author: TALBOT, J.

text:
    OTIS ELEVATOR CO. v. CAMERON et al.
    (No. 8110.)
    (Court of Civil Appeals of Texas. Dallas.
    June 29, 1918.
    Rehearing Denied Oct. 19, 1918.)
    1. Appeal and Error <@=3753(1), 772 — Filing Bbiejts and Assignment in Trial Court-Objections to Consideration.
    Consideration of assignments of error will not be refused because they and appellant’s brief were not filed in the trim court in the time prescribed; it being apparent this occasioned no harm, and motion to dismiss appeal, with opportunity for counter-showing, contemplated by Courts of Civil Appeals Rule 39 (142 S. W. xiii), not being filed.
    2. Appeal and Error <@=>722(1) — Assignments oe Error — Grounds oe Motion eor New Tííial.
    An assignment of error, though not a full copy of the ground set up in motion for new trial, will be considered; it with the propositions under it stating enough of the ground to direct the court’s attention to, and make plain,
    ■ the error intended to be assigned.
    3. Master and Servant <@=3124(3) — Saee Place, and Appliances — Inspection. »
    Duty of employer to furnish employé reasonably safe work place and appliances, as applied to operator of freight elevator, includes the making of tests and inspection for defects.
    4. Appeal and Error <@=3930(3) — Presumption-Finding on Issue.
    Submission of an issue not having been made or requested, it will be deemed on appeal as found by the court in such way as to support the judgment; there being evidence to sustain such a finding.
    5. Master and Servant <@=3129(2) — Injury to Servant — Proximate Cause.
    As between operator of elevator, injured by defect therein, and his employer, employer’s failure to, make inspection was proximate cause of the injury, though the defect was structural and existed when the employer bought the elevator of the manufacturer.
    6. Negligence <@=>61(1) — Proximate Causer-Concurring Causes.
    A cause to constitute proximate cause need not act alone.
    7. Appeal and Error <@=3733 — Assignments oe Error — Generality.
    Assignment of error by one defendant to the rendering of judgment against it in favor of the other defendant as not warranted by facts in evidence, findings or law, being sufficient to direct court’s attention to the error complained of, will be considered, notwithstanding its generality.
    8. Indemnity <@=314 — Joint Wrongdoers — Contributory Negligence.
    That employé injured through structural defect in elevator, which he was operating, he was guilty of contributory negligence, is immaterial, since judgment for the injury was recovered, on question whether employer can enforce indemnity against manufacturer and seller of elevator.
    9. Indemnity <@=313 (2) — Joint Wrongdoers— Degrees oe Blame.
    Employer, against whom recovery was had for injury to employé operator of elevator through structural defect therein, may, notwithstanding his negligence in not inspecting, enforce indemnity against elevator manufacturer and seller; it being the original active perpetrator of the wrong, and the negligence of the employer being only passive.
    10. Indemnity <@=313(2) — Implied Contract . —Joint Wrongdoers — Express Contract.
    Bight of purchaser of elevator, against whom recovery was had for injury to employé through structural defect, to indemnity against elevator manufacturer and seller, is not affected by express guaranty of material and workmanship for a year and lapse of that time before accident.
    11. Indemnity <@=313(2) — Joint Wrongdoers —Knowledge.
    That manufacturer and seller of elevator di(d not know of structural defect therein through which buyer’s employé was injured does not affect right of indemnity against it of employer against whom recovery was had for the injury, the agreement to furnish and install implying that the parts would be suitable and safe for use.
    12. Indemnity <@=313(2) — Joint Wrongdoer —Defective Elevator — Employer—Wore-man’s Compensation Insurance.
    That an employer whose servant was injured by structural defect in elevator had not taken out workmen’s compensation insurance does not affect his x-ight to indemnity against the elevator manufacturer and seller.
    Appeal from District Court, Dallas County; W. F. Whitehurst, Judge.
    Action by E. O. Harpold and wife against B. L. Cameron and another. From judgment for the named defendant against defendant Otis Elevator Company, that company appealed; and, from judgment for plaintiff against Cameron, he brought error, which was consolidated with the appeal.
    Affirmed.
    John Charles Harris, of Houston, for appellant. Etheridge, McCormick & Bromberg, of Dallas, for appellees Harpold. Wood & Wood and W.. W. Hagebush, all of Dallas, for appellee Cameron.
   TALBOT, J.

E. C. Harpold and wife, L. B. Harpold, instituted suit in the district court of Dallas county, Tex., against R. L. Cameron and Otis Elevator Company to recover damages sustained by them on account of the death of their minor son, Lloyd L. Harpold. The defendants filed answers.to the suit of the plaintiffs, and R. L. Cameron, by cross-action against the Otis Elevator Company, prayed that, in the event any judgment was rendered against him, he have judgment for a like amount over and against said company. The sufficiency of the pleadings is not questioned, and a detailed statement of them is .unnecessary. The case was tried before a jury and submitted on special issues. Upon the findings of the jury the court rendered judgment in favor of plaintiffs against the defendant Cameron for the sum of $3,200 and in favor of Cameron on his cross-action against the Otis Elevator Company for the same amount, no judgment being rendered in favor of plaintiffs against said company. From the judgment against it Otis Elevator Company appealed and filed a transcript therein in this court which took the number 7942. R. L. Cameron gave notice of appeal but failed to perfect the same. On January 2, 1918, however, he filed a petition for writ of error and supersedeas bond, and it was agreed by counsel representing the several parties to the suit that in lieu of filing another statement of facts and transcript in this court, in connection with his petition for writ of error, the same statement of facts and transcript with the addition thereto of the petition for writ of error and the supersedeas bond on writ of error might be used in connection with the writ of error proceedings. May 4, 1918, upon motion of the defendants in error Harpoíd and wife, the writ of error presented by R. L. Cameron was consolidated with the appeal prosecuted by Otis Elevator Company and later a submission taken of the consolidated case.

The material facts deducible from the evidence and found by the jury, in substance, are as follows: The defendant R. L. Cameron was conducting an automobile garage and repair shop at 1324 Jackson street in the city of Dallas, Tex., where he had a force of more than five men working all the time handling and repairing automobiles; but he had not taken out workman’s compensation insurance. The defendant Otis Elevator Company was engaged at Houston, Tex., in the manufacture and sale of passenger and freight elevators. On April 3, 1914, Otis Elevator Company and R. L. Cameron entered into a written contract by the terms of which said company, for a consideration of $370, agreed to furnish and erect for Cameron, in the building used by him in the city of Dallas as an automobile garage, a certain hand-power freight elevator capable of lifting a load of 5,000 pounds, and to be used by Cameron in raising and conveying automobiles from the first to the second floor of his garage, a distance of about 17 feet. The written contract for the erection of the elevator contained this clause: “All material and workmanship covered by our guaranty against defects for one year.” There was no express warranty or guaranty given in the contract. The elevator was installed and the work completed by the Otis Elevator Company, and on April 25, 1914, Cameron, in the city of Dallas, Tex., signed a written instrument in which he said:

“We have looked over the elevator plant furnished and completed by you in R. L. Cameron building in this city, and so far as we can see everything appears to be satisfactory and in accordance with your contract.”'

Some time in April, 1915, ¡R. L. Cameron employed Lloyd L. Harpold, a young man about 18 years of age, and son of the plaintiffs E. O. Harpold and L. B. Harpold, to work in the garage and repair shop as helper. As one witness expressed it, “he was a man of general all round work.” On May 28,1815, Lloyd L. Harpold was working at the freight elevator installed by defendant Otis Elevator Company taking up an automobile,. which weighed 3,000 or 35 hundred pounds, to the second floor of the garage. .When the elevator was within about 12 inches of the second floor, it would not work and stopped, or, as the witnesses expressed it, “stuck.” Thereupon Lloyd Harpold went to the assistant foreman, Spencer, and reported that the elevator had “stuck.” Then, in company with Spencer, Lloyd Harpold walked back to the elevator, and while he and Spencer were standing there looking up at the elevator, it fell without any warning, and caught Lloyd Harpold underneath and killed him. Spen-, cer narrowly escaped being caught, and probably would have been had he not jumped back. After the accident, an examination was made, and it was discovered that the large “gear wheel” of the elevator, which was made of cast iron, had broken because of a sand hole and crack in it. The sand hole found in the gear wheel was a structural defect and existed at the time of the original installation of the elevator, and but, for such defect the elevator would not have given way and fallen.

The specific findings of the jury, in substance, are: (1) That the elevator was “a thing of such a nature that it was reasonably certain to place life and limb in peril when negligently made or. set up; (2) that the Otis Elevator Company knew at the time it installed the elevator that the same would be used by persons other than R. L. Cameron, and so used without new tests thereof; (3) that the Otis Elevator Company, in the exercise of ordinary care, could have discovered the existence of the sand hole in the gear wheel at the time of or before its installation ; (4) that the elevator when installed and accepted by R. L. Cameron was composed in part of a defective gear wheel in that it had a sand hole in it, and that such defect caused the elevator to collapse on May 28, 1915; (5) that a person, in the exercise of ordinary care and by the tests in general use for the testing of such castings, could have discovered the weakened and defective condition of said gear wheel after the elevator was installed and prior to its collapse and fall on May 28, 1915; (6) that a person, in the exercise of ordinary care in furnishing his employés a reasonably safe place to work, would have inspected the gear wheel, by the application thereto of known ordinary tests, to discover weaknesses or defects therein before the collapse and fall of the elevator ; (7) that Lloyd Harpold to a certain extent was guilty of contributory negligence which proximately caused his death; (8) that plaintiffs would have received pecuniary aid from Lloyd Harpold had he not been killed; (9) that the damages recoverable by plaintiffs should be diminished on account of the contributory negligence of Lloyd Harpold one-fifth; (10) that $2,000 paid now to each of the plaintiffs would compensate them for the loss of the pecuniary aid which Lloyd Harpold would have rendered them had he not been killed; (11) that R. L. Cameron relied on the Otis Elevator Company exercising ordinary care to manufacture and install a reasonably safe elevator in Ms building, and that said company knew that he was relying on it to exercise such care in manufacturing and installing the elevator; (12) that the elevator in question was not in good condition when R. L. Cameron signed his written final acceptance therefor on April 25, 1914; (13) that the Otis Elevator Company did not know of any defect in the elevator at the time of its final acceptance by R. L. Cameron on April 25, 1914, a|nd did not know of any defect in it at the time of the accident on May 28, 1915; (14) that the defect in the gear wheel which broke at the time of the accident on May 28, 1915, could have been discovered by any reasonable inspection; (15) that the Otis Elevator Company made no test as to safety of the elevator* for the use for which it was sold and guaranteed before or when it was installed, or after its installation, so far as the jury knew; (16) that the elevator at the time of the accident was in a structurally dangerous condition, in that there was a sand hole a¡nd crack in the gear wheel, and that such structurally dangerous condition was created partially by the Otis Elevator Company; (17) that such structurally dangerous condition was the proximate- cause of the ‘accident; (18) that if the Otis Elevator Compány had made proper inspection and tests of the elevator when it was installed, or during the year elapsing thereafter, it would have discovered the defect which wap the proximate cause of the accident; (19) that the Otis Elevator Company did not exercise ordinary care in installing and maintaining the elevator.

