigants by section 13 of the act of 1911 (Gen. Laws, p. 268).

In considering the case of Witherspoon v. Crawford, 153 S. W. 633, the question involved as one of the grounds for suppressing the statement of facts was, “because the statement of facts was not made up in duplicate, and no copy of the same was left on the file in the district court of Briscoe county” ; but the court preferred to “not rest the disposition of the motion to strike out the statement of facts upon this ground” — suppressing the statement upon the other ground, that the same did not purport to be a statement of all the facts adduced in the cause, with ample authority sustaining the same. The matter of a failure to file a transcript of the stenographer’s notes was not involved in the record, and, the real question not being the same in that cause as the direct question under consideration here, we are not prepared to overrule that part of the opinion suppressing the statement of facts on account of the failure to file the duplicate. This court is unanimous in limiting the scope of that ease to the ground that the statement of facts did not purport to be a statement of all the facts, and prefers to leave the other question, suggested in the opinion, an open one.

The motion to strike out the statement of facts is in all things overruled.


author: CONNER, C. J.

text:
    SCOTT v. SCOTT.
    (No. 8000.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    June 20, 1914.
    Rehearing Denied Oct. 17, 1914.)
    1. Husband and Wife (§ 259) — Control of Community Property — Order of Probate.
    Any right of a husband to control, management, and disposition of community property, consisting of commissions earned by his wife as guardian, is not divested or impaired, though its enforcement may be made more difficult, by an order of the probate court directing payment thereof to her by her successor as guardian.
    [Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. § 911; Dec. Dig. § 259.]
    2. Judgment (§ 812) — Collateral Attack— Proceeding in Rem.
    An order of the probate court directing payment by a guardian from funds in his hands to his predecessor as guardian of commissions earned by her is in the nature of a proceeding in rem, binding on all persons till reversed or set aside, notwithstanding a failure to specially serve, or a failure of appearance by one who might have contested it; so that it cannot be collaterally attacked.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 1435-1442; Dee. Dig. § 812.]
    3. Husband and Wife (§ 247) — Community Property — Control—Statutes—Repeal.
    The right given the husband by Rev. St. 1911, art. 4622, to control,, management, and disposition of the community property, being a simple power or agency to be exercised by him, not alone in his own interest, but also as a trust for the interest of his wife, is extinguished as to prior as well as subsequent personal earnings of his wife, by Acts 33d Deg. c. 32 (Vernon’s Sayles’ Ann. Civ. St. 1914, art. 4622) declaring her personal earning shall be under the control, management, and disposition of her alone.
    [Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. §§ 879, 886; Dec. Dig. § 247.]
    4. Constitutional Law (§ 93) — Husband and Wife (§ 247) — Vested Rights — Control of Community Property.
    ■ Acts 33d Leg. c. 32 (Vernon’s Sayles’ Ann, Civ. St. 1914, art. 4622), amending Rev. St. 1911, art. 4622, by merely taking from the husband and giving to the wife the right of control, management, and disposition of that part of the community property which consists of personal earning of the wife, but still leaving it community property, impairs no vested right.
    [Ed. Note. — For other cases, see Constitutional Law, Cent. Dig. §§ 176, 177, 181-185, 190-192, 194-200, 208, 213-224, 236; Dee. Dig. § 93; Husband and Wife, Cent. Dig. 55 879. 886; Dec. Dig. § 247.] ’
    Appeal from District Court, Johnson County; O. L. Lockett, Judge.
    Proceeding between Mrs. Lelia Scott and ' George A. Scott. From a judgment of district court, on appeal from the county court, for said Lelia, said George appeals.
    Affirmed.
    W. H. Spinks, of Alvarado, for appellant. Walker & Baker, of Cleburne, for appellee.

      Eor otter cases see same topic and section NUMBER in Dee. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   CONNER, C. J.