We shall first dispose of the assignments of error urged by R. L. Cameron. These assignments are six in number, and a consideration of the brief presenting them is objected to on the ground that the same was not filed in the district court before the transcript was taken out as required by law and the rules of this court; and a consideration of the first, second, and third assignments, which are grouped, is objected to because neither of them constitutes a ground of Cameron’s motion for a new trial in the district court, but each is “an attempted summary or abridgement thereof which is not permissible.” The briefs do not appear to have been filed in the district court before the transcript was taken from that court and filed in this court, and neither of the assignments of error is a literal or full copy of the corresponding ground set up in the motion for a new trial; but our conclusion is they ought to be considered. The failure to file briefs in the lower court is, under rule 39 (142 S. W. xiii), ai ground for dismissing the appeal of writ of error for want of prosecution, upon motion ’made by appellee or defendant in error, unless good cause is shown why it was not done in the time and manner as prescribed and that they have been filed at such time and under such circumstances as that the appellee or defendant in error has reasonably not suffered any material injury by the defense of the case in the appellate court. The motion to dismiss, as authorized aind contemplated by the rule referred to-, was not filed by the defendants in error and an opportunity thereby afforded the plaintiff in error Cameron to show in reply thereto why the briefs were not filed as directed by the rule; and that the plaintiffs in error have not suffered any material injury in the defense of the case in this court, because briefs were not filed in the district court, seems manifest. They filed in this court, in a few days after the filing of briefs by the plaintiffs in error, reply briefs, which, in the opinion of this court, fully and satisfactorily answer the contentions made by the plaintiffs in error. As to the imperfection of the assignments of error as presented in the briefs, in that neither of them is a full copy of the ground set up in the motion for a, new trial, it is sufficient to say they, taken in connection with the propositions advanced thereunder, state enough of the ground of the motion for a new trial to direct the attention of this court to and to make plain the error intended to be assigned and of which complaint is made.

The substance of the first three assignments of error is that the trial court erred in not sustaining R. L. Cameron’s motion for judgment in his favor upon the findings of the jury because such findings and the evidence show that he (Cameron) was not guilty of any negligence which proximately ca|used the accident and injury to Lloyd Harpold, but show that said accident and injury resulted proximately from acts of negligence committed by the defendant Otis Elevator Company. The assignments will be overruled. R. L. Cameron owed to Lloyd Harpold, the son of the defendants in error, and his employé, the duty to exercise ordinary care to furnish him a reasonably safe place to work and reasonably safe appliances with which to work. This, as applied to the case at bar, included the duty to make such tests of the elevator in question, or of its different parts, as a person of ordinary prudence would make to discover dangerous defects, and such duty could not be delegated so as to relieve him (the master) of responsibility. The evidence shows that Mr. Cameron negligently failed to furnish Lloyd Harpold a reasonably safe place to work and negligently failed to furnish him reasonably safe appliances with which to work. The elevator with which he was put to work and which fell and caused his death was composed in part of a defective gear 'wheel. No inspection whatever was made by Cameron of the gear wheel, and because of its defect it collapsed. The jury found that a person in the exercise of ordinary care and by the tests in general use for the testing of such castings could have discovered the weakened and defective condition of the gear wheel after the same was installed and prior to the collapse thereof, and that a person in the exercise of ordinary care in furnishing a reasonably safe place for employes to work in and about the elevator would have inspected the same by the application thereto of known and ordinary tests to discover weaknesses in the gear wheel prior to the collapse thereof on May 28, 1915, They further found that the elevator at the time of the accident was in a structurally dangerous condition, in that there was a sand hole and crack in the gear wheel, and that this structurally dangerous condition was the proximate cause of the accident. The issue of whether or not the failure of R. L. Cameron to inspect the gear wheel was a proximate cause of the death of Lloyd Harpold does not appear to have been submitted to the jury, or that its submission was requested, and there is no specific finding by them upon it. They did find as shown that the gear wheel was defective, and that such defect was the proximate cause of the collapse of the elevator. They further found that the defect in the gear wheel could have been discovered by any reasonable inspection and that ¡R. L. Cameron made no inspection prior to the accident is undisputed. The evidence is amply sufficient to warrant the' finding that the negligence of Cameron in failing to inspect and discover the defect in the gear wheel was, as between Cameron and Lloyd Harpold, the proximate cause of the latter’s death. It is statutory, and affirmed by several decisions of our appellate courts, that upon appeal or writ of error an issue not submitted and not requested by a party to the case shall be deemed as found by the court in such manner as to support the judgment provided there be evidence to sustain such finding. The fact that the elevator, including the defective gear wheel, was manufactured by the Otis Elevator Company, and the finding of the jury that the “structurally dangerous condition” of the elevator was the proximate cause of the accident, does not materially affect the question. It has been held that—

“It is not essential that a cause should act alone in order to constitute it the proximate cause; _ but,, if it concurs with another cause in producing the result, it will be a proximate cause, and one or both of the instruments setting the cause in motion will be liable for the damages arising therefrom.” Railway Co. v. Vollrath, 40 Tex. Civ. App. 46, 89 S. W. 279.

The negligence of R. L. Cameron, as above indicated, was, as between him and Lloyd Harpold, the proximate cause of the accident which resulted in 'Harpold’s death, and that negligence cannot be excused and liability escaped on the ground that the Otis Elevator Company was guilty of negligence in the manufacture of the gear wheel.

The remaining assignments of R. L. Cameron assert, in effect, that the finding of the jury that the plaintiffs had sustained damages on account of the deáth of their son, Lloyd Harpold, in the sum of $3,200, is unsupported by the evidence, and the judgment rendered in their favor for that amount is excessive. These assignments are without merit. The evidence was sufficient to support the findings of the jury as to the amount of the damages, and the judgment is not excessive.

This brings us to the consideration of the single assignment of error presented by the Otis Elevator Company in the appeal prosecuted from the judgment rendered against it in favor of R. L. Cameron on his cross-action. This assignment is as follows:

“The court erred in entering final judgment in favor of the defendant R. L. Cameron over against defendant Otis Elevator Company, because this defendant says that the same is not warranted by the facts given in evidence, or by the findings of the jury on the special issues submitted, or by the law of the case.”

R. L. Cameron objects to the consideration of this assignment, which is submitted as a proposition, on the ground that it is too general. The criticism of the assignment may be justified by decisions in this state, but we have concluded that the assignment is sufficient to direct our attention to the error complained of and that it ought to be considered. Argument has been made and authorities cited to show that the Otis Elevator Company, irrespective of the jury’s finding that Lloyd Harpold was guilty of contributory negligence, was not liable to the plaintiffs E. C. Harpold and wife for the damages sustained by them in the death of their son. This is a question with which we are not specially concerned on this appeal. The question for our decision is whether or not R. L. Cameron, having suffered a recovery on account of Lloyd Harpold’s death, has the right to he indemnified by the Otis Elevator Company, who manufactured and sold to Cameron the defective elevator, which, because of the defect, fell and killed Cameron’s employe. This question must be determined regardless of whether or not E. C. Harpold and wife were entitled to judgment against the Otis Elevator Company. It may be said, however, that since the relation of master and servant did not exist between the Otis Elevator Company and Lloyd Harpold, and since the jury found that Lloyd Harpold was guilty of contributory negligence, plaintiffs E. C. Harpold and wife, for that reason, if for no other, were not entitled to recover against said company. But the fact that Lloyd Harpold was guilty of negligence which caused or proximately contributed to his injury and death is unimportant in determining whether or not R. L. Cameron, since judgment has been recovered against him on account of the death of one of his employes as a result of the structurally defective elevator, can enforce indemnity against the Otis Elevator Company, the manufacturer and seller of the elevator to Cameron.

The difficulties in the way of holding a person liable for damages when the tort of another has intervened between his act and the result complained of seems to have been very generally recognized, and the authorities upon the question are conflicting.

The general rule that there can be no contribution or indemnity as between wrongdoers or tort-feasors is well settled. But there is an exception to this general rule which is as well established as the rule itself. In City of San Antonio v. Smith, 94 Tex. 266, 59 S. W. 1109, the exception is stated by our Supreme Court in the following language:

“It is well settled that, under some states of fact, two parties may be liable to another for a tort, the one by construction of law, on account of some omission of a duty of protection or care owed, and the other, because he is the active perpetrator of the wrong, and that in such cases the right of indemnity may exist in the one whose wrong was only a secondary one.”

In that case the city of San Antonio was sued for creating a nuisance by its sewage; and the city caused Hildebrand and Hamilton to be made defendants, for the purpose of recovering over against them any sum which it might be required to pay to plaintiff. The right to recover over against Hildebrand and Hamilton was based upon pleadings, briefly stated, charging that they had rented from the city its farm upon which it had provided for the disposition of its sewage, and that they, as the city tenants, had interfered with such established arrangements so as to turn the sewage into and pollute Piedra creek, to plaintiff’s injury. In the discussion of the case, the Supreme Court said, among other things, that, while the facts averred by the city did not exempt it from liability to the plaintiff Smith, they showed that such liability was brought about by the active interference of its tenants, and arose merely from the use of its sewers in a way which through such interference alone, caused the injury.

In City of San Antonio v. Talerico, 98 Tex. 151, 81 S. W. 518, the plaintiff sued the city to recover damages for personal injuries received by stepping in a hole which the city had negligently allowed to exist in a sidewalk on one of its streets. The city caused the St. Joseph’s Orphan Asylum to be made a party defendant and sought judgment over against it in case plaintiff recovered. The pleading upon which the city sought judgment over against the St. Joseph’s Orphan Asylum alleged that the dangerous condition of the sidewalk was created by the action of the asylum; that the injury for which plaintiff sought to recover was caused by the negligence of the asylum in making the sidewalk with the hole in it and the bridge by which the hole was hidden from plaintiff, in consequence of which he stepped into it; and that this was done without the knowledge or consent of the city. A general demurrer was sustained to the city’s pleadings, the St. Joseph’s Orphan Asylum dismissed from the case, and the plaintiff recovered judgment against the city. In holding that the general demurrer was improper? ly sustained, the Supreme Oourt said:

“The pleading showed that St. Joseph’s Orphan Asylum was the original and active perpetrator of the wrong for which the city, without participation therein but only by reason of its passive negligence, was sought to be held responsible. A case was made for impleading the party thus primarily hable.”

Thus it was ruled that a city held liable for personal injury caused by a defective sidewalk, which the city negligently allowed to exist, may recover over against the person whose wrongful act caused its dangerous condition. If therefore indemnity could be enforced under the facts alleged in the ease just referred to, why may not R. L. Cameron enforce indemnity against the Otis Elevator Company in the case at bar? The facts of the two cases are strikingly similar. In the Tal-erico Case the St. Joseph’s Orphan Asylum, without participation therein on the part of the city, constructed a defective sidewalk which the city negligently allowed to exist, in consequence of which Talerico was injured. In the case at bar the Otis Elevator Company manufactured, furnished, and installed for Cameron a defective elevator, and because of its structural defect, of which Cameron had no actual knowledge, it fell and killed his employé, Lloyd Harpold. So that, if the St. Joseph’s Orphan Asylum was the original and active perpetrator of the wrong .for which the city of San Antonio was held liable, it must be said, we think, that the .Otis Elevator Company was the original and active perpetrator of the wrong for which R. L. Cameron was held responsible in this case, and that the negligence of the said Cameron, and for which he was held liable to. the plaintiffs, was only passive. If this is correct, then, according to the logic of the Talerico Case, the Otis Elevator Company was primarily liable for the death1 of Lloyd Harpold, and, although the plaintiffs could not recover judgment against it because of Lloyd Har-pold’s contributory negligence, R. L. Cameron, upon his pleadings and the facts could enforce indemnity against said company.

The case of Railway Co. v. Pigott, 54 Tex. Civ. App. 367, 116 S. W. 841, in which a writ of error was refused, also sustains this view. In that case the relation of employer and employé existed. The employs who was the son of the plaintiffs, while in the performance of his duties, received an electric shock which resulted in his death. The defendant used and maintained electric lights, one of which was attached to a flexible extension cord, so that it could be moved in the shop from place to place where it was needed. At the time the defendant’s employé was shocked and killed, this light was being used inside a metallic tank, under which the employé was working, and the cord fastened to or resting upon some part of the tank. The extension cord was defective and unsafe for use, in that it was not properly insulated, and because of its defective condition a current of electricity passed therefrom into the tank, charged it with electricity, and the employé, coming in contact with' the tank, was shocked and killed. The San Antonio G-asi & Electric Company operated an electric plant in the city of San Antonio and furnished and installed the wires and appliances in the defendant’s shop for its use. That company was impleaded in the suit by the defendant, and, upon full allegations charging that it was negligent in furnishing defective wire and appliances for the use of defendant, the defendant prayed that, if it should be held that defendant was liable to the plaintiffs for any amount whatever, it have judgment over against the electric company for any and all sums recovered against it. A general demurrer, interposed by the electric company to all that portion of the defendant’s answer by which judgment over against it was sought, was sustained, and said company dismissed from the suit. On appeal, the Court of Civil Appeals for the Eourth District held that the part of the defendant’s answer to which the demurrer was sustained brought the case within the exception to the general rule that there can be no contribution or indemnity as between wrongdoers, and that the demurrer was improperly sustained. The court announced the exception to the general rule mentioned to be that, when one wrongdoer is blameless as between himself and a joint wrongdoer, the latter must indemnify the former for all damages recovered against him by the person injured.

The case of Boston Woven Hose & Rubber Co. v. Kendall, 178 Mass. 232, 59 N. E. 657, 51 L. R. A. 781, 80 Am. St. Rep. 478, decided by the Supreme Judicial Court of Massachusetts, Chief Justice Holmes writing the opinion, seems to be directly in point. That was an action to recover damages which the plaintiff had to pay to its employés for personal injuries caused by an explosion of a boiler made by the defendants. The defendants, who were first-class boilermakers, undertook to make for the plaintiff a boiler which would stand a pressure of 100 pounds, and understood that the boiler was to be used to contain naphtha vapor for experiments, in de-vulcanizing india rubber. An experiment was tried, and, at a pressure of less than 100 pounds, the naphtha vapor blew out the packing between the door and the end of the boiler by the side of the hinge, escaped into the air, ignited, and caused the damage for which the plaintiff had to pay. The court held that, the plaintiff’s misconduct in failing to discover by inspection the defect in the boiler having rendered him liable for damages for the injuries received by his employés, he was entitled to recover over against the defendant, the party who made and furnished the defective boiler. In discussing the case the court said, among other things:

“If indemnity ever is to be recovered, short of an express contract of insurance, for what is in form the result of a tort on the plaintiff’s part, this case belongs to that class in which it should be allowed.”

But the appellant Otis Elevator Company cites, among others, the case of Railway Co. v. Nass, 94 Tex. 255, 59 S. W. 870, in support of its contention that indemnity cannot be enforced against it under the' facts in the present case. The ease apparently supports the contention, but the cases of our Supreme Court referred to and reviewed by us above were decided by that court after the decision in the Nass Case, and control, we think, the decision of the present case, even though they are inconsistent with the decision made in the Nass Case. The court sought to distinguish the case of City of San Antonio v. Smith, supra, from the case of Railway Co. v. Nass; but no mention of the latter case is made in City of San Antonio v. Talerico, which is perhaps more directly in point in the present case. In both the Smith Case and the Talerico Case the facts showed liability on the part of the city because of its negligence which contributed to cause the injury sustained by the respective plaintiffs in those cases, and yet it was held in both cases, notwithstanding the holding in the Nass Case, that the party seeking indemnity could not recover because its negligence contributed to the injury; that the city was entitled to be indemnified by its joint wrongdoer. "VYe think it may be said here, as was said by Chief Justice Holmes, in Boston Woven Hose & Rubber Co. v. Kendall, supra, that if indemnity ever is to be recovered, short of an express contract of insurance, for what is in form the result of a tort on the part of R. L. Cameron, this case belongs to the class in which it should be allowed.

There was no express agreement between Cameron and the Otis Elevator Company which would require the latter to respond to the former ini respect to defects that might exist in the elevator to be furnished. The written contract under which the elevator was furnished and installed contained no such agreement,, nor did it contain any express guaranty that it should be free from defects. It simply stated, after giving the specifications of the elevator and its lifting capacity, that “all material and workmanship covered by our guaranty (which was not disclosed) against defects for one year.” The period of time mentioned in this clause of the contract had expired before the accident in question; but we regard neither this fact, nor the fact that there was no express agreement for indemnity, of serious importance in determining the question of R. L. Cameron’s right to enforce indemnity against the Otis Elevator Company. Neither do we regard the fact that the Otis Elevator Company, as found by the jury, did not actually know that the gear wheel of the elevator was defective, of controlling importance in determining that question. The agreement to furnish and install the elevator implied, as between Cameron and. the Otis Elevator Company, that all the parts of the elevator would be suitable and safe for the uses to which it was to be put; and the jury found, upon testimony warranting such finding, that the Otis Elevator Company knew at the time it installed the elevator that the same would be used by persons other than R. L. Cameron, that Cameron relied on the Otis Elevator Company exercising ordinary care to manufacture and install for him a reasonably safe elevator, and that said company knew that he was relying on it to exercise such care. The jury further found that such care was not exercised by said company in installing and maintaining said elevator. This reliance was evidently induced, as the Otis Elevator Company must have known, because of its expert knowledge and Cameron’s lack of judgment and knowledge in such matters. The fact that such reliance was not justified as toward Cameron’s employés “does not do away with the fact that the Otis Elevator Company invited it with notice of what might be the consequence if it should be misplaced,” and we know of no rule or policy of the law which would, when, all of the facts of the case are considered, deny to Cameron the indemnity sought and recovered by him. The fact that Cameron had not taken out workmen’s compensation insurance does not alter the case.