This action was instituted in the county court on the 5th day of June, 1913, in the form of a motion by Mrs. Lelia Scott, wife of George A. Scott, to require E. L. Shelton, guardian of the estate of a minor son of the said Lelia and George A. Scott, to pay to her the sum of $158.35 which said guardian had theretofore been ordered to pay her as commissions earned by her during a previous guardianship of the same minor, such order to Shelton having been duly made by the county court upon final approval and discharge of Mrs. Lelia Scott as such guardian. Shelton answered the motion to the effect that he had been garnished at the instance of S. E. Duncan and J. Tobolowsky, who had instituted suits against Geo. A. Scott and Lelia Scott upon open accounts for merchandise purchased by them, and, •further, that Lelia Scott was the wife of George A. Scott, the latter of whom it was asserted was entitled to the fund in question. The guardian, therefore, prayed that Duncan, Tobolowsky, and George A. Scott be cited to appear and assert their claims, which they did. Upon a hearing of the tootion on the 5th day of June, 1913, the county court entered its order directing E. L. Shelton, the guardian, to forthwith pay to Mrs. Lelia Scott the sum of $141.17 as the balance due her as commission as the former guardian in the cause. It was further adjudged that the claims of George A. Scott, J. Tobolowsky, and S. E. Duncan were without force. The last-named parties excepted and gave notice of appeal to the district court The matter again came on for hearing in the district court, on the 14th day of November, 1913, where the same judgment, in substance, was entered in favor of Mrs. Lelia Scott. From the judgment of the district court so entered George A. Scott alone has appealed to this court.

• The trial court filed his conclusions of fact and law, which, omitting formal parts, are as follows:

“First. That at the time Mrs. Lelia Scott was , acting as guardian of Edwin Scott, their son, that Geo. A. Scott and Mrs. Lelia Scott were husband and wife.
“Second. That said Geo. A. Scott and Mrs. Lelia Scott permanently separated about April 1, 1912, and that Mrs. Scott has since been living in Kansas City, Mo., and Geo. A. Scott in Texas.
“Third. That the commissions allowed Mrs. Scott were earned by her while she was the wife of Geo. A. Scott.
“Fourth. That on the 4th day of September, 1912, in said estate that the county court of Johnson County, Tex., allowed Mrs. Lelia Scott, as commissions as guardian, the sum of $158.35, accepted her resignation, approved her final account, and appointed E. L. Shelton guardian of Edwin Scott the minor son of Geo. A. Scott and Mrs. Lelia Scott, and ordered said Shelton to forthwith pay said commissions to Mrs. Scott.
“Fifth. That said order aforesaid was duly made by the county court, and was not appealed from or in any manner vacated, and remains in full force and effect.
“Sixth. That the commissions were awarded to Mrs. Scott after the separation between Geo. A. Scott and Mrs. Lelia Scott, and that she is entitled to retain such commissions, less $17.18 due by her to the estate.
“Conclusions of Law.
“I find as a conclusion of law that Mrs. Scott is entitled to the commissions awarded to her by the county court, less the amount due the estate by her, leaving a balance of $141.17, and that same are not subject to the control of her husband, and that E. L. Shelton, guardian, be directed to pay the same to her forthwith.”

Other than as stated in the above findings, the reasons for the court’s judgment do not appear. The judgment against Duncan and Tobolowsky was presumably based on the ground that the fund in controversy was in custodia legis, and hence not subject to garnishment. Kreisle v. Campbell, 89 Tex. 104, 33 S. W. 852; Pace v. Smith, 57 Tex. 555; Curtis v. Ford, 78 Tex. 267, 14 S. W. 614, 10 L. R. A. 529; Loftus v. Williams, 24 Tex. Civ. App. 432, 59 S. W. 292. But whatever the reason, Duncan and Tobolowsky have not appealed, and we need not, therefore, discuss or determine their rights in the fund, if any they ever secured.

The sole question, therefore, left for determination is whether the court properly denied George A. Scott, the husband, the claim set up by him to the fund. The husband’s claim is asserted by virtue of the fact alleged and found that Lelia A. Scott was his wife, and that during the existence of their marital relation she earned the commissions in question and to which he was entitled by virtue of article 4622 of the Revised Statutes, which reads:

“All property acquired by either husband or wife during the marriage, except that which is acquired by gift, devise or descent, shall be deemed the common property of the husband and wife, and during the coverture may be disposed of by the husband only.”