Our conclusion is that the judgment in favor of E. C. Harpold and his wife, L. B. Harpold, against R. L. Cameron, and the judgment in favor of R. L. Cameron over against the Otis Elevator Company, should be affirmed, and it is so ordered.
      <@=3For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

license: Public Domain

text:
    DUBOIS v. LOWERY.
    (No. 7998.)
    (Court of Civil Appeals of Texas. Dallas.
    June 15, 1918.
    Rehearing Denied Oct. 29, 1918.)
    1. Appeal and Error <@=>1062(5) — Harmless Error — Submission op Immaterial Issue.
    If, for any reason, failure to give plaintiff notice of sale foreclosing lien for street improvements, as required by law, was immaterial under facts, submission of issue in suit to set aside sale and recover realty was harmless to defendant.
    2. Appeal and Error <@=>742(2) — Briefing Assignments.
    Multifarious assignments of error, unaccompanied by statement of proceedings and evidence necessary to enable Court of Civil Appeals to determine whether or not there was error in submission of certain issues, are not briefed in accordance with rules, and are not entitled to consideration.
    3. Trial <§==350(3) — Submission op Issue — Judicial Sales — Setting Aside.
    In suit to set aside constable’s sale of realty to foreclose lien for street improvements, though property was heavily incumbered at time of sale and defendant’s purchase, its reasonable value was a proper issue for submission.
    4. Municipal Corporations <@=>578 — Street Improvement — Lien—Foreclosure — Suit to Set Aside Sale.
    In suit to set aside constable’s sale of realty to foreclose street improvement lien, any in-cumbrance at time of sale should have been considered in determining whether or not defendant purchased at grossly inadequate price.
    5. Appeal and Error <@=>1062(1) — Harmless Error — Submission op Issue.
    In suit to set aside constable’s sale of realty to foreclose street improvement lien, any error in submitting plaintiff’s requested issue as to conduct of defendant purchaser, and its result in bringing about sale of property, held immaterial.
    6. Trial <@=>350(3) — Submission of Issue.
    In suit to set aside constable’s sale of realty to foreclose street improvement lien, court properly submitted, at plaintiff’s request, issue whether defendant purchaser at time of making improvements possessed in good faith, an issue raised by pleadings and evidence.
    7. Municipal Corporations <@=>579 — Assessments — Sale — Improvements — Good Faith.
    If purchaser at constable’s sale to foreclose street improvement lien was not in adverse possession of the land in good faith when he made improvements, he was not entitled to recover value of improvements in suit against him to recover land.
    8. Appeal and Error <@=>1070(2) — Harmless Error — Finding.
    In suit to set aside constable’s sale of realty to foreclose street improvement lien, jury having found defendant was not in, possession in good faith after sale to him, their incorrect finding ■ that improvements made by him were of no value was harmless.

      9. Appeal and Error <S=5l062(l) — Harmless Ebror — Submission op Issue.
    In suit to set aside constable’s sale of realty to foreclose street improvement lien, submission of issue as to whether or not defendant failed to make certain payments agreed to be made by him and plaintiff on the lien claim held harmless to defendant.
    10. Trial <@=»350(3) — Submission op Issue— Judgment.
    In suit to set aside constable’s sale of realty to foreclose street improvement lien, court’s action in' submitting issue of defendant’s right to compensation for improvements, and judgment denying defendant compensation for his improvements, held not reversible error.
    Error from District Court, Dallas County; W. F. Whitehurst, Judge.
    Suit by R. L. Lowery against W. J. Du-bois. To review judgment for plaintiff, defendant brings error.
    Affirmed.
    J. Lee Zumwalt, of Dallas, for plaintiff in error. Albert B. Hall, of Dallas, for defendant in error.
   TALBOT, J.

This suit was brought by the defendant in error, Lowery, who will hereinafter be referred to as plaintiff, against the plaintiff in. error, Dubois, who will hereinafter be designated as defendant, to set aside a constable’s sale of and to recover certain real property described in the petition and for damages, or, in the alternative, for judgment for the value of said property and damages. The defendant did not file a general denial or plea of not guilty, but answered setting up certain defenses, and denying specially certain paragraphs of the petition only, leaving certain paragraphs unanswered and undenied. The case was submitted to a jury on special issues, and upon the jury’s findings judgment was rendered in favor of the plaintiff against defendant, setting aside the constable’s sale of the property in controversy; that plaintiff recover the title and possession of said property and damages for the use of said property, etc., in the sum of $1,775. From this judgment the defendant prosecuted this writ of error.

The material facts alleged, and which may be deduced from the evidence, are, in substance, as follows: On the 30th day of November, 1914, pursuant to an agreement previously entered into between the plaintiff and defendant for the sale and exchange of certain properties, the defendant and his wife, by deed duly recorded, conveyed to the plaintiff the lot or parcel of land in controversy. The consideration for this conveyance was the assumption by the plaintiff of the payment of a note for $3,000, which was a lien upon the property conveyed; the conveyance by plaintiff to defendant of certain property then owned by plaintiff, incumbered for $6,000, which defendant assumed and agreed to pay, and certain other considerations named in the contract entered into between said parties. At the time of the conveyance of the lot by defendant and his wife to plaintiff there was a lien upon it for $250, created and existing in favor of Creosote TV!ood Block Paving Company, for certain street paving and improvements, and suit had been instituted and was pending to recover judgment for said sum and to foreclose said lien. In the trade between plaintiff and defendant the plaintiff assumed and agreed to pay $135 and the defendant $115 of said claim of $250. In order to prevent foreclosure of the paving company’s lien, the plaintiff and defendant agreed with said company to pay to it $40 a month on said indebtedness until the same was liquidated, of which amount defendant agreed to pay $25 and the plaintiff $15 per month. The plaintiff, in accordance with this agreement, made six monthly payments of $15 each, and the defendant made only the first monthly payment of $25, and a payment of $10 on the second month’s installment due by him. Upon default in the monthly payments referred to the Creosote Wood Block Paving Company, through its attorney, threatened to foreclose its lien and sell the property; whereupon the defendant, Dubois, called upon said company’s attorney while the plaintiff, Lowery, was absent from the city of Dallas and Dallas county, and stated, in effect, to said attorney that he represented the plaintiff as well as himself, and told said attorney that he might as well proceed to foreclose the company’s lien and sell said property. Thereupon said attorney, on September 8, 1915, prosecuted the suit of the paving company to judgment, with foreclosure of its lien, and thereafter caused an order of sale to be issued on said judgment, and said property by virtue thereof sold on November 2, 1915. At this sale defendant became the purchaser of said property for the sum of $100. The statements made by the defendant and his conduct generally in re-, gard to the matter was sufficient to and did cause the said attorney to believe that he, the defendant, prior to November 2, 1915, was jointy interested with the plaintiff in the property upon which the paving company’s lien existed, or that they owned said property jointly, and but for the conduct of defendant the paving company’s attorney would not have allowed said property to be sold on November 2, 1915. The paving company’s attorney testified: “If I had not understood that they were both interested jointly I would not have allowed the sale to take place without giving them notice.” The representations made by the defendant to the paving company’s attorney to the effect that plaintiff and defendant jointly owned the property in controversy, and that he, defendant, was authorized to act for the plaintiff in matters concerning said property, were not true, and, according to the finding of the jury, caused said attorney to have said property sold under the order of sale at the time it was sold. At the time the paving company foreclosed its lien on the property the plaintiff, Lowery, had defaulted in the monthly payments which he had agreed to make on the company’s claim and he had been notified of such default. The plaintiff was not given notice as is required by law of the time and place of making the sale of the property in controversy under the order of sale issued on the paving company’s foreclosure judgment, and at which defendant became the purchaser, and plaintiff was not aware that such judgment had been rendered or that such sale had been made until some time after the sale. The reasonable market value of the property in controversy, and which was sold under the paving company’s foreclosure judgment, was, on the day of its sale, $5,500. The defendant, after his purchase, made valuable improvements on the property, and he had been in adverse possession of same under his purchase at the foreclosure sale for perhaps one year next before the commencement of this suit, but according to the finding of the jury, upon evidence sufficient to justify such finding, his possession was not in good faith. About the last of November or first of December, 19.15, the defendant wrote to the plaintiff informing him that the property in controversy had been sold under the paving company’s judgment, and that he, defendant, had bought the property. In this letter defendant offered to buy plaintiff’s “equity” in the property. This offer plaintiff declined, and he testified that the- defendant, by his words and acts, led him to believe that he still had an interest in the property after the sale under the paving company’s judgment? that defendant wrote him that the reason he let the property be sold under the judgment was to clear the title up; that a fellow by the name of “Owens had threatened to bring suit for the property on account of his wife’s heirs not signing something,” and for that reason he let the foreclosure be made. Plaintiff further testified that after receiving the letter from defendant, and after his return to Dallas, he made two or three appointments to meet defendant for the purpose of talking with him in regard to the property, but that defendant failed to keep either of the appointments. The plaintiff sustained damages in being deprived of the use, rents, and revenues of the property, etc., in, at least, the amount awarded him by the judgment of the district court.

The first assignment of error asserts that the trial court erred in submitting the issue of whether or not the plaintiff was given notice such as is required by law of the time and place of making the sale of the property herein involved under the execution in the case of the Creosote Wood Paving Go. v. Mrs. Annie Sealey et al. The substance of the propositions advanced under this assignment is: (1) That where one sues for the recovery of property, and seeks such recovery under judgment, and a sale which had been made under said judgment, the question of notice of said sale should not be submitted; (2) that, “where notice of sale was not in fact given, the same may be waived by acquiescence upon the part of the plaintiff.” The plaintiff did not assert title to the property in controversy through or under the foreclosure judgment obtained in the paving company’s suit referred to in the assignment, nor is there any evidence authorizing the conclusion that the plaintiff acquiesced in the failure to give him notice of the sale made under said judgment. The failure of the 'officer executing an order of sale to give notice to the judgment debtor of the time and place of the sale to be made thereunder, together with gross inadequacy of price, is doubtless sufficient to warrant the setting aside of such sale. But if for any reason the failure to give plaintiff such notice of the sale in question as is required by law was immaterial under the facts of the case, it is not at all probable that the submission of such issue resulted in any injury to defendant. The first assignment of error is therefore overruled.

The appellee objects to a consideration of all the assignments of error from 2 to 12, inclusive, for several reasons. These assignments relate to issues submitted by the court, and there is nothing in the record to show that defendant excepted to the submission of either of these issues, or that he made any objection whatever to their submission before the court’s charge was read to the jury, or that he requested the submission of any issue which was not submitted. Tlie most, if not all, of said assignments are also subject to the criticism that they are multifarious, and not accompanied by such a statement of the proceedings and evidence as is necessary to enable this court to determine whether or not there was error in their submission. The assignments, therefore, are not briefed in accordance with the rules, and, under numerous decisions of our appellate courts, are not entitled to consideration. We have, however, examined the several assignments, and, if the 'errors in briefing them should be waived, we would not feel warranted in reversing the judgment of the trial court on account of any matter complained of in them. The assignments will not be stated or quoted, but the questions raised by them will sufficiently appear from the following remarks:

1. The pleadings in the case were sufficient to authorize the submission of all the issues submitted by the court.

2. The reasonable market value of the property involved in the controversy was clearly a proper issue for submission. The fact that the property was heavily incumbered at,the time of the constable’s sale and the defendant’s purchase is no reason why the issue of its market value should not have been submitted. The incumbrances, whatever they may have been, could and should have been considered in determining whether or not the defendant purchased at a grossly inadequate price.

3. There was no material error, if any at all, in submitting to the jury the plaintiff’s requested issue as to the conduct of Duboiis and its result in bringing about a sale of the property at the time it was sold under the order of sale. The theory of the plaintiff was and is, in effect, that defendant deliberately and. purposely defaulted in making the payments which he had obligated himself to make on the paving company’s lien claim, and did the acts and made the representations in his interviews with said company’s attorney, all as alleged in the petition, with the fraudulent intention of bringing about a sale and acquisition of the property in controversy for greatly less than its market 'value, regardless of the rights of plaintiff; that the representations and conduct of defendant while discussing with the paving company’s attorney the question of the foreclosure and sale of the property were such as would have caused a reasonably prudent man to believe that he was jointly interested with plaintiff in the property, or that they owned it jointly; that such representations and conduct did in fact cause said abtprney to believe that plaintiff and defendant were jointly interested in said property; that defendant was authorized to represent plaintiff and reflected plaintiff’s sentiments in the statement to the effect that the property would have to be sold for the payment of the paving company’s claim, all of which was a fraud upon plaintiff, and entitled him, as between himself and defendant, to have the sale under which defendant bought set aside. The testimony offered in support of this theory- and contention .of the plaintiff was conflicting and not entirely satisfactory, but we do not believe it can be said that there was no substantial evidence whatever to sustain it. The pleadings were also sufficient to authorize the submission of the issues.

4. Nor did the court err in submitting, as requested by plaintiff, the issue of whether or not the defendant, at the time of making improvements on the property, possessed it in good faith. The pleadings and evidence raised this issue, and if the defendant, at the time hé made improvements on the property, was not in adverse possession of it in good faith, he was not entitled to recover the value of such improvements.

5. The answers of the jury on this question are not so inconsistent or conflicting as to require a reversal of the case for that reason, and, since the jury found that the defendant was not in possession of the property in good faith, their finding that the improvements made by defendant were of no value, although incorrect, is harmless.

6. Likewise the submission of the issue as to whether or not defendant failed to make the payments agreed to be made by him on the paving company’s lien claim resulted in no harm to the defendant. But we are inclined to think this was a proper issue for submission under the evidence.

The fourteenth assignment of error, the consideration of which is not objected to,, and the proposition thereunder to the effect that “where one party, in a suit like this, is charged with rents the other is entitled to the value of the improvements made upon the property,” is not, under the facts of this case, sustained. There was evidence which justified the jury’s finding that the defendant was not a possessor of the property in controversy in good faith, and that plaintiff had sustained and. was entitled to recover damages for the use and occupation, etc., of the premises. In the state of the evidence as it appears from the record before us and the findings of the jury, the court’s action in submitting this issue, and in rendering the judgment he did, affords no good reason for a reversal of the casé.

Finding no reversible error in the record, the judgment of the district court is affirmed.
      (g^For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      ©ssEor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HALL, J.

text:
    JORDAN v. DINWIDDIE et al.
    (No. 2382.)
    (Court of Civil Appeals of Texas. Amarillo.
    June 26, 1918.
    Rehearing Denied Oct. 23, 1918.)
    1. Landlord and Tenant <@=>139(2) — Right to Emblements.
    It is the general rule that in cases of uncertain tenure, such as a tenancy at will, if the landlord, without fault of the tenant, terminates the tenancy, tenant is entitled to harvest and remove growing crops planted by him in due course of husbandry.
    2. Evidence <@=>13 — Judicial Notice — Matter of Common Knowledge — Winter WHEAt.
    It is matter of common knowledge that in the latitude of Texas wheat is sown in the autumn and harvested the following summer.
    3. Landlord and Tenant <@=>139(2) — Emble-ments.
    Under lease for five years, lessor having right to sell meanwhile, providing in that event lessee should have until next April 1st after notice to surrender possession, etc., and that any lease money should be returned for time yet to run, lessees were not entitled, after sale and notice, to hold after April 1st to harvest crop of wheat in July.
    4. Damages <@=>85 — Discharge — Provision as to Damages — Enforcement.
    A contract may provide a method whereby it may be discharged fixing the measure of damages or compensation recoverable, which is permissible, and such provision will be enforced.
    5. Landlord and Tenant <@=>95 — Termination of Lease — Stipulation.
    Stipulation that lease may be terminated by sale of land is valid, and will be upheld.
    6. Landlord and Tenant <@=>139(2) — Termination of Tenancy at Will — Emble-ments.
    Doctrine of emblements does not prevent parties from so contracting that lessee in tenancy at will will not be entitled to growing crops on termination of lease, and if agreement is to give up possession, on sale of premises by lessor, on repayment of unearned rent, it will be enforced.
    Appeal from District Court, Swisher County; R. C. Joiner, Judge.
    Suit by Mrs. L. W. Jordan against W. C. Dinwiddie and another. Judgment for d.e-fendants, and plaintiff appeals.
    Reversed, and rendered for plaintiff.
    H. O. Randolph, of Plainview, for appellant. Dennis Zimmermann, of Tulia, for ap-pellees.
   HALL, J.

Appellant filed this suit against W. C. and J. R. Dinwiddie, on the 30th day of May, 1917, to recover the value of certain wheat alleged to have been converted by the defendant W. C. Dinwiddie, and prayed also for the recovery of the possession of certain lands described in the petition. Defendants answered jointly, setting up a lease of the land by plaintiff to defendant W. C. Dinwid-die, and alleging that the wheat sought to be recovered was planted by them while they held the land under the terms of a lease made with appellant, and that they were en- j titled to said wheat as emblements. The ease was tried by the court without a jury, resulting in a judgment in favor of defendants. The case was tried in the court below upon an agreed statement of facts, and is before us upon the same statement. The substance of it is that the land in controversy was leased by plaintiff, appellant here, to defendant W. C. Dinwiddie, by the following contract:

“State of Texas, County of Swisher.
“This lease, contract, sale, and agreement, this day made and entered into by and between Mrs. Lillie W. Jordan, acting for herself and as survivor in community of the estate of her deceased husband, R. J. Steen and wife, Sallie S. Steen, and R. G. Jordan, parties of the first part, and W. C. Dinwiddie, party of the second part, witnesseth:
“That parties of the first part, for the consideration hereafter mentioned, have this day leased and let, and do by these presents lease and let, unto party of the second part, for a period of five years from May 9, 1913, the following described land and premises, together, with all improvements thereon, situated in Swisher county, Texas, to wit: All of sections 16. 21, 22, and 15, in block M-9, and sections 115 and 116, and 100 acres out of section 86, being that part of said section east of the railroad, all in block M-8, said county and state, this being subject to sale, however, at any time within the next five years, upon the following conditions:
“Parties of the first part reserve the right to sell same, or part, at any time during the life of this lease; it being understood, however, that, if any part of said land be sold, same shall be only outside sections, and same to be fenced, unless leased by party of second part from his vendee, at the expense of parties of the first part, so as to cut same off from any part remaining unsold out of the above-describ-edl property, and, in the event of a sale of any part of said property, possession shall not be delivered by party of second part until after delivery of sixty days’ notice to him in writing of such sale, provided that the improved land shall be the last sold, in the event same be sold in parts or parcels.
“It is further agreed that, in the event the entire above described property is sold, including the improved property, party of the .second part shall have until the next succeeding April 1st, after the delivery to him of notice in writing of such sale, to surrender possession; that is, from the day of such sale of all of said property, or of the improved part upon which there may be growing any crops, party of second part shall not be compelled to surrender possession until the 1st day of April next succeeding the delivery to him of notice of such sale.
“In the event of the sale of the whole or any part of said land and premises, any lease money paid to parties of first part shall be returned to party of second part for the time yet to run on the year from such sale; that is, party of the second part is to pay for only the part of the year which he uses said property. Party of second part is to keep up said premises in as good repair, as when received at his own expense, except such expenses as may be incurred in replacing ahything not occurring from reasonable wear ahd tear and usage and from causes over which he had no control.
“Parties of the first part, for the consideration hereafter mentioned, have also this day bargained, sold, and delivered, and by these presents do bargain, sell, and deliver, to party of second part, all groybi stock cattle, calves thrown in, now on said premises, estimated at seventy head, also seven head of mnles and ten head of worn horses, together with all farming implements and equipments, wagons, harness now on said premises. For the above property party of second part agrees and binds himself to pay for said land the sum of $500 annual lease in advance, payable on the 9th day of May of each year during the life of this contract, and the sum of $60 per head for said cattle and the sum of $2,000 for said mules, horses, farming implements, and equipments above mentioned; the total consideration to be as follows: $500 cash, receipt of which is hereby acknowledged; $3,500 in cash when a certain loan is consummated with Drought & Co., which parties of the first part are now negotiating; the balance to be evidenced by one promissory note executed by W. C. Dinwiddie and S. B. Dinwidde, bearing 10 per cent, interest and payable one year from the consummation of said loan and the delivery to parties of first part of the money coming to them under said loan.
“It is further agreed that, in the event said loan is not obtained, each party hereto is to return all property received by him or them under this contract, and the parties hereto are to be left in statu quo, and all liabilities, in such event, under this contract shall cease and terminate. It is also agreed that the $500 cash shall be placed in escrow in the First National Bank of Tulia, pending the consummation of said loan and to be delivered upon its completion. All taxes and interest are to be paid regularly by parties of the first part on the above-described land. All liens on the personal property above described to be cleared before the consummation of this agreement.
“Witness our hands in triplicate originals, this the 9th day of May, A. D. 1913.”