That the fund in question constitutes the community property of George A. and Lelia Scott is undisputed, but the privilege’ or right of the husband to the control, management, and disposition of such property as conferred by the article-quoted was not necessarily dependent on its delivery to the husband. The right was not necessarily impaired by the possession of the wife. In such case the enforcement of the right might have been more difficult, but the right itself existed as before. It cannot therefore be said that as a matter of law the original order of the probate court directing the guardian to pay to Mrs. Scott the commissions earned by her divested George A. Scott, the husband, of any right in property, or even of a power or privilege given him by law. In that proceeding he made no contest, neither alleged nor made proof of any state of facts that precluded him from later exercising the privileges asserted. The original order directing Shelton to pay to Mrs. Scott funds in his hands as guardian was never in any manner set aside or qualified by an appeal or otherwise, and is in the nature of a proceeding in rem and binding upon all persons, including the husband, until reversed, or set aside notwithstanding a want of special service or a failure to appear on the part of one who might have contested the same. See 23 Cyc. 1406; Lynch v. Baxter, 4 Tex. 431, 51 Am. Dec. 735; Toliver v. Hubbell, 6 Tex. 166; Dancy v. Stricklinge, 15 Tex. 558, 65 Am. Dec. 179; Davis v. Wells, 37 Tex. 606; McCampbell v. Durst, 73 Tex. 410, 11 S. W. 380; Crawford v. McDonald, 88 Tex. 626, 33 S. W. 325. Possibly in that proceeding George A. Scott might have intervened and secured an order for- a delivery of the commissions to him by virtue of the then statute giving to the husband the exclusive management and control of community property. But he did not do so, nor does it appear that he at any time made an effort to have the order set aside or qualified. It, therefore, may well be said that he cannot now do so in a subsequent, collateral proceeding such as this. In other words, the original specific order to the guardian to pay to Mrs. Lelia Scott and not to another it would seem must at all events be now followed.

We need not, however, limit our final conclusion to the grounds above suggested. It is undisputed that the fund in question consists of the personal earnings of the wife, to the possession of which the wife is now entitled under the terms of amended article 4622 effective at the time of the judgment in this case. See General Laws, 1913, page 62. The amended article, so far as it need be quoted, reads as follows:

“Article 4622: All property acquired by either the husband or wife during marriage, except that which is the separate property of either one or the other, shall be deemed the common property of the .husband and wife, and during coverture may be disposed of by the husband only, provided, however, the personal earnings of the wife, the .rents from the wife’s real estate, the interest on bonds and notes belonging to her and dividends on stocks owned by her shall be under the control, management and disposition of the wife alone,” etc.

It is to be observed that by the amendment the personal earnings of the wife during the continuance of the marital relation constitute community property as before. The change is merely in the designation of the wife, rather than the husband, as the one who shall have the control, management, and disposition thereof. The husband’s right, therefore, to a community interest remains. This has not been divested by either the orders of court under consideration, or by the amending law, and hence we think the amended law, instead of the old law, applied to the facts of this case at the time of the trial, notwithstanding the fact that the fund in question was earned by the wife prior to the amendment quoted. Eor while George A. Scott und.er the old law had acquired a property interest in his wife’s earnings which could not, under the limitations of constitutional provisions, be divested by any subsequent legislative act, no such vested right to its control and management existed. The rights of the husband and of the wife to community property at all times as yet are equal, and the original designation of the husband instead of the wife as the one to control and manage community property was a mere arbitrary direction, founded upon legislative policy. The husband had no greater abstract right of control than the wife, and it seems to us that the Legislature had the power at will to limit the control of the husband, as was done in the amending act, whenever a change in the legislative mind or policy occurred, without being liable to the objection that thereby a vested right within the meaning of the Constitution would be disturbed.

While we know of no case where the question 'has been mooted or decided in this state, yet, as indicated, to our minds the right given to the husband under former laws to the control, management, and disposition of community property was in the nature of a simple power or agency to be exercised by the husband, not alone in his own interest, but also as a trust for the interest of his wife. If so, as is very generally recognized, we think, the power so derived wholly from a statute was extinguished by its repeal. See section 1G5, Sutherland on Statutory Constructions, and authorities cited iii note. It is said in the section cited in relation to powers conferred by statute that:

“All acts done under a statute whilst it was in force are good; but' if a proceeding is in progress in fieri, when the statute is repealed, and the powers it confers cease,, it fails, for ,it cannot be pursued.”

As also applicable to the question under consideration we cite the case of Holyoke v. Jackson, by the Supreme Court of Washington, 3 Wash. T. 235, 3 Pac. 841. In that státe a system of community property of husband and wife similar to our own was in force prior to 1879, and it was provided that the husband could dispose of the same with “like absolute power of disposition as of his own separate estate.” By an act of 1879 (Laws 1879, p. 78), however, it was provided that no disposition of the community property could be made without the joinder ot the wife. After the act of 1879 took effect the husband alone conveyed community property that had been acquired under the previous law, and it was insisted, in effect, that the power of absolute control under the previous law was a vested right, and that the law of 1879 was not operative as to such property. In disposing of the question the court said:

“By virtue of the statute this husband and wife creature acquires' property. That property must be procurable, manageable, convertible, and transferable in some way. In somebody must be vested a power in behalf of the community to deal with and dispose of it. To somebody it must go in case of death or divorce. Its exemptions and liabilities as to indebtedness must be defined. All this is regulated by statute. . Management and disposition may be vested in either one or both of the members. If in one, then that one is not thereby made the holder, of larger proprietary rights than the other, but is' clothed, in addition to his or her proprietary rights, with a bare power in trust for the community. This power the statute of 1873 chose to lay upon.the husband, while the statute of 1879 thought proper to take it from the husband and lay it upon husband and wife together. As the husband’s ‘like absolute power of disposition as of his own separate estate,’ bestowed by the ninth section of the act of 1873 [Laws 1873, i>. 452], was a mere power conferred upon him as member apd head of the community, in trust for the community, and not a proprietary right, it was perfectly competent for the Legislature of 1879 to take it from him and assign it to himself and his wife conjointly.”

Prior to 1901 in New Mexico the law vested in the husband the absolute power of disposition of community property. In that year a law was adopted declaring that:

“Neither the husband nor wife shall convey, mortgage, incumber, or dispose of any real interest, or legal or equitable interest, therein, acquired during coverture by onerous title, unless both join in the execution thereof.” Laws N. M. 1901, e. 62, § 6a.

It was contended that the amendment did not apply to community property owned at the time of its enactment, and the courts of New Mexico upheld this contention on the theory that the husband had vested rights that would be taken away if the statute of 1901 was allowed to apply to land previously acquired. On appeal, however, to the Supreme Court of .the United States this Contention was denied in the case of Arnett v. Reade, 220 U. S. 311, 31 Sup. Ct. 425, 55 L. Ed. 477, 36 L. R. A. (N. S.) 1040. See, also, Warburton v. White, 176 U. S. 484 20 Sup. Ct. 404, 44 L. Ed. 555.

In California a contrary view seems to be upheld, but the California decisions are apparently based on tbe theory that their statutes granting to the husband the right to the disposition of community property with “like force and effect as if it was his own” in effect devolves upon him the absolute estate; the interest of the wife in the community property being a “mere expectancy.” See Spreckels v. Spreckels, 116 Cal. 339, 48 Pac. 228, 58 Am. St. Rep. 170, 36 L. R. A. 497, and California cases following it. In this state, however, as already indicated, an altogether different right of the wife in community property has been uniformly maintained. As said in Speer’s Uaw of Married Women, §• 171:

“No effort is made to vest a greater portion of these joint acquisitions in one spouse than in the other. The wife’s rights, in point of ownership, are in every respect the equal of those of her husband. They are identical; in short, they own'the estate in community.”

See, also, Cervantes v. Cervantes, 76 S. W. 790; Hurley v. Lockett, 72 Tex. 262, 12 S. W. 212.

We conclude, as before stated, that it was within the power of the Legislature to take from the husband and confer upon the wife, as was done by amended article 4622, the power of control over the wife’s personal earnings, and that in so doing the husband was deprived of no right of which he can complain, and that the amended article applies as well to earnings before the amendment as ta those afterwards. The trial court’s conclusions of fact are accordingly adopted, and the judgment of the district court affirmed.

SPEER, A. J., not sitting.


author: FLY, C. J.

text:
    GALVESTON, H. & S. A. RY. CO. v. ENDERLE.
    (No. 5323.)
    (Court of Civil Appeals of Texas. San Antonio.
    Oct. 14, 1914.
    Rehearing Denied Nov. 11, 1914.)
    1. Statutes (§ 47) — 'Validity—Certainty— Statutory Provisions.
    Rev. St. 1911, art. 6713, forbidding common carriers to use locomotives or cars not provided with sufficient and secure grabirons, handholds, and foot stirrups, is not invalid on the ground that the legislative intent cannot be ascertained because of the failure to designate the number, dimensions, location, and manner of application of the appliances provided for, as the language used is plain and no difficulty can be experienced in meeting the simple requirements of the statute.
    [Ed. Note. — For other cases, see Statutes, Cent. Dig. § 47; Dec. Dig. § 47.]
    2. Master and Servant (§ 111) — Railroad Companies — Safety Appliances — Statutory Provisions — “Sufficient”—“Secure.”
    The word “sufficient” as used in Rev. St. 1911, art. 6713, requiring railroad locomotives and cars to be provided with sufficient and secure grabirons, handholds, and foot stirrups, is not synonymous with “secure” which as used in the statute means “safe,” nor does it refer to the number of appliances, but is used in the sense of adequacy and adaptation to the end desired, and means fitness to answer the purpose for which the appliance is intended.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 215-217, 255; Dee. Dig. § 111.