The agreed statement is:

That $500 per year is reasonable rental for the property. That nothing was said by either party relative to any wheat crop that might be planted on the land. That during the latter part of 1916 defendants planted about 300 acres of the land in wheat, prior to the time it was sold to A. B. Rawley, and before they received notice of any such sale, and that plaintiff had notice of such facts. That on the 4th day of December, 1916, appellant gave J. R. Dinwiddie the following notice in writing:

“You are hereby notified that my land, Secs. 115, 116, Blk. M-S, and Secs. 15, 16, 21, 22, block M-9, in Swisher county, Texas, has been sold. As per contract your lease expires April 15, 1917, and you will be required to vacate said land at that time.” ,

Defendants delivered possession of all "the land to appellant’s vendee, Rawley, on the 1st day of February, 1917, except the acreage planted in wheat, and claimed the crop of wheat under the contract, refusing to turn it over to plaintiff. They delivered possession of the wheat land as soon as the crop had been harvested and marketed, soon after July 1, 1917. Defendants leased all of the land except the wheat land from Rawley, and are entitled to continued use and possession thereof, according to the terms of the lease contract, and as to said wheat land plaintiffs are entitled to judgment for the possession thereof. The only issue in the case is the question: Who is entitled to the wheat growing on the land at the-time same was sold to Rawley, and which has been harvested and sold by defendants? That, in the event plaintiff is entitled to recover, the amount of her recovery shall be $5,178.65, less threshing expenses of $249.20, and harvesting expenses of $800, and marketing expenses of $130.45, and such other refund as they might be entitled to under the contract. That all partiesi understood at the time of the sale to Rawley that defendants had possession of the land and would claim the wheat crop. The question at issue under the agreement of the parties is whether or not the doctrine of emblements should be applied to protect defendants in their assertion of ownership of the crop.

We recognize the existence of the general rule that “he who sows shall reap,” and the weight of authority in other states establishes the doctrine that in cases of uncertain tenure, such as a tenancy at will, if the landlord, without fault of the tenant, terminates the tenancy, the tenant is nevertheless entitled to harvest and remove the away-going crops planted by him in the due course of husbandry. 8 R. O. B. “Crops,” pars. 8 and 9.

“Leases are construed, like other written agreements, so as to give effect to the intention of the parties. To arrive at the intention, regard is to be had to the situation of the parties, the subject-matter of the agreement, and the object which the parties had in view at the time and intended to accomplish.” Howeth v. Anderson, 25 Tex. 573, 78 Am. Dec. 538.

The lease is in no sense ambiguous. It stipulates for possession of the premises by the lessee for a period of five years, subject to the right of the lessor to sell the premises at any time—

“during the life of this lease, * * * and in the event of a sale * * * possession shall not be delivered by party of the second part until after delivery of sixty days’ notice to him in writing of such lease.”

If the contract had ended here, it is probable that the doctrine of emblements insisted upon by appellee would apply; but the parties further solemnly agreed:

“That, in the event the entire above-described property is sold, including the improved property, party of the second-part shall have until the next succeeding April 1st, after the delivery to him of notice in writing of such sale, to surrender possession; that is, from the day of such sale of all of said property or of the improved part, upon which there may be growing any crops, party of the second part shall not be compelled to surrender possession until the 1st day of April next succeeding the delivery to Mm of notice of such sale.”

It is clear from this stipulation that it was not contemplated by either party at the time the contract was executed, that wheat would be planted on the premises, since it is a matter of common knowledge that in this latitude wheat is sown during the autumn months and harvested the following summer. As said by Justice Levy, in his dissenting opinion in Phelps v. Johnson, 181 S. W. 868:

“The lessee, viewing it from his standpoint, could have fairly understood that planting a crop might effectuate a loss to him if the place were sold and he had to yield up possession; and yet, so knowing, he nevertheless agreed to yield up possession, and thereby to cut off his claim to have further time. The courts cannot make a new contract for the parties.”

A writ of error was granted in the Phelps v. Johnson Case, and the Supreme Court (190 S. W. xv) made this notation in granting the writ;

“We incline to think that, inasmuch as the contract provided that the loss should terminate upon a sale, a sale ended all rights under the contract, including the right of occupancy.”

Appellee contends in this connection that, even though the right of the lessees to possession may he terminated by a sale, yet under the doctrine of emblements the growing crop is his, and under the well-recognized rule governing the rights of croppers appel-lees would still be entitled to re-enter for the purpose of harvesting the crops which under the doctrine belonged to them. This contention cannot be sustained in the face of the further stipulation in the contract, as follows:

“In the event of the sale of the whole or any part of said land and premises, any lease money paid to parties of the first part shall be returned to party of the second part for the time yet to l'un on the year from such sale; that is, party of the second part is to pay for only the part of the year which he uses said property.”

Tins clause fixes the rights of the parties after the termination, of the lease by sale, arid entitles the lessee to a return of so much of the $500 rent as may be unearned between the expiration of the 60 days’ notice and the following May 9th. It would, be an unfair construction of the contract which would permit appellees to recover all of the $500 rent, except so much as may have been earned between May 9, 1916, and February 7, 1917, and in addition to this give them crops which the parties never contemplated would be planted and which, under a fair construction of the contract, they knew they might not be able to harvest Where the contracting parties have fixed the measure of damages or compensation recoverable, in the event of a termination of. the contract, the courts will not apply another and different measure. The contract itself may provide a method whereby it may be discharged. This is permissible, and such provision will be uniformly enforced. 3 Elliott on Contracts, pars. 1868, 1870, 1871. A stipulation that a contract of lease may b.e terminated by the sale of the land is valid, and will be upheld by the courts. Thomason v. Oates, 46 Tex. Civ. App. 383, 103 S. W. 1114; Phelps v. Johnson, supra (Judge Levy’s opinion); 1 Tiffany, Landlord & Tenant, pp. 77-80. The doctrine of emblements does not and should not prevent parties from so contracting that the lessee, in a tenancy at will, will not be entitled to away-going crops; ana if the agreement is, as we find it in the instant case, to relinquish possession in the event of a sale of the premises by the lessor, upon repayment by him of the unearned rent, the courts should enforce the contract as made and understood by the parties. To award the lessor emblements, in addition to reimbursing him toi the extent of unearned rents, would be in effect making a new contract between the parties.

The judgment is therefore reversed, and here rendered that appellant recover of appellees the value of the wheat, less threshing and harvesting expenses, and less the rent unearned from February 2, 1917, to May 9, 1917.

Reversed and rendered.

HUFF, C. J.,.not sitting, being absent in Austin, serving on committee of judges.
      <@=^For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: GRAVES, J.

text:
    WESTERN UNION TELEGRAPH CO. v. STREETER.
    (No. 7604.)
    (Court of Civil Appeals of Texas. Galveston.
    June 25, 1918.
    Rehearing Denied Oot. 10, 1918.)
    1. TELEGRAPHS AND TELEPHONES &wkey;>38(6)— Death Messages — Delay—Notice to Company.
    Company, which failed to deliver message reading: “Mr. J. S., Mother dead. Come home at once” — held liable to J. V. S., the son, notwithstanding delayed delivery to J. W. S., his father, at same address, having been put on inquiry by word “mother” and by agent’s conversation with sender.
    2. Telegraphs and Telephones <&wkey;37(9)— Death Messages — Notice to Company-Care Required.
    Where telegraph company receivedi notice from the face of the message that death message was for the son, and not the father, it was under the duty of exercising ordinary care to make delivery to the son.
    3. Apteal and Error <&wkey;931(6) — Presumptions — Incompetent Evidence.
    In action for delay in -delivering death message, where there was competent evidence that plaintiff was the intended addressee, it will be presumed that the court did not consider the sender’s testimony that he sent the message for plaintiff, if such testimony was incompetent.
    Appeal from District Court, Galveston County; Clay S. Briggs, Judge.
    Action by Joseph. V. Streeter, a minor, toy his next friend, Joseph W. Streeter, against the Western Union Telegraph Company. Judgment, on trial without jury, for plaintiff, and defendant appeals.
    Affirmed.
    Hume & Hume, of Houston, and Albert T. Benedict, of New York City, for a-ppellant. James B. & Charles J. Stubbs, of Galveston, for appellee.
   GRAVES, J.

Joseph V. Streeter, a minor over 19 years of age, by his father, Joseph W. Streeter, as next friend, sued the Western Union Telegraph Company for damages for mental suffering alleged to have been caused by its negligent delay in the delivery to him of a telegram from his brother-in-law, Robert Hoke, announcing the death of plaintiff’s mother, in these words:

“Madisonville, Texas, Nov. 12:05 A. M. 23.
“Mr. Joe Streeter, 1927 Ave. G. Gal. Texas. Mother dead. Come home at once.
“Robert Hoke. 12:25 A.”

“12:25 A” means the message was received at the telegraph company’s office in Galveston 25 minutes after -midnight of the same night, or 20 minutes after being filed at Mad-isonville for transmission. The year was 1915. The father and son were then living together in Galveston, and the message was delivered at 6:45 a. m. on the same day, November 23, 1915, over 6 hours after its receipt at the company’s Galveston office, to the father, who at once apprised his son of its contents; but it was then too late for them to reach Madisonville in time to be present at the funeral, which the proof showed both of them could and -would have done, if they had received the telegram even as late as 5 o’clock that morning. The court, trying the case without a jury, rendered judgment in plaintiff’s favor against the telegraph company for 81,000, from which it appeals.