    For other definitions, see Words and Phrases, First and Second Series, Secure; Sufficient.]
    3. Master and Servant (§ 111) — Railroad Companies — Safety Appliances.
    The rule of strict construction applied in construing penal statutes does not apply to the construction of Rev. St. 1911, art. 6713, relative to providing grabirons, handholds, and foot stirrups on locomotives and cars, when sought to be enforced in a civil action.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 215-217, 255; Dec. Dig. § 111.]
    4. Master and Servant (§ 286) — Actions for Injurjes — Questions for Jury.
    Whether a handhold on a railroad car which gave way and precipitated an employs to the ground when his weight or a part thereof was placed on it was sufficient and secure, within Rev. St. 1911, art. 6713, was a question of fact for the jury, and not a question for the court.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1001, 1006, 1008, 1010-1015, 1017-1033, 1036-1042, 1044, 1046-1050; Dec. Dig. § 286.]
    5. Trial (§ 256) — Instructions—Necessity of Requests.
    In an action for injuries to a railway employs caused by a handhold giving way, the court’s failure to define the terms “sufficient” and “secure” as applied to handholds was an error of omission, and the party complaining should have asked a special charge to remedy the omission.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 628-641; Dec. Dig. § 256.]
    6. Master and Servant (§§ 101, 102) — Railroad Companies — Safety Appliances — Statutory Provisions.
    Under Rev. St. 1911, art. 6713, it is the duty of railway companies to furnish sufficient and secure handholds on cars, and not merely to exercise ordinary care.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 135, 171, 174, 178-184, 192; Dec. Dig. §§ 101, 102.]
    Appeal from District Court, Bexar County; R. B. Minor, Judge.
    Action by T. L. Enderle against the Galveston, Harrisburg & San Antonio Railway Company. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    Baker, Bolts, Parker & Garwood, of Houston, and Templeton, Brooks, Napier & Ogden, of San Antonio, for appellant. John Schorn, of San Antonio, for appellee.

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

   FLY, C. J.

This is a suit for damages arising from personal injuries inflicted upon appellee, an employé of appellant, through a defective handhold on one of appellant’s cars. The cause was tried by jury, and resulted in a verdict and judgment for ap-pellee in the sum of $9,750.

The evidence discloses that appellee, while in discharge of his duty as an employé of appellant, sought to leave the top of a ‘car and in doing so laid hold of the handhold on the car, which gave way and precipitated him to the ground, inflicting upon his person serious and permanent injuries.

The first assignment of error assails the validity of article 6713, Rev. Stats. 1911, “because it does not designate the number, dimensions, location, and manner of application of the appliances provided for, or prescribe any means lay which the legislative intent in that regard can be ascertained, and it is impossible from the language of the statute to ascertain the legislative intent, or what would constitute compliance with the provisions of the statute.” The article in question reads as follows:

“It shall be unlawful for any common carrier engaged in commerce as aforesaid, to use in moving intrastate traffic within said state any locomotive, tender, cars, or similar vehicle which is not provided with sufficient and secure grabirons, handholds and foot stirrups.”

While the language is somewhat tautological and not specially marked with elegance, it seems to be plain and simple, and capable of being understood by any one who desires to understand it. The statute does not purport to provide the size, material, number, or style of the appliances mentioned, hut it merely provides for such appliances as are “sufficient and secure,” such, for instance, as will not give way and precipitate the servants of the corporation to the earth, as happened in this case. The law lias often been enforced in this state, and railroad companies have not heretofore evinced any doubt as to the meaning and intent of the simple language in which the statute is couched. The statute was enacted to protect those who were called upon to use the appliances named, and it was not incumbent upon the Legislature to state that by the words “sufficient and secure” it was meant that the appliances would not be safe unless they were strong enough to sustain the weight of the passenger or employé who might use them.