No contention is made, nor could one successfully toe, under the facts developed, that the delay in delivering the message after its receipt in Galveston did not constitute negligence upon its part, nor proximately cause the amount of damage recovered for, but the appellant company, from different approaches and through several assignments, insists that there was no evidence showing or bringing home notice to it that the appellee, Joseph Y. Streeter, the son, had any interest in the message, or that mental anguish to, or the discharge of any duty toward, him was within the contemplation of the -parties at the time the contract of transmission was made; that the undisputed evidence showed the contract to have been made for the exclusive benefit and solely in the interest of “Mr. Joe Streeter,” the appellee’s father; that the message was accepted by it for transmission to him alone, without notice of any interest of his son therein; and that in fact the latter had no such interest, the father being the real and only addressee.

While these views are most persuasively presented, we are unable to accept them, concluding rather that the trial court was right in finding the message to have been intended for the son, and in holding appellant liable in damages to him for its failure to promptly so deliver it. After carefully searching the record, we find nothing in the testimony tending to indicate that the company’s agent, who received the message for transmission, either knew or had any reason to think it was not intended for the son. The words “Mother dead” would convey the impression that it was either the mother of the sender or of the receiver, and would be sufficient to put the telegraph company upon inquiry. Surely no reasonable inference would arise that it meant the father’s mother, and the mere fact that the tooy, 2 months more than 19 years of age, was referred to in the written telegram as “Mr. Streeter,” standing alone, would not, in our opinion, justify a different conclusion. As stated, we have found nothing else. Both father and son were named Joe Streeter; the former’s full name being Joseph W., and the latter’s Joseph V. Both had lived up there until about 1% months before the date of the telegram, and were known in Madison county as Joe Streeter; -the father being generally addressed “Mr. Streeter,” and the son as “Joe,” while sometimes this was changed to “old Joe” and “young Joe,” respectively. The sender, Robert Hoke, son-in-law of old Joe and brother-in-law of young Joe, testified without dispute that, he intended the message for the young man. He had written and signed it himself in the same language as delivered upon a piece of ordinary paper, and it got into the hands of Dr. Berry, who took the original to Madisonville and filed it with Mr. Smith, the company’s agent there; Dr. Berry’s testimony as to what occurred being:

“At the time I delivered the message to Mr. Smith, the telegraph operator, I told him that I had a message from Robert Hoke to be sent to Mr. Streeter at Galveston, announcing the death of Mrs. Streeter, and that it would be a very great accommodation to get it sent that night. When I found the agent, he was in becl at home; that was right at midnight, * * * and it wasn’t far from midnight when he sent the message. I think I told him who the message was addressed to. We read it together in the office after we got down there. I think I had read it over when the boys gave it to me, and at least they told me who it was to, and who it was from, and Mr. Smith and I looked it over in the office, and then we sent it over the wire.”

It will be noted there is nothing in this statement inconsistent with the theory that the face of the message indicated the son as the addressee. Dr. Berry, who was not acting for the father, as appellant contends, but is, we think, to be regarded as the agent of the sender, Hoke, did not really add a material fact to the terms of the message itself, except that Mrs. Streeter was the one, the mother, who it announced was dead. He did not tell the agent the message was to be sent to Mr. Streeter at Galveston, announcing the death of Mrs. Streeter, his wife, as appellant would now read into the meaning of his testimony. So that, as we view it, the telegraph company thus, through the sender’s agent, not only-had no extraneous notice that the son was not the intended beneficiary of the contract of transmission, but rather information confirmatory of at least a possible inference from its terms that he was in fact the real party at interest. Telegraph Co. v. Goodson, 202 S. W. 766; Herring v. Telegraph Co., 108 Tex. 77, 185 S. W. 203; Telegraph Co. v. Jones, 81 Tex: 271, 16 S. W. 1006; Telegraph Co. v. Moore, 76 Tex. 66, 12 S. W. 949, 18 Am. St. Rep. 25; Telegraph Co. v. Shaw, 40 Tex. Civ. App. 277, 90 S. W. 58; Telegraph Co. v. Daniels, 152 S. W. 1116. And right here, we think, runs the line of differentiation between the controlling facts of this case and those of the line of cases cited and relied upon by appellant, among them S. W. Tel. & Tel. Co. v. Gotcher, 93 Tex. 114, 53 S. W. 686; W. U. Tel. Co. v. Kerr, 4 Tex. Civ. App. 280, 23 S. W. 565; Pacific Express Co. v. Redman, 60 S. W. 677; W. U. Tel. Co. v. Potts, 120 Tenn. 37, 113 S. W. 789, 19 L. R. A. (N. S.) 479, 127 Am, St. Rep. 991. In each of those eases it plainly appeared that the telegraph company neither had knowledge that the person seeking recovery was a beneficiary, nor was apprised of any circumstances charging it with notice of any such fact.

In the case at bar, however, the telegraph company was chargeable with notice upon the face of the message that it was intended for a Mr. Joe Streeter, which description, while in itself fitting either father or son, when considered together with the further words, “Mother dead,” was also reasonably sufficient, we think, under the authorities first above cited, to indicate the son as the intended addressee, and that he had a serious interest in its prompt delivery. In such circumstances, the telegraph company was under the duty of exercising ordinary care to make delivery to him, which the undisputed proof shows it did not do. See, also, for statement of the same principle, Herring v. Telegraph Co., 108 Tex. 77, 185 S. W. 293; Telegraph Co. v. Adams, 75 Tex. 531, 12 S. W. 857, 6 L. R. A. 844, 16 Am. St. Rep. 920. Neither do we think the father’s having considered the telegram intended for his own information also, or that in fact it may have been, made any difference.

The sixth assignment complains of the admission of Robert Hoke’s testimqny that he had sent the telegram here involved to the appellee, Joseph V, Streeter, over objection that it was immaterial, irrelevant, hearsay, and not competent to charge appellant with knowledge of any such intent upon Hoke’s part; since the trial was before the court without a jury, there being other competent evidence upon which the judgment could be based, even if this testimony was incompetent, it will be presumed the court did not consider it. Skinner v. Sullivan & Co., 134 S. W. at page 429.

The conclusions stated require the overruling of all assignments and an affirmance of the trial court’s judgment, which order has been entered.

Affirmed.
      (gssFor other cases see same topic and KEY-NUMBBR in all Key-Numbered Digests and Indexes


author: FEY, C. J.

text:
    CARVEL v. KUSEL.
    (No. 6078.)
    (Court of Civil Appeals of Texas. San Antonio.
    Oct. 16, 1918.)
    1. Appeal and Error <©=>501 (2) — Review— Assignment-Record — Sufficiency.
    An assignment assailing the sustaining of demurrer to an answer and cross-action should not be considered, where the record contains no indication that the demurrer was acted on, except a bill of exceptions objecting to the overruling of a general demurrer.
    2. Animals <©=348 — Running at Large.
    There is no general law prohibiting stock running at large.
    3. Appeal and Error <©=>664(4) — Record— Conelict Between Statement op Facts and Bill op Exceptions.
    The statement of facts showing that a witness’ testimony was rejected will prevail over a bill of exceptions objecting that witness was incompetent and that his testimony was admitted.

      4. Trlal <&wkey;260(l) — Refusal of Charge 'Already Given.
    It is not error to reject a requested charge, where the matter has already been submitted by other charges.
    5. Highways <&wkey;177 — Use — Speed — Negligence.
    It is negligence per se to run an automobile upon a highway at a greater rate of speed than that permitted by statute, and renders the driver liable for damages resulting therefrom.
    Appeal from Jim Wells County Court; L. Broeter, Judge.
    Action by Charles Kusel against J. A. Carvel. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    W. R. Perkins, of Alice, for appellant. Stroud & Gayle, of Beeville, for appellee.
   FEY, C. J.

This is an appeal from a judgment of the county court for $125 in a case wherein appellee alleged and proved that appellant had killed his horse by running an automobile into and against him while he was passing across a public road, running in front of appellee’s residence, on his way to graze on the commons. The automobile was moving at the rate of over 35 miles an. hour when it struck the horse, and it was on a public road in the country. The evidence indicated that the horse was killed through the negligence of appellant in driving his automobile at an illegal rate of speed.

Appellant filed what he styled “Defendant’s Original Answer and Cross-Action,” in which, in addition to alleging care to avoid striking the horse, he alleged contributory negligence upon the part of appellee in permitting his horse to run at large on the public highway, and appellant sought to recover damages for injury to his automobile from' coming in contact with the horse. It is claimed that an exception was sustained to the cross-action, but there is nothing in the record indicating that the court acted on the demurrer, except a clause in a bill of exceptions which contains objections to evidence, to the refusal to give charges, to overruling a general demurrer, to giving certain charges, to answers given to issues submitted, and pertain findings which it was claimed were not sustained by the evidence. The assignment assailing the action of the court should not be considered; but, if properly presented, it should be overruled, because there is no allegation to the effect that a stock law was in effect where the horse was injured. In the absence of such allegation, it was not negligence for appellee to allow his horse to run out on the commons. There is no general law in Texas prohibiting owners from permitting cattle and horses to run at large. Phillips v. Crow (Tex. Civ. App.) 199 S. W. 851, and authorities therein cited.

The second assignment of error assails . the action of the court in not instructing a verdict for appellant, because Charles Kusel and Willie Kusel testified as to the market value of the horse without qualifying as experts. It is not claimed in the assignment that the evidence of the witnesses was objected to on that ground. The statement of facts shows that the testimony of Charles Kusel as to market- value was rejected upon the objection of appellant,-and the statement of facts would prevail over the bill of exceptions if there be a conflict. It is not made to appear from the statement that Charles Kusel did testify as to market value. Willie Kusel showed himself qualified to testify as to the market value of the horse.

The evidence did not justify the submission of contributory negligence in allowing the horse to run at large, and a charge embodying such defense was properly refused. The third assignment is overruled.

If the charge, whose refusal is complained of in the fourth assignment of error, had been properly framed, it should have been rejected, because, so far as appropriate, the matter had been submitted to the jury.

It is negligence per se to run an automobile at a greater rate of speed than that permitted by statute, and, if damages result from such violation of law, the violator will be liable for such damages. The court did' not err in so informing the jury.