Appellant insists that by the word, “sufficient,” used in the statute it was intended to prescribe the number of appliances that should be used, but if that be true we fail to see what satisfaction appellant can obtain from that construction, because the appliances were to be both “sufficient and secure,” and under the facts the handhold was certainly not secure, no matter how many of them may have been on the car. We are of opinion, however, that the word, “sufficient” is used in the sense of adequacy and adaptation to the end desired. It means fitness to answer the purpose for which it was intended. It is not synonymous with “secure,” which, as used in the statute, means safe. We can readily understand that a handhold might be perfectly secure and yet not be sufficient for the purposes for which it is used. The words used in the statute are plain, and no difficulty can be experienced in meeting the simple requirements of the statute. Language as general as that used in the statute under consideration has often been held valid. Berry v. State, 135 S. W. 631; Waters-Pierce Oil Co. v. State, 48 Tex. Civ. App. 162, 106 S. W. 925; Katzman v. Commonwealth, 140 Ky. 124, 130 S. W. 990, 30 L. R. A (N. S.) 519, 140 Am. St. Rep. 359; People v. Apfelbaum, 251 Ill. 18, 95 N. E. 995; State v. Railway, 177 Ind. 553, 96 N. E. 340.

It must be kept in mind that this is a civil action, and that the rule of strict construction of the statute does not apply as in construing penal statutes. Even in construing that class of statutes, reason, conservatism, and common sense should be exercised and no statute lightly set aside and the sovereign will of the people thereby defeated. Every law enacted by the Legislature should be respected and never annulled by a court when the legislative will is expressed with reasonable certainty. No such unreasonable construction will be tolerated as that in the Kentucky case of Matthews v. Murphy, cited by appellant, which is thus criticized in the cited case of Berry v. State:

“Human ingenuity could not frame a law that would answer the demands of the decision in tko case of Matthews v. Murphy (Ky.) 63 S. W. 785, 54 L. R. A. 415, for it would require that every conceivable unprofessional act should be set out and defined before a license could be revoked for any such act.”

The language held to be sufficient in the Berry Case was “other grossly unprofessional or dishonorable conduct of a character likely to deceive or defraud the public,” and is much more general and indefinite than “sufficient and secure.” Legislatures are not expected to attach lexicons to their laws and define words every one is presumed to understand. We overrule all assignments of error attacking the validity of the statute.

It was a question of fact to be determined by the jury as to whether the handhold was “sufficient and secure.” It was for them to say whether a handhold was such that broke when a man’s weight, or a part thereof, was placed on it; and no question was presented as to the safety of the appliance to be determined by the court.

If the court erred in not defining the term “sufficient and secure,” it was an error of omission, and appellant should have asked a special charge to remedy the omission.

It was the duty of appellant to furnish a sufficient and secure handhold, and the exercise of ordinary care did not meet the requirement of the statute. As said by Chief Justice James- for this court, in discussing the act in question and the federal statute in Railway v. Kurtz, 147 S. W. 658:

“Railway companies, under these statutes, are required to do more than exercise ordinary care to have and maintain secure handholds, etc. They are required to do more than exercise a high degree of care. * * * Under these statutes, there would seem to bo no defense available, unless it be that the plaintiff himself deliberately caused the handhold, which gave way and injured him, to be insecure.”

It follows that the court properly refused ■to present any issue as to ordinary care upon the part of appellant.

We cannot hold that the verdict is excessive. There is evidence to sustain the amount found by the jury.

The language used by the attorney for appellee in his closing address to the jury could not have injured appellant, had it not been withdrawn and the jury instructed to disregard it, as was done by the court.

The judgment is affirmed.


author: MOURSUND, J.

text:
    ROYAL AMUSEMENT CO. v. COLUMBIA PIANO CO.
    (No. 5375.)
    (Court of Civil Appeals of Texas. San Antonio.
    Oct. 28, 1914.)
    1. Venue (§ 15) — Ancillary Proceedings.
    Where an injunction applied for is merely ancillary to the main purpose of the suit, the suit is not one for an injunction within Rev. St. 1911, art. 4653, providing that writs of injunction to stay proceeding's in a suit or execution on a judgment shall be returnable to and tried in the court where the suit is pending or such judgment was rendered, but that writs of injunction in other cases, if the party against whom it is granted be an inhabitant of the state, shall be returnable to and tried in the district or county court of the county in which the party has his domicile, etc.
    [Ed. Note. — Eor other cases, see Venue, Cent. Dig. § 22; Dec. Dig. § 15.]
    2. Venue (§ 15) — Ancillary Proceedings.
    Rev. St. 1911, art. 1830, subd. 5, provides that' where a person has contracted in writing to perform an obligation in a particular county, suit may be brought either in such county or where the defendant has his domicile, and subdivision 7 declares that suit for fraud may be instituted in the county in which the fraud was committed, or where defendant has his domicile. Held, that where defendant induced plaintiff to purchase an orchestral piano by false representations that it was new, when in fact it was old and shop-worn, and defendant also agreed to keep it in repair at plaintiff’s theater in B. county, which defendant failed and refused to do, plaintiff was entitled to sue defendant in B. county for a rescission of the sale and a temporary injunction returnable there as ancillary relief restraining defendant from transferring or suing on unpaid purchase-money notes, pendente lite.
    [Ed. Note. — Eor other cases, see Venue, Cent. Dig. § 22; Dec. Dig. § 15.]
    Appeal from District Court, Bexar County; W. E. Ezell, Judge.
    Suit by the Royal Amusement Company against the Columbia Piano Company. Prom an order denying a motion for temporary injunction, complainant appeals.
    Reversed, and temporary injunction granted.
    Hicks & Hicks & Teagarden, and Chas. M. Dickson, all of San Antonio, for appellant. Carlos Bee and C. C. Todd, both of San Antonio, and Henry Paulus, of Yoakum, for appellee.

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

   MOURSUND, J.

This is an appeal from an order refusing to grant a temporary injunction upon appellant’s petition, which contained, in substance, the following allegations : That on or about’ August 5, 1913, Columbia Piano Company, acting through its president, Jas. R. Saunders, a resident of De Witt county, and plaintiff, by its agent, Wm. Eppstein, entered into a written contract whereby said Columbia Piano Company sold for installation in the Royal Theater a certain Style K Wurlitzer motion picture orchestra, with, attachments, binding itself to deliver and install said instrument and keep same in perfect repair and tune for three years from date of installation without cost to plaintiff; that plaintiff paid defendant the $450 mentioned in said contract, and executed its 33 notes payable to defendant, • each for $125, one payable each month beginning one month from October 2, 1913, and that defendant is now the owner and holder of the notes; that plaintiff paid defendant said notes to the amount of $750 as they became due; that it was represented and understood that said instrument would be new and not shop-worn; that an instrument of the style mentioned was delivered to plaintiff and installed by defendant about October 2,1913; that about March, 1914, the instrument got out of repair and tune, and plaintiff requested defendant to repair same, and defendant sent a man to San Antonio ostensibly to repair same, but that he did not do so, and shortly after the man left San Antonio defendant notified plaintiff that it would not then or in the future keep the instrument in repair or tune; that said contract contenqplated that part of it was to be performed in San Antonio, Bexar county, Tex.; that the instrument’s being out of repair was not caused by any fault of plaintiff; that plaintiff had it repaired, but afterwards it again got out of repair, and if repaired will continue to get out of repair because it is a complicated piece of machinery, and it was well known to both parties and contemplated at the time of the contract that it would get out of repair, and the agreement to keep it in repair was the paramount consideration to plaintiff, without which it would never have purchased such an instrument; that plaintiff, at the time of the purchase and since, has been unfamiliar with such instruments as the one purchased, and has only recently discovered that, instead of being a new and unused instrument as contracted for, the one sold plaintiff by defendant was shopworn and used, and was not in perfect condition when sold to plaintiff, all of which was known to defendant at the time of entering into the contract and delivering the instrument; that defendant at the time of entering into the contract falseiy and fraudulently represented in San Antonio, Bexar county, Tex., that a new and unused instrument would be furnished, knowing at tlie time that it did not intend to deliver a new and unused instrument to plaintiff!, but intended to deliver a used and worn instrument, worth less than a new and unused instrument, and for these reasons defendant has also breached its contract with plaintiff, since plaintiff says that the actual agreement was that defendant should deliver a new and unused instrument; that several of the notes are past due and defendant is threatening to sue on them in justice’s court in De Witt county, and has actually sued on one and obtained'judgment, and threatens to sue on the other notes, to the number of about 25, as they become due, and thus make a multiplicity of suits in a forum whose jurisdiction will not authorize or allow plaintiff its damages or remedies here sought; that plaintiff is entitled to $750 damages paid for human orchestra, $300 for repairs, and $1,500 paid on the contract and notes, and to have all its notes to defendant canceled and the contract annulled, and it tenders the instrument to defendant, for all of which it prayed, as well as for a temporary injunction restraining defendant from transferring any of the unpaid notes and from filing any suit or suits upon any of said notes in any other court than in this particular suit.

It will not be necessary to copy the entire contract,' a copy of which was attached to the petition as an exhibit. Its provisions have been substantially set out in stating the allegations of the petition. The description of the instrument as contained therein is as follows:

“One Style ‘K’ Wurlitzer Motion Picture Orchestra with Xylophone and Vox Humana attachments complete, including all necessary motors, electrical attachments,” etc.

It was to be installed by defendant in the Royal Theater in San Antonio, in such manner as to comply with all the requirements of the city of San Antonio pertaining to installation of electrical appliances, etc. The provision with respect to repairs reads as follows:

“Party of first part further agrees to keep said instrument in absolutely perfect repair and tune for the term of three years from date of installation and acceptance without cost to said party of the second part.”

No answer was filed by defendant. In the argument filed in this court in its behalf the statement is made that it filed a plea of privilege to be sued in De Witt county, which the court had before him when he made the order appealed from, but no such plea appears in the record. The court in his order states that he refuses to grant the petition because he is of the opinion that subdivision 3 of article 4643, Revised Statutes of 1911, precludes the granting of a writ returnable to any other court except under the circumstances set out in that article, and plaintiff does not show itself to come within the exception entitling the granting of a writ returnable to another court, and also because article 4653 makes writs of injunction in cases such as this returnable to and triable in the proper court of the domicile of the defendant, which in this case is not Bexar county. We cannot agree with the construction placed upon the statutes by the trial court. Where the injunction applied for is merely ancillary to the mahq purpose of the suit, the suit cannot be regarded as a suit for injunction, in the purview of article 4653 (statutes of 1911). The preceding sentence is almost a literal quotation of a statement made by the Court of Civil Appeals of the First District in the case of I. & G. N. Ry. v. Anderson County, 150 S. W. 248. In this case the allegations of the petition show venue under exceptions 5 and 7 to article 1830. We must therefore assume that a case was presented which the trial court could try, and which plaintiff was entitled to have tried unless the trial court’s construction of our injunction statutes is correct. Incidentally an injunction was prayed for to keep defendant from doing acts pending litigation which would impose hardships upon plaintiff and tend to render ineffectual such judgment as he might obtain. We are of the opinion that in such a case article 4653 does not apply, and that plaintiff was entitled to the injunction prayed for by it.

The order refusing the injunction is reversed, and the cause remanded, with instructions to the district judge to enter an order granting plaintiff the temporary injunction prayed for by it. The temporary restraining order entered by this court is to remain in full force and effect until the issuance of the mandate of this court.


author: DAVIDSON, J.

text:
    HICKS v. STATE.
    (No. 3284.)
    (Court of Criminal Appeals of Texas.
    Oct. 28, 1914.)
    Criminal Daw (§ 1159) — Appeal—Review —Verdicts.
    Where the evidence as to accused’s guilt was conflicting, the question is for the jury, and their verdict cannot be reviewed on appeal.
    [Ed. Note. — For other cases, Law, Cent. Dig. §§ 3074-3083; 1159.] see Criminal Dec. Dig. §
    Appeal from Tarrant County Court; Jesse M. Brown, Judge.
    Frank Hicks was convicted of wife abandonment and failure to support, and he appeals.
    Affirmed.
    C. E. Lane, Asst. Atty. Gen., for the State.

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

   DAVIDSON, J.

Appellant was convicted for the abandonment of his wife and failure to support her.

The testimony for the state is sufficient to support the verdict. The testimony' introduc-eel on tlie part Of appellant refutes the charge in the indictment and contradicts the testimony for the state. This was a matter for the jury, and this court would not feel justified in reversing on account of the conflict in the testimony.

Therefore the judgment will have to be affirmed.


text:
    TYLER v. STATE.
    (No. 3325.)
    (Court of Criminal Appeals of Texas.
    Oct. 28, 1914.)
    Ceiminal Law (§ 1131) — Appeal—Dismissal — Escape.
    Where accused, pending his appeal, made his escape from custody, and did not voluntarily -return within 10 days, or up to the time of the hearing, the appeal must be dismissed.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2971-2979, 2985; Dec. Dig. § 1131.]
    Appeal from District Court, Cherokee County; Lee D. Guinn, Judge.
    Henry Tyler, alias Joe Kenney, was convicted of passing a forged instrument, and he appeals.
    Appeal dismissed.
    C. E. Lane, Asst. Atty. Gen., for the State.

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

   DAVIDSON, J.

This conviction was for passing a forged instrument. Pending the appeal, appellant has made his escape from custody. He did not voluntarily return within 10 days, nor has he as yet returned, or had not up to the time of making of the affidavit by the sheriff of his escape. The 10 days had long since expired before the affidavit was made.

Under this showing, the appeal will have to be dismissed.