The fifth and sixth assignments of error-are overruled.

The judgment is affirmed.
      <S=3Por other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: RAINEY, C. J.

text:
    ELGIN-BUTLER BRICK & TILE CO. v. HILLSBORO INDEPENDENT SCHOOL DIST.
    (No. 8001.)
    (Court of Civil Appeals of Texas. Dallas.
    June 29, 1918.
    Rehearing Denied Oct. 26, 1918.)
    Schools and School Districts <&wkey;80(l)— Authority of School Boards — Ratification.
    The act of two members of a school board in-promising to procure a guaranty from the board' of a materialman’s bill for brick used in the construction of a school building was not binding on the board, it never having been ratified: in regular session.
    Appeal from Hill County Court; R. T. Burns, Judge.
    Action by the Elgin-Butler Brick & Tile Company against the Hillsboro Independent School District. Judgment for defendant, and plaintiff appeals.
    Affirmed.
    Dupree & Crenshaw and Walter Collins, all of Hillsboro, for appellant. Wear & Frazier, of Hillsboro, for appellee.
   RAINEY, C. J.

Appellant sued appellee-to recover $291.49 on an alleged contract for brick furnished the board for the erection of a school building. Appellee denied having bought the brick, or any responsibility therefor. A trial before the court without a jury resulted in a judgment for appellee, from which this appeal- is taken.

The school board contracted with Da Moth & Eose to erect a school building in said district. The contractors were to furnish all' the material, and, in case they failed from any-cause to complete it, the school board would have the- right to take possession of all unused material, tools, etc., on hand and to complete the building. Da Moth & Eose ordered brick from appellant, some of which had been delivered and were on the ground ■ when Da Moth & Eose defaulted, and the school board took charge of the material on hand and completed the building. The board selected the brick, as they had the right to do, but did not agree to pay for same, nor guarantee the payment. The acts of the school board in taking charge of the material and completing said building upon the default of Da Moth & Eose did not make the board liable for the payment for said brick. The appellant alleges that the school board is responsible, for the reason that the evidence shows that two of the trustees, after the board took charge of the material, tools, etc., in order to prevent appellant from taking steps to secure its debt, promised if they would desist the board would see that it was paid.

E. O. Hughes testified, in reference to said conversations, as follows:

“I had a conversation, after the collapse of this building, with some of the members of the school board of the Hillsboro independent school district with reference to these brick. I talked to Mr. Young a&d Mr. Bowman. I don’t remember whether I talked to any other member except those two, or not. There might have been a number of others, but I don’t particularly remember them. My purpose in talking to ' these gentlemen was to find out whether they were going to stick to the guaranty about those brick after the building collapsed. I went in and told Mr. Bowman there were so many brick on the ground, and we would have to protect ourselves, as they would probably have to go to law with reference to Da Moth & Eose, and I understood that the school board intended to guarantee us, and, if not, I would have to ■garnishee; and Mr. Bowman said that they had practically obligated themselves for that brick and for us not to do that, for, in all probability, the school could not get that kind of brick finish. We relied on that and did not take any action. After that conversation with Mr. Bowman, those particular brick were used , in the walls of the Grammar School Building. I had several conversations with Mr. Young, the secretary of the school board._ I had a conversation with him about the brick on the ground. I don’t remember how long after the building collapsed and the school board took charge of the contract that I had the conversation with Mr. Bowman. It was about the day following. I had several conversations with Mr. Bowman at different times, about these brick. That was after the school board had taken charge of this contract and was completing the building. I did have a conversation with Mr. Young, secretary of the school board, after the board had taken charge of the building and they were proceeding to finish the building. Mr. Young told me. that he was satisfied that the Elgin-Butler Brick Company would be paid in full. They did not want to pay it right then. He called my attention to the fact that he believed in a certain page on the minutes were resolutions that were a guaranty that the school board would .stand behind that brick. He said he would tell me the page number, but I don’t believe I ever got it. He stated that, if the board paid us then, it might get them in trouble with other contractors with whom they did not have so great moral obligation. If they paid us at that time, that it might become known among the other contractors that had bills. Mr. Kay and I were acting-together as local agents of this company (Elgin-Butler Brick & Tfle Company).”

This testimony was not denied or contradicted.

The appellee had a contract with Da Moth & Eose that if they defaulted the board was to take all the material, tools, etc., and complete the building, which they did. Da Moth & Eose were in default, and it was necessary for the board to save itself from loss and to take charge of and complete the building, taking charge of such material as Da Moth & Eose had charge of, which was in strict accord with the building contract.

The acts of Bowman and Young in relation to this matter were not binding on the board, as it never in regular session ratified said conduct, nor the guaranteeing of said bill. It does not definitely appear what remedy appellant would have pursued to collect the bill for the brick. It had no lien on the brick. Da Moth & Eose were the only ones indebted for the payment of the brick, and they were unable to do so.

The evidence does not show the school board liable to appellant, and the judgment is affirmed.
      ©noFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: MORROW, J.

text:
    WILLIAMS v. STATE.
    (No. 5025.)
    (Court of Criminal Appeals of Texas.
    Oct. 9, 1918.)
    1. Criminal Law <@=>1092(12) — Bystanders’ Bill oe Exceptions — Time eor Filing-.
    Bystanders’ bill of exceptions to court’s qualifications of the bill of exceptions, filed after the trial, is in time, under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 2067, allowing such a bill if appellant is dissatisfied with that filed by the judge.
    2. Criminal Law <@=>1111(5) — Appeai>-Bill op Exceptions — Conpliot.
    Where there is a conflict between the bill of exceptions and the statement of facts, the court on appeal will treat the bill as correctly reflecting the record.
    3. Criminal Law <§=>1092(14) — Bill op Exceptions — Certification.
    In prosecution for murder, defended on ground of insulting conduct to accused’s wife, where witness testified that the wife had secured a divorce, objection to such evidence in that it was in a county other than that of her residence, so that the divorce would have been invalid, not verified as required, was insufficient.
    4.' Homicide <@=>250 — Manslaughter—Evidence— Sufficiency.
    Evidence held to sustain conviction of the crime of manslaughter.

      Appeal from District Court, Austin County; M. O. Jeffrey, Judge.
    John Williams was convicted of manslaughter, and lie appeals.
    Affirmed.
    C. D. Duncan, of Bellville, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

Under a prosecution for murder appellant was convicted. of manslaughter, and his punishment assessed at confinement in the penitentiary for five years.

The objection by the state to the consideration of appellant’s bystanders’ bill, on the ground that it was filed after the trial, should not be sustained. Article 2067, Vernon’s Sayles’ Ann. Civ. St. 1914, entitled appellant to file a bystanders’ bill if he -be dissatisfied with the bill of exceptions filed by the judge. In the present instance the bystanders’ bill was promptly filed, upon the filing by the trial judge of the qualifications of the bill prepared by appellant’s counsel, which qualifications were not acceptable to appellant. See Thomas v. State, 201 S. W. 999, and cases cited therein.

A witness named Emma Brown testified:

“Minnie Williams, the wife of John Williams, secured a divorce from John Williams in the spring of 1917 in Washington county.”

There are affidavits filed touching a conflict between this bill and the statement of fafcts. There appears some conflict, but, following the established rule, we treat the bill as correctly reflecting the record. Branch’s Ann. P. C. p. 135, § 212. The objection to this evidence seems to have been that there was evidence in the ease establishing the fact that Minnie Williams was a resident of Austin county, and that the court in Washington county would have had no jurisdiction to grant the divorce. This is stated, in substance, as the ground of objection, but the fact is not verified as required. See Branch’s Ann. P. C. p. 134, § 209. “A mere statement of a ground of objection in a bill of exceptions is not a certificate of the judge that the facts which form the basis of the objection are true; it merely shows that such an objection was made. The defendant should incorporate so much of the evidence in the bill as would verify the truth of his objections.” • The bill also shows that a further objection was that manslaughter was in (he case, and the evidence would tend to destroy appellant’s theory of adequate cause. The criticism mentioned would apply to this in that it does not appear how the issue of manslaughter arose. See Branch’s Ann. P, O. § 207, p. 132. From a reading of the facts, however, we think that the bill, if more comprehensive, would not show error.

The instructions given by the court cover the various phases of the law of self-defense, and submitted the law of manslaughter to the jury, and the verdict is responsive to this charge, acquitting appellant of murder and convicting him of manslaughter. The charge on manslaughter makes no reference to adequate cause growing out of an insult to a female relative, and there appears to have been no request for such a charge, and no complaint of the failure to embody it. The relations between appellant and his wife were developed by the appellant from the witness Emma Brown. She stated on cross-examination, responding to his questions, that appellant and^his wife were not living together at the time of the trouble; that she did not know why they separated. On redirect examination the evidence concerning the divorce was developed. From appellant’s testimony it is made to appear that he and deceased Kirby had been on unfriendly terms for about a year, this growing out of the attentions of Kirby to appellant’s wife before and after the separation. The homicide took place at a gathering, to which appellant claims he went and laid down on the ground near a path; that deceased, while walking with appellant’s wife and her sister, stepped on his hand, whereupon appellant. remarked to a companion, “I told you so; the son of a bitch stepped on my hand and would not say anything;” that he then struck the deceased with a whip, breaking it, and the deceased ran off threatening to return and kill appellant. Appellant went to the home of a friend, got a gun and some shells, and left the premises, stating he was going to kill deceased. He went to a neighbor’s gate, and while in conversation with one Taylor deceased approached and was shot. Appellant claims that deceased came out from behind a buggy; that he told him to stop, and the deceased raised his hands, and the shot was fired. Deceased was unarmed, but there was evidence that he had made an unsuccessful effort to obtain a gun.

This statement puts the case in the most favorable light to appellant. He was contradicted in several material respects. The evidence, we think, sustains the verdict, and the record discloses that appellant had a fair trial.

The judgment of the lower court is affirmed.
      <g=>For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes .